B. P. Hayek

Archive for 2009

to be or not to be? the problem of abortion part 1

In law, philosophy, politics on October 26, 2009 at 5:52 am

One can learn an enormous amount about oneself through the issue of abortion.  If one happens to be an American, through the issue of abortion one can theoretically identify one’s moral, political, and jurisprudential leanings.  Perhaps that’s why I find the issue so fascinating.  But it can also be frustrating.

Why frustrating?  Because I’m rarely exposed to someone who seems to grasp exactly what is at stake in the debate.  For example, some believe that abortion is about “choice” versus “life.”  What do these alternatives mean?  Absolute choice, like an hour before a woman’s due date just because she’s changed her mind about the whole affair?  Absolute life, like forbidding a woman the “morning after pill” the morning after she is the victim of rape?  Both views seem to me to be patently unreasonable.  But some people hold them.

Although I do not believe either extreme is reasonable, I’m only going to dismiss outright those who hold the latter view (the “life absolutists” who claim that abortion ought never be permissible) because I don’t take that view seriously, and anybody that does is invited to dismiss this piece immediately anyway.  Nothing I will have to say here will alter such a person’s view, for that person has reached his or her view by mere conviction alone – not any form of reason.  As one my philosophical heroes has put it: “In philosophy, as in any other purely theoretical discipline, it is better to be wrong as the result of inquiry and argument than be right as the result of mere conviction.”  Panayot ButchvarovThe Concept of Knowledge at 5 (Northwestern 1970).  Such folks disagree, which they are of course at liberty to do.  But I am equally at liberty to dismiss such people as hopeless knaves.

Remarkably, the former view actually has a rather hearty band of adherents who believe that nothing of moral significance or relevance occurs between the freely chosen decision to have sexual intercourse and childbirth.  (If you think I just erected a straw-man here, explain why.)  Who are these adherents, and what could they possibly add to the debate surrounding the morality of abortion?

The answer to the first question is “radical feminists.”  And I use the qualifier “radical” to distinguish these feminists from those who believe, quite rightly, that women should be considered as legal equals to men.  Those I simply call “feminists” proper, to which I consider myself an ardent subscriber.  The answer to the second question is, in my view, little or nothing of any degree of intelligibility.  And I’m not just being facetious here.  I literally mean that radical feminists, in the exact same sense as our hopeless knaves above, have little or nothing to add to the debate surrounding the morality of abortion.  My reasoning for my view follows.  But first a bit of background.

During the winter of 2007/08 I spent a great deal of time procrastinating when I should have been studying for the Iowa Bar Exam.  One of the things I did to procrastinate was surf the internet.  And, in looking for a law school classmate friend of mine who described herself as a radical feminist, I wound up viewing a website known as www.feministing.com (your guess is as good as mine where the idea for the name of the site comes from).  To put it as politely albeit as accurately as I possibly can, I was instantly fascinated by how militant and belligerent the contributors to this site are.  I grew so fascinated that I actually attempted to engage some of them in conversation and argument.  Ultimately, my attempts failed, although I was successful in interacting civilly with them.  But it was plain as day that they didn’t want someone like me around, despite their claim to wish to engage people on the merits of their views.  Simply put, I “didn’t get it” because I “don’t have a uterus.”  (I’ve never understood this sentiment.  Since when has one’s genitalia fixed one’s ability to reason?  One would think that feminists, of all people, would reject that one’s genitalia determines one’s ability to reason.)

Disappointed with the contributors’ unwillingness to engage in any serious discussion of their views, I purchased and read the executive editor’s, that is Jessica Valenti, book, Full Frontal Feminism: A Young Woman’s Guide to Why Feminism Matters (Seal 2007).  Fascinated by Valenti’s mindset does not even begin to describe my astonishment as I worked through this strange book, which is specifically styled to “educate” younger women (the back cover of which speaks to all young women: “YOU’RE A FEMINIST.  I SWEAR.”).

No less so was I fascinated by Valenti’s instruction to young women about the issue of abortion.  Valenti writes: “[W]omen’s reproductive rights are under attack… [R]epro[duction] rights are about more than abortion and birth control.  They’re about being able to have sex when we want to.”  (81)

In other words, abortion is not only about contraception, abortion is contraception.  And both are subsumed under the name “reproductive rights,” as if anyone objects to the notion that a woman has the right to choose when she wishes to reproduce.  (Have you ever heard anyone advance the argument that the state should deprive a woman of when she must reproduce?  How would the state decide to force a woman to reproduce?  I don’t even know where to begin with this.)  The second strange feature of Valenti’s opening remarks about abortion is her use of the term “contraception.”  To me, that term denotes a concept that embodies preventing conception – that seems to be the point of the “contra” in “contraception.”  But Valenti’s use of the term includes “aborting that which is already conceived” in her definition.  To me, this is a wholesale mangling of basic language.

In any event, Valenti continues: “At the heart of it all, it’s truly about hating sex, or at least hating that women have sex.  There’s a lot of talk about life and morals, but it’s nonsense.  To the people who want to limit your choices, it’s about slut-punishing.”  I find these claims baffling.

For example, I happen to believe that preserving a life form – any life form, including weeds and spiders – is, at least prima facie, is better than extinguishing it.  And I say prima faciebecause this rule is obviously not absolute, for there are plenty of living things that it is good and proper to extinguish (e.g., cancer).  All things being equal, on my view, one ought not terminate another life form for no good reason, or arbitrarily, if you will.  Call it whatever you wish, but be it a blade of grass, or even a spider (I really don’t like spiders), one ought not destroy it unless one has a reason for doing so, for letting it live is morally better than not.  Seee.g., Panayot Butchvarov, Skepticism in Ethics 88 (Indiana 1989) (“The intrinsic goodness of existence as such is evident in the attractiveness of the claims of certain conservationist and environmentalist movements, as long as we understand their goal of the preservation of the environment, including other species of life, as motivated by the belief that this is an intrinsic good, rather than something [merely] conducive to human interests.”).  It is therefore no surprise that I consider myself a conservationist, an environmentalist, and why I don’t hunt animals anymore (and feel guilty about not being a vegetarian).

As a result, let’s get clear about the following proposal.  I believe the general moral proposition “One ought to do what one can to preserve life where one reasonably can in the circumstances” is prima facie true.  And the reason I believe this to be a prima facie true general moral proposition is because I take it for granted that, all things being equal, in any given universe, preserving any given being’s existence is in some sense “better than” or “superior to” extinguishing it – unless there is a good reason for doing so (which is why we say the proposition is merely prima facie true, not absolutely true).

I take this proposal as the fundamental starting place when examining the problem of abortion.  I also take this proposal as the fundamental basis of the conservationist and environmentalist movements, as Butchvarov notes above, to which – like “feminism” – I consider myself an ardent subscriber.

Do you agree with my proposal as the place to start?  Why or why not?

what is a fact?

In philosophy on October 26, 2009 at 5:50 am

During the course of a discussion on the nature of reason, which led to a discussion about the a priori and the a posteriori and whether that was a genuine distinction or not, Kevin Currie and I eventually found ourselves at a crossroads about the nature of “facts.”  What is a fact?

Following the early Wittgenstein, I have tended to use the term “fact” as something capable of thought, and therefore capable of representation in speech, that describes an actualstate of affairs or state of reality.  For example, if I were to say “I am typing on my laptop right now,” this utterance would be “factual” because I am typing on my laptop right now, while the uttereance “I am skydiving right now” would not be factual because I am not skydiving right now.  In this sense, then, a “fact” would be that which is or can be represented by a proposition that actually matches reality (or an actual state of affairs).  (See also Richard A. Fumerton, Metaphysical and Epistemological Problems of Perception 8 (1985) (“As I use the use the expression, a fact is a nonlinguistic complex that makes a true sentence or proposition true.  By referring to an entity as nonlinguistic, I mean that the existence of language is no a logically necessary condition for [the fact's] existence.  [Thus, "t]he fact that snow is white” refers to a complex [feature of the world] that makes it true that snow is white.  “The fact that snow is black” does not refer [to any feature of the world].  If a given sentence or proposition is not true, then there is no fact that corresponds to it, there is nothing in the world that makes it true (since it is false).)

Ponder this notion for a moment and one will realize that the fact that “snow is white” is something other than the proposition.  In other words, the proposition “I am typing on my laptop right now” is not itself a fact, but that aspect of reality to which the proposition corresponds.  The proposition makes a claim about the world, and then one must examine the world to verify whether the proposition is – or is not – a fact.  Where the proposition corresponds, we say the proposition refers to a fact, and therefore that the proposition is true.  Where the proposition fails to correspond, we say that the proposition does not refer to a fact, and therefore that the proposition is false.  And hence we seem to rely on some notion ofevidence in the world when we go looking for what justifies or warrants our statements of fact.

This all seems fairly straightforward.  But this conception of a fact appears to run into problems when we begin referring to “facts” on a more general level.  For example, does the proposition “All Iowans are Americans” refer to to a feature of the world?  If it does, then it is clear that it refers in a different way than “I am typing on my laptop right now” refers.  Here, it seems, that one who understands what the concepts “Iowan” and “American” need not look anywhere to understand that the proposition “All Iowans are Americans” is true.  But, under our working definition, we need not appeal to any evidence outside the proposition itself to verify the truth of the proposition.  Does it follow from this line of reasoning that “All Iowans are Americans” is not a fact?  Or, perhaps, does it follow that some facts are simply self-evident, that is, facts come in different types or varieties?

I am somewhat jaded in thinking about these questions for three reasons.  One reason is that I’ve been heavily influenced by my teachers at the University of Iowa, most notably among them, Butchvarov and Fumerton.  (Although I’m still trying to understand the nature and degree of the influence!)  The other is that I am a lawyer, and have a fairly rigid concept of what is a “fact” within that context.  For example, when lawyers squabble over whether “the traffic light at time t was red,” we do what we can to marshal evidence before a fact-finder (judge or jury) in an effort to convince the fact-finder what account actually matched reality at time t.  Third, I take the accuracy of the correspondence theory of truth for granted.

I am inclined to restrict “facts” to only those particular features of reality that “make true” our propositions (representations) of them in speech or thought, that is, the “truthmakers” of propositions or thoughts, or the that to which true propostions or thoughts refer.  Thus, my inclination is to come up with some term or description for general true statements that appear to be self-evident, such as “All men or mortal.”  Perhaps “maxim” fits the bill?

What do you think?

is the concept of state neutrality on “the good life” self-contradictory?

In philosophy on October 26, 2009 at 5:48 am

This is a question to which I have devoted a rather significant amount of thought over the years, mainly due to my reading (and rereading) my friend and former teacher’spaper,“Towards a Reclamation of Substantive Liberalism.” In the paper, John Rudisill adopts the following two (paraphrased) definitions of equality offered by Ronald Dworkin in his A Matter of Principle:

(D1) The just state must treat all individuals within its domain with equal concern and respect, from which it follows that the just state must remain neutral regarding issues that touch upon what does or does not constitute “the good life.”

(D2) The just state must treat all individuals within its domain with equal concern and respect, but it does not follow from this that the state must remain neutral regarding issues that touch upon what does or does not constitute “the good life” because being treated with equal concern and respect means to treat individuals the way the good or wise person would want to be treated.

Rudisill suggests that the best way to understand Dworkin’s two conceptions of equality is to attribute to the former its embrace of the notion that the good life is the unqualifiedly “freely chosen life,” while the latter rejects the notion on the ground that it a freely chosen life as an absolute is overbroad; that is, the latter takes it for granted that, in some instances, it is necessary for the just state to take a stand (i.e., not remain neutral) in some matters of what does or does not constitute “the good life.”  (Rudsill then continues in his paper to defend (D1).)

(D1) (and its conception of equality) is labeled by Dworkin as a fundamental commitment of (modern) Liberalism, and (D2) (and its conception of equality) is a commitment of Conservatism.  (My use of the qualifier “(modern)” arises out of the fact that (D1) is not, in my view, what Classical Liberalism held, mainly due to the fact that it was either universally held, or nearly universally held, by our “Founding Fathers” that the state would most certainly not remain unqualifiedly neutral on matters concerning what is and is not “the good life.”  I take this assumption as beyond genuine dispute, so let’s not quibble with this assumption here – if one therefore wishes to lodge an objection against the assumption, do so and I’ll supply my “proof” for it in a subsequent post.)

The question I have for discussion is this: Is (D1), with its commitment to the unqualifiedly “freely chosen life” a self-contradictory notion?  Why or why not?

It seems to me that libertarians would have plenty to say on this subject, given the extremely high value we place on freedom.

my path to libertarianism

In philosophy, politics on October 26, 2009 at 5:47 am

I was born in Iowa City, Iowa, in 1977 and was raised in what I would describe as a moderately republican nuclear family.  I say “moderate” because, while registered republicans, neither of my parents were particularly religious, and in my opinion many (if not most) self-described “conservative” republicans are fairly religious.  (See, e.g., the Mike Huckabee/Sarah Palin wing of the party.)  My paternal grandparents were recovering Catholics-turned-Unitarian Universalists, and my material grandparents were what I’d describe as moderate Lutherans.  If I was raised anything insofar as religion is concerned, it was Unitarian Universalist – or, as I often call it, the “it’s all good religion.”

From pre-school through the sixth grade, I had the rather interesting experience of being the minority among my two best friends, both of whom were Korean and whose parents had immigrated to the United States either before or shortly after my friends were born.  Of course, in my actual schooling I was within the majority, but in my everyday dealings, school related or not, it spent a lot of my time in what was a very different cultural setting.  I mention this because I think this experience had an enormous impact on what I would later come to learn is something called “race consciousness,” that is, in the sense that I never realized any such consciousness at all (until I entered law school and was exposed, for the first time, to “critical race theory”).

To be candid, I never really considered myself a political person until I began studying at the University of Iowa as an undergraduate.  My first “political” exposure of any serious kind came in a freshman class called “accelerated rhetoric,” where I was inundated by a certain fellow student’s views that can only be described as radically feminist.  In a more general sense I also came to be aware of the general sentiment that republicanism is a very backward and ignorant political stance to hold, although for reasons that were never articulated to me, so I (naturally) changed my voter registration to Democrat – if nothing else to fit in.

It was also during my freshman year that I realized two critical things about myself.  The first was that I had absolutely no serious idea about what “I wanted to do” with my adult life, whenever that dreaded time began.  The second was that I had absolutely no serious grasp of any political or moral positions in any depth or sophistication.  This latter realization (if not the former) struck me at the time as something that ought to be remedied.  Needless to say, I believe these two realizations occurred to me while sitting in a class called “Principles of Reasoning” (to avoid math) taught by then-graduate student John Rudisill (now an Assistant Professor at the College of Wooster),  which is the name for the most basic logic course one can take at the University of Iowa, taught within the philosophy department.  Needless to say, I was absolutely hooked at this point – if not by philosophy, then by the notion of clear thinking and reasoning.  Whatever I wanted to do, I thought, I wanted to do it in a clear and thoughtful way.

Sometime after I switched my official major (for the fifth and final time) to philosophy, inspired by the Socratic claim to fundamental ignorance and the Cartesian program of casting away all components of knowledge that contained any shred of doubt, I scrapped any political allegiance or affiliation, deciding that I would (eventually) construct my own views from scratch based on the lives and works of the wisest of humanity (western philosophers, of course).  And so it began.

Much like my former (albeit brief) affiliation with the Democrat Party, which was for a time complimented with a moderate flirtation with Marxist thought, I also began my intellectual journey as a thoroughgoing atheist, a view that has, over time, softened to some degree of agnostic mysticism, and culminated in my being confirmed in the Episcopalian Church of the United States at the age of 30.  (More about this later, as I have little doubt that some will insist that one cannot be simultaneously an agnostic mystic and a Christian.)

By the time I received my B.A. from the University of Iowa College of Liberal Arts, majoring in philosophy, I was decidedly libertarian in outlook (although a registered Independent), where “libertarian” refers to particular political philosophy that holds individual humans as the ontological and normative starting point to any just society. As briefly as possible, libertarians insist that the line of demarcation between a just and an unjust society is the point at which individual rights to property, life, liberty, and one’s pursuit of happiness is unduly subordinated to the will of “the state” or “the people.” Though libertarians differ in degree regarding where to draw the line, all libertarians agree that it must be drawn.

In my view, reasonable libertarians generally focus on the right of individuals to act in accordance with their own subjective values, and insist that the coercive actions of the state are often (or even always) an impediment to the efficient realization of those values. As a result, if libertarians had a slogan, “Live and let live” might be a prime candidate. I consider “classical liberals” and “reasonable libertarians” synonyms, and therefore believe the label includes folks like John LockeAdam SmithDavid HumeVoltaireMontesquieu, and later,Friedrich HayekMilton Freidman. In varying degrees, all of America’s “Founding Fathers” were classical liberals (i.e., libertarians).

My first real application of pragmatic libertarianism came in 1999, after moving to Scottsdale, Arizona, during the run-up to the 2000 presidential election.  And the reason I say “pragmatic” is because (in my view) every serious libertarian most realize that he must also support a genuinely viable candidate, lest one be relegated to “losertarian” status of voting for candidates that have no serious chance of actually winning.  Hence, I supported John McCain, and then collapsed my support of McCain to George W. Bush, viewing my libertarian allegiance as much closer to either of these candidates than Vice President Al Gore.

Upon entering law school, however, my rather loose interest in politics solidified for three reasons.  The first, and most important, was through my exposure to that mysterious body of law known as constitutional law (although it was also due to exposure to law of other categories).  Being someone who considered himself rather extensively trained in the areas of logic, and being someone who believed he had a fairly serious and genuine grasp of the notion of reasonable inference, I quickly realized that I had some rather severe “formalistic tendencies” when it comes to law and legal argument.  (More about this later.)  The second and third reasons were my exposure to two schools of thought, one of which was somewhat familiar, the other less so: radical feminist jurisprudence and critical race theory.  Both schools of thought, because they specifically embrace the notion that “the law” is not an intrinsically valuable institution of reason and wisdom, but rather simply a tool, or a means, to some other end, and which both theories insist have been, and still is, inherently oppressive to women, nonwhites, or both.  (Similarly, concepts such as “logic” and “truth” are also nothing but “purely subjective tools of oppression” (or some such))  It didn’t take long for me to realize that there is an enormous amount of rot in the legal academy, and that many naïve souls find it persuasive.  Nor did it take me long to realize how many genuinely intelligent people become utterly enchanted by such schools of thought, and how powerful the enchantment’s grip is – very much, if not identical, to how some embrace certain religious doctrines.  In any case, these experiences pushed me rightward, and I changed by political affiliation from Independent to Republican.

This began a very politically active phase for me – volunteering for political campaigns, donating money I didn’t have to politicians, and even working for a politician one summer inWashington, D.C. (on defending George W. Bush’s judicial appointments, as luck would have it).  My political philosophy developed enormously, and what I considered to be my jurisprudence solidified.  In the spring of 2003, I was extremely fortunate to work (for law school credit) for a United States District Court Judge in Des Moines, Iowa.  This experience was truly superb, for I learned a great deal from my extremely talented, wise, and extremely humble judge – not only about law, but life.

By the time I received my J.D. in 2003 and then my M.A. in Philosophy in 2004, I’d describe myself as very politically active in the GOP, and rarely missed an issue of the neoconservative Weekly Standard or the conservative National Review for the next four years.

My first job was, perhaps unsurprisingly, as a judicial law clerk for a Minnesota District Court Judge.  He was appointed just a couple months before I was invited to work for him by republican governor Tim Pawlenty, and considered himself a moderate republican as well.  The work – which consisted in the both of us working and reasoning closely together an in a way that considered any hint of “judicial activism” absolutely unthinkable – was exhilarating.  Never were we as a team reversed, and – I like to think, anyway – my judge and I quickly gained a solid and respected reputation for accuracy, fidelity to law, and fairness to litigants.  It was awesome.  In fact, leaving my clerkship for private practice when I did was one of the decisions I regret making most.

After three years in private practice in downtown Minneapolis, during which time I maintained by interest in politics due mostly to my continued interest in constitutional law issues, my wife Dana and I reached the breaking point regarding (what we consider to be) “big city life.”  So we moved back to my hometown, Iowa City, Iowa, at the close of 2007.

By 2008, my interest in politics had waned enormously.  By this point I had grown sufficiently frustrated with what I believed to be many republicans “who don’t get it” and virtually all democrats “who really don’t get it.”  This frustration culminated in my voting, for the first time, for the democrat candidate for POTUS (I voted for Dole in ‘96, and Bush II in ‘00 and ‘04).  (My reasons for voting for Barak Obama will appear in a subsequent post.)  By 2009, I decided to abandon the GOP for the last time, in part because I am simply dejected by politics in general, and the current state of politics in particular.  But while I remain quite libertarian in outlook, my libertarianism is most aptly described, in my view, as neoconservative.

Like Sabio Lantz noted in his “confession” over at Liberty and Skepticism, the Libertarian Party itself consists of a very large variety of people who genuinely believe themselves accurately described by the label, some of whom I would be horrified to be classified as related to in thought.  So I remain leery of libertarianism with an “L.”  Also like Sabio, I am most certainly a proponent of the Austrian School of Economics, although I probably am more socially conservative than Sabio is (and am certainly more socially conservative than Kevin is).

In a future post currently in the drafting stages, I will opine on the problem of abortion in the United States.  I mention this now because I believe one can essentially find exactly where one stands in terms of moral, political, and legal philosophy – all at once – when forming a sophisticated position on this issue.  I look forward to the discussion.

sonya sotomayor

In law, politics on July 19, 2009 at 2:18 pm

Just a few thoughts I wanted to get out there:

1. Sonia Sotomayor is extremely well qualified to be a member of SCOTUS.

2. POTUS is entitled to nominate, and expect confirmation of, all but unqualified individuals to any federal court.

3. Any Republican opposed to Sotomayor’s nomination is a fool.

4. Any Democrat who complains about Republicans opposing Sotomayor, who remained silent during the sabotage Miguel Estrada, is a disgrace.

5. The current problem took root in 1987, although the argument can be made that pre-1987 practices of both parties showed signs of what was to come.

6. In the politicization of the judicial nomination and confirmation process lay the seeds of what will lead to the disintegration of what was once a great form of government.

7. Anyone who believes that Sonia Sotomayor is more qualified to be a member of POTUS than Robert Bork is a fool.

8. Within (6) and (7) are the reasons why I can’t stand politics anymore, and why I recently abandoned, once again, the GOP in favor of the Libertarian Party.

posner’s how judges think — a conversation (chapter 1)

In Uncategorized on June 21, 2009 at 9:45 am

In Chapter 1 of How Judges Think (“HJT”), Posner states the purpose of the work: to provide a “positive decision theory of judging,” that is, “a cogent, unified, realistic, and appropriately eclectic account of how judges actually arrive at their decisions in nonroutine cases.” My thoughts at the very outset, then, are: (1) an approach to judging that is theoretically “eclectic” (i.e., legal pragmatism) is proper; (2) legal pragmatism is “realistic” (i.e., it reflects reality best), and (3) Posner’s book avoids discussing what judges do in routine, that is, the majority of cases, or most of the time (because in those cases legalism rules). With those thoughts in mind, I turn to my main objections in this chapter.

“[T]he criteria of a good judge are contested[, a]nd even where they are agreed upon, their application to a difficult case is likely to be fraught with subjectivity.” Moreover, “[there] is no even agreement that the test of a judicial decision or doctrine should be the goodness or badness of its consequences[, for s]ome legal thinkers believe that law oriented toward consequences is illegitimate.” Therefore, all of these issues are “unsettled.” A couple thoughts here. Since when does a “contested” issue necessarily lead to the conclusion that it is “unsettled?” The answer, of course, is that it doesn’t, for anyone involved in law is aware that well-settled law is contested all the time. Posner is exaggerating here for purposes of setting up his thesis that, in hard cases, the best way of judging is necessarily eclectic and oriented toward consequences. Setting aside the exaggeration (which means it does not accurately reflect reality), it is difficult to understand how judging that is “oriented toward consequences” is not “consequentialist,” which is what Posner goes to great pains to deny in his Law, Pragmatism, and Democracy, for example, at 337: To say that a pragmatic judge proper “has regard for consequences, because they are important to any practical decision, but is not bound by any norm of consequentialism” is (as Posner often does) to say nothing other than consequences are relevant in decisionmaking, and no reasonable judge would deny that.

In any case, Posner is caught in a logical rip-tide of sorts between insisting that legal pragmatism is not “consequentialist” but “refers [to the practice of] basing judgments [in general] on consequences, rather than on deduction from premises in the manner of a syllogism[, and i]n law, pragmatism refers to basing a judicial decision on the effects the decision is likely to have, rather than on the language of a statute or of a case, or more generally on a preexisting rule. So it is the opposite of legalism – or so it seems.”

“Legalism,” which, Posner admits, “remains the judiciary’s ‘official theory’ of judicial behavior,” “hypothesizes that judicial decisions are determined by ‘the law,’ conceived as a body of preexisting rules found stated in canonical legal materials … or derivable from those materials by logical operations.” So far so good. Posner continues on to say “the aspiration of the legalist is that a judicial decision be determined by a body of rules constituting ‘the law’ rather than by factors that are personal to judges ….” Accordingly, the “ideal legalist decision,” for Posner, is “the product of syllogism” rather than the will of activist judges. Therefore, “Legalism treats law as an autonomous discipline … requiring only [the] reading [of] legal materials and performing logical operations, [and thus] the legalist judge is uninterested professionally in the social sciences, philosophy, or any other possible sources of guidance for making policy judgments, because he is not engaged, or at least he thinks he is not engaged, in making such judgments.” True enough, but then Posner claims that this conclusion “counts against” legalism as an accurate description of what judges actually do, citing to the fact that extra-legal materials are more often cited in judicial opinions now than ever in the past, in addition to the fact that judges are expected to have “good judgment,” an attribute not necessary of a good logician, and therefore legalism purportedly places no virtue in being “wise, experienced, [or] mature.”

Both points are flaccid. The former shows only the increased degree of judicial intemperance in today’s judging (as well as perhaps the fact that we now live in the communication age in which information is accessible to courts in a way never seen before), not that legalism isn’t the proper way to go about judging anymore, while the latter is just nonsense: it may be logically true that the application of logic is mechanical in the sense that it is a form of purely a priori reasoning, but the decision to apply legalistic (e.g., logical) methods themselves requires a baseline degree of wisdom that is seldom possessed by the immature and inexperienced.

Next, Posner spends a considerable effort to exaggerated the “influence of politics” in judging, and in doing so relies to some degree of the “science” of the matter to argue that “law is suffused with ideology.” But this, again, is to say nothing more than that there are good judges and bad ones, the latter being those who allow their politics to cloud their judgment, and the former being those to refuse to, or at least do their level-best to exclude them as much as possible. Therefore, Posner achieves very little in claiming that judges are “influenced” by politics, but that is a far cry from the proposition that all judges decide cases on political or policy grounds rather than legalistic ones. (And Posner himself admits as much on p. 47 where be labels those who fall victim to such judicial intemperance as “just an errant minority.”)

Nor is Posner’s discussion of legalists “acknowledging” that “their methods” “close the deal” 100% of the time persuasive, for again Posner must exaggerate: “legalist methods fail in many cases that reach appellate courts, and those are precisely the cases that most influence the further development of the law.” I disagree, for of all the cases tried or otherwise resolved (e.g., by dismissal or summary judgment), only a small fraction of those are appealed, and perhaps 80-90% of those are affirmed, and of the fraction reversed, some portion of those are reversed again (i.e., the reversal is vacated and the initial decision is affirmed). I don’t have any ready statistics in mind here, but feel comfortable hazarding a guess that in any given jurisdiction the law “develops” in the sense of “changes” (in any direction) in less than 1% of all cases adjudicated. And I suspect my guess is on the high end, to be as charitable to Posner as possible. Hence, Posner’s use of the term “many” is quite misleading in this context.

Posner’s comments regarding legalist “meta-rules” (i.e., rules about rules) are equally unpersuasive. Take, for example, his example: “[N]owhere does the Constitution say that constitutional interpretation be strict. That rule must be posited; it cannot be deduced, [and therefore it is merely] a policy choice.” But this clearly begs the question, for the notion that the constitution be interpreted strictly arose only after the constitution had been interpreted far too loosely, that is, unreasonably (e.g., Roe v. Wade). And this is essentially the same argument made by some leftists that Justices in the mold of Scalia and Thomas and Judges like Bork are themselves “activists” because they believe the constitution be interpreted in accordance with close fidelity to the text or evidence available to ascertain original intent of the provisions themselves, and therefore do not give sufficient respect to precedents that disregard text and original intent. In other words, one may only reach this sort of conclusion if one first accepts the notion that bad precedents ought not be disturbed, or that initially “activist” precedents themselves aren’t activist in the first instance.

The last comment I’ll offer on this chapter concerns Posner’s remarks about the “moderate pragmatist,” that is, judges “who believe that the institutional consequences of judicial decisions argue for an approach heavily seasoned with respect for the language of contracts, statutes, and precedents.” Two problems. First, this is just to say that moderate pragmatist judges are not bad judges because they understand that bad judging, which entails not providing “heavily seasoned respect” to text (i.e., “language”) and precedent, will implode the internal logic of our legal system. While “heavily seasoned respect” is characteristically vague, one hopes that it means something like “controls the outcome” in all but the most difficult cases. Otherwise, it is to say nothing meaningful if we assume that good judging entails a close reading of text and precedent, which is to say simply that good judging entails, primarily, traditional legalist methods. Second, the notion that judges respect “the letter of the law” when they judge due to the “institutional consequences” likely to follow from not doing so is itself queer, for I would surmise that it is only a minority of judges who have even thought about this notion. It makes far more sense to say that judges follow “the letter of the law” when they judge because it is the law and their job is to apply it impartially and as neutrally as possible, not out of a fear that not doing so will cause the internal logic of our legal system to implode. And if this is right, then Posner himself has strayed far from the path of described how judges actually think.

2 comments:

Kevin Currie said…
“How Judges Think” is a sticky subject for a book; to my mind, I would expect the book to be mostly an empirical study of the types of factors that we can satistfactorily show judges to use, as well as an empirical account of what judges have written about how they decide cases.

Posner’s book, and the first chapter, does some of this. The first part of chapter 1 goes through some surveys aiming to show that at least some judges tend to rule based on political factors some of the time. As Ben rightly notes, this is far from suprising and can be interpreted in two ways: (a) sometimes, judges make bad (extra-legal) calls, or (b) making decisions on extra-legal grounds is neither good nor bad, but just the way it unavoidably is.

So, this is the first question: which interpretation should we take? Ben takes (a) while I choose (b). Ben writes: “But this, again, is to say nothing more than that there are good judges and bad ones…”

Posner’s point, in this and later chapters, is more nuanced than this. What in the world is the foundation for judging a ‘good’ from a ‘bad’ judge that is NOT arbitrary? As Posner writes: “When we say that a judge’s decision is in confomity with ‘the law,’ we do not mean that we can put his decisions next to something called “law” and see whether the are the same. We mean that the determinants of the decision were things that it is lawful for judges to take into account consciously or unconsciously.” (HJT, p. 45)

The problem is that what is “lawful for judges to take into account” means very different things to those subscribing to different judicial philosophies. For Scalia and Black it is statutory text only; for Renquist and Bork, it is the history of what the writers intended; for Breyer, it may include political factors; for Posner, it may include economic factors.

Ben (and anyone else) may strongly feel that one of these accounts of what is “lawful” is the correct one, but Posner’s point is that there is no self-evident (and, I would add, non-circular or self-refferential) way to justify any legal philosophy over any other. When Ben advocates, as he does, that “the constitution be interpreted in accordance with close fidelity to the text or evidence available to ascertain original intent of the provisions themselves,” he is making what he feels to be an obvious point that strict constructionism is the only right way to go. To Stephen Breyer, Ruth Ginsburg, Sandra Day O’Connor, Felix Frankfurter, and scores of other jurists, this is not an obvious default. Posner’s point is that from the “view from nowhere,” there is no obvious or necessary judicial methodology to take.

Ben, I think, falls into the trap of mistaking his “view from somewhere” with the “view from nowhere.” He may feel very strongly that Posner’s insistence that there is no best criteria for judging (in an absolute sense) is wrong because he knows that the one he prefers is correct. But as Posner says, there is nothing written in the Constitution that tells us how we are supposed to interpret it, or what judges may or may not consider when deciding cases.

Now, I do want to get into what I sense is a commonality between Ben and I. For all that I agree with Posner on, I cannot help but see legal pragmatism as an ‘anything goes’ method of the type Posner says it is not. And the danger in this is that Posner’s absolute lack of any standard of what is and is not pragmatism means that he can label as “pragmatism” anything at all! There are times when he suggests that legalism is pragmatic at times, because the result wanted is consistency and appearance of formalism. There are other times when he suggests that looking at the political consequences of a ruling are pragmatic because doing so leads to expedient consequences. So if Posner says on the one hand that judges tend to be pragmatic (whether they know it or not), and on the other leaves “pragmatism” so illy-defined that it can mean anything, then he is saying nothing at all (other than that judges rule the way they feel best as defined by them. Duh!)

Another point that Ben brought up that I want to retouch (as it is mighty relevant to future chapters) is: “Posner’s book avoids discussing what judges do in routine, that is, the majority of cases, or most of the time (because in those cases legalism rules).” I think Ben is right to note this. It would be folly to suggest that many, many cases in the legal system consist of somewhat “easier cases” where the best answer CAN be derived from a formalistic approach (generally, looking at the text and precedent, and deciding via syllogism). In detailing “how judges think,” one would think Posner would focus much of his time looking at these cases and devote a proportionately small amount of time to “How Judges Decide Hard Cases.” I am as disappointed as Ben to find that Posner’s book should, but does not, bear this latter title.

In a later comment (to a later chapter) I will bring up how this acknowledgement (that judges are most likely formalists most of the time and only ‘grasp at straws’ when formalism is not enough,) to fellow pragmatist William James’s “Will to Believe.” There, James advocates that while the majority of questions can be answered by appealing to which answer has the most evidence behind it, IN RARE CASES where the evidence is inconclusive, one may need to take a “leap of faith” for the sake of expediency. It seems like Posner probably means to say something like this about judges but never really does so. First, judges try to decide cases fomalistically, which works much of the time. Only then do judges go outside of formalistic bounds, and only when they need to – in Jamesian “rare cases.” Unfortunately, Posner doesn’t say this, and we are left with the wrong impression that judges make most of their decisions “by any means necesseary.”

Still, I agree with the main thrust of Posner’s arguments: that there really is no “right” way to decide cases in an objective sense. Judicial philosophies are aplenty, and judges choose them based on many different conscious and/or unconscious factors; (later chapters get into various explanations of why certain judicial methodologies are chosen, and none involve deciding which one was decreed from the mysterious On High.) Any attempt to argue otherwise must find some objective grounds to argue why a particular philosophy is not simply a preference, but an objective mandate. I have no idea what such an argument would look like.

December 31, 2008 11:26 AM
Benjamin Hayek said…
As usual, Kevin makes a series of comments that are quite insightful, thoughtful, and with which I largely agree. For example, I agree that a book written by a federal appellate judge entitled “HJT” would be strange if it did not contain some discussion of the factors that go into judicial decisionmaking. That said, Kevin’s use of the phrase “that we can satisfactorily show” makes me a little uncomfortable, for I’m not certain any given statistic is capable of showing us how judges really do think. But this is a small quibble, and not a particularly interesting one, so I’ll just leave it be, for there is a far larger quibble to spend time on below.

And that is the notion that judging in the alleged open areas is by definition “neither good nor bad, but just the way it unavoidably is.” This is one of Posner’s essential points, and one that Posner’s legal pragmatism is supposed to provide an adequate method for addressing, and why at various places Posner beats the diversity drum (for if all judicial philosophies are created equal, then the more the merrier, because diversity in judgment, for Posner, is evidently itself an intrinsic good). For Posner’s pragmatism, however, the “method” is more of a mood or attitude that judges simply give it their best to do what is most reasonable in their own minds and without any rigid fidelity to prior institutions, such as past political decisions and precedents.

For me, Posner’s explanation is inaccurate for four very basic reasons. First, and perhaps foremost, this just isn’t what judges do. It may be what Posner does, of course, but even Posner would admit that most judges would disagree that this is what they do (he’d just reply that they’re deluding themselves, of course, but that is another matter). Second, the very notion that our legal system isn’t premised on the notion that judges aren’t constrained by something, even in the open areas, is just nonsense. Posner seeks to avoid this criticism of the legal pragmatist, however, where he as his does about the “moderate pragmatist,” which is to say, the non-crazy one. Third, not all judicial philosophies are created equal. Some are wise, other are not. Hence, some judges adhere (or purport to adhere) to judicial philosophies that are unwise, which is to say there are good judges and bad judges. Fourth, virtually every seasoned litigator knows what judges are good and what judges are not in his or her given jurisdiction. And the primary criterion lawyers apply when making this judgment is whether the lawyer has confidence that the correct decision will be made by any given judge, which is to say that wherever the rule of law is clear in view of the facts, the right decision will result.

Perhaps an example is in order. I once first-chaired a case (i.e., I was not the “headliner” but the co-pilot) involving an elderly woman plaintiff who slipped and fell on snow and ice outside our client’s business. (And as the co-pilot, my role largely consisted in handling most pretrial discovery and through summary judgment – the stage at which many cases are disposed.) The plaintiff had sued both my client, the lessee of commercial premises, and the lessor, the owner of the mall in which my client’s business was located. The facts where clear in that my client’s lease provided that the lessor was responsible for snow and ice removal outside the entire mall common area, including in front of my client’s business. Nevertheless, my client’s staff would often assist in any snow and ice removal by throwing ice-melt down whenever it could do so during business hours before the owner’s people could “get to it,” so to speak.

So, one snowy day, plaintiff patronizes my client’s business. And before she had arrived my client had thrown down ice-melt on snow and ice that had accumulated during the business hours and before the owner’s people could get to it. On her way towards the door, plaintiff slips and falls on snow and ice. Plaintiff’s lawyer, as plaintiff’s lawyers do, sued everyone related in any way to the business. After conducting minimal discovery, my client moved for summary judgment asking that it be dismissed from the case because the contract (i.e., the lease) between my client and owner provided that the duty to clear all snow and ice was owner’s alone, and therefore any injuries arising out of a failure to fulfill that duty were owner’s problem – not my client’s.

The rule of law as applied to my client couldn’t have been more crystal: good Samaritan third-parties to voluntarily assist one who owes a duty to perform to abate a risk do not thereby expose themselves to liability for injuries arising out of the failure to adequately perform unless the assistance rendered in some way exacerbates the risk. Because discovery had revealed that my client did nothing to exacerbate the risk, it was entitled to summary judgment as a matter of law.

The problem my client faced was that it was assigned to a “bad” judge. And when I mean “bad” I mean that, instead of advising the client that its chances for dismissal were 99%, we advised the client that its chances for dismissal were instead 80%. For, even thought the rule of law was clear in light of our facts, this particular judge often denied summary judgment as a matter of course in situations such as ours to increase the chances of settlement, which would occur because there were more defendants from which the plaintiff might extract enough money in exchange for a full and final release of her claim. Which is exactly what occurred after our motion for summary judgment was denied.

The fact of the matter is that this judge did not feel sufficient fidelity to the rule of law because he believed that other concerned overrode the rule in favor of settlement, be it to spread out the damages among more defendants, to increase the chances that plaintiff was paid (she was, after all, quite injured), or whatever. But the point here is that, I presume, Posner would strain to explain why some of these pragmatic concerns where justified even at the expense of (1) the rule of law being clear and (2) the certainty that results in law when it is applied strictly. Now, obviously, the plaintiff’s lawyer might argue that this is a great thing, and that this judge is, as a result, a great and wise judge. And Kevin might cite to this lawyer’s view as proving that there really isn’t such a thing as good vs. bad judges, just different ways of judging.

That’s fine, but it would in my view conflate the distinction between the political and the judicial to the point of the difference being nominal only. And this, of course, is why Posner goes to this and that argument the purpose of which is to show that there isn’t a sharp distinction between the political and the judicial in the first place.

Posner, and Kevin’s, argument is that there is no self-evident way to justify any legal philosophy over another, which is a version of the larger claim that there is no self-evident way to justify any philosophical propositions at all over another. (Except, of course, that proposition is somehow supposed to be self-evident, one presumes.) Hence, for me, when I say that “the constitution should be interpreted in accordance with a close fidelity to the text or evidence available to ascertain original intent of the provisions themselves,” I view this proposition as no different from that of “mathematics should be performed in accordance with the rules of addition, subtraction, multiplication, division, etc.” (I’m no mathematician), I am stating an obvious, self-evident truth. And, obviously, there is nothing in math that tells us how we’re supposed to follow the rules, just like there is nothing in logic that tells us how we’re supposed to follow the rules. The rules are implicit in the concept and cannot be shown outside of simply performing the mathematical operation (e.g., 2 + 2 = 4 or modus ponens).

Which is to say, are there rules implicit in the concept of law, or more specifically, in the concept of American Constitutional Law? At some level, Posner (and Kevin) will be forced to agree that there are (e.g., rules of grammar and syntax). But if they go that far, then there is no stopping my point: that there are rules implicit in good judging and bad judging, rules implicit in constitutional interpretation, etc. Thus, even if which way of constitutional interpretation (or judicial philosophy) is a matter of serious debate, that some are better than others can’t be. But if that is true, then there necessarily must be a “right answer” to which way is best, even if I were to grant Posner (and Kevin), for the sake of argument, the proposition that we cannot know what it is (which I deny).

To sum up, then, I insist that there is a certain logic implicit in law in general, and a certain logic implicit in American Constitutional Law in particular, that necessarily means that there is a right way and a wrong way of judging. Enough bloviating about this topic however.

As Kevin suggests, I completely agree with the problem that Posner faces regarding legal pragmatism’s at least appearing to be an “empty” method, a method without a methodology, so to speak.

And I also should note that Kevin right to agree with Posner’s view that in hard cases formalists may at least appear to be “grasping at straws” to justify their decisions. But on my view this isn’t a flaw with formalism – this is what formalists ought to be doing when their formalism doesn’t lead to a clear right answer. In other words, formalists ought to grasp at whatever straws they can get their hands on if that’s all that can be done to avoid looking elsewhere to justify decisions. And that’s simply because it is a virtue of justice that past political decisions are supposed to justify legal outcomes, not new ones that descend down upon litigants from the bench.

January 7, 2009 9:17 PM

posner’s “how judges think” — a conversation (introduction)

In Uncategorized on June 21, 2009 at 9:42 am

In How Judges Think (“HJT”) Posner wastes little time setting up the jurisprudential pins his indends to knock down, namely, the many forms of “legalism” (he no longer likes the traditional “formalism” term) that “traditional legal thinkers” have adopted over time, be it textualism (Scalia), originalism (Bork), some form of historicism (Rhenquist), “active liberty-ism”(Breyer), or what have you. Posner is not simply attacking the notion of a particular “judicial philosophy” in HJT (and elsewhere), he is attacking the notion of any judicial philosophy at all as the end-all-be-all right way of judging, i.e., the notion that judges decide hard cases by “applying pre-existing rules … do not legislate [from the bench], do not exercise discretion, have no truck with policy, and do not look outside conventional legal texts … for guidance in deciding new cases.”

In a trivial sense, Posner is correct: no one single judicial philosophy is always going to lead to the right answer in hard cases, or always be workable as a way of judging a particularly hard case. But I don’t believe that is Posner’s primary claim; rather, I take Posner’s primary claim to be that, because no single judicial philosophy is always going to lead to the right answer or always be workable as a way of judging, any judicial philosophy as way of judging is as good as another so long as it produces the best result, and, therefore, all the judicial philosophies of the world are most properly conceived as one of the many tools from which the enlightened judge may select when the circumstances so dictate. Therefore, Posner argues, we must transcend the intractable debate of which judicial philosophy is correct to the holy land of legal pragmatism which, as one commentator has called it (I think rightly), “The Legal Theory of No Legal Theory.” In a very real sense Posner means to say that jurisprudes should cease arguing about which tool is proper in favor of a toolbelt open to utilizing all of them depending on the demands of the particular case. Clearly, this notion has some initial attraction and ought not be taken lightly.

The first argument worth noting – in my view anyway – is derived from the perception that there is “considerable dissatisfaction with our legal system,” according to Posner, at least in part because it is “too prone to error” and “too uncertain.” “If all that judges do is [mechanically] apply rules made by legislatures or the framers of the Constitution,” after all, would not the blame lay properly at the feet of the legislators and framers? Perhaps, Posner muses, but “suppose that most rules laid down by legislative bodies are [sound] and the problem is willful judges–judges who make up their own rules, or perhaps ignore rules altogether.” Worse yet, what if our legal system of government actually compelled judges to – gasp – “make law,” that is, “legislate from the bench?” The horror!

This is how Posner frames the dilemma: either judges are “well on the road to being superseded by digitized artificial intelligence programs” that “do nothing more than apply clear rules of law … without bias or preconceptions,” or they, at least sometimes, must exercise discretion – that is, they make law. For Posner, this is the essence of judging; this is what judges do; this is what judging means. And as such, Posner insists that his project in HJT is primarily a descriptive (or “positive” one in – I believe – the sense and tenor of logical and legal positivism), as opposed to a normative one.

I think Posner is (rather obiously) exaggerating the options available to a judge in hard cases by drawing a rather unattractive set of alternatives, namely, a choice between total discretion or none at all. He admits, of course, that in most cases legalism “drives” outcomes, by which I interpret Posner as conceding that legalism renders the correct result. But his minimizes this fact by relegating the majority of legal disputes to the realm of the “less important … for the development of legal doctrine or the impact on society.” For Posner, therefore, the jurisprudential fray lay not in the rule, but the exception: the comparatively rare instances in which the right or best answer is “indetermanent.” In this “open area” (or “gap”) the idols of legalism are useless, like a rudderless ship in a stormy sea. It is here that, according to Posner, where “the correctness of outcome is impossible to verify,” and therefore judges are forced to judge as best they can in full view of their prejudices and biases.

Thus, Posner asks: “So what are judges doing when they are judging in the open area?” They are not, he insists, implementing “a consistent judicial philosophy,” and any claims to the contrary are either “rationalizations of decisions based on other grounds or rhetorical weapons,” for no judicial philosophy “is a politically neutral lodestar guiding judges’ decisions.” Is Posner correct?

I don’t believe so. People who are familiar with my political views are aware that I sincerely hold them due to my jurisprudential views. And people who are aware of my jurisprudence are aware that I emphatically deny that my jurisprudence is in any way influenced by sources outside what Posner would deem “legalistic.” Thus, while many find it humorous (or even deranged), I insist that most – if not all – of the positions I hold on political matters are not really political at all, at least in the usual sense of the term “political.” Instead, I routinely refer to them as simply “correct.” And here I’m usually accused of being flippant or even arrogant, which I quite deny. Rather, I believe that one may easily arrive at the same views I hold quite formally if one proceeds to consider every American political issue through the prism of the following two fundamental assumptions: (i) every ethical theory other than moral realism is false, and (ii) the Constitution of the United States of America presupposes a thoroughgoing Judeo-Christian brand of moral realism.

All of which lead to the following point as-applied to hard cases: Even in the most difficult of hard or “close” cases, the chance of a pure conceptual “tie,” while logically possible, is practically so unlikely that the possibility of actually encountering one in law is virtually meaningless. And, by “virtually meaningless” I mean the logical possibility has, even by a pragmatist’s standards, little to no “cash value” as a concept. And if all of that is true, then in virtually all cases there will be one outcome that is either right or better than all the rest, and necessarily so. Therefore, in virtually every case there is one, and only one, best – if not right – answer. (And this is a form of Ronald Dworkin’s “Right Answer Thesis,” lest anyone think I purport to be making this argument for the first time.)

I think Posner would agree with that last proposition to the extent that the “right” qualifier is abandoned, and we add that what is “best” will always be “unverifiable” and therefore a matter of faith. But we would disagree about the methods of how one gets there and the significance of said methodology. For example, I am convinced that there is a “hierarchy” of sorts with respect to how a judge ought to deploy judicial philosophy, textualism necessarily being the first and most trusted weapon in the judge’s arsenal (and originalism being the second), and I believe how a judge’s hierarchy is arranged matters. Posner, I think, would reject any hierarchy and in doing so eliminates the need to arrange it.

Instead, Posner offers us his conception of ideal judging: a variety of legal pragmatism that he in HJT admits is constrained in some sense (this is how he has decided to deal with the “anything goes” criticism). Posner’s ideal judge, then, is constrained by some judicial norms, such as impartiality, an awareness of the importance of predictability in law, and “a due regard for the integrity of the written word” (this last of which sounds a lot like a tip of the cap to textualism). Thus, Posner concludes the introduction to HJT with the following:

“[M]ost of this book is about what judges [actually] do when they are not just applying rules. It is an effor to develop a positive decision-theoretic account of judicial behavior in … the open area [of law] – the area in which a judge is a legislator.” (And earlier: “How [judges] fill in the open area is the fundamental question that this book addresses, though lurking in the background and occasionally coming to the fore is the question [of] how [judges] should fill it in.”) For Posner, we must face the fact that judges do “legislate from the bench,” period, for the “falsest of false dawns is the belief that our [legal] system can be placed on the path to reform by a judicial commitment to legalism – to conceiving the judicial role as exhausted in [merely] applying rules laid down by statutes and constitutions or in using [only] analytic methods that enable judges to confine their attention to orthodox legal materials and have no truck with policy.” That’s the project, at any rate.

I am fascinated by how strongly I disagree with Posner regarding this “false dawn,” although I do agree with his fundamental belief that the American Legal System could certainly use some reform. But where we depart on is not only what we belief is the proper remedy; we presumably disagree about the root cause of the problem, for I believe that it is precisely due to the decline in “legalistic faith and fealty” that has led to the current state of affairs. Very much indeed, on my view, of the blame for the “messy” state of American law has been caused by judges giving in to the temptation of beliefs such as Posners, namely, the belief that, where the law is arguably unclear, legislate.

At the heart of our disagreement, then, lies the following, truly remarkable proposition: “[Just a]s there are no fixed, incontestble criteria of artistic excellence, so there are no fixed, uncontestible criteria of judicial excellence.” I could not possibily disagree more with Posner on this fundamental point. Indeed, I believe that it is almost always an easy task to weigh one peice of art against another, such as deciding the value of Jacques-Lious David’s The Death of Socrates (1787) (which is one of my very favorites) vs. Andres Serrano’s award-winning Piss Christ (1987), or comparing the complete works of Smetana to those of Snoop-Dogg. There is good art and bad art, just like there are good judges and bad ones.

3 comments:

Kevin Currie said…
I do want to reserve a separate post to review that last paragraph of your review of chapter 1.

You write:

“ At the heart of our disagreement, then, lies the following, truly remarkable proposition: ‘[Just a]s there are no fixed, incontestble criteria of artistic excellence, so there are no fixed, uncontestible criteria of judicial excellence.’ I could not possibily disagree more with Posner on this fundamental point. Indeed, I believe that it is almost always an easy task to weight one peice of art against another… There is good art and bad art, just like there are good judges and bad ones.”

I want to tackle this in a separate post because it is something that both you and I feel very strongly about. As you doubtless know, we also strongly disagree.

I am a relativist in many things (ethics, aesthetics, law) not because I want to be, but because I can’t make intellectual sense of any other position. To state my position succinctly (this will be a first for me!):

We are a first-person world in that we cannot have direct access to anything but out own mental states. Thus, the best we can say about a norm, rule, or preference is that it is inter-subjective in that the claim (“unprovoked killing is wrong,”) is one agreed upon by the majority.

The next problem with “weighing one piece of art against another” – not such an “easy task” – is deciding what criteria will be used. To take an obvious example, it would be strange to measure a piece of music from Western Europe (that uses a tempered 7 note scale) with another form Zimbabwe (which can use a few different scales, including a 13 note scale that sounds painfully dissonant to western ears), with each other to see which “sounds better.” What we mean by “better” will be influenced by OUR OWN preference in music.

The same goes for judging Smetana against Snoop Dog. Is the critieria for “betterness” orchestration, use of modulation in composition, or counterpoint between the strings and winds? (If so, then Smetana wins.) Or is the criteria use of rhythm, singability, or worldwide popularity? (If so, Snoop wins.) The point is that to judge two things to see which is better involves deciding on what criteria to use, which is irreducibly a first-person judgment. (For any conceivable criteria to be objective, one must convince all objectors why the criteria is THE TRUE standard over all other claims – I fail to see how that is not an impossible task.

It so happens that many people – i.e., the philosophers that you like – make the mistake that “error theorists” in ethics point out: they mistake the feeling of a strongly held preference and their lack of ability to believe that any right-minded person would dissent, with the notion that the preference must be “objective” rather than MERELY a preference. Strong feelings feel like they are obvious, right, and true, and we all have difficulty seeing that in our first-person world, preferences are simply preferences. (Ethical “realists” simply remind me of Fundamentalist religious people, who hold to similar lunacies as their opponents and while they recognize that their opponents lunacies are just preferences, they fail to be so rational when it comes to their own beliefs, which they believe are actually true.)

So, I ask: how did you go about the “easy task” of showing the complete and obvious superiority of Smetana over the much-better selling and infinitely more popular Snoop Dog? And after giving me the criteria that you used, how will you demonstrate to me that your criteria is the written-in-the-stars superior criteria to any of the others that I could use?

December 20, 2008 10:52 AM
Benjamin Hayek said…
I respond to Kevin’s criticism here:

http://spedphilosopher.blogspot.com/2008/12/are-there-objective-criteria-for.html

December 22, 2008 8:20 AM
Kevin Currie said…
I sent another post responding to the body of Ben’s critique of Posner (even before I sent the reply published above). It must have gotten lost somewhere. Needless to say, it was brilliant, devastating, and first-rate philosophy! (No really, it was.)

If I have to go back and type it from scratch, I suppose I will, but don’t expect it for a little while.

Meanwhile, we will go on and read Posner’s obligatory chapter applying whatever he happens to be writing about to the principles of economics. I am waiting to read that chapter until I have the luxury of doing so with the company of some Cote d’Rhone.

December 22, 2008 2:46 PM

posner’s “how judges think” — a conversation (primer)

In Uncategorized on June 21, 2009 at 9:40 am

What follows will be a series of posts on United States Seventh Circuit Court of Appeals Judge Richard A. Posner’s latest book by my friend Kevin S. Currie and I. In addition to the fact that Kevin and I will enjoy this exchange immensely, I believe it will also be a unique look into two very different approaches to jurisprudence. For, while Kevin and I to a great degree agree on governmental and political issues, how we each get to where we’re going is quite different. Kevin, you see, is very heavily influenced (in my view) by the empiricist tradition of David Hume and the American Pragmatists (Charles Sanders Pierce, William James, and John Dewey), as well as Sir Carl Popper (Kevin will doubless clarify and qualify this statement). I, on the other hand, am still under the influence of philosophers of the Platonist and Kantian traditions, and therefore hold jurisprudes such as Ronald Dworkin in the highest regard. One might aptly describe me as the “soft minded, metaphysically sympathetic philosopher,” while Kevin is more of a “hard minded, scientific anti-philosopher,” if you will. In any event, the discussion will also be interesting for the fact that Kevin is a professional educator, while I am practicing lawyer and former judicial law clerk (first as a judicial extern as a student to U.S. District Court Judge Ronald E. Longstaff and later as the real thing to Minnesota District Court Judge Michael R. Savre).

Kevin and I have been friends for over six years now, which is rather amusing for the fact that we’ve never met face-to-face. Instead, we’ve enjoyed numerous debates and discussions thanks to the modern marvel of electronic mail, all of which arose out of what was then our mutual affection for writing amazon.com book reviews (Kevin has since gone on to amazon.com super-stardom, while I withdrew from the fun entirely). In sum, we are both unabashed (and unapologetic) dorks.

To get back on-topic, I’m going to begin our conversation on Posner’s How Judges Think (“HJT”) by briefly summarizing Posner’s arguments (as I understand them) and then criticizing them mercilessly. Kevin will then – I have no doubt – rehabilitate Posner entirely by demonstrating that my criticisms are unjustified due at least in part to my faith in a variety of unverifieable metaphysical and epistemelogical propositions. The hope is that our conversation will flesh out even deeper insights, but what is certain is that we’ll both be in dork heaven even if we don’t unearth anything of substantial worth.

Kevin Currie said…
it will be fun indeed, Ben. It is always fun to talk over a book of this sort with those you are pretty sure you will respectfully disagree with.

I should point out another difference. While we are both philosophically-minded (yes) dorks, we come at this from two different backgrounds.

Ben is a lawyer who has clerked for a Federal judge. I am a high-school teacher who, while I teach mostly science and “study skills” classes, also have a political science masters. The closest I get to a court-room these days is when I coach New Town High’s mock trial team.

Thus, when Ben and I disagree, I strongly urge the objective observer to refer to the lawyer, not the special educator. (Just kidding!)

December 19, 2008 3:45 PM
Benjamin Hayek said…
And I should point out that Kevin is far too kind. And while I may be the lawyer who has worked for a couple of judges, this will be 2 on 1 (Posner and Currie vs. Hayek).

December 19, 2008 5:35 PM

SCOTUS abortion law jurisprudence (part 8)

In law on June 21, 2009 at 9:24 am
The next case worth taking a hard look at is Stenberg v. Carhart, 530 U.S. 914 (2000). Stenberg is interesting for, among other reasons, the additions of Justices Stephen Breyer and Ruth Bader Ginsberg, both appointed by President Bill Clinton.
Stenberg came before the Court on a challenge to the Constitutionality of a Nebraska law prohibiting partial-birth abortions except in cases where performing one is necessary to safe the life of the mother. Violation of the Nebraska law was a felony and punishable by up to 20 years in prison, up to a $25,000.00 fine, and automatic revocation of the convicted doctor’s license to practice medicine. Dr. Carhart was a Nebraska medical doctor who specialized in late-term abortions.

Let us first recall the basic new rule of Casey: American woman have a right to abort their pregnancies before the fetus attains viability without any undue interference by a State (because the State’s interests in protecting fetal life are not strong enough to overcome the right). But after viability, a State may prohibit abortions (because a State’s interests are strong enough, i.e., viability is the “vesting point” of a State’s interest in protecting fetal life) unless the prohibition endangers the mother’s life or health. Thus, under Casey, so long as a State law does not endanger the mother’s life or health, a prohibition on the abortion is Constitutional. The stage is set.

Justice Breyer wrote for the majority, and began by explaining the nature of the abortions and partial-birth abortion at length, but not before warning that “out discussion may seem clinically cold or callous to some, perhaps horrifying to others.” Paraphrasing, he proceeded as follows. Roughly 90% of all abortions performed in the United States occur during the first 12 weeks of pregnancy (i.e., the first trimester) by “vacuum aspiration,” which is considered “particularly safe.” But this procedure is effective only if the fetus remains on the smaller side, which is to say, prior to its reaching 12 weeks old. Roughly 10% of all abortions occur during the following 12 weeks of pregnancy (i.e., the second trimester) by “dilation and evacuation” (“D&E”), which involves the dismembering the fetus piece by piece, and typically requires 10-15 “passes” before the physician examines the assembled fragments for the purpose of ensuring that nothing was missed.

If the fetus is 16 weeks or older, however, a variation of “D&E” is typically used – “intact D&X” (where “X” stands for “extraction”) – and proceeds in one of two ways depending on fetal presentation. If the fetus presents head-first, then the doctor uses an instrument to crush the fetus’s skull prior to total extraction. But if the fetus presents feet-first, then the doctor pulls the fetus through the cervix prior to crushing the fetus’s skull. The “D&X” procedure is the safest (but not the only) method of abortion when the fetus is 16 weeks or older. The Court estimated that between 640 and 5,000 “D&X” procedures are performed every year. The Nebraska law purported to prohibit the D&X method only, which functioned to force the use of the D&E method in cases where the fetus is over 16 weeks old.

As I mentioned, the Court stuck down the Nebraska statute as unconstitutional. But what I didn’t mention is that it did so for two reasons: (1) because the law lacked an exception for cases in which the mother’s health is in danger if she not receive the abortion and (2) because the law itself places an “undue burden” on a woman’s ability to have an abortion because it purports to prohibit the safest (but not the only) method (“D&X”) that may be used before the viability threshold of 20 weeks (“D&E” may be used “safely” but “D&X” is “safer” and therefore preferable (e.g., “D&X” involves less risk of uterine perforation or cervical laceration because fewer “passes” into the uterus with sharp instruments is required, “D&X” reduces the risk that fetal bone fragments will injure the uterus and cervix, “D&X” reduces the risk of leftover fetus fragments causing infection, “D&X” reduces the “incidence of a free floating fetal head that can be difficult for a physician to grasp and remove,” and “D&X” is in the main faster than “D&E”)).

Nebraska’s basic argument was that since prohibiting “D&X” would never endanger the health of the mother because other safe methods would still be available, even if they were not as safe as “D&X,” “D&X” is never “necessary” (in the regular usage of that term). In response, the majority reasoned that even if the statute had included an exception to protect the “health” of the mother, it makes little sense for Nebraska to respond to its legitimate interest in fetal life by proscribing a particular method of death, since the life would be terminated anyway. That, in my view, is a strong point. But, setting that aside for a moment, there is something strange about the notion that a method of death deemed particularly gruesome by the people of Nebraska, even if the very safest method available, and with the availability of other safe options, cannot be prohibited based on its moral repugnance alone. (Don’t states outlaw acts deemed morally repugnant all the time? On what grounds do States outlaw bestiality, if not moral repugnance?) Prohibiting a particularly repugnant method of killing, with the availability of other safe methods, does not necessarily “endanger” a woman’s health in the sense Casey deployed the term. To be sure, a woman’s exposure to danger may be heightened – that ought not be denied – but whether heightened exposure to danger alone is the logical equivalent of health “endangerment” lies somewhere between debatable and implausible.

Regardless, the degree of heightened risk exposure in Stenberg was sufficient to satisfy five members of the Court in 2000, namely, the degree of heightened risk exposure resulting from outlawing the “D&X” method = a “significant” health risk = endangerment of health = violation of Casey.

The key to understanding Stenberg as it relates to Casey is in the following quote: “The word ‘necessary’ in Casey’s phrase ‘necessary, in appropriate medical judgment, for the preservation of the life or health of the mother,’ … cannot refer to an absolute necessity or to absolute proof. Medical treatments and procedures are often considered appropriate (or inappropriate) in light of estimated health risks comparative health risks (and health benefits) in particular cases. Neither can that phrase require unanimity of medical opinion. Doctors often differ in their estimation of comparative health risks and appropriate treatment. And Casey’s words ‘appropriate medical judgment’ must embody the judicial need to tolerate responsible differences in medical opinion – differences of a sort that the American Medical Association and American College of Obstetricians and Gynecologists’ statements together indicate are present here…. This is not to say, as Justice Thomas and Justice Kennedy claim, that a State is prohibited from proscribing an abortion procedure whenever a particular physician deems the procedure preferable…. But where substantial medical authority supports the proposition that banning a particular abortion procedure could endanger women’s health, Casey requires the statute to include a health exception when the procedure is ‘necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.’” In other words, the majority held that, in the absence of consensus in the medical community (haven’t we heard that one before?), the Roe, Casey, and the Constitution require that a doctor’s medical judgment that employing “D&E” rather than “D&X” poses a “significant” health risk to the mother, where “risk” here means “not as safe as possible,” such is the equivalent “endangerment” of a woman’s health. Therefore, the Nebraska law purporting to ban “D&X” on the grounds that it is never a medically necessary procedure, is violative of the Constitution (as understood by Roe and Casey) and accordingly unconstitutional.

SCOTUS abortion law jurisprudence (part 7)

In law on June 21, 2009 at 9:22 am

Justice Stevens concurred in part and dissented in part. The concurrence consisted in joining the plurality in holding that stare decisis required upholding the “central holding” of Roe, even if in name only. Like the remainder of the plurality, Justice Stevens decreed the belief that “The societal costs of overruling Roe at this late date would be enormous,” thus buying into the novel extra-Constitutional theory that a Constitutionally wrong decision must never be overturned if doing so will somehow come at a “societal cost” (whatever that means). Also like the plurality, Justice Stevens reaffirmed that the State may protect a fetus from being aborted after viability, and therefore may prohibit post-viability abortions so long as in circumstances when such an abortion is necessary to preserve the “life or health” of the mother. But Justice Stevens goes a bit further than anyone else in explaining the moral philosophy underlying his position, which is worth a hard look.

Like the plurality, Justice Stevens agrees that a fetus is not a “person” within the meaning of the Fourteenth Amendment. As I have already shown, declaring a fetus a nonperson means that anyone can deprive it of its life under the Fourteenth Amendment (i.e., a fetus is not entitled to any Constitutional protection). Likewise, since a mother obviously is a “person,” since a State’s depriving a woman her “right” to abort her pregnancy at any time prior to childbirth would be to deprive her of a “fundamental liberty” (with or without due process of law), the Constitution forbids as much. Second, and in case we don’t fully get it, Justice Stevens makes it clear: “the unborn have never been recognized in the law as persons,” the concept “person” “has application only postnatally,” aborting a fetus at any stage of the pregnancy is “not the termination of life,” and a fetus “does not have what is sometimes described as a ‘right to life.’” Setting aside the question of how the State can legitimately have any interest in protecting “fetal life” even though terminating it really isn’t terminating “life” at all, I want to get right into the really interesting portions of Justice Stevens’s moral philosophy.

The first tenant of that moral philosophy is that the State’s interest in protecting “fetal life” must be “secular” – “the State may not promote a theological or sectarian” interest in “life.” This is an interesting decree for two reasons. First, virtually all State laws prohibiting or criminalizing any given practice have done so usually from a Judeo-Christian perspective that the given practice is immoral. And this posed no problem for any of the Founders simply because “prohibiting x” from such a perspective was (obviously) not “establishing” an official church, which was of course the primary purpose of the First Amendment. In other words, outlawing murder because “thou shall not kill” was not understood to be the “establishment” of religion, it was considered to be a very basic moral principle worthy of criminalization.

Second, recall that Justice Blackmun argued in Roe that his entire enterprise of creating a fundamental right to abort one’s fetus was necessary because neither “medicine, philosophy, [nor] theology” were in any state of “consensus” on the morality of abortion. In other words, while consulting “theology” was perfectly permissible for Justice Blackmun and six other lawyers on the Supreme Court in 1973, it was clearly no longer permissible by 1992 according to Justice Stevens.

Next, Justice Stevens declares that the State’s interest in “fetal life” is “not grounded in the Constitution. It is, instead, an indirect interest supported by both humanitarian and pragmatic concerns.” These two propositions are interesting for a couple reasons. First, of course, Roe’s holding has no Constitutional “grounding” either. Second, Justice Stevens does not spend much effort defining what he means by “humanitarian and pragmatic concerns,” but he does admit that the State has a legitimate interest in “minimizing” “third-trimester abortions” because “many find [them] particularly offensive,” and conceding that the State has a legitimate interest in population growth. In other words, the repugnance with which many view late term abortions flows from a “humanitarian” sentiment, which is legitimate (so long, of course, as one’s humanitarian sentiment has nothing to do with one’s theology), and the desire to grow the population flows from a “pragmatic” sentiment, which is legitimate as well (so long, one must assume, one’s pragmatism isn’t one’s “religion”).

But later on, Justice Stevens goes much further than any I’ve read before on this subject, for he states that the State’s interest in protecting “fetal life” must not flow from “the belief that the decision to terminate a pregnancy is presumptively wrong,” no matter if this belief flows from humanitarian, pragmatic, or any other perspective. In other words, the moral view that it is better to refrain from aborting than aborting “is illegitimate” by judicial fiat (i.e., by simple decree and without principle). This is a fascinating claim, because by asserting it Justice Stevens holds the view that this particular moral judgment is absolutely Constitutionally off-limits. This is the very first time I have ever seen such a view advocated by the Court. For reasons I will get into later, it is quite a significant – albeit subtle – modification of abortion law jurisprudence, but one that will have a staggering impact upon contemporary abortion dialogue.

To summarize the situation after Casey: 4 Supreme Court Justices believe that Roe was wrongly decided, would reverse it, and send the issue of if and when abortion should be permitted back to the American people; 2 Supreme Court Justices believe that Roe was right and should be reaffirmed in full, and 3 Supreme Court Justices who do not necessary believe that Roe was right but that stare decisis (among other things) justifies reaffirming Roe (but conceptually revamping everything Roe stood for). A most intriguing state of the law, indeed.

SCOTUS abortion law jurisprudence (part 6)

In law on June 21, 2009 at 9:21 am

As I mentioned already, Justice Blackmun had spent the 19 years since Roe growing evermore embittered. The years had worn on him, and in a very real sense the man was under siege by the knowledge that his handiwork not only badly damaged the image of the Supreme Court and worsened relations between those on either side of the abortion debate (and, perhaps, some guilt associated with the explosion of the abortion-on-demand industry), but by that tiny portion of his conscience that undoubtedly must have nagged at him daily, like a splinter in his mind: his legacy, Roe, was doomed, and it was only a matter of when, not if. Perhaps as a defensive mechanism, then, coupled with an unwillingness to face the cold reality that, one day, the Nation’s law students will read Roe as they do with Plessy and Lochner, that is, as yet another example of blatant judicial arrogance and intellectual vanity, Blackmun entrenched:

“Three years ago, in Webster v. Reproductive Health Services, 492 U.S. 490 (1989), four Members of this Court appeared poised to ‘cas[t] into darkness the hopes and visions of every woman in this country’ who had come to believe that the Constitution guaranteed her the right to [abortion on-demand] …. All that remained between [abortion on-demand in Webster] was a single, flickering flame. Decisions since Webster gave little reason to hope that this flame would cast much light [in the future]…. But now, just when so many expected the darkness to fall, the flame has grown bright…. I remain steadfast in my belief that the right to [abortion on-demand] is entitled to the full protection afforded by this Court before Webster. And I fear the darkness as four Justices anxiously await the single vote necessary to extinguish the light…. I am 83 years old. I cannot remain on this Court forever, and when I do step down, the confirmation process for my successor well may focus on the issue before us today. That, I regret, may be exactly where the choice between [abortion on-demand or the faithful interpretation of the Constitution] will be made.”

This sort of eye-rolling hyperbole is the stuff one would expect to find on the floor of a legislative body rather than a “judicial” opinion. It is not argument, but shamelessly pandering to a political class (American women) for the purpose of emotional inflammation (which seems the appropriate verb given Blackmun’s use of it). Moreover, there is a wonderful sense of irony in how Blackmun associates the preservation of abortion on-demand with “light,” on the one hand, and those who faithfully interpret the Constitution to allow the people themselves democratically decide such a sensitive issue with “darkness.” (Every time I read Blackmun’s impassioned plea I envision him as the benevolent Obi-Wan-Kenobi (Alec Guinness) doing battle with the epitome of the “Dark Side of the Force,” Darth Vader (David Prowse/James Earl Jones(voice)), in George Lucas’s Star Wars Episode IV: A New Hope (1977); as if “striking Roe/Blackmun down” will make Roe/Blackmun “more powerful than you can possibly imagine.”)

But, of course, Blackmun himself flat out tells us why the “Dark Side” cannot prevail on this matter: “While there is much to be praised about our democracy, our country, since its founding, has recognized that there are certain fundamental [decisions] that are not to be left to the whims of an election. A woman’s right to [abortion on-demand] is one of those fundamental [decisions]. Accordingly, that [decision must] not [be made] at the ballot box.” In other words, the people themselves cannot be trusted to make the right decision about the morality of abortion democratically. Therefore, the Supreme Court must, not exercise its judgment, but impose its will upon the people by deciding this fundamental matter for them. Hence, Blackmun does exactly what Alexander Hamilton in Federalist No. 78 admonishes is unfit for any member of the judiciary: “It can be of no weight to say that the courts, on the pretense of repugnancy, may substitute their own pleasure to the constitutional intentions of the [people via the] legislature…. The courts must [rather] declare the sense of the law; and if they should be disposed to [instead] exercise will instead of judgment, the consequence would equally be the substitution of their pleasure to that of the legislative body.” The inescapable conclusion, then, is that Blackmun genuinely believes that his moral philosophy on abortion is superior to the extent that it must issue as a matter of command. Thus, it would do us wise to examine that morality in depth.

Thankfully, explicating Blackmun’s moral philosophy on the abortion issue is a simple task. All one must do is recall what Blackmun decided for us in Roe, namely, that “We need not resolve the difficult question of when [human] life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.” In other words, for Blackmun, in the absence of consensus either in medicine, philosophy, or theology (it is constitutionally permissible to consult theology on the matter of abortion?), the judiciary must remain agnostic about when human life officially begins. That sounds reasonable in-itself, but notice where Blackmun reasons his agnosticism must lead: he simply deems the “agnostic approach” as requiring that a fetus is nothing more than a potential human life until birth. In other words, until birth, the fetus is not a human life. And since the fetus is not a human life, it’s not a “person.” Thus, by remaining “agnostic” (or one would assume “neutral”) on the matter of precisely when human life begins, Blackmun concludes that human life doesn’t begin until birth. Presto.

Notice how nicely Blackmun’s agnosticism functions under the Fourteenth Amendment (“No State shall … deprive any person of life, liberty, or property, without due process of law”): since a fetus is not a “person” – not a “life” – but merely a “potential life” prior to birth, then, constitutionally, any person may destroy any fetus at any time prior to its birth. Likewise, since a State’s depriving a woman (clearly a person) her “right” to “destroy any fetus any time prior to its birth” would be to “deprive” her of a “fundamental liberty” (with or without due process of law), such is no longer constitutionally permissible. As such, according to Blackmun, since in each State where the people themselves have created anti-abortion laws, those people have obviously failed to make the correct moral decision at the ballot-box, and each of those democratically created laws must be struck down as “unconstitutional.” One’s being “agnostic” about deciding precisely when human life begins, then, requires that the people themselves be constitutionally forbidden to choose when it does until after birth, namely, the point at which human life constitutionally begins. By being purely “agnostic” and “neutral” about the matter by allegedly not making a decision at all, therefore, the decision is made for all of us forever. To say that such reasoning is rank Sophistry (which is, of course, exactly what lawyers do) is probably the understatement of the century. (And I am reminded of an Alan Dershowitz quote I like: “The ability of lawyers to rationalize their positions is unlimited.” Letters to a Young Lawyer 135 (2001).)

The next point worthy of serious attention is Justice Blackmun’s assertion, which he holds with Justices O’Connor, Kennedy, and Souter, that “no changes of fact” have arisen since Roe’s declaration that the “disciplines of medicine, philosophy, and theology” have not “arrive[d] at any consensus” about when human life “begins.” (Compare the plurality’s “the mystery of [when] human life [begins].”) Setting aside the philosophical inquiries, both of which Justice Blackmun deemed relevant in Roe, at least one commentator, Jason M. Steffens, recently observed:

“There is, in fact, no doubt from a [purely] scientific standpoint that an unborn child is a life from the moment of conception. See Cecie Starr & Ralph Taggart, Biology: The Unity and Diversity of Life 783 fig.45.9 (7th ed. 1995) (noting that a ‘zygote’ forms the moment ovum fertilization is completed); Stedman’s Concise Medical Dictionary for Health Professionalsrd ed. 1997) (defining ‘zygote’ as the ‘diploid cellliving structure capable of independent existence’) (emphases added). 143, 963 (John H. Dirckx, M.D., ed., 3 resulting from union of a sperm and an ovum’ and ‘cell’ as the ‘smallest unit of Not only is it a ‘life,’ but, ‘by its intrinsic biological nature,’ it is human life from the moment of conception, for ‘it can be nothing else.’ Murphy S. Klasing, The Death of an Unborn Child: Jurisprudential Inconsistencies in Wrongful Death, Criminal Homicide, and Abortion Cases, 22 Pepp. L. Rev. 933, 974 n.16 (1995) (quoting Clarke D. Forsyth, Homicide of the Unborn Child: The Born Alive Rule and Other Legal Anachronisms, 21 Val. U. L. Rev. 563, 608-09 (1987)); see also Nealis v. Baird, 996 P.2d 438, 453 (Okla. 1999) (‘Contemporary scientific precepts accept as a given that human life begins at conception.’ (citing Keith L. Moore & T.V.N. Persaud, The Developing Human 14 (5th ed. 1993))); Susan Tucker Blackburn & Donna Lee Loper, Maternal, Fetal and Neonatal Physiology: A Clinical Perspective 49 (1992); Michael R. Harrison et al., The Unborn Patient: Prenatal Diagnosis and Treatment 14 (1984); Dale Russell Dunnihoo, M.D., Ph.D., Fundamentals of Gynecology and Obstetrics 286-99 (1990); Lous Hellman et al., Williams Obstetrics 199 (14th ed. 1971); Hunter Baker, Storming the Gates of Massive Cultural Investment: Reconsidering Roe in Light of Its Flawed Foundation and Undesirable Consequences, 14 Regent U. L. Rev. 35, 44-46 (2002) (noting that ‘[i]n reality, the question has long been answered’ and ‘[a]ll metaphysical higgledy-piggledy simply creates a comforting sense of plausible deniability about when life begins,’ and that the proposition that an unborn childe is a human being from conception is ‘supported by standard textbooks on embryology [and] human biology’ (citing T.W. Stadler, Langman’s Medical Embryology (John N. Gardner ed., 6th ed. 1990)); Kelly J. Hollowell, Defining a Person Under the Fourteenth Amendment: A Constitutionally and Scientifically Based Analysis, 14 Regent U. L. Rev. 67, 86-92 (2001-2002) (examining the biological nature of unborn children and concluding that ‘human life begins at conception’); Aaron Wagner, Comment, Texas Two-Step: Serving Up Fetal Rights by Side Stepping Roe v. Wade Has Set the Table for Another Showdown of Fetal Personhood in Texas and Beyond, 32 Tex. Tech. L. Rev. 1085, 1141 (2001) (‘[T]he scientific community is in agreement that a fetus is a human from the moment of conception.’)…. [As] French geneticist Jerome L. LeJune [] testified before a United States Senate subcommittee in 1981: ‘To accept the fact that after fertilization has taken place a new human being has come into being is no longer a matter of taste or opinion. The human nature of a human being from conception to old age is not a metaphysical contention, it is plain experimental evidence.” 88 Iowa L. Rev. 217, 223-24 (2002).

Granted, Steffens’s piece was published in 2003 – not 1992 – so perhaps it really has taken 11 additional years to come to “consensus” about what, at least on the surface, seems like a rather commonsense belief. But examining the citations reveals that a good many of the medical sources are of pre-Casey vintage. (I’ll confess that perhaps all this shows is that some in the medical community find the conclusion foregone, since I am not aware of any counter medical evidence and have little reason to doubt that there is a medical opinion out there somewhere that denies it. In that sense, then, perhaps there really is no “consensus,” although all that proves is that at least one dissenting view is all that is required to lack a “consensus.”) In any event, Justice Blackmun’s and the plurality’s “mystery” many not be such a mystery after all, at least in the biological sense.

Finally, there is one Blackmun assertion that cannot go unrebutted, and that is this: “Make no mistake, the joint opinion of Justices O’Connor, Kennedy, and Souter is an act of personal courage and constitutional principle…. What has happened today should serve as a model for future Justices and a warning to all who have tried to turn this Court into yet another political branch.” This is breathtakingly wrong, and one need not be a constitutional law scholar to understand why. First, prior to Roe, the Court was not embroiled in any controversy about “abortion rights,” for all such battles occurred in state legislatures. It was precisely Roe that inflamed the issue by inserting the Supreme Court into the heart of it. Second, as I have shown, the Roe decision itself was purely political, and those on the Court who have chided against it have taken a purely apolitical stance on the matter – get out of this area and let the people themselves hash it out democratically. It requires either an imaginative or deluded mind indeed to somehow conclude that those who would get out of the “abortion umpiring business” entirely are “trying to turn the Court into yet another political branch.” When reading such nonsense one is drawn to one of two conclusions: either Blackmun has so deluded himself over the years that he actually believes what he says here – or Blackmun is aware of the utter absurdity of such remarks but has to utter them anyway in bad faith to preserve the Court’s place in abortion politics since the American people themselves cannot be trusted to make the correct moral choice “at the ballot box.” Giving Blackmun the benefit of the doubt, the most reasonable scenario seems to be the latter one.

In any case, such is the sum and substance Blackmun’s concurrence. It is unfortunate that he didn’t live to read the following words: “We are the only country in the Western world that has so politicized our system of justice. The result is that we have no real system of justice. We have yet another political branch of government whose results are measured by political considerations.” Alan Dershowitz, Letters to a Young Lawyer 67 (2001).

SCOTUS abortion law jurisprudence (Part 5)

In law on June 21, 2009 at 9:16 am

The second reason Casey was another unfortunate chapter in this area is the violence it did to the concept of stare decisis. “After considering the fundamental constitutional questions resolved by Roe, principles of institutional integrity … and the rule of stare decisis, we are led to conclude [that] the essential holding of Roe should be retained and once again affirmed” (emphasis added). As every first-year law student learns (likely in his or her first month if not week), stare decisis is the common law concept that provides baseline continuity from one case to the next, as a conceptual “anchor,” in a sense, that keeps any given area of law rooted to the tradition from whence it came. “Stare decisis” is the Latin phrase “let the decision stand” or “to stand by a decision,” and it functions to do two basic things: (1) it absolutely binds lower courts to appellate court decisions, and (2) it creates a presumption that subsequent appellate courts follow prior decisions of prior appellate court decisions, a presumption that ought not be disregarded without good reason. In this fashion, stare decisis keeps the law consistent and predictable, which are both features of justice proper (as opposed to “willy-nilly” or “flip-of-the-coin” justice).

Traditionally speaking, stare decisis requires that prior cases be retained, respected, and followed unless it is clearly erroneous, in which case it must be overruled in favor of a new rule or rationale. Two classic examples in American Constitutional law where the Court realized that it had produced clearly erroneous precedents are Plessy v. Ferguson, 163 U.S. 537 (1896) (upholding the constitutionality of “separate but equal” racial segregation), and Lochner v. New York, 198 U.S. 45 (1905) (striking down New York State law limiting the number of hours bakers could work per week as violative of “freedom of contract” implicit in the Fourteenth Amendment’s due process clause), where the power of stare decisis rightly gave way to expunging uncontroversially very bad constitutional law. To be precise, then, stare decisis is most properly understood as a presumption that prior cases are correct and ought not be disturbed absent darn good reasons – among them that the case was clearly decided wrongly.

So understood, when the Supreme Court is faced with a case whose facts and topic have been dealt with before, the Court has two options available to it: (1) follow stare decisis and decide the case as before, or (2) overrule the prior case(s) and decide the new case via a new rule or rationale. As one who has covered the prior posts well-knows, however, Casey did neither with respect to Roe. Instead, in Justice Rehnquist’s words, “following its newly minted variation on stare decisis, [the Court] retains the outer shell of Roe … but beats a wholesale retreat from the substance of that case. [Justices White, Scalia, Thomas and I] believe that Roe was wrongly decided, and that it can and should be overruled consistent[] with our traditional approach to stare decisis in constitutional cases.”

Later, Justice Rehnquist gets a bit more specific: “The joint opinion of Justices O’Connor, Kennedy, and Souter cannot bring itself to say that Roe was correct as an original matter, but the authors are of the view that the immediate question is not the soundness of Roe’s resolution of the issue, but the precedential force that must be accorded to its holding…. Instead of claiming that Roe … was correct as a matter of original constitutional interpretation, the opinion therefore contains and elaborate discussion of stare decisis [that] appears to be almost entirely dicta[] because the joint opinion does not apply the principle in dealing with Roe. Roe decided that a woman had a fundamental right to an abortion [that is absolute in the first trimester]. The joint opinion rejects that view. Roe decided that abortion regulations were [always] to be subjected to ’strict scrutiny,’ and could be justified only in light of ‘compelling state interests.’ The joint opinion rejects that view…. Roe analyzed abortion regulation under a rigid trimester framework … which has guided this Court’s decisionmaking for 19 years. The joint opinion rejects that framework. Stare decisis is defined in Black’s Law Dictionary as meaning ‘to abide by, or adhere to, decided cases.’ Blacks Law Dictionary 1406 (6th ed. 1990). Whatever the ‘central holding’ of Roe that is left after the joint opinion finishes dissecting it is surely not the result of that principle. While purporting to adhere to precedent, the joint opinion instead revises it. Roe continues to exist, but only in the way that a storefront on a western movie set exists: [as] a mere façade to give the illusion of reality.”

“[A]uthentic principles of stare decisis do not require that any portion of the reasoning in Roe be kept intact…. Erroneous decisions in such constitutional cases are uniquely durable, because correction through legislative action, save for constitutional amendment, is impossible. It is therefore our duty to reconsider constitutional interpretations that ‘depar[t] from proper understanding’ of the Constitution…. Our constitutional watch does not cease merely because we have spoken before on an issue; when it becomes clear that a prior constitutional interpretation is unsound, we are obliged to reexamine the question.”

Justice Scalia: “The Court’s reliance upon stare decisis can best be described as contrived…. It seems to me that stare decisis ought to be applied even to the doctrine of stare decisis, and I confess never to have heard of this new, keep-what-you-want-and-throw-away-the-rest version.”

Next, in addition to the plurality’s new version of stare decisis, it argued that “institutional integrity” and “legitimacy” also demand retaining Roe, even if only nominally. This prong of the analysis looked not to whether Roe was decided correctly but, rather, whether the wrongly decided case has “proven unworkable,” would “lend a special hardship” if overruled, add “inequity to the cost of repudiation,” do “significant damage to the stability of society,” whether the “law’s growth” post-Roe has left it a “doctrinal anachronism discounted by society,” or (finally) whether Roe’s “premises of fact have so far changed in the ensuring two decades as to render its central holding somehow irrelevant or unjustifiable in dealing with the issue it addressed.” Needless to say, the Roe plurality finds nothing sufficient to support any of the foregoing reasons for abandoning Roe, even though none of them had anything at all to do with constitutional law.

Justice Rehnquist: “The joint opinion also points to the reliance interests involved in the context in its effort to explain why precedent must be followed for precedent’s sake…. But, as the joint opinion apparently agrees[,] any traditional notion of reliance is not applicable here. The Court today cuts back on the protection afforded by Roe, and no one claims that this action defeats any reliance interest in the disavowed trimester framework. Similarly, reliance interests would not be diminished were the Court were to [simply] go further and acknowledge the full error of Roe…. The joint opinion thus turns to what can only be described as an unconventional – and unconvincing – notion of reliance, a view based on the surmise that the availability of abortion since Roe has led to ‘two decades of economic and social developments’ that would be undercut if the error of Roe were recognized…. The joint opinion’s assertion of this fact is undeveloped, and totally conclusory. In fact, one cannot be sure to what economic and social developments the opinion is referring. Surely it is dubious to suggest that women have reached their ‘places in society’ in reliance upon Roe, rather than as the result of their determination to obtain higher education and compete with men in the job market, and of society’s increasing recognition of their ability to fill positions that were previously thought to be reserved only for men. In the end, having failed to put forth any evidence to prove any true reliance, the join opinion’s argument is based solely on generalized assertions about the national psyche, on a belief that the people of this country have grown accustomed to the Roe decision over the last 19 years and have ‘ordered their thinking and living around’ it…. [But as] an initial matter, one might inquired how the joint opinion can view the ‘central holding’ of Roe so deeply rooted in our constitutional culture when it so causally uproots and disposes of that same decision’s trimester framework. Furthermore, at various points in the past, the same could have been said about this Court’s [other] erroneous decisions that the Constitution allowed ’separate but equal’ treatment of minorities … or that ‘liberty’ under the Due Process Clause protected [a fundamental] ‘freedom of contract.’ The ’separate but equal’ doctrine lasted 58 years after Plessy, and Lochner’s protection of contractual freedom lasted 32 years. However, the simple fact that a generation or more had grown used to these major decisions did not prevent the Court from correcting its errors in those cases, nor should it prevent us from correcting interpreting the Constitution here.”

“Apparently realizing that conventional stare decisis principles do not support its position, the joint opinion advances a belief that retaining a portion of Roe is necessary to protect the ‘legitimacy’ of this Court…. But the joint opinion goes on to state that, when the Court ‘resolve[s] the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases,’ its decision is [somehow] exempt from reconsideration under established principles of stare decisis in constitutional cases. This is so, the joint opinion contends, because, in those ‘intensely divisive’ cases, the Court had call[ed] the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the constitution, and must therefore take special care not to be perceived as ’surrender[ing] to political pressure’ and continued opposition. This is a truly novel principle, one which is contrary to both the Court’s historical practice and to the Court’s traditional willingness to tolerate criticism of its opinions. [But u]nder this principle, when the Court had ruled on a divisive issue, it is apparently prevented from overruling that decision for the sole reason that it was incorrect, unless opposition to the original decision has died away.”

“The first difficulty with this principle lies in its assumption that cases that are ‘intensely divisive’ can be readily distinguished from those that are not. The question of whether a particular issue is ‘intensely divisive’ enough to qualify for special protection is entirely subjective and dependent on the individual assumptions of the Members of this Court. In addition, because the Court’s duty is to ignore public opinion and criticism on issues that come before it, its Members are in perhaps the worst [possible] position to judge whether a decision divides the Nation deeply enough to justify such uncommon protection…. The joint decision picks out and discusses two prior Court rulings that it believes are of the ‘intensely divisive’ variety, and concludes that they are of comparable dimension to Roe[, Plessy and Lochner.] It appears to us very odd indeed that the joint opinion chooses as benchmarks two cases in which the Court chose not to adhere to erroneous constitutional precedent, but instead enhanced its stature by acknowledging and correcting its error, apparently in violation of the joint opinion’s ‘legitimacy’ principle…. The joint opinion agrees that the Court’s stature would have been seriously damaged if, in Brown [(which overruled Plessy)] and West Coast Hotel [(which overruled Lochner)], it had dug in its heels and refused to apply normal principles of stare decisis to earlier decisions. But the opinion contends that the Court was entitled to overrule Plessy and Lochner in those cases, despite the existence of opposition to the original decisions, only because both the Nation and the Court had learned new lessons in the interim. This is at best a feebly supported post hoc rationalizations for [why Plessy and Lochner were overruled]…. [Rather,] the theme of [West Coast Hotel] is that the Court had been mistaken as a matter of constitutional law when it embraced ‘freedom of contract’ 32 years previously.”

“The joint opinion also agrees that the Court acted properly in rejecting the doctrine of ’separate but equal’ in Brown … [but] the joint opinion concludes that [the Plessy’s] repudiation was justified only because of newly discovered evidence that segregation had the effect of treating one race as inferior to another [58 years later]….[Rather, the] Court in Brown simply recognized, as Justice Harlan had recognized [in Plessy], that the Fourteenth Amendment [bars] racial segregation. The rule of Brown is not tied to popular opinion about the evils of segregation; it is a judgment that the Equal Protection Clause [of the Fourteenth Amendment] does not permit racial segregation, no matter wh[at] the public might come to believe ….”

“[To be] sure[,] even the suggestion [that a case be decided with respect to popular opinion] is totally at war with the idea of ‘legitimacy’ in whose name it is invoked. The Judicial Branch derives its legitimacy not from following public opinion, but from deciding by its best lights whether legislative enactments of the popular branches of Government comport with the Constitution.”

“[Moreover,] assuming that the Court is perceived as ’surrender[ing] to political pressure’ when it overrules a controversial decision … the joint opinion forgets that there are two sides to any controversy. The joint opinion asserts that, in order to protect its legitimacy, the Court must refrain from overruling a controversial decision lest it be viewed as favoring those who oppose the [controversial] decision. But a decision to adhere to prior precedent is subject to the same criticism, for, in such a case, one can easily argue that the Court is responding to those who have demonstrated in favor of the original decision. The decision in Roe has engendered large demonstrations, including repeated marches on this Court and on Congress, both in opposition to and in support of that opinion. A decision either way on Roe can therefore be perceived as favoring one group or another. But this perceived dilemma arises only if one assumes, as the joint opinion does, that the Court should make its decisions with a view toward speculative public perceptions. If one assumes instead, as the Court surely did in both Brown and West Coast Hotel, that the Court’s legitimacy is enhanced by [only] the faithful interpretation of the Constitution irrespective of public opposition, such self-engendered difficulties [disappear]….”

“The sum of the joint opinion’s labors in the name of stare decisis and ‘legitimacy’ is this: Roe v. Wade stands as a sort of judicial Potemkin Village, which may be pointed out to passers-by as a monument to the importance of adhering to precedent. But behind the façade, an entirely new method of analysis, without any roots in constitutional law, is imported to decide the constitutionality of state laws regulating abortion. Neither stare decisis nor ‘legitimacy’ are truly served by such an effort.”

While Justice Rehnquist dismantles the purported foundation of the plurality, Justice Scalia goes right to the heart of the matter: “The States may, if they wish, permit abortion on demand, but the Constitution does not require them to do so [as Roe required]. The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting [on the matter]. As the Court acknowledges, ‘where reasonable people disagree, the government can adopt one position or the other.’ The Court is correct in adding the qualification that this ‘assumes a state of affairs in which the choice does not intrude upon a protected liberty,’ but the crucial part of that qualification is the penultimate word. A State’s choice between two positions on which reasonable people can disagree is constitutional even when (as is often the case) it intrudes upon a ‘liberty’ in the absolute sense. Laws against bigamy, for example – with which entire societies of reasonable people disagree – intrude upon men and women’s liberty to marry and live with one another. But bigamy happens not to be a liberty specially ‘protected’ by the Constitution.”

“That is, quite simply, the issue of this case: not whether the power of a woman to abort her unborn child is a ‘liberty’ in the absolute sense; or even whether it is a liberty of great importance to many women. Of course it is both. The issue is whether it is a liberty protected by the Constitution of the United States. I am sure it is not. I reach that conclusion not because of anything so exalted as my views concerning the ‘concept of existence, of meaning, of the universe, and of the mystery of human life.’ Rather, I reach it for the same reason I reach the conclusion that bigamy is not constitutionally protected – because of two simple facts: (1) the Constitution says absolutely nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribed….”

“Beyond that brief summary of the essence of my position, I will not swell the United States Reports with repetition of what I have said before…. I must, however, respond to a few of the more outrageous arguments in today’s opinion, which it is beyond human nature to leave unanswered….

“The plurality states that the ‘inescapable fact is that adjudication of substantive due process claims may call upon the Court, in interpreting the Constitution, to exercise that same capacity which, by tradition, courts always have exercised: reasoned judgment.’ Assuming that the question before us is to be reached at such a level of philosophical abstraction, in such isolation from the traditions of American society, as by simply applying ‘reasoned judgment,’ I do not see how that could possibly have produced the answer the Court arrived at in Roe v. Wade….”

“The whole argument of abortion opponents is that what the Court calls the fetus and what others call the unborn child is a human life. Thus, whatever answer Roe came up with after conducting its ‘balancing’ is bound to be wrong, unless it is correct that the human fetus is in some critical sense merely potentially human. There is, of course, no way to determine that as a legal matter; it is, in fact a value judgment. Some societies have considered newborn children not yet human, or the incompetent elderly no longer so….”

“The emptiness of the ‘reasoned judgment’ that produced Roe is displayed in plain view by the fact that, after more than 19 years of effort by some of the brightest (and most determined) legal minds in the country, after more than 10 cases upholding abortion rights in this Court, and after dozens upon dozens of amicus briefs submitted in this and other cases, the best the Court can do to explain how it is that the word ‘liberty’ must be thought to include the right to destroy human fetuses is to rattle off a collection of adjectives that simply decorate a [naked] value judgment and conceal [a purely] political choice….”

“But it is obvious to anyone applying ‘reasoned judgment’ that the same adjectives can be applied to many forms of conduct that this Court … has held are not entitled to constitutional protection – because, like abortion, they are forms of conduct that have long been criminalized in American society. Those adjectives might be applied, for example, to homosexual sodomy, polygamy, adult incest, and suicide, all of which are equally ‘intimate’ and ‘deeply personal’ decisions involving ‘personal autonomy and bodily integrity,’ and all of which can constitutionally proscribed because it is our unquestionable constitutional tradition that they are proscribable. It is no reasoned judgment that supports the Court’s decision; only personal predilection.”

“Justice Curtis’s warning is as timely today as it was 135 years ago: ‘[W]hen a strict interpretation of the Constitution, according to fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under a government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.’ Dred Scott v. Sandford, 19 How. 393, 621 (1857) (Curtis, J., dissenting)….”

“It is difficult to maintain the illusion that we are interpreting a Constitution, rather than inventing one [here] ….”

“[D]espite flowery rhetoric about the State’s ’substantial’ and ‘profound’ interest in ‘potential human life,’ and criticism for Roe for undervaluing that interest, the joint opinion permits the State to pursue that interest only so long as it is not too successful. As Justice Blackmun recognizes (with evident hope) … the ‘undue burden’ standard may ultimately require the invalidation of each provision upheld today if it can be shown, on a better record, that the State is too effectively ‘express[ing] a preference for childbirth over abortion.’ Reason finds no refuge in this jurisprudence of doubt….”

“The Court’s description of the place of Roe in the social history of the United States is unrecognizable. Not only did Roe not, as the Court suggests, resolve the deeply divisive issue of abortion; it did not than anything else to nourish it, by elevating it to the national level, where it is infinitely more difficult to resolve. National politics were not plagued with abortion protests, national abortion lobbying, or abortion marches on Congress before Roe v. Wade was decided. Profound disagreement existed among our citizens over the issue – as it does over other issues, such as the death penalty – but that disagreement is [properly] being worked out at the state level. As with many other issues, the division of sentiment within each State was not as closely balanced as it was among the population of the Nation as a whole, meaning not only that more people would be satisfied with the results of state-by-state resolution, but also that those results would be more stable. Pre-Roe, moreover, political compromise was possible.”

“Roe’s mandate for abortion on demand destroyed the compromises of the past, rendered compromise impossible for the future, and required the entire issue to be resolved uniformly, at the national level. At the same time, Roe created a vast new class of abortion customers and abortion proponents by eliminating the moral opprobrium that had attached to the act. (‘if the Constitution guarantees abortion, how can it be bad?’ – not an accurate line of thought, but a natural one.) Many favor all those developments, and it is not for me to say they are wrong. But to portray Roe as the statesmanlike ’settlement’ of a divisive issue, a jurisprudential Peace of Westphalia that is worth preserving, is nothing less than Orwellian. Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court, in particular, ever since. And by keeping us in the abortion-umpiring business, it is the perpetuation of that disruption, rather than of any Pax Roeana that the Court’s new majority decrees….”

“The people know that their value judgments are quite as good as those taught in any law school – maybe better. If, indeed, the ‘liberties’ protected by the Constitution are, as the Court says, undefined and unbounded, then the people should demonstrate, to protest that we do not implement their values instead of ours. Not only that, but the confirmation hearings for new Justices should deteriorate into question-and-answer sessions in which Senators go through a list of their constituents’ most favored and disfavored alleged constitutional rights, and seek the nominee’s commitment to support or oppose them. Value judgments, after all, should be voted on, not dictated; and if our Constitution has somehow accidentally committed them to the Supreme Court, at least we have a sort of plebiscite each time a new nominee to that body is put forward. Justice Blackmun not only regards this prospect with equanimity, he solicits it….”

“[B]y foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.”

“We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.”

My apologies for the lengthy quotes, but trying to summarize those two dissents would do offense to both. The next post, however, will focus closely on the concurrences of Justices Blackmun and Stevens.

SCOTUS abortion law jurisprudence (part 4)

In law on June 21, 2009 at 9:11 am

First, the facts. The Casey plurality opinion of three Justices fundamentally shifted the constitutional weight placed on each of the two primary considerations contemplated by Roe: a State’s “important and legitimate interest in protecting the potentiality of human life,” which had been little more than lip-service to the States under Roe, was now genuinely in play (so long as whatever it was did not create an “undue burden” (i.e., “substantial obstacle”) on the woman’s right to abort pre-viability); in other words, a woman’s virtually unfettered discretion to abort was truncated procedurally. But, much more significantly, if a woman waits until the “viability” threshold passes, she essentially waives her fundamental right to abort unless she can find a doctor to opine that not having one endangers the woman’s health, not impacts it negatively physically or psychologically, but seriously and genuinely places the woman’s health at risk. This was the major compromise that Justices O’Connor, Kennedy, and Souter made with Blackmun and Stevens that “saved” Roe.

Hence, the new Casey substantive principles resulted in a new way to “measure” the constitutionality of State regulations such that new conclusions would be reached in at least four aspects: (1) State laws requiring a woman to receive and consider information aimed focusing the woman’s attention on other alternatives is constitutional (when it was not after Roe); (2) State laws requiring that the information be provided by the doctor is constitutional (when it was not after Roe as interpreted by two other post-Roe abortion cases); (3) State laws requiring a 24-hour waiting period is constitutional (when it was not after Roe as interpreted by one post-Roe abortion case); (4) State laws requiring an assortment of private data collection is constitutional (when it was not after Roe as interpreted by one post-Roe abortion case). Finally (and already mentioned indirectly above), the “universe” within which the modified constitutional principles function was itself modified by discarding the “trimester framework” (three categories) and replacing it with pre- and post-viability (two categories) framework.

The critical point of the preceding paragraph is to show that – whatever one thinks of Roe – although it was “saved,” there wasn’t anything left of it other than the single basic fact (“core” or “essential” holding that States still can not absolutely prohibit abortions, which is to say, a woman still possesses the fundamental right to have an abortion and the State can’t say boo about it pre-viability (although the State can force the woman to be informed about what she’s doing, can enlighten her about alternatives, can make her wait 24 hours (excepting cases of medical emergency), can make her obtain parental consent (unless she can show compelling circumstances to a judge why she ought not tell her parents), and may obtain more “private information” about the woman if the State chooses). As a result, there are two ways to look at Casey.

In the most general sense, Casey was a “battle” that allowed the “pro-choice” (in the sense that the constitution supports the notion that the exists a particular fundamental constitutional right to abort a fetus form implied by a more general “right to privacy” regardless of one’s moral view of the procedure) folks to “live to fight another day.” That Roe was not overruled was therefore indeed a major “victory,” but only in the limited sense that it could have been – and was expected to be – much worse. For the “pro-life” (in the sense that the constitution does not support any notion that, even if one accepts the existence of a general “right to privacy,” there exists a particular fundamental constitutional right to abort regardless of one’s moral view of the procedure) folks, there was much to be thankful and grateful for, but only in a sense analogous to that of a cancer patient who undergoes surgery for the purpose of removing a tumor in its entirety wakes up in post-op only to learn that the doctors “got all they could but not all of it,” coupled with the hope that the remainder could be contained and/or managed. (If you’re a pro-choice person and you’re angry with my analogy because it equates the “right to abort” with “cancer,” just try to relax and try to overcome that emotion – the analogy is conceptually correct in every nontrivial, relevant way from the perspective of pro-life folks.) But Casey came at an immense (in my judgment) societal cost, and one arguably greater than that of Roe.

To understand why I think so requires a little more background. Prior to Roe, as I noted in Part 2, the moral debate on abortion had been raging within state legislatures since this Nation’s founding. This was, of course, a natural consequence of classical liberal democracy under our Constitution. Suffice it to say here that if we could ask the Founders where the abortion debate was to meant to occur, they would – all of them – agree, and likely without any hesitation or afterthought. But, by 1973, the Nation had undergone what some would describe as a “cultural revolution” of sorts, predominantly driven by baby-boomers who spent a great deal of their teenage years in “the sixties.” As this generation grew into power, more and more societal institutions began shifting away from traditional, conservative principles in most if not all areas of American society (which is not in itself, a bad thing).

To be sure, many of the “traditional” principles were simply ignorant, such as the attitude that the only roles a women should have in society are those concerning the home and homemaking, nursing, or teaching; still others were downright repugnant and deplorable, such as attitudes some whites held concerning nonwhites. Indeed, there was plenty of out-and-out sexism; there was plenty of out-and-out racism. These are without any doubt tragic stains on our great American history, and thank goodness our society has been proactive and effective in stamping them out (and our work in both areas is by no means complete). (Other attitudes were evolving in other areas as well, such as with respect to the impoverished, namely, that American society “wasn’t doing enough” to “end poverty.”) In any event, as Americans became more and more conscious of our social problems, more and more people began turning to government to solve them by the use of various constitutionally legitimate coercive methods, namely, local, state, and federal legislation. And such is the very essence of democratic societal “evolution.”

In the eyes of many, however, America was not evolving near fast enough. And this was an entirely justified belief. Bigotry is not only disgusting, but a stubborn thing to root out and to which those with a feeble or uneducated mind are particularly susceptible. Consequently, much morally excellent but constitutionally dubious federal legislation was met with more and more deference from the only authority with the power to protect the Constitution from being distorted, the Supreme Court. Eventually, not only was the Supreme Court allowing a torrent of morally excellent but constitutionally dubious federal legislation, but itself became enraptured in the desire to speed things along. (And God Bless them for it, for no-one of prudent judgment should conclude that later-day Twentieth Century Supreme Court Justices had anything other than the Nation’s best interests in mind. Soon enough the Court took it upon itself to actively engage in something “substantive due process,” the term we use for “discovering” substantive rights that are not enumerated (“unenumerated”) anywhere in the Constitution.

The way to do it takes little imagination: (1) identify the right to create in view of the case (e.g., the “right of a person not to be sterilized,” which was for a time thought to be a perfectly legitimate way to fight crime because some believed (wrongly) that “criminality” was hereditary, which was at issue in Skinner v. Oklahoma, 316 U.S. 535 (1942)); (2) generalize “upward” to the higher category in which [the whatever it is] is at stake is a component, if necessary; (3) rightly conclude that “to procreate” is, in a sense, something one is ordinarily “at liberty” to do; (4) announce that one’s decision “to procreate” requires a choice that is, in some, sense “fundamental” or “basic”; (5) judge that the degree of “basic-ness” or “fundamental-ness” involved in the particular decision and subsequent “liberty” is so profound, so basic, so [whatever adjective you can think of], that is, so special, that [whatever it is] requires uber-constitutional protection such that one’s “liberty” to do [whatever it is] is “implicit” within the “sense” of the referent “liberty” as it is appears in the following phrase: “No State shall … deprive any person of life, liberty, or property, without due process of law,” and, finally; (6) substitute for the qualifier of the previous phrase “without due process of law” the word “ever.” Thus, after all that work, you end up with this: “No State shall … deprive any person of … [the] … liberty [to do whatever it is] … ever.” Now, all one must do is apply the newly discovered fundamental liberty that no State shall deprive one of, ever, to the case at hand. In the case of Skinner, where the challenged State law required the sterilization of any criminal thrice convicted of a felony involving moral turpitude, armed with the new fundamental right “to procreate,” the Court struck down the Oklahoma law – oh, and every other State law like it on the books in all the rest of the States, too. That’s it.

In this fashion the Supreme Court, intoxicated by the enlightened moral excellence and purity in which it basked, all the while receiving fawning encouragement and praise from baby-boomers throughout the areas to which they flocked after undergraduate and graduate school, namely, academia and the media, set forth on a mission to reshape America into its own image. And it did. And once it began, the Court behaved like a heroin addict stuck on the smack, only here the “drug” was the Court’s collective vanity. Hence, during the latter half of the Twentieth Century, the Supreme Court created a veritable plethora of shiny new “fundamental” rights, such as: “to procreate,” “to marry,” “to obtain contraceptives if married,” “to obtain contraceptives even if unmarried,” “to abort a fetus,” and, more recently, “to commit homosexual sodomy,” and probably soon to follow, “to commit heterosexual sodomy,” “to homosexual marriage” (as at least one State Supreme Court has held, the reasoning of which will be the subject of a future post).

“Yeah, so what?” Is the response I usually receive when pointing this out (often accompanied by a menacing glare). The point is that none of these rights – like them or lump them – have anything to do with the United States Constitution, and the “theory” or way the Court has gone about inventing the fundamental rights is completely offensive to reason, completely offensive to the text of the Constitution, completely offensive to the notion of what the Constitution meant when it was ratified, and completely offensive to Constitutional democracy as a form of government. And the more people who understand this, the more societal discontent and cultural unrest is created in the eyes of the American public. In other words, the more people know about how illegitimate the Court’s activist jurisprudence has been in the later Twentieth Century, the more the image of the Supreme Court as the only apolitical branch of is damaged. And the more the image of the Supreme Court as the only apolitical branch is damages, the more illegitimate the Supreme Court appears in the public eye.

Many viewed the damage of Roe in this regard as the breaking point, for Roe cobbled together a handful of the fundamental rights employing the following reasoning:

(1) There is a fundamental right to procreate; (2) If there is a fundamental right to procreate, then there must be a fundamental right to marry, since the primary function of marriage is to bear and beget children; (3) Since there is a fundamental right to marry, and the primary function of marriage is to bear and beget children, then surely there is another fundamental right to choose not to have children but still have sex in the marital relationship, so there must be a fundamental right to obtain and use contraceptives in the marital relationship; (4) since there is a fundamental right to use contraceptives in the martial relationship, since it would be fundamentally unfair to deny that right to those who wish to engage in premarital sex, there must also be a fundamental right to obtain and use contraceptives for single people wishing not to procreate as the result of premarital sex; (5) since there is a right to obtain and use contraceptives for the purpose of having sex but not bearing and begetting a child, then there must be a fundamental right to choose whether one wishes to bear or beget a child; (6) since there is a fundamental right to choose whether one wishes to bear or beget a child, there must be a fundamental right to choose to abort one’s pregnancy should one become pregnant. Presto.

You get the picture. (And obviously you can see how easy it is to “reason” one’s way to homosexual marriage and homosexual sodomy.) The point is that once the Court throws away any fidelity to the text or the historical context within which the text of any Constitutional provision – or any statute at all – was promulgated, the Court will be – by definition – taking a purely legislative posture on every issue. In other words, once the arbitrary unconstitutional nonsense begins, there is no way to stop it other than by overruling all the unconstitutional nonsense. To restore the Court’s legitimacy, to restore the Court’s apolitical role in American Constitutional Government, it must get out of this Constitutional gutter. Until it does, the cancer will continue to fester: a large segment of the population (those who come to understand the issue and learn what is going on) will continue to view the Supreme Court – and it’s decisions – with contempt and cynicism (e.g., look at the explosion of vitriol caused by failing to understand what actually occurred in Bush v. Gore, 531 U.S. 98 (2000)). And judicial confirmation battles will continue being the bloody, hysterical, public disgraces they’ve become. That the whole blooming situation wasn’t supposed to be like this is beyond dispute. And it is a fact on which I think everyone can agree. But realizing what brought us here in the first instance is the coffee many of us need to smell and wake up to.

But in 1973, the coffee had not brewed yet. Justice Blackmun, along with six of his colleagues, truly and sincerely believed in what they were doing. The story goes that Justice Blackmun spent months upon months working and researching was was to become Roe, and sincerely believed that once the Court settled the matter, it would be settled for good and everyone would go home. Instead, Justice Blackmun was, in addition to much praise, absolutely deluged with hate-mail. And the hate-mail continued throughout his tenure on the Court. By 1992, Justice Blackmun was both lionized and hated, but the consensus was that Roe would eventually be overturned. Many viewed that Casey presented the opportunity to finally end the extremely imprudent, unconstitutional experiment, and they were right. But only four Justices supported the wholesale repudiation of Roe – two wanted to leave it alone – and three wanted to “compromise.” But the medicine required for compromise, in my judgment, was much worse than the disease, for at least four reasons.

First, and most obviously, Roe was “preserved,” even if only nominally. Second, the nominal preservation of Roe required the intellectual sacrifice of yet another basic common law principle, that of the doctrine of stare decisis. Third, one of the proffered reasons for preserving the purely political Roe was itself purely political (i.e., not rooted in the Constitution by any objective measure). Fourth, one of the proffered reasons for preserving Roe was that there was no change in factual circumstances to suggest that it should be overturned, which is in my view at best arguable. To further explain the first reason would be to beat a dead horse, so I’ll move on. The following post shall cover the second, third, and fourth reasons.

SCOTUS abortion law jurisprudence (part 3)

In law on June 21, 2009 at 9:08 am

Planned Parenthood v. Casey, 505 U.S. 833 (1992) concerned the constitutionality of Pennsylvania legislation called the Pennsylvania Abortion Control Act (hereinafter “law”), which created among other things five regulations challenged in the suit by the local Planned Parenthood. First, the law required abortion doctors to provide women seeking an abortion with information regarding the related health risks associated with the procedure before the abortion. Second, the law required married women to inform their husbands of their intent to abort before the abortion. Third, the law required pregnant minors to obtain consent from a parent (or guardian) before the abortion. Fourth, the law imposed a 24-hour waiting period before the abortion would be performed (presumably to facilitate the digestion of the health-risk information, to provide married women the opportunity to inform husbands, and to require minors to obtain the relevant consent). Fifth, the law placed reporting requirements on abortion clinics like Planned Parenthood (to facilitate more substantive governmental oversight).

The relevant District Court held all the provisions unconstitutional and entered a permanent injunction to that effect. The Third Circuit Court of Appeals reversed the District Court on four of the regulations (i.e., the regulations were constitutional) but affirmed the District Court on the unconstitutionality of the husband-notification regulation. (One of the three circuit judges dissented from the Third Circuit’s disposition with respect to the husband-notification regulation (i.e., he believed the husband-notification requirement constitutional): Judge Samuel Alito.)

Writing for the plurality of three, Justice O’Connor opened with: “Liberty [to abort the unborn human life form] finds no refuge in a jurisprudence of doubt. Yet, 19 years after our holding that the Constitution protects a woman’s right to terminate her pregnancy in its early stages … that [right] is still questioned.” Insisting that the Court was upholding the “essential holding” of Roe, the Court reiterated dicta found in Eisenstadt v. Baird, 405 U.S. 438 (1972) (creating a constitutional right of unmarried couples to procure and possess contraceptives): “If the right of privacy means anything, it is the right of any individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether or not to bear or beget a child.” (The plurality, of course, ignored the fact that abortion, being something that occurs after conception, has nothing to do with contraception.) In other words, though the Court was scrapping Roe’s trimester framework in light of scientific advancements in the abortion industry, the basic right to abort at some point remained intact.

So, the question once again became (as it always will be so long is Roe remains viable) where to draw the line within the spectrum of “never” and “always” permissible. As I showed in earlier in Part 2 of this series, placing any weight at all on a State’s “important and legitimate interest in protecting the potentiality of human life” that, up until Casey, was little more than lip service. But in the scheme of things, Casey’s modification of Roe was substantial: “Roe’s essential holding, the holding we reaffirm, has three parts. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure. Second is a confirmation of the State’s power to restrict abortions after fetal viability if the law contains exceptions for pregnancies which endanger the woman’s life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contradict one another; and we adhere to each.”

In other words, Casey substantially changed the name of the game in a number of ways: First, instead of the trimester framework, the relevant threshold became “viability,” which the Court decided was roughly 22.5 weeks. (For those of you who are as mathematically challenged as I am, according to the BBC, week 20 is the halfway point.) Second, unlike Roe and Doe, which held that a woman can choose to abort for “no reason” during the first trimester and for virtually “any reason” during the second and third, Casey held that, pre-viability, the state could regulate abortion so long as whatever the regulation purported to do, it did not constitute a “substantial obstacle to a woman’s effective right” to have an abortion. Third, and post-viability, the State could restrict or prohibit abortion entirely so long as the relevant law contained “exceptions for pregnancies which endanger a woman’s life or health” (emphasis added).

The significance of the foregoing was huge. But, first, let’s consider the political realities of Roe. By 1992, virtually everyone with a pulse and a law degree knew that – despite its value as a piece of liberal moral philosophy and a somewhat lopsided political compromise – Roe was a constitutional laughingstock, and no one knew (and felt) this more than Justice Blackmun. Justice Stevens had succumbed to vanity long before Casey, and perhaps felt a kinship for his older Midwestern brother. In any event, no one was surprised to see Blackmun defending his legacy to the death, or Stevens engaging in his (perceived) intellectual self-gratification. On the other side you had Rehnquist and White, both of whom knew that Roe was a disgrace and that there was no sufficient justification for keeping it around (which is why O’Connor extolled the virtues of stare decisis over and over and over again). And as we have come to know, both Scalia and Thomas agreed with Rehnquist and White.

That left O’Connor, Kennedy, and Souter. For those who already know the following story, bear with me. In 1981 Justice Potter Stewart retired from the Court, providing Ronald Reagan with his first opportunity to nominate a Supreme Court Justice. (During the 1980 presidential campaign, Reagan had pledged to appoint the first woman to the Supreme Court – something Nixon had badly wanted and intended to do with California Judge Mildred Lillie, who had the backing and recommendation of then-Governor Ronald Reagan. But for Nixon Lillie was sadly not to be, and for a reason that might enlighten those who recoiled in horror when President George W. Bush’s Administration announced that it would not be subjecting any more judicial nominees to the American Bar Association for “review.” After the Washington Post reported that many “members of the legal community expressed disappointment” that Mildred Lillie was not “more distinguished,” Nixon caught word that the ABA was preparing to issue either a “not qualified” or “no opinion” review for Lillie (which would likely doom her confirmation prospects). Why? According to John Dean, “Because she’s a woman.” In response to which Nixon was outraged: “‘Well, I’m never going to submit anything to that God damn bar again,’ Nixon fumed.” All of this led Dean to muse: “I never understood why any president would want the prior approval of the American Bar Association’s Standing Committee on the Federal Judiciary for Supreme Court nominations.” John W. Dean, The Rehnquist Choice: The Untold Story of the Nixon Appointment That Redefined the Supreme Court 146-79 (2001).) Despite having a Republican controlled Senate – all but ensuring the confirmation of any nominee – Reagan made what would prove in hindsight to be a tragic decision: to pass over infinitely more qualified and (Department of Justice favorite) Robert H. Bork to fulfill his campaign promise. He nominated Sandra Day O’Connor.

But the story doesn’t stop there. Shortly after Reagan nominated O’Connor to the Supreme Court in 1981, he nominated Bork to the Circuit Court of Appeals for the District of Columbia, commonly known as a place where potential Supreme Court nominees “incubate” prior to the being nominated to the Supreme Court. (See, e.g., Scalia, Ginsburg, Thomas, John Roberts, and would have included Miguel Estrada had his nomination not been subjected to “judicial filibuster – the constitutionality of which is arguable.) But by the time Reagan would have his next shot at nominating Bork to the Supreme Court in 1987 (Reagan went with Scalia in 1986)), the political climate was quite different. This time, rather than sail through the confirmation process like O’Connor (99-0) and Scalia (98-0), Bork was (according to judicial conservatives) martyred when the Senate refused to “consent” (42-58) to his nomination in part because Bork refused to recognize any vaporous “right to privacy” in the Constitution, which was (rightly) interpreted as a sign that Bork would indeed vote to overrule Roe. In protest for his maltreatment by the Senate, Bork resigned his seat on the D. C. Court of Appeals, which was, ironically, filled by Clarence Thomas. Even more ironically, however, the seat on the Supreme Court to which Bork was nominated wound up being filled by Anthony Kennedy.

The point here is to lay out a theory of why O’Connor, Kennedy, and Souter voted the way they did in Casey. O’Connor and Kennedy are simple to understand. O’Connor, long being detached from any commitment to the text or original understanding of the Constitution like Scalia, Rehnquist, Thomas, and Bork, often decided cases with an eye towards “compromise.” Kennedy was also a judicial “moderate” and therefore susceptible to similar “pragmatic” concerns. Souter is a different story. David Souter was appointed by H. W. Bush as a total and complete enigma, which naturally led modern liberals to suspect that he would be solid judicial conservative. If that is what the Bush Administration wanted (and it was), Souter turned out to be a catastrophic blunder far, far worse than Reagan’s appointment of O’Connor in 1981. But in 1992, Souter was still in his “moderate” phase of 1990-93, perhaps because he felt some kind of gratitude or expectancy from those who engineered his appointment, Warren Rudman and John Sununu. Since then the career bachelor has lurched to the left, and is now a consistent vote with the modern liberal bloc of the Court (but not nearly as far left as Stevens). Regardless, however, Souter must have realized that siding teaming up with O’Connor and Kennedy would allow him a piece of history as a Supreme Court jurisprudence shaper – as opposed to a futile foot-stamper like Stevens. He succeeded.

Notwithstanding that digression, the key point of Casey – in my view – is in the compromise O’Connor, Kennedy, and Souter crafted for the purpose of salvaging Roe from total destruction: the word “endanger” as it pertains to post-viability state regulation. (Most commentators focus on the “undue interference” language as it pertains to pre-viability abortions, but I think the real issue lies in what O’Connor penned respecting post-viability abortions: the State may restrict or prohibit abortion entirely so long as the relevant law contained “exceptions for pregnancies which endanger a woman’s life or health.” In other words, so long as a woman’s life or health is not endangered by the pregnancy, restriction or even prohibition is constitutional. Once again, Merriam-Webster defines “endanger” as “to bring into danger or peril” or “to create a dangerous situation.”) Thus, rather than overrule Roe entirely, O’Connor, Kennedy, and Souter crafted another compromise: pre-viability abortions are still absolutely available, but the State can regulate them to the extent that the regulation does not impose an “undue interference” or “substantial obstacle” to the right to abort (e.g., by providing information about abortion including options available for adoption, 24-hour waiting periods, parental consent, etc.), and post-viability abortions may be restricted or prohibited so long as the regulation or prohibition does not endanger the life or health of the pregnant woman, because once viability occurs the State’s “important and legitimate interest” is triggered and sufficient to support the post-viability regulation or prohibition.
This was a big change. In the following posts I’m going to examine the reasoning of all the Justices, in a comprehensive (and hopefully) easy-to-grasp manner, all of which is critical to understanding the arguments of both sides of the “abortion debate” as it relates to the U.S. Constitution.

SCOTUS abortion law jurisprudence (part 2)

In law on June 21, 2009 at 9:06 am

The morality of aborting a human life form in utero had been the subject of debate in state legislatures since the ratification of the United States Constitution up until 1973. Reasonable people often agree to disagree on this profound moral problem, and they generally fall into one of two camps: those who view the unborn human life form as “fully human” or a “person,” and therefore entitled to the same degree of concern and respect as any other individual, or those who view the human life form as less than “fully human” or not a “person,” and therefore not entitled to same degree of concern and respect as any other individual.

If the latter view is morally correct, then the wishes of the mother carrying the unborn human life form ought to be given first priority (i.e., the decision to abort the unborn human life form rests with the mother alone either in some or all circumstances). If the former view is morally correct, then the interests of both the mother and unborn are to be given equal degrees of concern and respect. Obviously there are two ends of the moral spectrum here – either it is always morally wrong to abort or it is always morally permissible to abort. Since advocating for either view is tantamount to moral absolutism (i.e., a belief that is “morally basic” in the sense that it is by definition impervious to argument), neither will be treated here. Suffice it to say, the actual philosophical battle over the morality of abortion lies somewhere in the middle, and has throughout the history of the United States. That is, until 1973.

In Roe v. Wade, 410 U.S. 113 (1973), seven justices of the United States Supreme Court removed the foregoing moral debate from state legislatures forever – or at least that is what they intended. Justice Harry Blackmun, writing for a majority of seven (and over only two dissenters, Justices Byron White and William Rehnquist), required fifty-one pages to explain why, since our nation’s founding, the profound moral question of whether and to what extent a woman may legally procure an abortion is no longer one fit to be decided democratically by the people themselves through their respective state legislatures. But no such explanation is offered within the Court’s fifty-one page opinion, and none has been offered since.

Instead, Justice Blackmun identified three reasons he believed explain why the people of every state in the union, through their state legislatures, had enacted laws touching on the when’s, where’s, and how’s of aborting the unborn human life form: (1) social concern for “illicit” sexual conduct; (2) concern for the hazards related to the actual procedure; and (3) concern for the human life form. Blackmun dismissed the first reason because “no court or commentator has taken that argument seriously,” noting additionally that the statute failed to distinguish between married and unwed mothers. With respect to the first reason, the point of the Texas statute was to attach more moral accountability to the sexual act. (I have no idea what Texas meant by “illicit” sexual conduct, but the dictionary definition of “illicit” is “unlawful.” Again, without knowing exactly what Texas meant, what comes to mind here is prostitution and pregnant prostitutes seeking abortions.) In any event, Blackmun disposes with the first reason immediately.

With respect to the second and third reasons, Blackmun concedes that the “State does have an important and legitimate interesting in preserving and protecting the health of the pregnant woman” and “it has still another important and legitimate interest in protecting the potentiality of human life” (emphasis added). “Potentiality” is used here for a reason, for “We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.”

With that, Justice Blackmun cemented his place in history by attaching his name to the following: “[The] right of privacy, whether it be found[] in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action [or not] … is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Thus, the Court deployed a trimester framework within which to balance pregnant woman’s right to abort and an unborn human’s “potential” life. And within that framework, Roe held that somewhere within the Constitution there exists an absolute right held by all pregnant woman to abort within the first trimester of pregnancy. Once into the second trimester, however, the State may regulate abortion “in ways that are reasonably related to maternal health.” And once into the third trimester, the State may prohibit abortion entirely if the unborn has reached viability “except where it is necessary, in the appropriate medical judgment, for the preservation of [either] the life or health of the mother” (emphasis added).

The emphasized text is critical, for, when read together, the following two propositions follow: (1) a pregnant woman may terminate her pregnancy at any time during the first trimester; (2) a pregnant woman may terminate her pregnancy at any time after the first trimester so long as the decision to abort is supported by the medical judgment that aborting the human life form is required to save the pregnant mother’s life or furthers a woman’s “health.” Make no mistake, this very may well be a lovely piece of moral philosophy. But even the dullest tool in the shed has to wonder: what does “health” mean as it is used by Justice Blackmun to justify aborting the unborn at any time during pregnancy?

Well, turning (like I love to) to Merriam-Webster, the #1 definition of “health” is “the condition of being sound in body, mind, or spirit.” Under this definition, one may at least argue that, if an abortion late in the third-trimester will enhance a mother’s “mind” or “spirit,” then the abortion will be in furtherance of a mother’s “health.” As cynical an interpretation this may be, this is not only precisely what the militant wing of the pro-choice movement believes, but exactly what Roe’s companion case, Doe v. Bolton, 410 U.S. 179 (1973), actually held: “Whether … ‘an abortion is necessary’ is a professional [medical] judgment [a] physician will be called upon to make routinely … [and] may be [made] in light of all factors – physical, emotional, psychological, familial, and the woman’s age – [re[ative] to the wellbeing of the patient. All these factors may relate to health” (emphasis added). Such was the law of the land after Roe and Doe. A woman has an absolute right to abort for no reason at all within the first trimester, and after the first trimester, a woman’s right to abort persists if she can find a doctor who will opine that the abortion will improve either (i) her emotional state, (ii) her psychological state, (iii) her familial state, or (iv) that she’s “too young” or “too old” to carry the pregnancy to term. In other words, after Roe and Doe, within the first trimester a woman may abort for no reason at all, and after the first trimester a woman can abort for any reason at all.

If the foregoing leads one to scratch one’s head a bit, such may be for one of the following reasons. First, given the Court’s insistence on the existence of the “important and legitimate interest in protecting the potentiality of human life,” one may reasonable wonder just how “important and legitimate interest” must be since in the only trimesters in which it applies, it can be overridden by any physical, emotional, psychological, familial, or age-related reason at all.

Second (and this has to do with the more fundamental problem of Roe and Doe), the things we commonly refer to in everyday American nomenclature as “constitutional rights” tend to bear some relation to the Constitution. For example, the Second Amendment says that Americans have the right to “keep and bear arms,” that is, every American citizen has an explicit constitutional right to obtain, retain, and carry guns around (subject to reasonable restrictions – that is, the right is not “absolute”). The “right to abort,” of course, bears no similar relation to the Constitution, and Justice Blackmun wisely refrains from any attempt to show that it does. Instead, he invokes the mysterious “right to privacy,” which had previously been used to discover constitutional rights to, among other things, procreate (Skinner v. Oklahoma), marry (Loving v. Virginia), and obtain contraceptives (Eisenstadt v. Baird), and his belief that the Fourteenth Amendment has something to with “personal liberty” (which it does – it provides that States may deprive one of either “life, liberty, or property” so long as the individual to be deprived of his property, liberty, or life is given “due process” beforehand).

Now, if one is a subscriber to the concept of a “living Constitution,” namely, a Constitution that can evolve in meaning, and you happen to hold a morality that doesn’t see much of an issue with aborting unborn humans, then perhaps Justice Blackmun’s propositions make perfect sense to you. After all, if the Constitution simply evolves in tandem with evolving morality, then saying “x is constitutional” is saying little more than “x is moral” (which is, in fact, the way most public schoolchildren are actually taught to construe the Constitution in the United States, often per the instructions of the immensely powerful and influential teachers’ unions).

By contrast, is one is not a subscriber to the concept of a “living Constitution,” that is, the Constitution means the same thing it meant at the time of “framing,” then Justice Blackmun’s propositions made no sense at all. After all, if the Constitution simply evolves over time with morality, then the existence of a mechanism to change the meaning of the Constitution – by Constitutional Amendment – is utterly superfluous. These sorts of folks find the notion that a “contemporary Constitution” may directly contradict the “antiquated Constitution” on various constitutional concepts dubious at best. Take, for example, capital punishment. According to Justice Stevens, for example, any form capital punishment is absolutely “cruel and unusual,” and therefore violative of the Eighth Amendment’s prohibition of “cruel and unusual” punishment. This is, of course, a completely humane view, but capital punishment as originally understood by the Framers was not only in principle never cruel or unusual in-itself, but death-by-hanging was seen as perfectly humane.

In any case, the controversy about Roe should now be perfectly clear, for it is very much a battle over the very essence of the United States of America’s form of government. At one extreme, America is understood as a place where political majorities may legislate in those areas made off-limits by an ever-evolving “Living Document” the meaning of which is, if we are to follow Roe, whatever a majority of the Supreme Court says it is (since it is logically impossible to know beforehand). At the other extreme, America is understood as a place where political majorities may legislate in any arenas not explicitly made off-limits by the text of the Constitution, and it is up to the Supreme Court to decide whenever a legislature has overreached pursuant to either a plain reading of the Constitution’s text where unambiguous, or the original understanding of the concepts involved when interpreting ambiguous text, or (as a last resort) by referring to any legislative history available (and in that order).

Regardless of how one feels about the morality outlined in Roe, few serious scholars, jurists, or constitutional lawyers deny that Roe was a constitutional aberration: along with the likes of Judge Robert Bork, Justice Clarence Thomas, and Justice Antonin Scalia, we find not only pro-choice heavyweights like Laurence Tribe, Alan Dershowitz, John Hart Ely, and Edward Lazarus admitting that Roe was poorly decided, but many an honest pro-choice journalists and commentators as well, such as Brookings’s Benjamin Wittes, Washington Post’s Richard Cohen, and Slate columnist William Saletan (who left the GOP in 2004 because it was “too pro-life”). Needless to say, intellectual honesty demands that we “move on” from the debate on whether Roe possesses constitutional legitimacy.

However, like former Arkansas Governor Mike Huckabee’s position on Iraq (“We broke it” – building on Colin Powell’s pre-Iraq invasion admonishment to President Bush: “You break it, you buy it”), the issue is no longer about whether Roe was a legitimate exercise of sound judicial discretion and a splendid exemplar of moral philosophy (or a tragic constitutional abomination). The issue is about what to do with our regrettable purchase.

By 1992, some Supreme Court watchers thought the time had come to reverse Roe – something that Republican presidents since Richard Nixon had been promising to “pro-life” voters on both sides of the isle since before the ink on Roe had dried. Indeed, the composition of the Court was quite different after the passage of 19 years, only four of which were during a Democrat Presidency (Jimmy Carter). Those 19 years saw the confirmation of Justices John Paul Stevens (nominated by Gerald Ford), Sandra Day O’Connor, Antonin Scalia, and Anthony Kennedy (nominated by Ronald Reagan), David Souter and Clarence Thomas (nominated by George H. W. Bush). Given the continued presence of Roe dissenters Justices Rehnquist and White, and since only Justices Blackmun and Stevens could be counted on to save Roe, to even the most ardent pro-choice supporters it seemed that Roe would be overruled.

Of course, Roe was not overruled, but the law of the land was substantially altered in a way that signaled an obvious retreat from the troublesome Roe. The case was Planned Parenthood v. Casey, 505 U.S. 833 (1992), and was decided by a plurality of three constituted by Justices O’Connor, Kennedy, and Souter, and the separate concurrences of Justice Stevens and Justice Blackmun. The case produced two dissents, one by Justice Rehnquist and the other by Justice Scalia. Both dissents were joined by the full strength of the remaining dissenters Justices White and Thomas. (In other words, it was ([3]+2=5)/4, ([3]+2=5)/4 – a somewhat odd result given that the two largest pluralities in rationale belonged to to the two dissents, but since there were five votes for the end result regardless of the rationale, the end result reached by the rationale of the plurality of three is what carried any weight as precedent.) In the next part of this series of posts (Part 3), I’ll get into the details.

SCOTUS abortion law jurisprudence (part 1)

In law on June 21, 2009 at 9:03 am

Rereading the United States Supreme Court case Gonzales v. Carhart, 550 U.S. ___ (2006), I noticed proposition in the dissent worth devoting some serious thought to. The proposition is this: “[T]he notion that the [Federal] Partial-Birth Abortion Ban Act furthers any legitimate governmental interest is, quite simply, irrational.” 550 U.S. at ___ (Ruth Bader Ginsburg, J., dissenting). (Justices John Paul Stevens, David Souter, and Stephen Breyer agreed with Justice Ginsburg.) Before I get into the gory details, however, a bit of background is in order for those who don’t know what the phrase “partial-birth abortion” refers to, and thus what the Federal Partial-Birth Abortion Act of 2003, 18 U.S.C. §1531 (hereinafter “§1531″) prohibits.

(And before doing that, readers must realize that in Stenberg v. Carhart, 530 U.S. 914 (2000), the Supreme Court held that any legislative enactment purporting to ban the procedure generally known as “partial-birth abortion” is invalid under the Constitution unless it contains an exception allowing the procedure in cases where such is deemed “medically necessary” to preserve a mother’s “health” absent of any Congressional findings on the “medical necessity” of the procedure.)

Abortion is the practice of artificially ending the life of an unborn human life form (often referred to as a “fetus”). Approximately 1,300,000 abortions are performed in the United States every year. Between 85-90% of those abortions are performed sometime during the first three months of pregnancy (i.e., the “first trimester”). The most common methods for aborting the unborn human life form during the first three months are “vacuum aspiration,” whereby the medical doctor vacuums out the human life form, or by taking the drug RU-486, which essentially causes the mother to evacuate the human life form via an induced menstrual cycle. §1531 has nothing to do with either of these procedures, both of which a mother has a constitutional right to choose.

Of the remaining 10-15% abortions performed each year, most occur during the fourth, fifth, or sixth month of pregnancy. The method used during these months is “dilation and evacuation,” which is generally the process of dilating the cervix to the point necessary to insert surgical instruments (e.g., forceps) into the uterus, insertion of the instruments after the mother is anesthetized, grasping the human life form, and tearing the human life form out piece by piece until it is fully evacuated, which often requires 10 to 15 “passes.” Once the human life form and all other related pregnancy-related matter is evacuated, the medical doctor examines the dismembered human life form to ensure that nothing was missed.

Sometimes, and usually later in the second trimester, the human life form is killed one or two days prior to performing the evacuation by injecting digoxin or potassium chloride into the human life form or the umbilical chord or amniotic fluid. Once dead, the human life form softens, making its removal easier. But the premature chemical death sometimes causes contractions and enables greater dilation. Regardless, there is no consensus on the prudence of killing the human life form chemically prior to extraction, which is to say, some medical doctors believe that doing so adds risk with either little or no benefit.

The precise “D&E” method prohibited by §1531 is a variation of the standard method, whereby the human life form is purposefully extracted fully or largely intact, rather than tearing it apart piece by piece. The purpose is either to have an “intact delivery,” or at least to the point where the human life form’s head becomes lodged in the cervix. In the latter circumstance, as Dr. Martin Haskell explains:

“At this point, the right-handed surgeon slides the fingers of the left [hand] along the back of the fetus and ‘hooks’ the shoulders of the fetus with the index and ring fingers (palm down).

While maintaining this tension, lifting the cervix and applying traction to the shoulders with the fingers of the left hand, the surgeon takes a pair of blunt curved Metzenbaum scissors in the right hand. He carefully advances the tip, curved down, along the spine and under his middle finger until he feels it contact the base of the skull under the tip of his middle finger.

[T]he surgeon then forces the scissors into the base of the skull or into the foramen magnum. Having safely entered the skull, he spreads the scissors to enlarge the opening.

The surgeon removes the scissors and introduces a suction catheter into this hole and evacuates the skull contents. With the catheter still in place, he applies traction to the fetus, removing it completely ….”

A nurse who witnessed the same method performed by Dr. Haskell on a nearly 27 week old human life form describes it thus:

“Dr. Haskell went in with the forceps and grabbed the baby’s legs and pulled them down into the birth canal. Then he delivered the baby’s body and the arms – everything but the head…. The baby’s little fingers were clasping and unclasping, and his little feet were kicking. Then the doctor stuck his scissors in the back of [the baby’s] head, and the baby’s arms jerked out, like a startle[d] reaction, like a flinch, like a baby does when he thinks he is going to fall. The doctor opened up the scissors, stuck a high-powered suction tube into the opening, and sucked the baby’s brains out. Now the baby went completely limp….

He cut the umbilical cord and delivered the placenta. He threw the baby in a pan, along with the placenta and the instruments he had just used.”

This method has further evolved since these descriptions. For example, some doctors simply squeeze the human life form’s skull after the skull is punctured so that “enough brain tissue exudes to allow the head” to pass through the cervix. Still others simply use forceps to crush the living human life form’s skull altogether. Others simply continue pulling after the skull lodges itself until the human life form “disarticulates” at the neck. Once decapitated, the skull is crushed and removed with forceps.

The above-described procedures had received sufficient public attention to cause 30 States to enact bans prohibiting it by 2001. Meanwhile, President Clinton vetoed a similar bill sent to him by Congress in 1996 that the Senate failed to override. President Clinton vetoed the bill again in 1997, and again the Senate failed to override.

By 2003, however, President Bush signed the §1531 sent to him by a Republican controlled House and Senate. §1531 differed from that of those vetoed by President Clinton in two respects. First, Congress made factual findings, and among them, that a “moral, medical, and ethical consensus exists that the practice of performing partial-birth abortion … is a gruesome and inhumane procedure that is never medically necessary [the preserve the “health” of the mother] and should [therefore] be prohibited.” (Emphasis added.) (“Gruesome,” by the way, is defined by Merriam-Webster (OnLine) Dictionary as “inspiring horror or repulsion.”) Second, the Act provided for an express exception for cases where the life of the mother is placed at risk by the pregnancy itself. (Parenthetically, in light of the question asked by a supporter of former U.S. Senator John Edwards at the Republican CNN You Tube debate, the law did not purport to punish pregnant mothers for violation, only the doctor performing the abortion.)

The Eighth Circuit agreed with the District Court in Carhart that the Act was unconstitutional because it did not contain any exception allowing the gruesome procedure in cases deemed necessary to preserve the mother’s “health.” (The Eighth Circuit also found the question of whether the procedure was ever medically necessary unsettled within the medical community. In this conclusion the Eighth Circuit did two things: (1) it ignored the Congressional findings that the banned method was never medically necessary to preserve the “health” of a mother and (2) announced the public policy decision that “when a lack of consensus exists in the medical community, the Constitution requires legislatures to err on the side of protecting [a] woman’s health by including a health exception.”

Consolidated with Carhart was Gonzales v. Planned Parenthood Federation of America, which produced a similar but not identical result at the appellate level. In Planned Parenthood, the Ninth Circuit agreed with the District Court that §1531 was constitutionally infirm because (1) it failed to contain any exception allowing the otherwise banned procedure for the purpose of preserving the mother’s “health,” (2) the Act placed an “undue burden” on a mother’s ability to procure a second-trimester abortion (in violation of Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992)), and, in any event, (3) the Act is “void for vagueness” because it failed to sufficiently communicate to doctors precisely which procedures are banned (as required by Ayotte v. Planned Parenthood of Northern New Eng., 546 U.S. 320 (2006)).But before I get into the current state of Supreme Court Law Jurisprudence, it will may prove useful to see how we got here in the first instance.

explication: ronald dworkin’s taking rights seriously (imcomplete)

In law, philosophy on June 20, 2009 at 1:03 pm

Introduction

In Taking Rights Seriously (1977), lawyer and philosopher Ronald Dworkin sets out to “define and defend a liberal theory of law” he offers as an alternative to what he refers to as the “ruling theory of law,” of which there are two aspects: a descriptive aspect about what law is, and a normative aspect about what the law ought to be. With regard to the descriptive aspect, the truth of a legal proposition is a function of whether the proposition has been “adopted” (i.e., “accepted” or “embraced”) by a given society’s “social institutions.” With regard to the normative aspect, the wisdom of a legal proposition is a function of its utility, which is to say, the “greatest good” (for the greatest number) (i.e., the “general welfare”). The ruling theory of law finds its greatest expositors in the likes of Jeremy Bentham, John Austin, and H. L. A. Hart.

Dworkin agrees that a theory of law must contain these two aspects, but he places special emphasis on the normative aspect of law, wherein he further distinguishes subcategories. A complete normative theory must contain additional theories of legislation, adjudication, and compliance, and each of them must evaluate propositions of law from appropriate points of view corresponding to each, namely, the legislator, judge, and citizen. So a complete normative theory will contain a theory of legislation and what makes a piece of legislation legitimate (which will be largely a function of proper parliamentary procedure), a theory of adjudication that provides standards to judges for deciding cases, be they “easy” (in the sense that the answer provided by law is clear or “determinate”) or “hard” (in the sense that the answer provided by law is unclear or “indeterminate”), and a theory of compliance, which will contain both a theory of obedience (which explores the nature and limits of the citizenry’s duty to obey law) and a theory of enforcement (the nature and limits of the government’s ability to enforce law).

A complete normative theory will necessarily incorporate within it other areas of philosophical inquiry, most notably political philosophy and moral philosophy, while a complete descriptive theory will incorporate within it areas such as the philosophy of language and meaning, logic, and metaphysics. “The issue of what propositions of law mean, and whether they are true or false,” Dworkin observes, “establishes immediate connections with very difficult and controverted questions in philosophical logic. A general theory of law must therefore constantly take up one or another disputed position on problems of philosophy that are not distinctly legal.”

Dworkin has on his mind a problem that has particular significance in American politics and law, and with specific respect to what he calls “constitutionalism.” He rightly identifies this problem as one touching upon the concept of political legitimacy, and by that I believe he means the problem of how we identify – if we can identify at all – “fundamental principles” of justice (which is itself extremely difficult to define, as Plato showed long ago) and, assuming we can identify (or have epistemic access to) these “fundamental principles” of justice, when – if we can at all – fairly or reasonably declare them a constituent or component of our “constitution.” (Here it may be useful to note that “constitution” means two different things depending on whether our context is Britain, which does not have an explicit (i.e., written) constitution like America, but every British Citizen will most emphatically insist that there is such a thing as a “British Constitution,” namely, and implied governmental essence of sorts the existence of which can be inferred from its traditions and history in a way similar to the essence of English common law. In America, of course, the Founders took a shot a codifying the core of this British constitution as a baseline of fundamental political philosophy of the proper relation between the individual and state. Unless otherwise stated, my discussion will remain within the context of the explicit (i.e., written) American constitution (hereinafter “Constitution”) unless otherwise stated.)

Dworkin assumes the existence of these fundamental principles, and for good reason. The notions contained in the Constitution obviously came from somewhere; they followed from a conceptual moral foundation of sorts. It is accordingly fair to describe the situation by asserting the following propositions: (1) “The Constitution presupposes a certain morality.” (2) The fundamental principles of the presupposed morality were, for the most part, considered by the Founders to be self-evidently true.” The first proposition is obviously true. The second, however, may be open to question. But for my purposes that question is philosophically unilluminating, and therefore I shall have nothing more to say about it.

Dworkin describes the “ruling theory” of law” as also consisting of two parts, a conceptual and normative part. The conceptual part is known as “legal positivism,” and was in a sense revitalized in the 20th Century by Hart. The normative part is essentially utilitarian because it posits the ideal legal system as one “whose overall goal is the promotion of the highest average welfare among … individuals,” and which has also seen a similar resurgence in the later 20th Century by, among others, the economic analysis of law in the scholarly works (and opinions) of U.S. Seventh Circuit Court of Appeals Judge Richard Posner. Legal positivism and utilitarianism are quite naturally individualistic in the sense that they oppose any form of “collectivism” (i.e., socialism, fascism, communism, totalitarianism, etc.), and in the more specific sense denies the notion that “society” or “the community” is a distinct entity in its own right that accordingly has its own “interest” or “entitlements,” rather like a corporate entity does. Instead, because of its essentially individualistic theme, a conception of “the law” proper is viewed as the product of explicit social practices and individual institutional decisions, and therefore denies “the more romantic and obscure idea that legislation can be [or is] the product of an implicit [societal] or corporate will.”

In addition to ignoring or denying the existence or alleged perspective of “society” or “the community” as the source of law, the other main criticism of legal positivism is its tendency of being too “rationalistic” in the sense that law is always a product of deliberate and purposeful decisions of human planning through which individual behaviors, by habitual obedience, are curbed and shaped for the benefit of all. This is seen as a weakness of legal positivism for some because it presupposes that lawmakers possess “the skill, knowledge and virtue to make such decisions” wisely in our complex society.

Dworkin identifies the source of such criticisms as typically flowing from the “political left,” members of which often criticize the individualism and rationalism embedded within the classical liberalism on which America was founded. Proponents of such theories rail against notions of individualism and rationalism, and currently fly under the various banners of the “critical legal studies” movement (e.g., “critical race theory,” “feminist legal theory,” “critical race feminism,” etc.), all of which view law as merely a tool of oppression used by powerful groups (e.g., white men, the rich) against less powerful ones (e.g., women, minorities, and the poor), which of course gives CLS its distinctive Marxist flavor. The “CLS” movement and its various strands are accordingly divisive, separatist, and hostile to any notion of neutrality in law, logic, justice, and truth, for all are seen as tools of oppression. See generally Brian Bix, Jurisprudence: Theory and Context 181-97 (Chapter 19). Its proponents, the majority of whom can be found in law school faculties, view the law schools as the proper staging area at which to train or further equip like-minded societal converts and crusaders, enthusiastic young lawyers who are to be unleashed into society to engage in open or covert societal and cultural warfare. Because vast majority of “the literature of critical legal studies announces rather than defends [its] claims, as if they were self-evident,” however, it is quite difficult to engage a critical legal theorist on the merits. See Dworkin’s Law’s Empire, 271-74. CLS advocates place little to no value on intellectual or rational discourse, over-rely on a grossly exaggerated version of indeterminacy in law, and many engage in what is known as “narrative” or “storytelling” in CLS writings as their primary vehicle by which to teach. See, e.g., Marcella David, Phallic Dreams, Reality’s Promise: A Commentary, 3 Journal of Gender Race & Justice 669, 672 (2000) (“I confess that I still find the occasion to ’strap on’ my mental penis. Whenever I ‘wear’ it, I present myself in a more competent and assured fashion.”) But because telling stories in a casual fashion is often seen as a veil by which advocates merely “cover up a lack of rigor about facts, correlation or causation [with the emotion of] empathy [and] in a one-sided manner,” see Bix, supra at 197 (citing Posner, Overcoming Law 368-84), CLS and its advocates are rarely taken seriously by jurisprudential students and scholars.

But not all critics of the “ruling theory” are members of the political left, of course. Some instead occupy conservative positions within the “political right,” such as those who follow “the curious philosophy of Edmund Burke.” These people believe that “the true law of the community” isn’t merely the deliberate and purposeful decisions made by those legitimately empowered to do so, but also “the diffuse customary morality that exercises a great influence on these decisions,” e.g., Judeo-Christian based morality. And this, of course, is certainly true with respect to the Founders, who stated explicitly time and again that the system of government they created presupposes that those it is intended to govern are men and women who subscribe to a particular morality. These people criticize what they see as strict economic utilitarianism as “hopelessly optimistic” in the sense that any deliberate decisions that run contrary to – or contradict – Judeo-Christian tradition in fact do damage to the community’s welfare. Therefore, these conservatives argue, the “rules best suited to promote the welfare of a community will emerge only from [the past] experience of that community, so that more trust [in and deference to should be placed on] established social culture” than in “social engineering.” Perhaps an issue that very clearly highlights the reemergence of this way of thought can be found in the current debate over the concept same-sex marriage, in the sense that social conservatives vehemently insist that arbitrarily expanding the concept of traditional marriage to include couples of the same sex will damage both society in general and the institution of traditional marriage in particular, as if a tear in the universe with open up and into which we will all tumble to our peril if we do so. (I am allowed to poke fun because I happen to be one of those silly people.)

Dworkin rejects both criticisms of the “ruling theory,” but does so for a unique reason: neither criticism notices that the “ruling theory” is defective because it rejects the notion that individual human beings can have rights against the state that are necessarily prior to the rights created by explicit legislation. In other words, human beings have fundamental human rights. Some call them natural rights, which is of course the notion that humans possess certain inalienable rights that are in some sense fundamental – or essential to one’s very nature – insofar as they are human. But what about Dworkin’s theory is new? Doesn’t natural right theory date at least as far back as Aquinas? Of course, but Dworkin’s natural law theory is at least rooted in a secular, or natural in the naturalist/naturalism sense. So Dworkin’s idea isn’t exactly new, although his variation arguably is. I call his variation “secular natural rights theory.”

on sidney poitier’s measure of a man

In books on June 20, 2009 at 1:00 pm
I just finished Sidney Poitier’s Measure of a Man: A Spiritual Autobiography and was both impressed and inspired. And perhaps what impressed and inspired me most were the striking similarities between Poitier’s life and description of it, and Justice Clarence Thomas’s life and description of it, as I just read the latter’s My Grandfather’s Son: A Memoir the other day. Basically, these two gentlemen did it well and did it right, all in the face of a lot of ugliness, but they certainly didn’t do it alone. They had extremely rigid, but principled, guidance, and they both credit their entire respective outlook on that guidance. And while Justice Thomas turned in no small part to his Catholic upbringing for spiritual strength, Poitier developed more of a spiritual naturalism. But in both cases the spirituality of both men turn on exactly the same thing: a firm grounding of all meaning in natural law. Good stuff:

“I’m no scientist, and certainly don’t have

Carl Sagan’s technical understanding of the universe and our position within it. I simply believe that there’s a very organic, immeasurable consciousness of which we’re a part. I believe that this consciousness is a force so powerful that I’m incapable of comprehending its power through the puny instrument of my human mind. And yet I believe that this consciousness is so unimaginably calibrated in its sensitivity that not one leaf falls in the deepest of forests on the darkest of nights unnoticed.

Now, given the immensity of this immeasurable power that I’m talking about, and given its pervasiveness through the universe … I choose not to engage in what I consider to be the useless effort of giving it a name, and by naming it, suggesting that I in any way understand it …. Many of my fellow human beings do give it a name, and do purport to understand it in a more precise way than I would ever attempt. I just give it respect, and think of it as living in me as well as everywhere else.

The grand consciousness I perceive allows me great breadth and scope of choices, none of which are correct or incorrect except on the basis of my own perception. This means that the responsibility for me rests with me.

I have obligations to be in service to this me, to shape it, to encourage its growth, to nurture it toward becoming a better and better me day by day, to be conversant with all its good qualities, such as they are. When the living spaces between the sets of qualities becomes so uncomfortable that choices have to be made, I try to come down on the side of what I feel is right.

I’ll say I believe in God, if you press me to the wall, but then I’m going to come right back at you and give you the above definition of God. You follow? And that’s the only definition of God that I’ll defend, because I don’t think it possible for me to embrace any other.

I have a kind of respect – a worshipful attitude, even – for nature and the natural order and the cosmos and the seasons. I know it’s no accident that ancient people celebrated the

solstice and the equinox. There’s something very powerful that happens, especially in the colder climates of the north, when instead of being a minute shorter every day, daylight lasts a minute longer. You feel it in your bones. You know it as you might know the presence of God ….

I don’t believe in a

Moses laying down the law; I simply believe that there are natural harmonies, and that some things work better than others – and so it happens that most of those things that work better than others align pretty well with the Judeo-Christian ethics that most people in this country define as morality. The work better, within the system of life on this planet. They don’t violate the natural order.

There’s simply a certain order in the nature of things, and the animals operate accordingly. The natural laws are there, and the animals respond unfailingly. There are times when operates the same way, in harmony with natural laws – and it’s called true progress.

The whole process of survival tells us that there’s a morality to these natural rhythms, and that this morality is woven into the fabric of nature. For humanity, part of that fabric is the higher consciousness I [am] speaking of …. I feel that to aspire to that higher consciousness is the align ourselves with the natural order.” (196-99).

what does “neoconservative libertarian” mean?

In philosophy, politics on June 20, 2009 at 12:59 pm

What does “conservative” mean?

An intrinsically relative term, a “conservative,” in the very general and twenty-first century sense in which I use it, denotes a general mood or approach to social and political thought; a “habit of mind,” a “mode of feeling,” and a “way of living,” as R. J. White put it. At the highest level of abstraction, a “conservative” is one who grants traditional solutions to social and political problems an initial presumption of validity or wisdom, and who therefore views deviations away from such solutions skeptically. As it appears in each individual, the degree to which one will deploy the initial presumption will vary between one who is militantly or dogmatically conservative, by which I mean one who is closed-minded to the possibility that any given tradition or particular traditionalist belief is the relevant sense erroneous, and one who is quite open-minded to the possibility that any given tradition or belief is erroneous and therefore quite open to reflecting upon and debating it. In my view an individual of the former temper is a “right-wing” conservative, and the rest are “moderate” in necessarily varying degrees.

What does “neoconservative” mean?

“Neoconservatism” is a sub-set of conservatism. Some use the term to describe former neoliberals (contrasted with classic liberals, who are today’s libertarians) who, have been “mugged by reality” at some point, as Irving Kristol put it, and who have accordingly renounced neoliberal ideology in favor of a harder, more “realistic” approach to social and political problems. But still other “neoconservatives” are aptly so-described even if they were never neoliberals from the outset, such as Richard Cheney and Donald Rumsfeld. The key ingredient all neoconservatives share, however, is a rejection of paleoconservative foreign policy tenants, held by paleoconservatives such as Patrick Buchannan, such as protectionism and noninterventionism, in favor of a strong international military capability and presence, and a willingness to engage regimes sufficiently hostile to classical liberal values if perceived necessary to achieve a particular end (e.g., to prevent a regime like Iran who openly proclaims its desire to exterminate Israel, from possessing and/or dealing weapons of mass destruction). While most neoconservatives a members of the Republican Party, notable Democrats include Daniel Patrick Moynihan and Joseph Liebermann.

What does “libertarian” mean?

“Libertarianism” (or “classical liberalism”) refers to particular political philosophy that holds individual humans as the ontological and normative starting point to any just society. Libertarians accordingly insist that the line of demarcation between a just and an unjust society is the point at which individual rights to property, life, liberty, and one’s pursuit of happiness is unduly subordinated to the will of “the state” or “the people.” Libertarians differ in degree regarding where to draw the line, but all agree that it must be drawn. Reasonable libertarians generally focus on the right of individuals to act in accordance with their own subjective values, and argue that the coercive actions of the state are often (or even always) an impediment to the efficient realization of those values. As a result, if libertarians had a slogan, “Live and let live” might be a prime candidate. I consider “classical liberals” and “reasonable libertarians” synonyms, although some would consider this an abuse of the identity relation, and therefore believe the labels to initially include John Locke, Adam Smith, David Hume, Voltaire, Montesquieu, and later, Freidrich Hayek, Milton Freidman. In varying degrees, all of America’s “Founding Fathers” were classical liberals (i.e., libertarians).

So what does “neoconservative libertarian” mean?

Obviously, the term refers to a synthesis of neoconservatism and libertarianism (or classical liberalism). One who is a neoconservative grants “the presumption of wisdom” to tradition, but who is acutely aware that the presumption can be overcome by the changing times and of modernity in general. It is one who is fundamentally open-minded, and while this individual views change without fear or loathing, he nevertheless views self-styled “progressives” with skepticism to the extent that progress is seen as good in-itself and not as a means. At the same time, such an individual disdains overbroad and unnecessary state controls, and has little faith in large-scale government to effectuate social engineering of any kind. Nevertheless, however, this individual views the problem of a shrinking world without being hindered by the delusion that while some elements of our global community wish to exterminate our way of life, this worry is in some sense irrational. As a result, this individual believes that the first duty a government owes to its people is that of protection, even if protection entails subscribing to the following proposition: “We must deter and defend against [a] threat before it is unleashed … even if uncertainty remains as to the time and place of [an] enemy’s attack…. The United States will, if necessary, act preemptively.” This proposition is commonly known as “The Bush Doctrine,” which some believe was first offered as a definitive foreign policy by neoconservative Paul Wolfowitz during his service to George H. W. Bush, and later to George W. Bush. If neoconservative libertarians had a slogan, therefore, and apt candidate might be “Live and let live; but if you don’t intend to let me live, I’m going not going to let you live first.”

on augustine’s “moral subjectivism revisited” (incomplete)

In philosophy on June 20, 2009 at 12:58 pm

Again I want to focus on Keith Augustine’s brand of “moral subjectivism,” the view that “claims that there is no objective fact of the matter over whether a specific action is right or wrong; therefore it does not claim that anything makes an action right or wrong — including personal approval…. To say that a peice of music is beautiful or that an action is morally righteous is to invoke man-made distinctions between types of [art] or actions individuals find pleasing versus those they find displeasing.” For Augustine, subjectivism is true and consistent with “naturalism” and one of its “prime lessons [that] there is no inherent meaning in the universe,” but only meaning “humans create.”

Appeals to the self-evident nature of moral truths, for Augustine, are invalid because “one cannot appeal to evidence or arguments to defend or criticize” them, just like one cannot (for Augustine) appeal to evidence to “defend or criticize” logical truths (because they are self evident). Because positing mysterious notions of objective “moral truths” in some illegitimate way “overpopulates the universe” unnecessarily, Augustine insists that Ockham’s Razor“postulat[ing] moral standards would be a superfluous as postulating objective aesthetic standards. It is erroneous to elevate human invention to the status of a law of nature.”

Instead, what “we have in ethics (as in aesthetics) are basic criteria that we invent. In the absence of objective moral values we can have basic intersubjective moral standards — but intersubjective is still subjective.” This, for Augustine, explains why “it would be quite odd to say that objective moral standards would exist if sentience never arose in the universe or all sentient beings were extinct.” Further, subjectivism, for Augustine, “is a factual theory — a theory about what morality is.” Hence, “one cannot err morally; but one cannot succeed morally either, because morality is akin to aesthetics.” Simply put, there is “no standard at all for ‘what makes an action moral’ just as there’s no standard for ‘what makes art beautiful’.”

I explained my aversion to the notion of “man made” in my prior post, so I will avoid doing so again here. But I will say that I don’t know what sense “man made” applies to moral laws that doesn’t apply in the exact same way to logical or mathematical ones. I will also refrain from spending any more time on the notion that morality is necessarily subjective because “moral matters” were not contemplated before conscious beings were around to contemplate them, and will not be around to contemplate them when were gone, but I am interested in knowing what the status of mathematical and logical truths were and will be when nobody is around to do any math or logic.

I am interested in this notion of “intersubjectivity,” however, and recall this exact same term’s use by my friend Kevin Currie. If I understand the notion correctly, Augustine, as a subjectivist, believes in the objective truth (i.e., the fact) that there are no objective moral truths, but recognizes the often widespread agreement or disagreement between human beings regarding moral (and aesthetic matters). But this is not evidence of there being a fact of the matter regarding any given moral matter, but rather that morality is “intersubjective” in the sense that, for example, most people in any given culture are going to evaluate moral matters similarly. In this way subjectivists like Augustine explain away the existence of “obvious” answers to moral (or aesthetic) judgments in a way that doesn’t “sound odd.” mandates that we eliminate them from our conceptual realm. Therefore …

keith augustine on the subjectivity of moral values

In philosophy on June 20, 2009 at 12:56 pm

I want to keep on this subject while it’s motivating me. A Google search revealed this piece by Keith Augustine, which I believe warrants a close look due to its attack on the notion of objective moral truth. For Augustine:

“Moral laws are maxims which tell sentient beings that certain actions are to be deemed moral or immoral…. Are moral laws objective in the way that laws of nature are? They do not seem to be, for few would argue that “murder is wrong” existed in some Platonic realm of ideas when galaxies were forming over ten billion years ago and there was no sign of life or consciousness anywhere in the universe. The use of the word ‘law’ implies an objective existence of unchanging moral maxims independent of sentience…. It seems to me that all ethical codes must ultimately be man-made, and thus there could be no objective criteria for determining if actions are right or wrong. Admitting that moral laws are man-made is equivalent to acknowledging that ethical rules are arbitrary and therefore human beings are not obligated to follow them.”

Evidently, this segment appeared as a letter to the editor in the Fall 1997 issue of Free Inquiry, and led Augustine to expand on his thoughts above, culminating in the article that can be found in its entirety here. Let’s take a look at some of Augustine’s propositions in an effort to place his view in the best possible light.

First, for Augustine, moral laws in some sense “inform” “sentient beings.” I think that is basically right, although I would be careful to distinguish rational beings from merely “sentient” ones, if “sentient being” is understood broadly to include living beings that, obviously, are not “rational.” And I’d also like to make sure that I understand exactly what Augustine means by “inform.” In normal circumstances, if someone or something is “informing” me of something, I stand in a passive relation to the informer. So, if I understand Augustine, his conception of a moral law is something that impresses itself upon a being that is sentient, presumably in the sense of “rational,” for I doubt anyone would argue that, e.g., a squirrel, which possesses some degree of sentience, is aware of moral laws. Is this right, as a threshold matter?

Consider Augustine’s example, the answer to which he takes for granted: “few would argue that ‘murder is wrong’ existed in some Platonic realm of ideas when galaxies were forming over ten billion years ago and there was no sign of life or consciousness anywhere in the universe.” I take this to mean that, for Augustine, ten million years ago, the concept that a moral law existed is absurd for, at least, two reasons: “life” didn’t exist ten million years ago, neither did “consciousness.” It is clear, however, that natural laws existed way back then (e.g., gravity), since such laws formed the universe into what it is today – which is Augustine’s point. But why does Augustine reject the existence of moral laws ten million years ago but posits the existence of natural laws? Isn’t it the case that there were no “lives” or “consciousnesses” around back then to perceive natural laws? In other words, what relevance does the “ten million years ago” observation have on the argument?

I think Augustine’s point is that inert (non-sentient) matter was behaving according to natural laws a really long time ago, way before these spooky “moral laws” broke on to the scene. But isn’t this just to say that non-sentient matter doesn’t conform itself to moral laws? This seems to be a triviality to me. So what if nobody was around to “observe” moral laws? Did atomic theory “exist” prior to the 20th Century? Obviously, the theory itself didn’t “exist,” but the fact of the matter remained. What relevance does the timing of the discovery have on whether or not the “law” existed ten million years ago? I don’t see any contradiction in the notion that moral laws existed in the exact same way that natural laws did ten million years ago, save for the obvious truism that morality doesn’t have any impact on non-sentient beings.

Second, Augustine’s notion that “all ethical codes must ultimately be man-made, and thus there could be no objective[ity regarding ethics].” Why man-made? Why not “recognized” or “found?” I know of few “objectivists” who believe that moral laws are “man made.” Augustine, obviously, does not believe that laws of physics are “man made,” for those laws existed ten million years ago before there were any humans to observe them. But didn’t humans come to recognize laws of physics (and astronomy) long after the fact? Why not the same regarding moral laws? To be sure, moral theories “came into being,” in the sense of sentient beings being “aware” of them, long before physical theories did.

Third, what exactly does “man made” mean? I’ve always been struck by the distinction between “man made” vs. “not man made.” In one sense this distinction is obvious: a house is man made, a mountain isn’t. But what, exactly, is it about a thing made by man that in any genuine sense renders the thing made “unnatural?” That, of course, is where Augustine is going: things made by man are unnatural: “this article is targeted to an audience that already accepts philosophical naturalism, the view that everything that exists is natural (and thus the supernatural does not exist).” Morality, for Augustine, is “supernatural” because it is man made. But I don’t think there is anything supernatural about my house. Nor do I think that anything about my house is particularly “arbitrary” (aside from its decorative features, of course). There is simply nothing necessarily “arbitrary” about man made things. Of course, man can act arbitrarily, but that is nothing more than to say that man is acting irrationally. Let’s keep going.

“Since moral laws refer to the actions of sentient beings, it is difficult to conceive of how they could originate by unconscious natural mechanisms.” But didn’t all the laws of the universe originate from unconscious natural mechanisms? Why is it so magical or spooky to posit moral laws as arising out of the same stuff as everything else in the universe? Most obviously, what about consciousness itself? Does Augustine consider consciousness itself a constituent of the supernatural realm? If so, how in the world can something as supernatural as sentience itself arise out of a cluster of inordinate matter that exploded ten million years ago? (To say nothing about life itself arising out of “primordial soup,” a la Carl Sagan.)

“We do not accuse a lion of immorality for tearing a giraffe to shreds. Animals are not ‘subject’ to moral laws because they don’t make moral decisions.” Of course they don’t. Animals are not rational. (And this is the problem by referring to “sentience” rather than “rationality,” for animals are sentient but not rational – which was the entire point of Aristotle’s classifying “man” as a “rational animal.”) There is nothing interesting about observing that a squirrel – or a snail – does not possess the capacity to recognize or behave according to morality any more than a rock can. (But squirrels, snails, and even rocks “obey” the law of gravity.)

“Another reason that moral objectivism is implausible is because all the laws of nature we are aware of are descriptive: they describe how certain configurations of matter or energy will behave under different circumstances. But moral laws are prescriptive: the describe how certain sentient beings should behave under different circumstances. This is why a law of nature like the law of gravity cannot be violated, but a moral law like “Thou shall not kill” can be.” But all this shows is that human beings are ultimately free, as rational beings, to violate moral laws if they choose to do so. And it also shows that moral propositions are simply not “laws” in the same sense that “the law of gravity” is (e.g., “murder is wrong,” but “killing with justification” isn’t “murder.”). In other words, “Thou shall not kill” is not an absolute law in the same way the law of gravity is. This is just obvious.

Later on, Augustine begins in on the standard subjectivist tack: “Ethics, like beauty, is in the eye of the beholder. The argument I am proposing is that there is no objective fact that genocide is morally wrong anymore than there is an objective fact that rock and roll is better than country music. Both statements, no matter how well agreed-upon by most people, merely express the opinion of the people who state them. They do not refer to some “state of the world”, and that is exactly what an objectivist theory of ethics requires of ethical statements.” I disposed of this argument in my prior post. But to my prior post I’ll simply echo one of my teachers, Richard Fumerton, when he hears this kind of nonsense: There simply is no way that the subjectivist really believes that whether genocide is really wrong is a matter of taste, just like one’s taste in music. And if they insist on the point, see if they’ll make the argument in room full of Holocaust survivors.

Finally, I note that Augustine comments on whose burden of proof it is to prove the existence of moral laws, and purports to deploy Ockham’s razor into service to show that it is the objectivist whose spooky moral “laws” must be shaved away, because of the objectivist’s unreasonable “overpopulation” of the universe with “nonphysical entities into our picture of the world.” This claim is somewhat interesting, so I will attempt to address it in a later post.

kevin currie-knight on moral subjectivism

In philosophy on June 20, 2009 at 12:54 pm

In reading some of my friend Kevin Currie’s recent posts (here and here), I notice that he has recently re-focused some of his attention on one of my favorite philosophical subjects, the problem in metaethics sometimes referred to as the debate between moral “objectivists” and moral “subjectivists.” Briefly, and as I understand the debate, moral objectivists believe that the truth of moral judgments are absolute in the sense that one who is making a moral judgment is describing (or attempting to describe) an “actual” feature of “objective reality” (i.e., “how the world really is”). On this account, if one says:

“X is immoral” (where X is accurately describing a certain state of affairs (i.e., a fact))

one is purporting to describe an “actual” state of “objective reality.” Thus, in the same way one might say: “It is an objective fact, or feature of reality (i.e., the world), that I exist,” one might also say “It is an objective fact, or feature of reality (i.e., the world), that torturing kittens for pleasure is immoral.”

Kevin defines moral subjectivism, following J. L. Makie, as one who denies that the proposition “torturing kittens for pleasure is immoral” is an accurate description of a feature of reality, but instead only an accurate description of a feature of “the subject’s mental world” (where the subject simply means the declarant). Thus, if one is a moral subjectivist, moral judgments are true only insofar as they are an accurate description of the declarant’s feeling on the matter, which is presumably a product of the particular declarant’s environment (societal norms, cultural pressures, etc.). And this is what leads to many subjectivists being “cultural relativists” in the sense that, if one’s morals are simply a product of the relation one has to one’s culture, and beliefs about morals are nothing more than how any given subject feels, regardless of how one feels about any cultural hierarchy of sorts, no culture is necessarily more moral than another.

In sum, then, moral objectivists purport to have epistemic access to “moral facts” (e.g., “torturing kittens for pleasure is immoral”) in the exact same way they have epistemic access to “mathmatical facts” (“2+2=4″). Moral subjectivists deny access to anything other than moral feelings, which are by definition not facts (or features of reality). As Kevin knows, I reject moral subjectivism because I believe moral judgments, when true, accurately describe an actual state of reality.

I say that “torturing kittens for pleasure is immoral” accurately describes a feature of reality. Kevin denies this and, while more than likely agreeing with me completely, insists that he is merely joining or corroborating my feeling. “No matter how knock down or drag out our arguments is [regarding whether torturing kittens for pleasure is immoral], that argument will always be our opinion of the matter, not objective fact.” My first question for Kevin is “are there any matters, outside of morality, that are a matter of obective fact?” Assuming that there are some matters, for Kevin, then I want him to identify a couple. Next, I want Kevin to identify the criterion he uses to distinguish the matters of objective fact and those that are not. Third, I want Kevin to acknowledge that the nature of his claim that “the moral claim that torturing kittens for pleasure is immoral is not a matter of objective fact, but subjective feeling,” is itself either a claim that purports to be an objective feature of reality or a mere feeling. In other words, I want Kevin to consider what impact the fact that “it is an objective fact of reality that the moral claim that torturing kittens for pleasure is immoral is not an objective fact but only a subjective feeling,” has on his view. Finally, I want Kevin to identify the evidence out there in the world that proves the objective truth of “2+2=4.”

On Kevin’s view, when a subject declares that “torturing kittens for pleasure is immoral,” the subject is not identifying a a fact about the world (i.e., not picking out a constituent of objective reality), but rather identifying only a state within the subject’s consciousness. Kevin describes this state within the subject as no different to whenever a human being feels an emotion. Thus, if I encountered a sadist on the street about to torture kittens for the pleasure it gives him, if I rescued the kittens by force prior to their fate, I would not be doing so because it is a matter of objective fact that what the kittens were about to be subjected to is objectively wrong, but because I only feel that it would be wrong. Moreover, if I were to conduct a television interview about my deed after the fact, and in responding to the question “Why did you rescue those kittens from the sadist?” If my response is “Because torturing kittens is immoral and I had a duty to rescue them,” Kevin, watching my interview late that evening, would snort: “No, Ben is mistaken! There is no such thing as objective moral truth. Ben is simply expressing his feeling that, for him, torturing kittens for pleasure is immoral.” And, if Kevin is watching the news with his fiance, he would quickly turn to her to confess that “I, of course, feel the exact same way, but I – unlike Ben – understand clearly that there is no ‘truth of the matter’ regarding the morality of kitten torture. Ben should read his Mackie, for then he’d understand this just like I do.” Can this be right?

Kevin says he cannot take my position seriously because he’s yet to encounter any good argument for the view that when someone declares “X is immoral,” one is identifying an objective fact of reality. Kevin is not alone in this view. J.L. Mackie clearly would agree with Kevin, see, e.g., Mackie’s 1946 paper “A Refutation of Morals,” and it appears that Hume was just such a philosopher as well:

Take any action allowed to be vicious. Wilful murder, for instance. Examine it in all lights, and see if you can find that matter of fact, or real existence, which you call vice. In whichever way you take it, you find only certain passions, motives, volitions and thoughts. There is no other matter of fact in the case. The vice entirely escapes you, as long as you consider the object. You never can find it, till you turn reflexion into your own breast, and find a sentiment of disapprobation, which arises in you, towards this action. Here is a matter of fact; but ’tis the object of feeling, not reason. It lies in yourself, not in the object. So that when you pronounce any action or character to be vicious, you mean nothing, but that from the constitution of your nature you have a feeling or sentiment of blam from the contemplation of it.

David Hume, A Treatise of Human Nature 468-69 (Oxford 1978).

Matters of morality, then, at least for Kevin, are analogous to matters of aethetics – which is appropriate given a prior related conversation. As one of my own teachers put it, the objectivism vs. subjectivism debate in aesthetics “often ends with the sage remark that beauty is, after all, in the eye of the beholder.” Richard A. Fumerton, Reason and Morality: A Defense of the Egocentric Perspective 34 (Cornell 1990). Indeed, for Fumerton, “the philosopher concerned with metaethical and metavalue issues, the more interesting concept of subjectivity of judgment is the metaphysical thesis implicit in th[e] cliche that beauty is in the eye of the beholder[, the] conception of value as something that exists only ‘within’ conscious beings ….” Id. at 35. (Kevin is a hard-headed empiricist like Hume was, so I suspect that he’d be disconcerted by any claim to hold any “metaphysical” theses at all. But, if Fumerton’s remark is right, a metaphysical thesis Kevin holds indeed.)

In any event, the gist of Kevin’s objection to the notion of abstract, objective moral truths is the claim that we have no means of verification available to us on hand to “check our work,” so to speak, on matters moral. Thus, we have “no good reason to suspect, and every reason to reject, that these [exist in an] objective [sense] in nature. In other words, we have no objective moral blueprint to hold up to our moral judgments to [verify] whether they are correct. We only have our individual sentiments on the matter[.]” Kevin the cites, as he often does, to the fact that there is no consensus on moral questions (e.g., abortion).

I have stated elsewhere that I don’t see the existence of disagreement as a reason to conclude that there are no right answers to hard moral questions, for a number of reasons. One is that people in general are stupid, and from this observation it can be inferred (and indeed it is observed every day) that people often make stupid choices. Another is that clever people can simply claim disagreement at certain junctures of debate, for the sake of argument. I don’t think either of these basic facts of human existence dispose with the notion of objective moral truths, or “right answers” to certain moral questions. All they show is that some people are stupid and some others are clever. The far more intersting claim is the notion that there is no way to verify moral truths “out there,” no “blueprints” to guide humans in their quest to be moral. Therefore, the argument goes, we can argue about these things all day long, but in the end nobody with be any more “obectively” correct than the the next person, just like in the evaluation of art. Inevitably, Kevin would say, both people will wind up stammering and sputtering at one another about whose intuition is accurate, and this is no good because intuition can never be , for Kevin, a source of objective truths, because “intuitional moral sense” can never be anything more than “psychological preferences (that we mistake solely because they are so strong that they SEEM to be obvious to everyone).” Once moral intuition is cast away, the bottom line is that “there is really no evidence for objective morality.”

Kevin is tracking Mackie fairly closely here, but consider the following passage closely. In Macke’s “Refutation of Morals,” he writes:

We all have moral feelings: all of us find that there are human actions and states of affairs of which we approve and disapprove, and which we therefore try to encourage and develop and oppose…. But most of us do not merely admit that we have such feelings, we think we can also judge that actions and states are right and good, just as we judge about other matters of fact, that these judgments are either true or false, and that the qualities with which they deal exist objectively. This view, which almost everyone holds, may be crudely called “believing in morals.” A few sceptics, however, think that there are only feelings of approval, no objective moral facts. (Of course the existence of a feeling is an objective fact, but not what is commonly called a moral fact.) One of their main arguments is that moral facts would be “queer,” in that unlke other facts they cannot be explained in terms of [science] or logical constructions [arising] out of [perception].

In the ellipses Mackie clearly conceeds the metaphysical status of a feeling as “an objective fact.” Why does he do so? What do we mean when we say “I feel x at time t,” such as “I feel pain (e.g., a headache) right now.” If by declaring that “I have a headache right now” Mackie is saying that I am stating a matter of objective fact, then I wonder what the evidence is for the statement. I know what my evidence is for the statement, of course, but I want to know what Kevin’s evidence would be – that is, if he also concedes the objective metaphysical status of individual declarations of pain-states, as Mackie does. I suspect Kevin will say that his evidence will be inferential (i.e., circumstantial) only, namely, his evidence is my testimony and perhaps my behavior (if any).

Setting that observation aside, I want to remain focused on the notion that, quoting Mackie again, “there are no objective moral facts: the feelings are all that exists. We may now legitimately be influenced by the ‘queerness’ of the alleged moral facts, their striking differences from most of the other objects of knowledge and belief.” I wonder, what other “objects of knowledge” might Mackie be referring to here? Let us backup.

The view under attack here is moral objectivism, the view that holds that when someone declares that “X is immoral,” one is truthfully dentifying a fact about reality (i.e., the world) – not a fact about the declarant’s inner state of mind. Kevin, following Mackie, argues that the moral objectivist’s assertion here is false because all the declarant is really doing in such situations is expressing his or her own feeling regarding the morality of x, which is only a fact about the declarant, not the world. And the reason the moral objectivist’s view is false is because there isn’t any evidence (or there is evidence but it is insufficient) by virtue of which it is true. Therefore, the moral objectivist’s moral theory is false, for he cannot carry its burden of proof.

Clearly, then, the subjectivist must have an account, or theory, of evidence and truth. What of it? We have a hint from Mackie in his appeals to science (e.g., psychology), as well as logic. Moreover, Kevin appears to presuppose a brand of verificationism. And, since ethical propositions cannot be in any traditional sense scientifically or logically verified, and because intuition is rejected by both Mackie and Kevin, the moral objectivist is all washed up for lack of any evidence with which to prove the truth of the matter asserted.

But what of this interesting notion, truth? Both Macke and Kevin appear to be working with a perfectly plausible notion of truth. And, of course, they are. And given Mackie’s doubtless geniune “concern[] to establish … the logical status of moral terms,” Mackie is clearly respectful of the ontological status of logic and logical truths (e.g., “If p then q; p; therefore q (modus ponens)). Whence then, truth?

I don’t think Mackie or Kevin will be able to locate truth under a microscope, nor in the starry heavens above with the help of a telescope. And I certainly don’t have any plans on an expedition either by land or sea in search of truth. I might be tempted to solve the puzzle simply by saying that I can examine a valid argument with uncontroversially true premises and “see” its truth, but this is just to intuit logical truth, which Kevin and Mackie insist is an illegitimate way of verifying anything.

It seems, therefore, that under Mackie and Kevin’s view, the most we can say about logical propositions that seem obviously true is that they only seem that way to us, as humans, because of some social conditioning or habit, and that there is no “objective fact of the matter” with regard to such propositions. Alternatively, Kevin or Mackie might attempt to show that logical and mathmatical propositions concern matters altogether different from moral propositions in some veridically relevant way. But even if they do that in a plausible way, they will still be stuck with explaning what it is they mean by the queer concept of truth as a threshold matter, and where it is located in the objective world.

But all of this, to be sure, is a reductio ad absurdum designed to show that Mackie’s view comes with it a good deal of baggage – and heavy baggage at that – and suddenly it doesn’t seem all that reasonable any more. Perhaps Kevin will be able to salvage the view here, and it is up to him to do so because Mackie’s dead. In the meantime, I’m going to keep on believing concepts that I believe exist in the world, albeit in a transcendental sense of course, such as mathematical truth, logical truth, and moral truth, just like I believe in the thoroughly objective nature of truth in general, along with the believe that they are – all of them – constituents of the world.

classic schopenhauer quotes

In philosophy on June 20, 2009 at 12:54 pm

From Essays and Aphorisms (R. J. Hollingdale trans. 1970)

“If the immediate and direct purpose of our life is not suffering then our existence is the most ill-adapted to its purpose in the world[.]” (41)

“[E]xistence is typified by unrest.” (52)

“That human life must be some kind of mistake is sufficiently proved by the simple observation that man is a compound of needs which are hard to satisfy; that their satisfaction achieves nothing but a painless condition in which he is only given over to boredom; and that boredom is a direct proof that existence is in itself valueless, for boredom is nothing other than sensation of the emptiness of existence.” (53)

“My ethics, on the contrary, possesses foundation, aim and goal: first and foremost, it demonstrates theoretically the metaphysical foundation of justice and charity, and then indicates the goal to which these, if practiced in perfection, must ultimately lead. At the same time it candidly confesses the reprehensible nature of the world and points to the denial of the will as the road to redemption from it.” (63)

“In our monogamous part of the world, to marry means to halve one’s rights and double one’s duties.” (87)

“The fundament upon which all our knowledge and learning rests is the inexplicable.” (117)

“How very paltry and limited the normal human intellect is, and how very lucidity there is in the human consciousness, may be judged from the fact that, despite the ephemeral brevity of human life, the uncertainty of our existence and the countless enigmas which press upon us from all sides, everyone does not continually and ceaselessly philosophize, but that only the rarest of exceptions do so. The rest live their lives in this dream not very differently from the animals, from which they are in the end distinguished only by their ability to provide for a few years ahead. If they should ever feel any metaphysical need, it is take care of from above and in advance by the various religions; and these, whatever they may be like, suffice.” (123)

“Indeed, most people have – in their hearts even if not consciously – as the supreme guide and maxim of their conduct the resolve to get by with the least possible expenditure of thought, because to them thinking is hard and burdensome.” (127)

bush lied, kyoto died?

In politics on June 20, 2009 at 12:50 pm
According to the European Union, at the United Nations climate change conference in Bali the world community to outlined a road-map according to which an agenda for further measures to curb perceived human-caused climate change would be implemented in the years to come. For example, the conference set a deadline for the end of 2009 to complete negotiations regarding when governments must ratify and implement measures by 2012, as well as addressed other issues such as deforestation and providing assistance to developing countries without the resources or technology to effectively curb carbon-dioxide emissions on its own. “We have worked hard to achieve this result. It is a very important step forward,” remarked commission president Jose Manuel Barroso in a released statement. Seems like good news for environmentalists and the Bush Administration conference delegation, no?

According to

Pulitzer Prize winning columnist Thomas L. Friedman, in an op/ed piece published today in the New York Times, no: “For 90 minutes, Andy Karsner, who runs the Department of Energy’s renewable energy programs, James Connaughton, who heads White House climate policy, and their colleagues put on a PowerPoint performance that was riveting in its understanding of the climate problem and the technologies needed to solve it. Their mastery of the subject was … impressive [and] ‘present[ed] … a thoughtful analysis that made sense’” (according to Indian activist group Centre for Social Markets CEO Malini Mehra). But Friedman found this fact puzzling, because ever since “President Bush trashed the Kyoto treaty in 2001, without presenting any alternative for six years,” America “has not been able to lead on [the issue of climate change].” Our “credibility” is therefore, according to Friedman, “shot” on the issue of climate change forevermore. This is our just damnation for, according to Friedman, sending the following “message to the world [in 2001]: ‘Get lost. We only care about ourselves.’”

Thus, on Friedman’s account, one must accept as axiomatic that President Bush immediately lost all credibility on the issue of climate change when he pulled out of Kyoto in 2001, and nothing can be done to repair Bush’s credibility, period. And once the mind is closed in such a regard, one understands why Friedman, Al Gore, and the rest of the “room full of global activists” from “around the world” “came [to Bali] loaded to carve up the Americans who had to be stupid because they represented the Bush administration.” In other words, when the Bush Administration demonstrated a thorough mastery of the issues and offered reasonable solutions addressing them, Friedman and Co. were “emotionally confused” by the Bush Administration’s good sense and evident goodwill. But since the Bush Administration can’t possibly be making good sense about anything, an explanation is in order. Friedman is happy to offer one: “On the one hand, it was obvious that these U.S. officials really knew their stuff, yet on the other, I’d bet not a single person there believed they reflected the true Bush policy.” This is Friedman’s Pulitzer Prize caliber “eureka moment” of the day: Since the Bush team is making so much sense, which is fundamentally impossible, they must be lying to everyone.

You see, when one’s capacity for rational thought is as blinded by hatred as Friedman’s,

“gender” and “diversity” expert Malini Mehra, and prison escapee Irwandi Yusuf (“We don’t believe the Americans in this Administration.”) no explanation of the United State’s withdrawal from the Kyoto Protocol will mollify. Withdrawal, for whatever reasons, and no matter how reasonable, was a heresy so antithetical to militant environmentalism that is must be met with the ultimate punishment: doubting anything the Bush Administration says on the matter of climate change forevermore. And because the ultimate punishment absolute and irrevocable, no amount of evidence to the contrary will justify lifting it. So neither doing things such as pointing out that the U.S. Senate rejected Kyoto by a narrow 95-0 margin in 1997, the Clinton Administration never submitted the protocol to the Senate for ratification, or even that Al Gore and Joe Lieberman agreed during their run for President and Vice President that the protocol sould not be acted upon in the Senate until there was participation by the developing nations, for example, will do.

But don’t take my word for it. Do your own research. For example, take a look at what the left-leaning

Brookings Institution‘ had to say about Kyoto in 2002:

The fundamental principle on which the Kyoto Protocol is based—setting “targets and timetables” for reducing greenhouse gas emissions—is both economically flawed and politically unrealistic. To ratify the protocol, a developed country must be willing to agree to reduce its emissions to a specified level—typically about 5 percent below the country’s emissions in 1990-by 2008 to 2012 regardless of cost. Because costs could be huge, most developed countries will never ratify the treaty or will insist, as a precondition, that their targets be diluted through an accounting adjustment that allows credit for activities that absorb carbon (called sinks). Countries that do ratify are unlikely to comply if the constraints become seriously binding. Developing nations, which will become the world’s largest emitters in coming decades, have even less incentive to sign on.

The issue of costs is crucial. The array of uncertainties associated with climate change makes it impossible to tell whether the benefits of the treaty are worth its costs. Nor is there any evidence that the targets set by the protocol are the optimal levels of greenhouse gas emissions, either for an individual country or for the world as a whole. If anything, cost-benefit calculations based on studies to date tend to suggest that the costs exceed the benefits, at least in developed countries.

Kyoto’s greatest weakness, however, is not the lack of clear cost-benefit justification. After all, governments often face uncertainty when evaluating potential policies. Because the damages caused by climate change could be very large, a prudent legislature might want to adopt a climate policy to hedge its bets as long as it could keep the policy’s costs within bounds. But Kyoto’s “targets and timetables” design makes that impossible. Governments that adopt the protocol risk taking on a disastrously expensive commitment—and surrender part of their sovereignty in the process.

The Kyoto agreement also fails to give governments any incentive to police it and lacks credible compliance measures. Monitoring polluters is expensive, and punishing violators would impose costs on domestic residents in exchange for benefits that would go largely to foreigners. Governments would be strongly tempted to look the other way when firms exceed their emissions permits. Negotiators have tried to devise a strong international mechanism to monitor compliance and penalize violations, but so far have produced only a paper tiger: the protocol’s compliance mechanism is not a credible deterrent for anything beyond very minor violations.

Nor has Kyoto found a way to include significant participation by developing countries. Because these countries are responsible for a relatively small share of historical greenhouse gas emissions, they are especially reluctant to incur large costs and give up their sovereignty in a climate change agreement. The protocol does provide a complicated mechanism that would allow developed countries to earn credits for reducing the rate of emissions growth in developing countries. However, it would have little effect overall because developing countries are expressly exempted from Kyoto’s emissions targets. They would not be required to limit their emissions unless they volunteered—at some point in the future—to accept binding emissions targets. But the protocol provides little incentive for them to do so.

(See also this 2004 Brookings piece, noting that “supporters and skeptics alike agree” that the Kyoto treaty “will not solve the climate problem,” does “not apply to developing nations,” as well as this 2000 piece, which notes that Kyoto “is never going to work” and “is the wrong approach” to tacking the climate change issue.”)

Or how about the libertarian CATO Institute’s 2001 take on Kyoto:

Kudos to President Bush, the first world leader whose administration has pronounced the Kyoto Protocol stone, cold dead.

It’s about time —- and it’s about mathematics. Kyoto was probably the dumbest international instrument signed by an American chief executive.

Strong words, but easy to back up with a little primer on climate change. If we continue on our way, doing nothing and with no specific attempt to spread technologies that will reduce greenhouse gas emissions, the earth will continue to warm. Averaging the so called “general circulation climate models” used in the upcoming U.N. compendium on climate gives a 2.2ºC (4 degrees Fahrenheit) warming for the next 100 years.

When run backwards, most (but not all) of those models “hind cast” too much warming in recent decades. When their mean prediction is adjusted for this fact, and for the scientific truth that a small fraction of recent warming is from changes in the sun, the expected warming in the next 100 years drops to around 1.4ºC (2.5 degrees Fahrenheit). Several scientists, ranging from those in the service of the British government (whose radical position on global warming resulted in riots last summer), to those in libertarian think tanks, have replicated this calculation and come up with the same answer.

That’s not a large number, and it is disproportionately distributed into a warming of the coldest winter temperatures. But, even so, what would Kyoto do about it?

The answer is, nothing.

At least nothing that could have any discernible impact on how climate influences our lives. Clinton administration scientists answered this one for us: If all of the nations did what they said they would do under Kyoto, the net amount of warming reduced by the year 2100 would be 0.14ºC. That’s 6.4 percent of the average warming of those U.N. models.

How much does it cost? Estimates range from 1 percent to 3.5 percent of GDP per year. The larger figure assumes very little “emissions trading” between nations, where we could take credit for emissions prevented in, say, Africa, by giving them less emissive technology. Incidentally, our European friends don’t want us to make up the majority of our emissions by doing this humane thing. The cost figure also looms large if we can’t “sequester” our emissions in trees and soils, and are instead forced to raise energy prices. Again, our European allies won’t let that happen, either. So the 3 percent-GDP range is the more likely figure.

If anyone wants to see a microcosm of what Kyoto would bring, look no further than California, except that the lack of energy must also be exacerbated by excessive energy taxes.

These numbers are well known to the Bush Administration—which needs to get them out in public—and to the environmental press, which never mentions them.

Think of them in terms of “insurance,” and substitute “your house” for GDP. According to Kyoto, you would pay 3 percent of the value of your property, each and every year. And should your house burn down, Kyoto will reward you with 6.3 percent of its total value. Is that all you get for your money?

It’s worse than this. Kyoto would probably wreak great harm on the environment. It is well known that the more affluent a society is, the more it protects the environment. Among other things, people have more capital to invest in the development of efficient technology. Taking this capital away in the form of the onerous energy taxes required to promulgate Kyoto has the additional pernicious effect of giving our government a virtually limitless fund to squander, when the investing should be left up to individuals. I have personally lost thousands of dollars on Ballard Power Systems, a fuel-cell company, and I drive a gas-electric Honda Insight (a great car that really does get 70 mpg). But it is not your responsibility to buy stock or cars for me or anyone else.

Finally, Kyoto is irrelevant. History teaches us that we cannot anticipate the technological changes of the next 100 years, but we can be sure that what gives us power, and how we move things, will be very different than what runs us today. Compare horse-drawn 1900 to Internet-driven 2000 for an example. I don’t know what will charge the world of 2100, but I doubt that it will produce a lot of greenhouse emissions, whether or not they are harmful.

Do the math. Kyoto was a bad deal, whether or not you care about global warming. And it’s a good deal that finally there is a world leader with the courage to tell the truth.

With an open and inquiring mind, one quickly notices that for those as faithful to their emotional and dogmatic hatred of Bush as Friedman (who veteran New York City constitutional law litigator Glenn Greenwald has described, after analyzing over four years of Freidman’s rantings on Iraq, as “one of the most frivolous, dishonest, and morally bankrupt public intellectuals burdening” the United States today), facts, argument, and logic are simply irrelevant. And this is because Friedman’s emotion has overcome his rationality – his perception has become his reality, and he sees only what he wants to see. And since Friedman and Co. do not want to believe that the Bush Administration is taking the issue of climate change seriously, they won’t, and don’t, no matter what the evidence shows.

But don’t take my word for it. Friedman is the one, after all, with the Pulitzer.

f. a. hayek’s road to serfdom (selections)

In books, philosophy, politics on June 20, 2009 at 12:49 pm

Preface

“I use throughout [this book] the term ‘liberal’ in the original, nineteenth-century sense in which it is still current in Britain. In current American usage it often means very nearly the opposite of this. It has been part of the camouflage of leftish movements in this country, helped by the muddleheadedness of many who really believe in liberty, that ‘liberal’ has come to mean the advocacy of almost every kind of government control.” (xxxv)

“[T]rue liberalism is [] distinct from conservatism…. A conservative movement, by its very nature, is bound to be a defender of established privilege and to lean on the power of government for the protection of privilege. The essence of the liberal position, however, is the denial of all privilege, if privilege is understood in its proper and original meaning of the state granting and protecting rights to some [that] are not available on equal terms to others.” (xxxvi)

“[T]he most important chance [that] extensive government control produces is a psychological change, an alteration in the character of people. This is necessarily a slow affair, a process [that] extends not over a few years but perhaps over one or two generations.” (xxxix)

“[T]he unforeseen but inevitable consequence[] of socialist planning [is] a state of affairs in which, if the policy is to be pursued, totalitarian forces will get the upper hand.” (xlii)

Chapter 1: The Abandoned Road

“Few [intellectuals] are ready to recognize that the rise of fascism and nazism was not a reaction against the socialist trends of the preceding period but a necessary outcome of those tendencies. This is a truth [that] most [intellectuals] were unwilling to see even when the similarities of many of the repellant features of the internal regimes in communist Russia and National Socialist Germany were widely recognized. As a result, many who think themselves infinitely superior to the aberrations of naziism, and sincerely hate all its manifestations, work at the same time for ideals whose realization would lead straight to the abhorred tyranny.” (6)

“We have progressively abandoned [economic] freedom [] without which personal and political freedom has never existed in the past. Although we [have] been warned by some of the greatest political thinkers of the nineteenth century, by De Tocqueville and Lord Acton, that socialism means slavery, we have steadily moved in the direction of socialism.” (16)

“Individualism has a bad name today [because] the term has come to be connected with egotism and selfishness…. But the essential features of [] individualism [that], from elements provided by Christianity and the philosophy of classic antiquity, was first fully developed through the Renaissance and had since grown and spread into what we know as Western civilization – are the respect for individual man qua man, that is, the recognition of his own views and tastes as supreme in his own sphere, however narrowly that may be circumscribed, and the belief that it is desirable that men should develop their own individual gifts and bents.” (17)

“The attitude of the [true] liberal toward society is like that of a gardener who tends a plant and, in order to create the conditions most favorable to its growth, must know as much as possible about its structure and the way it functions.” (22)

Chapter 2: The Great Utopia

“Where freedom was concerned, the founders of socialism made no bones about their intentions. Freedom of thought they regarded as the root-evil of nineteenth-century society, and the first of its planners, Saint-Simon, even predicted [accurately] that those who did not obey his proposed planning boards would be ‘treated like cattle.’” (28)

“Nobody saw more clearly than De Tocqueville that democracy as an essentially individualist institution stood in an irreconcilable conflict with socialism: ‘Democracy extends the sphere of individual freedom … socialism restricts it. Democracy attaches all possible value to each [person], socialism makes each [person] a mere agent, a mere number. Democracy and socialism have nothing in common but one word: equality. But notice the difference: while democracy seeks equality in liberty, socialism seeks equality in restraint and servitude.’” (29)

“There can be no doubt that the promise of greater freedom has become one of the most effective weapons of socialist propaganda and that the belief that socialism would bring freedom is genuine and sincere. But this would only heighten the tragedy if it should prove that what was promised to us as the Road to Freedom was in fact the High Road to Servitude. Unquestionably, the promise of more freedom was responsible for luring more and more liberals along the socialist road, for blinding them to the [contradictions] between the basic principles of socialism and liberalism, and for often enabling socialists to usurp the very name of the old party of freedom. Socialism was embraced by the greater part of the intelligentsia as the apparent heir to the liberal tradition: therefore it is not surprising that to them the idea of socialism’s leading to the opposite of liberty should appear inconceivable.” (31)

“Fascism is the stage reached after communism has proved an illusion, and it has proved as much an illusion in Stalinist Russia as is pre-Hitler Germany.” (33)

“While many who have watched the transition from socialism to fascism at close quarters the connection between the two systems has become increasingly obvious, in the democracies the majority of people still believe that socialism and freedom can be combined…. [But] democratic socialism, the great utopia of the last few generations, is not only unachievable, [] to strive for it produces something so utterly different that few of those who now wish it would be [are] prepared to accept the consequences ….” (35-36)

Chapter 3: Individualism and Collectivism

“[S]ocialism means the abolition of private enterprise, of private ownership of the means of production, and the creation of a system of ‘planned economy’ in which the entrepreneur working for profit is replaced by a central planning body…. What [the] planners demand is a central direction of all economic activity according to a single plan, laying down how how the resources of society should be ‘consciously directed’ to serve particular ends in a definite way.” (37, 40)

“The liberal argument in favor of making the best possible use of the forces of competition as a means of co-ordinating human efforts [and it] is based on the conviction that, where effective competition can be created, it is a better way of guiding individual efforts than any other…. [W]here it is impossible to create conditions necessary [for] competition [to be] effective, we must resort to other methods of guiding economic activity. Economic liberalism is opposed, however, to competition’s being supplanted by inferior methods of coordinating individual efforts[, a]nd it regards competition as superior not only because it is in most circumstances the most efficient method known but even more because it is the only method by which our activities can be adjusted to each other without coercive or arbitrary intervention of authority.” (41)

Chapter 4: The “Inevitability” of Planning

“It is revealing that [Marxists] are content to say that central planning is desirable. Most of them affirm that we can no longer choose but are compelled by circumstances beyond our control to substitute planning for competition. The myth is deliberately cultivated that we are embarking on the new course not out of free will but because competition is spontaneously eliminated by technological changes [that] we can neither reverse nor wish to prevent. This argument is rarely developed at any length[, rather,] it is one of the assertions taken over by one writer from another until, by mere iteration, it has come to be accepted as an established fact…. [L]ike so many Marxist ideas, it is now found in many circles [that] have received it at third or fourth hand and do not know [from] whence it derives.” (49-50)

“From the saintly and single-minded idealist to the fanatic is often but a step.” (62)

Chapter 5: Planning and Democracy

“The common features of all collectivist systems may be described … as the deliberate organization of the labors of society for a definite social goal. That our present society lacks such a ‘conscious’ direction toward a single aim, that its activities are guided by the whims and fancies of irresponsible individuals, has always been one of the main complaints of its socialist critics.

In many ways this puts the basic issue very clearly[, a]nd it directs us at once to the point where the conflict arises between individual freedom and collectivism. The various kinds of collectivism, communism, fascism, etc., differ among themselves in the nature of the goal toward which they want to direct the efforts of society. But they all differ from liberalism and individualism in wanting to organize the whole of society and all its resources for this unitary end and in refusing to recognize autonomous spheres in which the ends of [the] individuals [themselves] are supreme. In short, they are totalitarian in the true sense of this new word [that] we have adopted to describe the unexpected but nevertheless inseparable manifestations of what in theory we call collectivism.

The ’social goal,’ or ‘common purpose,’ for which society is to be organized is usually vaguely described as the ‘common good,’ the ‘general welfare,’ or the ‘general interest.’ It does not need much reflection to see that these terms have no sufficiently definite meaning to determine a particular course of action…. The welfare of a people, like the happiness of man, depends on a great many things that can be provided in an infinite variety of combinations. It cannot be adequately expressed as a single end, but only as a hierarchy of ends, a comprehensive scale of values in which every need of every person is given its place. To direct all our activities according to a single plan presupposes that every one of our needs is given its rank in an order of values [that] must be complete enough to make it possible to decide among all the different courses [from] which the planner has to choose. It presupposes, in short, the existence of a complete ethical code in which all the different human values are allocated their due place.” (64)

“[M]orals have [ever]more tended to become merely limits circumscribing the sphere within wich the individual [may] behave as he like[s]. [But t]he [existence] of a [complete] ethical code comprehensive enough to determine a unitary economic plan [entails] a complete reversal of this tendency.

The essential point [therefore] is that no such complete ethical code exists. The attempt to direct all economic activity according to a single plan would raise innumerable questions to which the answer could be provided only by a moral rule, but to which existing morals have no answer and where there exists no agreed view on what ought to be done. People will have either no definite views or conflicting views on such questions, because in the free society in which we have lived there has been no occasion to think about them and still less to form common opinions about them.

This is the fundamental fact on which the whole philosophy of individualism is based. It does not assume, as is often asserted, that man is egoistic or selfish or ought to be. It merely starts from the indisputable fact that the limits of our powers of imagination make it impossible to include in our scale of values more than a sector of the needs of the whole society, and that, since, strictly speaking, scales of value can exist only in individual minds, nothing put partial scales of values exist – scales [that] are inevitably different and often inconsistent with each other. From this the individualist concludes that the individuals should be allowed, within defined limits, to follow their own values and preferences rather than somebody else’s’ that within these spheres the individual’s system of ends should be supreme and not subject to any dictation by others. It is this recognition of the individual as the ultimate judge of his ends, the belief that as far as possible his own views ought to govern his actions, that forms the essence of the individualist position.

The view does not, of course, exclude the recognition of [legitimate] social ends, or rather of a coincidence of individual ends [that] makes it advisable for men to combine for their pursuit. But it limits such common action to the instances where individual views coincide; what are called ’social ends’ are for it merely identical ends of many individuals – or ends to the achievement of which individuals are willing to contribute in return for assistance they receive in the satisfaction of their own desires. Common action is thus limited to the [areas] where people agree on common ends” (65-67)

“The limits of [an individual's] sphere [of liberty] are determined by the extent to which the individuals agree on particular ends; [but] the probability that they will agree on a particular course of action necessarily decreases as the scope of such action extends. There are certain functions of the state on the exercise of which there will be practical unanimity among its citizens; there will be others on which there will be agreement of a substantial majority; and so on, until we come to [areas] where, although each individual might wish the state to act in some way, there will be almost as many views about what the government should do as there are different people…. We can [therefore] rely on voluntary agreement to guide the action of the state only so long as it is confined to spheres [of liberty] where [such] agreement exists.” (67-68)

“It is the price of democracy that the possibilities of conscious control are restricted to the [areas] where true agreement exists and that in [other areas] things must be left to chance…. Democratic government has worked successfully where, and so long as, the functions of government were, by widely accepted creed, restricted to [areas] where agreement among a majority could be achieved by free discussion; and it is the great merit of the liberal creed that it reduced the range of subjects on which agreement was necessary to one on which it was likely to exist in a society of free men. It is now often said that democracy will not tolerate ‘capitalism.’ If ‘capitalism’ means here a competitive system based on free disposal over private property, it is fare more important to realize that only within this system is democracy possible. When it becomes dominated by a collectivist creed, democracy will inevitably destroy itself.” (77-78)

“Democracy is essentially a means, a utilitarian device for safeguarding internal peace and individual freedom. [But] it is by no means infallible or certain [for] it is at least conceivable that under the government of a very homogeneous and doctrinaire majority democratic government might be as oppressive as the worst dictatorship.” (78)

Chapter 6: Planning and the Rule of Law

“[T]he Rule of Law[, s]tripped of all technicalities, [entails] that government in all its actions is bound by rules fixed and announced beforehand – rules [that] make it possible to foresee with [reasonable] certainty how the authority will use its coercive powers in given circumstances and to plan one’s individual affairs on the basis of [such] knowledge.” (80)

“While every law restricts individual freedom to some extent by altering the means [that] people may use in the pursuit of their aims, under the Rule of Law the government is prevented from stultifying individual efforts by ad hoc action. Within the known rules of the game the individual is free to pursue his personal ends and desires, certain that the powers of government will not be used deliberately to frustrate his efforts.” (81)

“The distinction … between formal law or justice and substantive rules … is simple enough. The difference between the two kinds of rules is the same as that between laying down a Rule of the Road, as in the Highway Code, and ordering people where to go; or, better still, between providing signposts and commanding people which road to take.” (82)

“Formal rules are thus merely instrumental in the sense that they are expected to be useful to yet unknown people, for purposes for which these people will decide to use them, and in circumstances [that] cannot be foreseen in detail. In fact, what we do not know their concrete effect, that we do not know what particular ends these rules will further, or which particular people they will assist, that they are merely given the form most likely on the whole to benefit all the people affected by them, is the most important criterion of formal rules in the sense in which we here use this term. They do not involve a choice between particular ends or particular people, because we just cannot know beforehand by whom and in what way they will be used.” (83)

“In out age, with its passion for conscious control of everything, it may appear paradoxical to claim as a virtue that under one system we shall know less about the particular effect of the measures the state takes than would be true under most other systems and that a method of social control should be deemed superior because of our ignorance of its precise results. Yet this consideration is in fact the rationale of the great liberal principle of the Rule of Law[, a]nd the apparent paradox dissolves rapidly when we follow the argument a little further.” (83)

“Where the precise effects of government policy on particular people are known, where the government aims directly at such particular effects, it cannot help knowing these effects, and therefore it cannot be impartial. It must, of necessity, take sides, impose its valuations upon people and, instead of assisting them in the advancement of their own ends, choose their ends for them. As soon as the particular effects are foreseen at the time a law is made, it ceases to be a mere instrument used by the lawgiver upon the people and for his ends. The state ceases to be a piece of utilitarian machinery intended to help individuals in the fullest development of their individual personality and becomes a ‘moral’ institution – where ‘moral’ is not used in contrast to immoral but describes an institution [that] imposes on its members its views on all moral questions, whether these views be moral or highly immoral.” (85)

“[A]s planning becomes more and more extensive, it becomes regularly necessary to qualify legal provisions increasingly by reference to what is ‘fair’ or ‘reasonable’; this means that it becomes necessary to leave the decision of the concrete case more and more to the discretion of the judge or authority in question. One could [indeed] write a history of the decline of the Rule of Law … in terms of the progressive introduction of these vague formulas into legislation and jurisdiction, and of the increasing arbitrariness and uncertainty of, and the consequent disrespect for, the law and the judicature, which in these circumstances could not but become an instrument of policy. It is important to point out once more in this connection that this process of the decline of the Rule of Law has been going on steadily in Germany for some time before Hitler came into power and that a policy well advanced toward totalitarian planning had already done a great deal of the work [that] Hitler completed.” (87)

“It is the rule of Law, in the sense of the rule of formal law, [namely,] the absence of legal privileges of particular people designated by authority, [that] safeguards that equality before the law which is the opposite of arbitrary government…. A necessary … result of this is that formal equality before the law is in conflict … with any activity of the government deliberately aiming at material or substantive equality of different people, and that any policy aiming directly at a substantive ideal of distributive justice must lead to the destruction of the Rule of Law[for the simple reason that t]o produce the same result for different people, it is necessary to treat them differently. To give different people the same objective opportunities is not the give them the same subjective chance.” (87-88)

“[It is of course true] that the Rule of Law produces economic equality – all that can be claimed for it is that [such] inequality is not designed to affect particular people in a particular way. It [ought therefore come to no surprise] that socialists (and Nazis) have always protested against ‘merely’ formal justice, that they have always objected to a law [that] had no views on how well off particular people ought to be, and that they have always demanded a ’socialization of the law,’ attached the independence of judges … [all of] which undermined the Rule of Law.” (88)

“The conflict between formal justice and formal equality before the law, on the one hand, and the [fundamentally misguided] attempts to realize various ideals of substantive justice and equality, on the other, also accounts for the widespread confusion about the concept of ‘privilege’ and its consequent abuse. To mention only the most important instance of this abuse – the application of the term to ‘property’ to property as such. It would indeed be privilege if, for example, as has sometimes been the case in the past, landed property were reserved to members of the nobility. And it is privilege if, as is true in our time, the right to produce or sell particular things is reserved to a particular people designated by authority. But to call private property as such, which all can acquire under the same rules, a privilege, because only some succeed in acquiring it, is depriving the world ‘privilege’ of its meaning.” (89)

“The Rule of law was consciously evolved only during the liberal age and is one of its greatest achievements, not only as a safeguard but as the legal embodiment of freedom. As Immanuel Kant put it (and Voltaire expressed it before [Kant] in very much the same terms), ‘Man is free if he needs to obey no person but solely the laws.’ As a vague ideal it has, however, existed since Roman times, and during the last few centuries it has never been so seriously threatened as it is today.” (90)

“The Rule of law [] implies limits to the scope of legislation: it restricts it to the kind of general rules known as formal law and excludes legislation either directly aimed at particular people or at enabling anybody to use the coercive power of the state for the purpose of such discrimination. It means, not that everything is regulated by law, but, on the contrary, that the coercive power of the state can be [legitimately] used only in cases defined in advance by the law and in such a way that it can be foreseen how it will be used.” (92)

Chapter 7: Economic Control and Totalitarianism

Chapter 8: Who, Whom?

“[T]o the ancients blindness was an attribute of their deity of justice.” (112)

“The fact that the opportunities open to the poor in a competitive society are much more restricted than those open to the rich does not make it less true that in such a society the poor are much more free than a person commanding much greater material comfort in a different type of society.” (113)

“[T]he system of private property is the most important guaranty of freedom, not only for those who own property, but scarcely less for those who do not. It is only because the control of the means of production is divided among many people acting independently that nobody has complete power over us, that we as individuals can decide what to do with ourselves.” (115)

“There will always exist inequalities [that] will appear unjust to those who suffer from them, disappointments [that] will appear unmerited, and strokes of misfortune [that] those hit have not deserved.” (117)

“As soon as the sate takes upon itself the task of planning the whole economic life, the problem of the due station of the different individuals and groups must indeed inevitably become the central political problem. As the coercive power of the state will alone decide who is to have what, the only power worth having will be a share in the exercise of this directing power. There will be no economic or social questions that w[ill] not be be political questions in the sense that their solution will depend exclusively on who wields the coercive power, on whose are the views that will prevail on all occasions.” (119)

“Socialists, the cultivated parents of the barbarous offspring they have produced [in Germany], traditionally hope to solve th[e problem of the individual's spiritual freedom to for one's essential values] by [the mechanism of] education. But what does education mean in this respect? Surely we have learned [by now] that knowledge cannot create new ethical values, that no amount of learning will lead people to hold the same views on the moral issues [that] a conscious ordering of all social relations raises. It is not rational conviction but the acceptance of a creed [that] is required to justify a particular plan. And, indeed, socialists everywhere were the first to recognize that the task they had set themselves required the general acceptance of a common[], definite set of values. It was in these efforts to produce a mass movement supported by such a single world view that the socialists first created most of the instruments of indoctrination of which Nazis and Fascists have made such effective use.” (125)

Chapter 9: Society and Freedom

“Independence of the mind or strength of character is rarely found among those who cannot be confident that they will make their way by their own effort.” (132)
“The planning for security [that] has such an insidious effect on liberty is that for security of a different kind. It is planning designed to protect individuals or groups against diminutions of their income, which although in no way deserved yet in competitive society occur daily, against losses imposing severe hardships having no moral justification yet inseparable from the competitive system. This demand for security is thus another form of the demand for a just remuneration – a remuneration commensurate with the subjective merits and not with the objective results of a man’s efforts. This kind of security or justice seems irreconcilable with freedom to choose one’s employment.” (135)

“The problem of inadequate incentives [that] arises here is commonly discussed as if it were a problem mainly of the willingness of people to do their best. But this, although important, is not the whole, nor even the most important, aspect of the problem. It is not merely that if we want people to give their best we must make it worth while for them. What is more important is that if we want to leave them the choice, if they are to be able to judge what they ought to do, they must be given some readily intelligible yardstick by which to measure the social importance of the different occupations. Even with the best will in the world it would be impossible for anyone intelligently to chose between various alternatives if the advantages they offered him stood in no relation to their usefulness to society. To know whether as the result of change a man ought to leave a trade and an environment [that] he has come to like, and exchange it for another, it is necessary that the changed relative value of these occupations to society should find expression in the remunerations they offer.” (138)

“Within the market system, security can be granted to particular groups only by the kind of planning known as restrictionism …. ‘Control,’ i.e., limitation of output so that prices will secure an ‘adequate’ return, is the only way in which in a market economy producers can be guaranteed a certain income. But this necessarily involves a reduction of opportunities open to others. If the producer, be he entrepreneur or worker, is to be protected against underbidding by outsiders, it means that other who are worse off are precluded from sharing in the relatively greater prosperity of the controlled industries. Every restriction on the freedom of [contract] reduces the security of all those outside it. And, as the number of those whose income is secured in this manner increases, the field of alternative opportunities [that] are open to anyone who suffers a loss of income is restricted; and for those unfavorably affected by any change the chance o f avoiding a fatal diminution of their income is correspondingly diminished. And if, as has become increasingly true, in each trade in which conditions improve, the members are allowed to exclude others in order to secure to themselves the f[ruits] in the form of higher wages or profits, those in the trades where demand has fallen have nowhere to go, and every change becomes the cause of large unemployment.” (142)

“[F]reedom can be had only at a price and … us as individuals … must be prepared to make severe material sacrifices to preserve our liberty.” (147)

Chapter 10: Why the Worst Get on Top

“Just as the democratic statesman who sets out to plan economic life will soon be confronted with the alternative of either assuming dictatorial powers or abandoning his plans, so the totalitarian dictator would soon have to choose between disregard of ordinary morals and failure. It is for this reason that the unscrupulous and uninhibited are likely to be more successful in a society tending toward totalitarianism. [He w]ho does not see this has not yet grasped the full width of the gulf [that] separates totalitarianism from a liberal regime, the utter difference between the whole moral atmosphere under collectivism and the essentially individualist Western civilization.” (149)

“[I]n general, the higher the education and intelligence of individuals become, the more their views and tastes are differentiated and the less likely they are to agree on a particular hierarchy of values. It is a corollary of this that if we wish to find a high degree of uniformity and similarity of outlook, we have to descend to the regions of lower moral in intellectual standards where the more primitive and ‘common’ instincts and tastes prevail. This does not mean that the majority of people have low moral standards; it merely means that the largest group of people whose values are very similar are the people with low standards. It is, as it where, the lowest common denominator [that] unites the largest number of people. If a numerous group is needed, strong enough to impose their views on the values of life on all the rest, it will never be those with highly differentiated and developed tastes — it will be those who form the ‘mass’ in the derogatory sense of the term, the least original and independent, who will be able to put the weight of their numbers behind their particular ideals.” (152)

“[A] political dictator … will be able to obtain the support of all the docile and gullible, who have no strong convictions of their own but are prepared to accept a ready-made system of values if it is only drummed into their ears sufficiently loudly and frequently. It will be those whose vague and imperfectly formed ideas are easily swayed and whose passions and emotions are readily aroused who will thus swell the ranks of … totalitarian[ism." (152-53)

"To act on behalf of a group seems to free people of many of the moral constraints [that] control their behavior as individuals within the group.” (157)

“Like formal law, the rules of individualist ethics, however imprecise they may be in many respects, are general and absolute; they prescribe or prohibit a general type of action irrespective of whether in the particular instance the ultimate purpose is good or bad. To cheat or steal, to torture or betray a confidence, is held to be bad, irrespective of whether or not in the particular instance any harm follows from it. Neither the fact that in a given instance nobody may be the worse for it, nor any high purpose for which such an act may have been committed, can alter the fact that it is bad. Though we may sometimes be forced to chose between different evils, they remain evils.” (161)

“The principle that the end justifies the means in individualist ethics is regarded as the denial of all morals. In collectivist ethics it becomes necessarily the supreme rule; there is literally nothing [that] the consistent collectivist must not be prepared to do if it serves ‘the good of the whole,’ because the ‘good of the whole’ is to him the only criterion of what ought to be done…. There can be no limit to what [the collectivist] must be prepared to do, no act [that] his conscience must prevent him from committing, if it is necessary for an end [that] the community has set itself or [that] his superiors order him to achieve.” (162)

“Once you admit that the individual is merely a means to serve the ends of the higher entity called society or the nation, most of those features of totalitarian regimes [that] horrify us follow of necessity. From the collectivist standpoint intolerance and brutal suppression of dissent, the complete disregard of the life and happiness of the individual, are essential and unavoidable consequences of this basic premise, and the collectivist can admit this and at the same time claim that his system is superior to one in which the ’selfish’ interests of the individual are allowed to obstruct the full realization of the ends the community pursues.” (163)

“Where there is one common all-overriding end, there is no room for any general morals or values.” (164)

“To be a useful assistant in the running of a totalitarian state, it is not enough that a man should be prepared to accept specious justification of vile deeds; he must himself be prepared actively to break every moral rule he has ever known if [it is] necessary to achieve the end set for him.” (165-66)

Chapter 11: The End of Truth

“The most effective way of making everybody serve the single system of ends toward which the social plan is directed is to make everybody believe in those ends. To make a totalitarian system function efficiently, it is not enough that everybody be forced to work for the same ends. It is essential that the people should become to regard them as their own end. [T]he beliefs must be chosen for the people and imposed upon them [in a way that allows them to] act spontaneously in the way the planner wants.” (168)

“This is, of course, brought about by propaganda…. The skillful propagandist then has the power to mold their minds in any direction he chooses, and even the most intelligent and independent people cannot entirely escape that influence if they are long isolated form all other sources of information.” (168-69)

“While in the totalitarian states this status of propaganda gives it a unique power over the minds of the people, the peculiar moral effects arise [out of] the object and scope of totalitarian propaganda[,] … the moral code of a totalitarian society[, which reorganizes] the status of each individual in the new hierarchical order [in which the] most … humanitarian elements of our morals, the respect for human life, for the weak, and for the individual generally, will disappear.” (169)

“The moral consequences of totalitarian propaganda … are destructive of all morals because they undermine one of the foundations of all morals: the sense of and the respect for truth.” (170)

“The most effective way of making people accept the validity of the values they are to serve is to persuade them that they are really the same as those [that] they, or at least the best among them, have always held, but [that] were not properly understood or recognized before. The people are made to transfer their allegiance from the old gods to the new under the pretense that the new gods really are what their sound instinct had always told them but what before they had only dimly seen. And the most efficient technique to this end is to use the old words but change their meaning.” (172)

“The worst sufferer in this respect is, of course, the word ‘liberty[,]‘ [for] wherever liberty as we understand it has been destroyed, this has almost always been done in the name of some new freedom promised to the people.” (173)

“great [un]american god-out day”

In politics, theology on June 20, 2009 at 12:46 pm

Read my thoughts on the embarrassing “Great American God-Out Day” movement here. In a nutshell, I find the lengths some will go to engage in open bigotry against non-atheists disheartening; but hey, that is the nature of the game at present.

on the meaning of the second amendment

In law on June 20, 2009 at 12:45 pm

There is a most civil and enlightening discussion on (the absolutely superb) SCOTUSBLOG regarding the meaning of the Second Amendment to the United States Constitution, prompted by the Supreme Court’s granting certiorari in District of Columbia v. Heller (07-290).Read my humble comments on the discussion here. A summary of my view follows:

On my reading, the basic concepts enshrined within the Second Amendment can be truncated into the following plain language:

Individual citizens of each state may organize a militia constituted by the people themselves and their privately owned firearms.

Thus, from a purely textual standpoint, and if you accept the “individual” versus “collective” right distinction, there are a least two “individual” rights present: the individual right to own (i.e, “keep”) and carry (i.e., “bear”) arms, in addition to at least two “collective” rights: to assemble (i.e., to form a “militia”) and train together (i.e., to be “well regulated”) (and presumably under a command). The “necessary to the security of a free State” provides the then-understood rationale. This reading comports with the Framers: For example, in The Federalist No. 46, James Madison notes the “advantage” of Americans “being armed,” an advantage that Americans “possess over the people of almost every other nation.”

“Arms were common,” writes Leonard Levy in his Origins of the Bill of Rights at 140 (2001), and notes on the next page Thomas Jefferson’s pithy quip: “Let your gun therefore be the constant companion of your walks.” On 143, Levy continues: “Massachusetts in 1780 was the first to use the phrase ‘to keep and bear arms.’ John Adams was responsible for it; in his monumental two-volume defense of the constitutions of the States, he argued that arms in the hands of individual citizens are subject to their discretion to defend themselves.” And on 144, Levy notes that Samuel Adams argued that our Second Amendment should also “expressly provide that it could never be construed ‘to prevent the people from keeping their own arms’” (which was rather prescient given that our Supreme Court did precisely that in its subsequent (albeit sparse) Second Amendment jurisprudence).

Hence, clearly there is an individual right to keep and bear arms, but the extent of the right is the key question. What should be beyond reasonable dispute, however, is that the individual right is not necessarily linked to militia membership. In other words, militia membership is merely enabled by private ownership of arms, appears to be the primary justification for the individual right at the time of framing. Therefore, it is because of the constitutional right to keep and bear arms that individuals may also lawfully form militias. (Think about it: it is most conceivable that the Constitution might allow private individuals to keep and bear arms but forbid them from forming a militia).

Finally, the oft-propounded “the right to keep and bear arms applies only if one is also a member of a militia” argument (famously argued by, among others, Laurence Tribe) – while facially plausible – makes little sense and is not supported by virtually all sources of legislative intent available to us. Of course, the Congressional debates and various states debated the individual right within the context of the additional freedom to form militias, but I don’t think anyone at that time seriously contemplated militia membership as a necessary precondition to keeping and bearing arms. In fact, I think it was the exact opposite. And I look forward to a majority of the Supreme Court (if not its entirety) vindicating my view soon.

UPDATE: I just noticed this quote by Timothy Wheeler, M.D., of the Claremont Institute (evidently authored on the same day as the original post): “There is no longer any doubt that the founders meant [the Second Amendment] to affirm an individual right to keep and bear arms, and that the so-called collective right of the states is a fabrication.

eintstein on religious belief

In theology on June 20, 2009 at 12:43 pm

“[Einstein's] close friend Max Born once remarked, ‘he had no belief in the Church, but did not think that religious faith was a sign of stupidity, nor unbelief a sign of intelligence.’”

“With respect to religion, Ben-Gurion and Einstein had much in common. Like Einstein, Ben-Gurion was an ardent admirer of Spinoza. He also declared his belief ‘that there must be a being, intangible, indefinable, even unimaginable, but something infinitely superior to all we know and are capable of conceiving,’ a belief not much different from Einstein’s ….”

“At a charity dinner in New York, Einstein explicitly dissociated himself from atheism … ‘In view of such harmony in the cosmos which I, with my limited human mind, an able to recognize, there are yet people who say there is no God. But what really makes me angry is [when] they quote me in support of such views.’” Max Jammer, Einstein and Religion: Physics and Theology 96-97 (1999).

wittgenstein’s 1938 lecture on religious belief (selections)

In philosophy, theology on June 20, 2009 at 12:42 pm

For me, one of the most interesting (if not obvious) propositions in Wittgenstein’s Tractatus is “God does not reveal himself in the world.” Ludwig Wittgenstein, Tractatus Logico-Philosophicus 107 (C.K. Ogden trans. 1922) (proposition 6.432). I think Wittgenstein’s later remarks explicate the previous proposition as it relates to faith in God, that is, religious belief.

“Suppose somebody make this guidance for [his] life: believing in the Last Judgment. Whenever he does anything, this is before his mind…. [A]re we to know whether to say he believes [the Last Judgment] will [actually] happen or not?

… [H]e has what you might call an unshakable belief [that] will show [itself], not by reasoning or by appeal to ordinary grounds for belief, but rather by [allowing it to] regulate[] … his life….

The point is that if there were evidence, this would in fact destroy the whole business. Anything that I normally call evidence wouldn’t in the slightest [bit] influence me. Suppose, for instance, we know people who [actually] foresaw the future … and described some sort of Judgment Day. Queerly enough, even if there were such a thing … belief in this happening wouldn’t be at all a religious belief[, it would be a scientific one] …. [To the contrary, t]he best scientific evidence [for religious belief] is just nothing [at all] ….

Those who sa[y]: ‘Well, possibly it may happen and possibly not’ [are operating] on an entirely different plane [of thought]. This is partly why one would be reluctant to say: ‘These people rigorously hold the opinion (or view) that there is a Last Judgment’. [This use of] ‘[o]pinion’ [or 'view'] sounds queer. It is for this reaon that different words are used: ‘dogma’, ‘faith’….

Am I to say [people who believe such things] are unreasonable [per se]? I wouldn’t call them unreasonable. I would say, they are certainly not reasonable [in the sense that, for example, 'I have reason to believe that I exist at this moment'], that’s obvious. [But] ‘[u]nreasonable’ implies rebuke. I want to say [instead]: they don’t treat this as a matter of reasonability [or rationality]. Any one who reads the Epistles will find it said: not only that it is not reasonable, but that it is folly. [So n]ot only is it not reasonable, it doesn’t pretend to be.” Wittgenstein: Lectures and Conversations on Aesthetics, Psychology and Religious Belief 53-54, 56-58 (Cyril Barrett ed. 1966).

wittgenstein’s conversion

In theology on June 20, 2009 at 12:41 pm

Like Daniel Dennett, one of my philosophical heroes is Ludwig Wittgenstein (read Dennett’s article on Wittgenstein for Time’s “The Time 100″ here). But, unlike Dennett, who takes a dim view of the role of religion in society, for the following reasons I am fascinated with whatever it is that happened to Wittgenstein in 1915 in Galicia during his service for the Austro-Hungarian Army in World War I.

Wittgenstein began his early adult life at Cambridge as a “militant” atheist. But after the outbreak of WWI, and during his service in the Austro-Hungarian Army, scholars agree that Wittgenstein underwent a profound transformation of sorts with respect to religion. Anyone who claims to be either an atheist or theist should be interested in what happened to the man some philosophers believe is the greatest philosopher of the 20th Century. The story is best captured by Ray Monk:

“During his first month in Galicia, [Wittgenstein] entered a bookshop, where he could find only one book: Tolstoy’s Gospel in Brief. The book captivated him. It became for him a kind of talisman: he carried it wherever he went, and read it so often that he came to know while passages of it by heart. He became known to his comrades as ‘the man with the gospels[,' and f]or at time he … became not only a believer, but an evangelist, recommending Tolstoy’s Gospel to anyone in distress. ‘If you are not acquainted with it[,'] he later told Ficker, ‘then you cannot imagine what an effect it can have upon a person.’ [Indeed, what saved [Wittgenstein] from suicide … was … exactly the kind of personal transformation, the religious conversion, he had gone to war to find. He was, as it were, saved by the word.” Ray Monk, Wittgenstein: The Duty of Genius 115-16 (1990). See also W. W. Bartley III, Wittgenstein 27, 72 (1973) (noting that Wittgenstein was “overwhelmed” by Tolstoy’s version of the Gospels that Tolstoy became one of Wittgenstein’s heroes); Joachim Schulte, Wittgenstein: An Introduction 5 (1992) (“Wittgenstein’s sister Mining wrights in her notes that ‘already back then there were signs in Ludwig of the profound transformation that was to come to fruition only after the war … The other soldiers called him “the man with the Gospel” because he always carried Tolstoy’s adaptation of the Gospels with him.”‘”); Norman Malcolm, Ludwig Wittgenstein: A Memoir and a Biological Sketch by G. H. von Wright 10, 58 (1984) ([It] is an interesting fact that Ludwig Wittgenstein, considered by many to be the greatest philosopher of the 20th Century, was greatly influenced by the religious writings of Leo Tolstoy, and in particular, Tolstoy’s Gospels in Brief.”).

What exactly came to fruition in Wittgenstein’s mind while reading Tolstoy’s Gospels? Bartley offers a suggestion: “That Wittgenstein was, for better or for worse, engaging in an imitation of Christ is a possibility that cannot be lightly dismissed when one attempts to comprehend his extraordinary [post-WWI] life ….” Bartley III at 72. I think it clear that Wittgenstein underwent a religious transformation of some kind that meaningfully guided the way in which he lived the remainder of his life. And, even if he never claimed to possess a definitive set of religious beliefs, he undoubtedly respected religion, and perhaps in a way similar to that of William Alston: “All I know by [religious] experience is that after responding to the gospel … I became able to feel concern for others in a way I had not done before…. I f[ound] myself reacting to people in a different kind of way ….” William P. Alston, Christian Experience and Christian Belief (in Faith and Rationality 107 (Plantinga and Wolterstorff eds. 1983)). Indeed, Wittgenstein later claimed to see every philosophical problem “from a religious point of view,” and often wrote and spoke of religion and morality as if they were inseparable.

compare stewart’s spinoza and tolsoy’s jesus

In philosophy, theology on June 20, 2009 at 12:34 pm

Consider the following: “Spinoza insists that the more we seek our own interest, the more we are endowed with virtue…. [But a]lthough virtue has its feet planted firmly in self-interest (or better self-realization), Spinoza maintains that virtue in fact leads to very unselfish social behavior. [H]e argues that men who live under the guidance of reason invariably treat others with respect, they repay hate with love, and in general behave like model citizens and ‘Good Christians.’” Matthew Stewart, The Courtier and The Heretic 176 (2006).

“The intellectual love of God is the same thing as the knowledge of God contained in the first part of the Ethics. Spinoza identifies it as ‘the third kind of knowledge,’ or ‘intuition,’ in order to distinguish it from sense experience (‘the first kind’) and the reflective knowledge that arises from the analysis of experience (‘the second kind’). To know his God in the third way, Spinoza claims, is the same thing as to love God. Furthermore, this love is greater than any other possible love, and can never waiver.” Id. at 177.

“For Spinoza, the intellectual love of God is the highest form of reason. But … this [] love if not the kind that can be returned[, for] Spinoza’a [God] is utterly indifferent to humanity’s concerns. Therefore, the question of personal immortality can have no bearing on our salvation, for the wise man has no need of additional rewards in a purported afterlife to justify virtue in this life … According to Spinoza virtue is its own reward.” Id. 252-53.

“People have not understood and do not understand that the consciousness of the spirit in them … brings life to them through understanding. They reject the stone upon which everything rests; they do not take as their foundation the life of the spirit, so they do not enter into the kingdom of heaven and do not receive life. In order to have faith and to receive life, it is necessary to understand one’s position and not expect rewards.” Leo Tolstoy, The Gospel In Brief 152 (Flowers III ed., Hapgood trans., 1997).

“Faith does not consist in believing something wonderful, but in understanding one’s position, and therein lies salvation. If you understand your position, you will not expect rewards ….” Id. at 153.

“For Leibniz, on the other hand, the only love worthy of the name is the kind that promises punctual and copious repayment…. The crucial difference between the two philosophers comes down to this: Spinoza finds happiness in loving God; Leibniz finds it in God loving us back.” Stewart at 253.

“The immortality Spinoza offers … is not the kind that would provide much solace for the superstitious: we take with us no personal memories of who we were or what we did in our journey to the eternal ideas, and we receive no rewards other than those that come from having such beautiful thoughts in the first place. In fact, Spinoza’s immortality doesn’t really occur ‘after’ life; it is something more like an escape from time altogether. By immortality Spinoza means something like the union of the mind with the ideas that are themselves timeless.” Id. at 177.

Tolstoy continues:

“The awakening from death is, to live in the will of the Father. For the Father, there is no time, therefore, in fulfilling the will of the Father, in joining him, man departs from time and death.” Tolstoy at 171.

“[For] he who lives by understanding[] there is nothing doubtful or fearful.” Id. at 178.

“To exalt the Son of Man, means to live by the life of the understanding that is in you. To exalt the Son of Man above that which is earthly, means to believe in the light while there is light, in order to be a son of understanding…. He who believes in my teaching believes not in me, but in that spirit which gave life to the world. And he who understands my teaching, understands that spirit which gave life to the world. But if any one hears my words and does not fulfill them, it is not I who blame him, seeing that I came, not to accuse, but to save. He who does not accept my words is accused, not by my teaching, but by the understanding which is in himself. This it is which accuses him. I did not speak of myself, but said what my father, the living spirit in me, suggested to me. That which I say, the spirit of understanding has told me, and that which I teach is the true life.” Id. at 181-82.

“My spirit, the spirit of truth, shall take up its abode in you after I’m gone.” Id. at 193.

“Life is knowledge of the true God of the understanding.” Id. at 199.

browne on spinoza

In philosophy, theology on June 20, 2009 at 12:30 pm

“There was no charge [Spinoza] resented more than that of being an atheist, for he – the “God intoxicated Spinoza” as Novalis truly called him – considered an atheist a man without understanding.” Lewis Browne, Blessed Spinoza: A Biography of the Philosopher 246-47 (1932) (emphasis added).

spinoza on being, virtue, and the understanding

In philosophy, theology on June 20, 2009 at 12:28 pm

(abridged selections from Baruch Spinoza’s Ethics (Part IV))

“We call good that which is advantageous, and bad that which is an obstacle, to the preservation of our being; that is, that which increases or diminishes our power of activity. So knowledge of good and evil is nothing other than the idea of pleasure or pain that follows from the emotion of pleasure or pain.” (Proof of Prop. 8)

“Every man necessarily seeks what he judges to be good and avoids what he judges to be evil. But this attraction to the good is nothing other than man’s very essence or nature. Therefore, every man, by the dictates of human nature, necessarily seeks what he judges to be good and avoids what he judges to be evil.” (Proof of Prop. 19)

“Virtue is human power, which is defined by man’s very essence or nature whereby man seeks to preserve his being – his existence. Therefore, the more every man endeavors to preserve his existence, the more virtuous he is. Insofar as a man neglects his own being, he commits vice.” (Proof of Prop. 20)

“Therefore nobody, unless he is overcome by external causes contrary to his own nature, neglects to seek his own advantage, that is, to preserve his existence.” (Scholium to Prop. 20)

“Nobody can desire to be happy, to do well and to live well, without at the same time desiring to be, to do, and to live; that is, to exist.” (Prop. 20)

“The proof of this proposition, or rather, the fact itself, is self-evident, and also follows from the definition of desire. For the desire to live happily, to do well and so on is the very essence of man; that is, the striving of every man to preserve his own being.” (Proof of Prop. 20)

“No virtue can be conceived as prior to the virtue of self-preservation.” (Prop. 21)

“To act in absolute conformity with virtue is nothing else by to act according to the laws of human nature. But we are active only insofar as we understand. Therefore to act from virtue is nothing else in us but to act, to live, and to preserve one’s own being under the guidance of reason, that is, on the basis of seeking one’s own advantage.” (Proof of Prop. 24)

“The striving to preserve one’s being is the essence of man, and is the force that compels man to do those things that necessarily follow from man’s essence. But the essence of reason is nothing but understanding clearly and distinctly. Therefore, whenever man exercises reason, man strives to preserve his being, that is, man strives to understand. And in this striving man is truly virtuous.” (Proof of Prop. 27)

“The highest object that the mind can understand is God, that is, an absolutely infinite being, and one without whom nothing can be or be conceived. Thus, the mind’s highest good is knowledge of God. Again, the mind is active only to the extent that it understands, and to that extent only can it be said to act from virtue. Since the highest thing the mind can understand is God, the highest virtue of mind is to understand or know God.” (Proof of Prop. 28)

why this blog?

In Uncategorized on June 20, 2009 at 12:27 pm

The purpose of this blog is essentially two-fold. First, it functions as a place where I can store various bits of information that I’d like to keep handy for future use. As my wife, Dana, would gladly tell anyone, this is much better than my traditional method, scribbling things down on paper to be physically stored somewhere, and not in an organized way. In other words, this saves space and the stress related to both of us when she insists that I “clean up my area.” Second, since it is available to the entire world (which is really rather frightening), those of whom I invite (and even those who I don’t) are welcome to comment. (I like Alan Dershowitz’s words to a similar effect: “I feel the need to share my ideas as widely as possible…. [But m]y test for publication is certainly not perfection. Instead, I ask myself whether sharing my experiences, mistakes, insights and opinions will contribute in a positive way to the marketplace of ideas.” Letters to a Young Lawyer 78 (2001).) With respect to the latter purpose, the following is helpful.

As Plato recalled it, Socrates once stated the following: “I would be pleased to cross-examine you, provided you are the same sort of human being as I; if not I would let you go. Of what sort is that? One who would be pleased to be refuted if I say something untrue, and pleased to refute another if he says something untrue, but more pleased to be refuted than to refute – as much more as being rid oneself of the greatest evil is better than ridding another of it; for I do not believe that anything is as evil for a human being as to harbor false beliefs about the things we are discussing.” – Socrates (from Plato’s Gorgias 458A-B)

I am the same sort of human being as Socrates, namely, one who genuinely does not care too much where the truth of the matter takes me, as long as I get there, and one who is genuinely delighted to learn if I err along the way. As a result, others can help me get to my intended final destination by noting any flaws to arguments or thoughts presented. In addition, others just might find something on here interesting, or at least discover a new way of looking at a given topic that helps them in their own pursuits. Hence, while the second purpose of this blog is primarily egoistic, it is also somewhat altruistic. (But I recognize, following Bill Vallicella (following Kant) that blogging requires a certain degree of presumptuousness.)

The only thing that really gets my goat is rudeness. Rudeness is a reflection of fundamental ignorance in my view, and, more importantly, is essentially destructive and damaging to whatever cause it claims to be advancing. Unfortunately, however, much of the current “debate” nowadays can be said to contain much that is rude (or at best unseemly), and especially so when it comes to “hot-button” items such as political and religious matters. That is unfortunate, because getting rude and/or personal about serious subjects is not only foolish but has an obvious chilling effect on those who in good-faith wish to foster reasoned discussion. (If you’d like an example of the sort of thing I’m alluding to, just spend a couple minutes here. With respect to the ladies that run that website, I respectfully believe that their approach does far more damage than good to an otherwise noble cause.) Thus, if you wish to comment on anything here, I’d really appreciate it if it is done in a polite and constructive manner.

on whether evil can (really) be desired

In philosophy on June 20, 2009 at 12:25 pm

Read my thoughts on a perceived puzzle regarding whether one can desire evil here. In a nutshell, my view is “yes” and that one of four possible basic scenarios occur when one commits and evil act:

(i) One can recognize the evil and possess the ability to refrain from it, but desire the evil to the extent that one does not care to refrain from it;
(ii) One can recognize the evil but not possess the ability to refrain from it because one is overcome by desire (i.e., overcome by weakness of will);
(iii) One can not recognize the evil and accordingly never considers refraining from it due being intrinsically evil (i.e., one erroneously believes the evil to be “good”);
(iv) One can not recognize the evil and thus never considers refraining from it due being mentally ill (i.e., no ethical assessment takes place at all due to some mental defect).

On this account, if one does not possess the ability to recognize (i.e., distinguish between) good and evil then one is either intrinsically evil (iii) or mentally ill (iv). If one does have the ability to distinguish between good and evil, then if one commits the evil act anyway one does so either because of one’s weakness of will (ii), or one simply ignored one’s perfectly functioning conscience (i).

curriculum vitae

In Uncategorized on June 20, 2009 at 12:20 pm

Education
J.D., University of Iowa (2003), Iowa Law Review
M.A. Philosophy, University of Iowa (2004)
B.A. Philosophy, University of Iowa (1999)

Employment
Hayek, Brown, Moreland & Smith, L.L.P. (2008-)
Associate
City of Solon, Iowa (2008-)
City Attorney
Lind, Jensen, Sullivan & Peterson, P.A. (2006-07)
Associate
Waldeck & Lind, P.A. (2005-06)
Associate
Judge Michael R. Savre, Minnesota District Court (2004-05)
Judicial Law Clerk
Kirkwood Community College (2004)
Instructor of Law
Hayek, Hayek, Brown & Moreland, L.L.P. (2003)
Law Clerk
Judge Ronald E. Longstaff, U.S. District Court (2003)
Judicial Intern
Senator Charles E. Grassley, U.S. Senate Judiciary Committee (2002)
Legislative Intern
Troon North Golf Club, Starfire Golf Club (1999-2001)
PGA Apprentice Assistant Golf Professional

Admissions
State of Minnesota (2005)
U.S. District Court, District of Minnesota (2005)
U.S. Eighth Circuit Court of Appeals (2005)
State of Iowa (2008)
U.S. District Court, District of Northern Iowa (2008)
U.S. District Court, District of Southern Iowa (2008)

Publications
Morality, Professionalism, and Happiness, 8 Engage 1 (March 2007)
A Concise Summary of the Law of Release and Waiver in Minnesota, VII Hearsay 4 (2006)
Evidence-Based Prosecutions and the Admissibility of Hearsay after Crawford v. Washington in Minnesota, VI Hearsay 3 (Spring 2005)

Professional Associations (Current)
Federalist Society for Public Policy Studies
Iowa State Bar Association
Johnson County Bar Association
Legal Writing Institute
Society of Christian Philosophers

Nonprofessional Associations
Humane Society of the United States
National Rifle Association

Religious Affiliation
Episcopalian

Political Affiliation
Libertarian

Selected Bibliography

Abelard, Peter, Ethics

Abelard, Peter, Dialogue Between a Philosopher, a Jew, and a Christian

Aczel, Amir D., Descartes’ Secret Notebook: A True Tale of Mathematics, Mysticism, and the Quest to Understand the Universe (2005)

Addis, Laird, Natural Signs: A Theory of Intentionality (1989)

Augustine (selections)

Anaxagoras (selections)

Anaximander (selections)

Anaximenes (selections)

Anselm (selections)

Aquinas, Thomas, Treatise on Happiness

Aquinas, Thomas (selections)

Aristotle, Nicomachean Ethics

Aristotle, Metaphysics

Aristotle, Categories

Bacon, Francis (selections)

Baigent, Michael, Leigh, Richard & Lincoln, Henry, Holy Blood, Holy Grail (1982)

Baigent, Michael, Leigh, Richard & Lincoln, Henry, The Messianic Legacy (1986)

Bardach, Janusz, Man is Wolf to Man: Surviving the Gulag (1998)

Bartley III, William Warren, Wittgenstein (1985)

Barritt, Cyril (ed.), Lectures and Conversations on Aesthetics, Psychology and Religious Belief (1966)

Bayle, Pierre (selections)

Bennett, William J., The Death of Outrage: Bill Clinton and the Assault on American Ideals (1998)

Bennett, William J., Why We Fight: Moral Clarity and the War on Terrorism (2002)

Berkeley, George, Three Dialogoues between Hylas and Philonous (1713)

Berkeley, George (selections)

Bissell, Kathlene, Fred Couples: Golf’s Reluctant Superstar (1992)

Bix, Brian, Jurisprudence: Theory and Context (1996)

Bloom, Stephen G., Postville: A Clash of Cultures in Heartland America (2000)

Boaz, David, Libertarianism: A Primer (1997)

Bork, Robert H., Slouching Towards Gomorrah: Modern Liberalism and America Decline (1996)

Bork, Robert H., The Tempting of America: The Political Seduction of the Law (1997)

Bork, Robert H. (ed.), A Country I Do Not Recognize: The Legal Assault On American Values (2005)

Borradori, Giovanna, The American Philosopher: Conversations with Quine, Davidson, Putnam, Nozick, Danto, Rorty, Cavell, MacIntyre, and Kuhn (1994)

Breyer, Stephen, Active Liberty (2005)

Brown, Dan, Angels & Demons (2000)

Brown, Dan, The Da Vinci Code (2003)

Bradford, Dennis E., A Thinkers Guide to Living Well (1990)

Buehrens, John A., A Chosen Faith: An Introduction to Unitarian Universalism (1998)

Bush, George W., A Charge To Keep (1999)

Browne, Louis, Blessed Spinoza: A Biography of the Philosopher (1932)

Butchvarov, Panayot, Being Qua Being: A Theory of Identity, Existence, and Predication (1979)

Butchvarov, Panayot, The Concept of Knowledge (1970)

Butchvarov, Panayot, Skepticism in Ethics (1989)

Butchvarov, Panayot, Skepticism About the External World (1998)

Cahill, Thomas, The Gifts of the Jews: How a Tribe of Desert Nomads Changed the Way Everyone Thinks and Feels (1998)

Calder, Michael, JFK vs. CIA: The Central Intelligence Agency’s Assassination of the President (1998)

Calder, Nigel, Einstein’s Universe (1988)

Camus, Albert, A Happy Death

Camus, Albert, The Stranger

Camus, Albert, The Plague

Cardozo, Benjamin N., The Nature of the Judicial Process (1921)

Chomsky, Noam ((philosophical) selections)

Chotkowski, Ludmil A., Chiropractic: The Greatest Hoax of the Century? (2002)

Cicero, On Duties

Clancy, Tom, The Hunt for Red October (1984)

Clarke, Arthur C., The Hammer of God (1993)

Clarke, Arthur C., Childhood’s End (1963)

Collier, Peter & Horowitz, David (eds.), The Anti-Chomsky Reader (2004)

Conkin, Paul K., When All the Gods Trembled: Darwinism, Scopes, and American Intellectuals (1998)

Copernicus, About the Revolutions of the Heavenly Spheres (1543)

Coulter, Ann, High Crimes and Misdemeanors: The Case Against Bill Clinton (1998)

Coulter, Ann, Slander: Liberal Lies About the American Right (2002)

Coulter, Ann, Treason: Liberal Treachery from the Cold War to the War on Terrorism (2004)

Coulter, Ann, Godless: The Church of Liberalism (2007)

Daniels, Anthony (Theodore Dalrymple, pseudonym), Life at the Bottom: The Worldview that Makes the Underclass (2001)

Damasio, Antonio, Descartes’ Error: Emotion, Reason, and the Human Brain (2006)

Darden, Christopher, In Contempt (1996)

Democritus (selections)

Diamond, Jared, The Third Chimpanzee: The Evolution and Future of the Human Animal (1992)

Dean, John W., The Rehnquist Choice: The Untold Story of the Nixon Appointment That Redefined the Supreme Court (2002)

Deaver, Micheal, A Different Drummer: My Thirty Years with Ronald Reagan (2003)

Dershowitz, Alan, Letters to a Young Lawyer (2001)

Descartes, Rene, Discourse on Method and Mediations on First Philosophy

D’Souza, Dinesh, Ronald Reagan: How an Ordinary Man Became an Extraordinary Leader (1997)

Durant, Will, The Story of Philosophy: The Lives and Opinions of the World’s Greatest Philosophers (1991)

Dunlap, Janice R., Purpose, Passon, & God: Awakening to the Deepest Meaning of Life (2006)

Dworkin, Ronald, Taking Rights Seriously (1978)

Dworkin, Ronald, Law’s Empire (1986)

Dworkin, Ronald, Life’s Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom (1994)

Edmonds, David & Eidinow, John, Wittgenstein’s Poker: The Story of a Ten-Minute Argument Between Two Great Philosophers (2001)

Ely, John Hart, Democracy and Distrust: A Theory of Judicial Review (1980)

Ehrlich, J.W., The Lost Art of Cross-Examination (1970)

Epictetus (selections)

Epicurus (selections)

Feinman, Jay M., Law 101: Everything You Need to Know About the American Legal System (2000)

Feinstein, John, A Good Walk Spoiled: Days and Nights on the PGA Tour (1995)

Feinstein, John, The Majors (2000)

Ferling, John, Setting the World Ablaze: Washington, Adams, Jefferson, and the American Revolution (2002)

Feuerbach, Ludwig, Principles of the Philosophy of the Future

Flynn, Daniel J., Why the Left Hates America: Exposing the Lies that Have Obscured Our Nation’s Greatness (2002)

Flynn, Daniel J., Intellectual Morons: How Ideology Makes Smart People Fall for Stupid Ideas (2004)

Fichte, Johann Gottlieb, The Vocation of Man

Freud, Sigmund, The Future of an Illusion

Freud, Sigmund, The Origin & Development of Psychoanalysis

Fry, J. Hayden, A High Porch Picnic (2001)

Fumerton, Richard A., Epistemology (2006)

Fumerton, Richard A, Realism and the Correspondence Theory of Truth (2002)

Fumerton, Richard A., Reason and Morality: A Defense of the Egocentric Perspective (1990)

Gaarder, Jostein, Sophie’s World: A Novel About the History of Philosophy (1994)

Galilieo, Galilei (selections)

Garner, Bryan A., The Elements of Legal Style (2002)

Garner, Bryan A., Legal Writing in Plain English: A Text with Exercises (2001)

Garner, Bryan A., The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts (2004)

Garner, Bryan A., The Winning Oral Argument (2007)

Gardner, Martin, The Whys of a Philosophical Scrivener (1999)

Glendon, Mary Ann, A Nation Under Lawyers: How the Crisis in the Legal Profession is Transforming American Society (1994)

Greenburg, Jan Crawford, Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court (2007)

Goldberg, Bernard, Bias: A CBS Insider Exposes How the Media Distort the News (2002)

Goldberg, Bernard, Arrogance: Rescuing America from the Media Elite (2003)

Goodman, Nelson, Ways of Worldmaking (1978)

Gross, Martin L., The End of Sanity: Social and Cultural Madness in America (1997)

Hare, John E., God’s Call: Moral Realism, God’s Commands, and Human Autonomy (2001)

Hannity, Sean, Let Freedom Ring (2002)

Harris, Arthur M., Letters to a Young Lawyer (1912)

Hawking, Steven W., The Theory of Everything: The Origin and Fate of the Universe (2002)

Hayek, F. A., The Road to Serfdom (1944)

Hegel, G. W. F. (selections)

Heil, John, From an Ontological Point of View (2005)

Hemmingway, Ernest, The Old Man and the Sea

Hemmingway, Ernest, The Sun Also Rises

Hemmingway, Ernest, A Farewell to Arms

Hewitt, Hugh, A Mormon in the White House?: 10 Things Every American Should Know about Mitt Romney (2007)

Herrmann, Mark, The Curmudgeon’s Guide to Practicing Law (2006)

Hobbes, Thomas, Leviathan (1651)

Hogan, Ben, Five Lessons: The Modern Fundamentals of Golf (1957)

Holmes Jr., Oliver W., The Path of the Law

Holstein, Jay A., The Jewish Experience (1985) (see also this great profile)

Howard, Philip K., The Death of Common Sense: How Law is Suffocating America (1994)

Hume, David, Dialogues Concerning Natural Religion

Hume, David (selections)

Huntington, Samuel P., Who Are We?: The Challenges to America’s National Identity (2004)

Jammer, Max, Einstein and Religion: Physics and Theology (2002)

Kant, Immanuel, Prologomena to any Future Metaphysics (1783)

Kant, Immanuel, Groundwork of the Metaphysics of Morals (1785)

Kaufman, Andrew L., Cardozo (2000)

Kaufmann, Walter A., Nietzsche: Philosopher, Psychologist, Antichrist (1975)

Keyes, Alan L., Our Character, Our Future: Reclaiming America’s Moral Destiny (1996)

Kenny, Anthony, What I Believe (2006)

Kessler, Ronald, A Matter of Character: Inside the White House of George W. Bush (2004)

Kierkegaard, Soren (selections)

Lay, Donald P., Law: A Human Process (1996)

Leibniz, G. W. (selections)

Levin, Mark R., Men in Black: How the Supreme Court is Destroying America (2005)

Links, Bo, Follow the Wind: Tales from the Caddy Yard (1995)

Locke, John (selections)

Love III, Davis, Every Shot I Take: Lessons Learned About Golf, Life, and a Father’s Love (1997)

Lowry, Rich, Legacy: Paying the Price for the Clinton Years (2003)

Lyons, David, Ethics and the Rule of Law (1984)

Machievelli, Niccolo, The Prince (1513)

Magee, Bryan, Confessions of a Philosopher: A Personal Journey Through Western Philosophy from Plato to Popper (1999)

Malcolm, Norman, Ludwig Wittgenstein: A Memoir (2001)

Malcolm, Norman, Wittgenstein: A Religious Point of View? (1995)

Malebranche, Nicolas (selections)

McCain, John & Salter, Mark, Faith of My Fathers: A Family Memoir (2000)

McGinn, Colin, The Making of a Philosopher: My Journey Through Twentieth-Century Philosophy (2002)

McGinn, Colin, Moral Literacy: Or, How to Do the Right Thing (1993)

Meinong, Alexis (selections)

Michener, James A., Space (1982)

Mitchell, Elizabeth, W: Revenge of the Bush Dynasty (2000)

Monk, Ray, Ludwig Wittgenstein: The Duty of Genius (1991)

Moore, G. E. (selections)

Murphy, Michael, Golf in the Kingdom (1992)

Murphy, Michael, The Kingdom of Shivas Irons (1997)

Nagel, Thomas, What Does It All Mean?: A Very Short Introduction to Philosophy (1987)

Nelson, William E., Marbury v. Madison: The Origins and Legacy of Judicial Review (2000)

Nietzsche, Friedrich, Human, All Too Human: A Book for Free Spirits

Nietzsche, Friedrich, The Gay Science

Nietzsche, Friedrich, Thus Spoke Zarathustra: A Book for None and All

Nietzsche, Friedrich, Beyond Good and Evil

Nietzsche, Friedrich, The Birth of Tragedy

Noonan, Peggy, When Character Was King: A Story of Ronald Reagan (2001)

Nozick, Robert, The Examined Life: Philosophical Meditations (1989)

Olson, Barbara, The Final Days: The Last, Desperate Abuses of Power by the Clinton White House (2001)

O’Neill, John E., Unfit for Command: Swift Boat Veterans Speak Out Against John Kerry (2004)

O’Reilly, Bill, The O’Reilly Factor: The Good, the Bad, and the Completely Ridiculous in American Life (2000)

O’Reilly, Bill, The No Spin Zone: Confrontations with the Powerful and Famous in America

O’Reilly, Bill, (2001)Who’s Looking Out for You? (2003)

Otteson, James R., Actual Ethics (2006)

Palmer, Arnold, A Golfer’s Life (1999)

Pagels, Elaine, The Gnostic Gospels (1979)

Parmenides (selections)

Pascal, Blaise (selections)

Pease, Allan & Barbara, Why Men Don’t Listen and Women Can’t Read Maps: How We’re Different and What To Do About It (2000)

Penick, Harvey, The Wisdom of Harvey Penick: Lessons and Thoughts from the Collected Writings of Golf’s Most Best-Loved Teacher (1997)

Pickering, Charles Willis, Supreme Chaos: The Politics of Judicial Confirmation & the Culture War (2006)

Piereson, James, Camelot and the Cultural Revolution: How the Assassination of John F. Kennedy Shattered American Liberalism (2007)

Plato (complete works)

Pope John Paul II, Encyclical Letter Veritatis Splendor (1993)

Posner, Richard A., Overcoming Law (1996)

Posner, Richard A., Law, Pragmatism, and Democracy (2003)

Posner, Richard A., The Problems of Jurisprudence (2007)

Poitier, Sidney, The Measure of a Man: A Spiritual Autobiography (2000)

Putnam, Hillary, Pragmatism: An Open Question (1995)

Putnam, Hillary, The Many Faces of Realism (1987)

Pyrrho of Elis (selections)

Rand, Ayn, The Fountainhead (1943)

Rand, Ayn, Atlas Shrugged (1957)

Ratzinger, Joseph, On Conscience: Two Essays (2006)

Ratzinger, Joseph, Handing on the Faith in an Age of Disbelief (2006)

Reagan, Ronald, An American Life (1999)

Rehnquist, William H., The Supreme Court (2001)

Rosenberg, Joel, Everything You Need to Know About (Legally) Carrying a Handgun in Minnesota

Rousseau, Jean-Jacques, On the Social Contract (1762)

Rotella, Bob, Golf is Not a Game of Perfect (1995)

Rushdie, Salman, Midnight’s Children (1980)

Rushdie, Salman, The Satanic Verses (1989)

Russell, Bertrand, The Conquest of Happiness

Russell, Bertrand, The Problems of Philosophy

Russell, Bertrand, Logical Atomism

Sagan, Carl, Cosmos (1985)

Sagan, Carl, Billions & Billions: Thoughts on Life and Death at the Brink of the Millennium (1997)

Salinger, J.D., Franny and Zooey

Salinger, J.D., Nine Stories

Salinger, J.D., Raise High the Roof Beam , Carpenters and Seymour: An Introduction

Salinger, J.D., The Catcher in the Rye

Sampson, Curt, Hogan (1996)

Sartre, Jean-Paul, Being and Nothingness

Sartre, Jean-Paul, Existentialism and Human Emotions

Sartre, Jean-Paul, The Wall (Intimacy) and Other Stories

Sartre, Jean-Paul, Nausea

Sartre, Jean-Paul, No Exit and Three Other Plays

Sartre, Jean-Paul, The Age of Reason: A Novel

Sartre, Jean-Paul, The Psychology of Imagination

Sartre, Jean-Paul, The Words: The Autobiography of Jean-Paul Sartre

Sartre, Jean-Paul, Transcendence of the Ego: An Existentialist Theory of Consciousness

Scalia, Antonin, A Matter of Interpretation: Federal Courts and the Law (1998)

Scalia, Antonin & Garner, Bryan A., Making Your Case: The Art of Persuading Judges (2008)

Schopenhauer, Arthur, The Wisdom of Life and Counsels and Maxims

Schopenhauer, Arthur, Prize Essay on the Freedom of the Will

Schopenhauer, Arthur, On the Fourfold Root of Sufficient Reason

Schulte, Joachim & Brenner, William H., Wittgenstein: An Introduction (1992)

Stracher, Cameron, Double Billing: A Young Lawyer’s Tale of Greed, Sex, Lies, and the Pursuit of a Swivel Chair (1998)

Searle, John, Minds, Brains and Science (1984)

Searle, John, The Rediscovery of the Mind (1999)

Sheehan, Sean, Wittgenstein: A Beginner’s Guide (2001)

Sinisi, Daniel, Christian Moral Principles: A Handbook on Basic Christian Morality (1983)

Skinner, B. F., Walden Two (1948)

Shelley, Bruce L., Church History in Plain Language (1982)

Solzhenitsyn, Aleksandr, One Day in the Life of Ivan Denisovich

Spinoza, Baruch, The Ethics

Spinoza, Baruch, Treatise on the Emendation of the Intellect

Spinoza, Baruch, Theological-Political Treatise

St. Clair, Amber, The Criminal Lawyer’s Job: A Survivor’s Guide (2007)

Stark, Stephen D., Writing to Win: The Legal Writer (1999)

Starr, Kenneth W., First Among Equals: The Supreme Court in American Life (2002)

Stelzer, Irwin (ed.), The Neocon Reader (2004)

Stern, David G., Wittgenstein on Mind and Language (1996)

Stewart, Matthew, The Courtier and the Heretic: Leibniz, Spinoza, and the Fate of God in the Modern World (2007)

Steyn, Mark, America Alone: The End of the World As We Know It (2006)

Stroll, Avrum, Twentieth-Century Analytic Philosophy (2001)

Tamanaha, Brian Z., On the Rule of Law: History, Politics, Theory (2004)

Taylor, A. E., Plato: The Man and His Work (1937)

Tenet, George, At the Center of the Storm: My Years at the CIA (2007)

Thales (selections)

Thomas, Clarence, My Grandfather’s Son: A Memoir (2007)

Tolstoy, Leo, A Confession: And Other Religious Writings

Tolstoy, Leo, The Death of Ivan Ilych

Tolstoy, Leo, The Gospel in Brief

Towle, Mike, I Remember Ben Hogan: Personal Recollections and Revelations of Golf’s Most Fascinating Legend from the People Who Knew Him Best (2000)

Unger, Peter, Living High and Letting Die: Our Illusion of Innocence (1996)

Valenti, Jessica, Full Frontal Feminism: A Young Woman’s Guide to Why Feminism Matters (2007)

Webber, Christopher L., Welcome to the Episcopal Church: An Introduction to Its History, Faith, and Worship (1999)

Wilson, Edward O., On Human Nature (1979)

Wilson, Edward O., Consilience: The Unity of Knowledge (1998)

Wise, David, Spy: The Inside Story of How the FBI’s Robert Hanssen Betrayed America (2003)

Wittgenstein, Ludwig, Tractatus Logico Philosophicus

Wittgenstein, Ludwig, The Blue and Brown Books (1942)

Wittgenstein, Ludwig, Philosophical Investigations

Wright, Peter, Spycatcher: The Candid Autobiography of a Senior Intelligence Officer (1987)

Woodward, Bob, The Brethren: Inside the Supreme Court (1979)

Yarbrough, Tinsley, Harry A. Blackmun: The Outsider Justice (2008)

Yarbrough, Tinsley, David Hackett Souter: Traditional Republican on the Rehnquist Court (2005)

Personal

Born on May 1, 1977. Married to Dana Marie Schultz on September 27, 2003. Dana and I met in 1999 when she was a freshman at the University of Iowa and I was about to graduate. Dana earned her B.A. in Communications in 2002 and M.A. in Special Education in 2003. After three years as a special educator, worked for Target Corporation for three years prior to her current company, American College Testing. No kids – only Luther the Cat, born (by stipulation) April 1, 2001, and Lucy the Dog, born November 10, 2006, and Martin III the Beta fish, born (by stipulation) on July 1, 2009.