Transmissions 2: Drunk on Inference
This game makes no sense at any stage of instruction—neither hook, nor development, nor demonstration. If this is what you want, you should not want this.
In a 2009 public conversation between U.S. Supreme Court Justices Antonin Scalia and Stephen Breyer at the University of Arizona, moderator Pete Williams asked this within the first five minutes:
The Court divided four years ago when it ruled that the death penalty for juvenile offenders was unconstitutional. This is for people who commit crimes before the age of 18. Justice Scalia, why do you think it was wrong for the Court to conclude that that practice violated the constitutional ban on 'cruel and unusual punishments'?
The responses from both Justices, along with a bit of their follow-ups, are worth reading, given how closely they align with our thinking on the transmission model—at both the cultural and conversational scales. First up, of course, is Justice Scalia:
Because I think what the ban meant in 1791, when it was adopted, it means today . . . In 1791, when the Eighth Amendment was adopted, the death penalty was the only penalty for a felony. There's no argument possible that it was unconstitutional, and it was the same for executing people under eighteen. There was a common-law rule that you would not execute someone for crimes committed before the age of reason—I think the age was twelve—but after that, there was no prohibition. It was rarely done, but it was left up to the jury or the sentencing authority—usually the jury. So, it may be a very bad idea, and nothing forces the American people to execute people who've committed the most horrible crimes before they're eighteen years old—nothing requires them to do that; if they think it's a bad idea, they can pass a law in their state which says, "no one will be executed for anything done under eighteen." But for this court—my court—to just say "it doesn't seem to us a good idea, and therefore it's unconstitutional"—I just don't understand that.
Two points where I agree. First, it's a good question, and you don't know how good it is, because, unfortunately, I have to tell you, we agree about forty percent of the time. Most of our court is in agreement almost most of the time; unanimous, unanimous. And if you look at the 6-3, 7-2, you'll get way up there, until you're [at] about twenty or twenty-five percent where we're divided 5-4, and it's not always the same five and the same four either. So, you read in the paper as if we're disagreeing about everything. No, we're not disagreeing.
Now, he picked a point which will be of general interest, and it'll involve a phrase in the Constitution, "cruel and unusual punishments," which doesn't totally explain itself. Nor does the word—deprivation of liberty—liberty, without due process of law—that word "liberty," or even the freedom of speech; they don't explain exactly where they belong. So, now he and I will also agree: let's go back and see what was intended. When I look and see what was intended, what I see is not particular conditions at the time—maybe they thought that flogging was fine; they used to flog people on ships—I don't know the exact details of what everybody in the 18th century thought was cruel and unusual, but they didn't enact that. They enacted into law "cruel and unusual punishments," which meant a set of values, not a specific set of 18th century circumstances. So, for me the question would be, how do those values, that they enacted then, apply to our circumstances today?
Now, I think most people—not everybody—but I think you get a pretty broad consensus that you should not execute people for robbery today or for theft or for all felonies. Nor do I think everybody today would say it's fine to execute a 13-year-old. So, when we look around the world and look around the United States, and we see there's hardly anybody that executes a child, even one over twelve, the question becomes, well, where do we draw the line today?
Not where they drew the line in the 18th century, but where do we draw the line today in terms of the values that they enacted into that Constitution in the 18th century? And I'll tell you that becomes a difficult question. Should it be 18, 17, 16, 15? I don't think anybody's going to go down to 12. But how to do that, and figure it out, and try to do it in a way that has some objective appeal, and not just what I subjectively feel.
You're talking about applying different values. I agree with you that they were enacting a value judgment, but it was a value judgment of that time. You do not have to adhere to that value judgment. If indeed you think you shouldn't execute people under eighteen, fine, pass a law. But once you abandon what they meant by "cruel and unusual punishment," and say "Oh, yeah, even though they didn't think it covered the death penalty, we think it does," you are at sea.
And it is, as you say, a difficult job . . . I'm just glad that I don't play that game. I would lie awake at night.
Think of the Eighth Amendment to the U.S. Constitution—ratified on December 15, 1791—as a conversation. It was proposed by some Americans that "excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted," and this message was understood and accepted by all the other Americans, including present citizens.
As you do in conversation, in order to understand the speaker’s intent (the meaning of the message), you generate some interpolative inferences using your own basic knowledge, reconstruct the speaker's intent, and then accept or reject that intent. Knowing that the 'speaker' lives in a world where "the only penalty for a felony"—carried out or not—was the death penalty is a clue as to what the speaker intended. We still, as 'listeners,' even across time, have to use (interpolative) inference to fasten in on the speaker's meaning, but once we have and have agreed to terms, we are bound by a shared view. After 'ratification,' we continue to have private beliefs about what the Eighth Amendment means, and other, perhaps completely different, agreements on different scales, but now we have one piece of 'shared knowledge' to which the whole nation is committed until we aren't (until we amend the amendment): the death penalty, like it or not, may be applied, constitutionally, to anyone over the age of twelve who has been convicted of a felony-class crime. Such a penalty, we agree, is not cruel and unusual. If we want to change it, we must speak out and propose changes, remembering (you will be 'reminded' quickly and frequently if you forget) that what we're trying to change is a shared view.
Something amazing happens, it should be seen, through an act of proper listening like this: we discover—with mostly clear eyes—a view probably very different from our own. Giving the speaker the respect due her or him—using inference to their meaning, not to what we think about their meaning—will drive us to learn more, such as that, indeed, executions in early post-Constitutional America were carried out to punish what we would consider non-capital offenses, like robbery, forgery, burglary, accepting bribes, horse stealing, and counterfeiting, and the recorded ages of the hanged or shot (usually) went at least as low as 13 (among the oldest, Rebecca Nurse, age 71, was executed by hanging in 1692 [okay, well before 1791] for the crime of witchcraft. As late as 1959, sixteen-year-old Leonard Shockley was executed in a gas chamber in Maryland).
Perhaps, in trying to learn more, we might wonder whether experiences with and attitudes toward death were significantly different at the Founding from our own, influencing the apparent split in our views toward capital punishment then and now. Maybe when you live in a time where watching nearly half of children die before their fifth birthdays (compared with 0.7% in 2020), this makes you seem more callous, to put it mildly, to your descendants 200 years later. We could even find ourselves—as good listener-learners—figuring out that other people in the present can actually support capital punishment and have good reasons for it, that other people can think, en masse, very differently from us and not necessarily be wrong or evil.
Against Good Listening
All of this product of good listening and learning is, I would argue, forestalled in modern classrooms to the extent that we are constantly forcing students to ask themselves what they think about the Eighth Amendment (for example) rather than first sharing with them what we say the (e.g.) Eighth Amendment means as a joint-representation—an agreement to which students are not yet signatory—and then asking the question 'what do you think'.
Ultimately, I think the brand of constitutional interpretation wielded by Justice Breyer—'living constitutionalism'—certainly in this conversation, makes this same mistake of asking itself what it thinks about a speaker's message rather than asking what the message means. Justice Breyer's words, not just the structure of his entire response, are revealing of this similar orientation to the role of the listener.
For me, the question would be, how do I apply those values, that they enacted then, to our circumstances today?
This is what a speaker should ask herself, not a listener determining the meaning of the speaker's intent. The questions listener-learners should ask themselves should function to unearth this intent, not to probe their own intents in the context of the speaker's message. Ideas are not put together to be inkblots for students—they establish meanings, commitments, and shared realities, outside the student, that significantly structure their social world.
Now, I think most people—not everybody—but I think you get a pretty broad consensus that you should not execute people for robbery today or for theft or for all felonies. Nor do I think everybody today would say it's fine to execute a 13-year-old . . . the question becomes, well, where do we draw the line today?
Here, not unexpectedly, is a monologic—a representation formed by multiple, aligned inferences that have not been conversationalized to shared views. The very reason the monologic is applied here, as it is in many situations, is that there is no shared view that is competing with the Eighth Amendment, and an appropriately sized monologic ("So, you read in the paper as if we're disagreeing about everything. No, we're not disagreeing," "most people," "broad consensus," "look around the world and look around the United States," "hardly anybody"), which looks like an agreement in some ways, can seem to many as a legitimate substitute—as long as it "wins," who cares whether we really share this view or what, if anything, it commits us to, right?
Should it be 18, 17, 16, 15? I don't think anybody's going to go down to 12. But how to do that, and figure it out, and try to do it in a way that has some objective appeal, and not just what I subjectively feel.
I mean . . . I rest my case. This is practically confessing in the open that living constitutionalism is a monologic generator whose products must be dressed up with 'objective appeal' to look like shared agreements.
The Terrible Folly of Inference-Based Learning
The sine qua non ('without which, not') of all constructivist, student-centered, inquiry-based, project-based, etc., instruction is listener inference like what I have described above—it is the central celebration of those models, to imagine that we are creating students who think rather than "just absorb" by getting them to think about what they are learning. No passive sit-and-get listening for our kids, no sir. They reflect and make inferences beyond the information, while they are engaged with the learning. The canonical example, especially today (but it has been so for decades) is whole-language instruction, which asks students to infer word meanings in the environment before they know them from pictures and other context clues. Other 'student-centered' models, and those models in other domains such as math, have at their core this fundamental activity of listener inference.
Listeners everywhere outside of constructivist bubbles normatively work—with the speaker and with prior, shared knowledge—to resolve speakers' intents accurately as best they can, even if the transmitted messages run counter to their intuitions, sensibilities, biases, and private views (which, you know, happens a lot; we're all unique). This is what it is to meet new people or better know people as well as new ideas—to first see them as clearly and honestly as we can, before evaluating them. It is certainly not a perfect system; it has a lot of noise still, we fail to listen often, and those intuitions, sensibilities, biases, and private views certainly can have a distorting effect on the message we listeners reconstruct. But if the speaker is meeting their responsibilities, which we naturally expect and to which we generally hold them accountable, we also typically expect that we should be able to fill in the few natural gaps in the message with prior shared knowledge.
Inside the bubble, however, listener-students are expected and encouraged, unnaturally, to reconstruct the deliberately attenuated and garbled intents of speakers, and the meanings of shared agreements using those distorting intuitions, sensibilities, biases, and private views—a recipe for mishearing everything through a dense fog of navel-gazing, busy-body, self-involved inference, all grotesquely cheered on by the classroom teacher, who is there only to meekly dribble out what the teacher's guide says is the actual meaning of the ideas. What a stupid, silly, destructive, time-wasting game, not designed in the first place for instructional success but so that children—goddamn it, come hell or high water—should never ever ever be in the position of looking weak by listening to someone or disempowered by being silent or yielding to someone else's ideas. The game makes no sense at any stage of instruction—neither hook, nor development, nor demonstration. If this is what you want, you should not want this.
Modern education is positively drunk on listener inference. Students are not supposed to respect speakers (speech, ideas) and 'listen' intently—"sit and get," rather—for the purpose of understanding the speaker's meanings. They must consistently paw at, question, infer to, reflect on, brood on, and ruminate on pre-got ideas in order to learn them, always only from their own narrow perspective—now turned inward—as though the meanings of things should be simply the union or intersection of individuals' beliefs about them.
Nope. They get it wrong here. Educators are beautiful, intelligent, hard-working, moral people who are getting this tragically wrong. People can have multiple beliefs but not multiple knowledges—because knowledge involves a sustained cognitive handshake, a shared view, a commitment (the maintenance of which may be outsourced, with transparency to the public). Moving forward, students will need to cooperatively manage this knowledge (and thus the institutions that use it) over time, molding it to new circumstances and sustaining it against headwinds. They will need to really listen and speak, in turn—an impossible task with 400 million or 8 billion individual beliefs about important, shared national and global issues.
