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Wednesday, October 28, 2020


Before I return to our current obsession with the election, I thought I would say something about how I think about the work of a great philosopher. Truth to tell, I don’t have anything novel or important to say about the election, no inside information, no report of my conversations with unnamed sources in the White House or in the Biden campaign. I have never so much as seen a presidential candidate in person, except of course in 1952 when I took part in the Harvard Square I Go Pogo rally and Walt Kelly, the creator of Pogo, drove by in an open car.


Why on earth would anybody be interested in how I think about the work of a great philosopher? Well, this is a blog, which is to say a web log, which is to say a record of my private thoughts on a wide variety of subjects. So here goes.


Let me begin by observing in a seemingly irrelevant fashion that although there are many wrong ways to play Beethoven’s Violin Concerto there is no single right way. The wrong ways of course are endless: to begin with, you can just play the wrong notes or you can play them out of tune or you can pay absolutely no attention to Beethoven’s markings of tempo and such. But if you are presented with Hilary Hahn and Itzhak Perlman playing the Concerto, it would be absurd to say that one of them must be doing it wrong since they are doing it differently. I believe that the same can be said of the interpretation of a great work of philosophy. There can be endlessly many wrong ways of reading it but there is surely no single right way. Indeed, the case of interpreting a work of philosophy is even more complicated than that of playing a great work of music.


I am really not interested in what I philosopher believes. I am only interested in whether he or she can make a powerful argument for some interesting thesis. In short, I am really not interested in what is rather oddly called “the history of ideas.” I have in my long life engaged deeply and seriously with the thought of only three great thinkers: Immanuel Kant, David Hume, and Karl Marx. In each case – I am not sure why – something in their writings seized me and virtually compelled me to struggle with those writings. As the Good Book says, Genesis chapter 32, in each case I have wrestled with the text and have refused to let it go unless it blessed me.


In each case, I begin by intuiting, if I may put it that way, a deep and very powerful claim that the author is making, a claim that I find interesting and exciting. Quite obviously, this is a subjective response. It is typical of great works of philosophy that serious readers approach them in many different ways, finding in them different theses that excite them and that they wish to explore. Once again, as with Beethoven’s Violin Concerto, there are any number of theses that cannot plausibly be found in the work or that are not capable of sustaining an interesting interpretation, but among the powerful theses there is no single one that must command the attention of any serious reader. Indeed, on the basis of my experience I believe very strongly that the most interesting and powerful thinkers often have their hands on ideas that they cannot with complete success articulate, but which they are unwilling simply to give up so as to make their writings superficially consistent. Thus, as I see it, the challenge confronting the serious reader is to seize on one or several of these claims and struggle with them, looking in the text and even beneath the text for the argument that will establish the claims.


In launching on such an adventure, the reader must be willing simply to brush aside passages that conflict with the central claim and which – this requires judgment on the reader’s part – are of secondary importance and can safely be ignored. The idea, as I see it, is to plunge into the depths of the caves of Moria (if I may use that analogy) and wrestle with what one finds there, relentlessly, doggedly, until one emerges with a coherent argument, changed inevitably as Gandalf was by the experience.


Now all of this sounds intolerably pretentious and self-important, but as I observed when I began this is a blog and of one is not going to be honest about what one is seeking to do, then why bother having a blog?


Well, it is a little bit past 11 in the morning and if we count this day as already in the books, then ignoring election day itself there are five days left. Someone with a serious commitment could hold his breath that long surely!


MS said...

Prof. Wolff, your analogy of the different right ways to play a Beethoven concerto to the different ways one can, with justification, interpret a work of philosophy, made me think about the application of this analogy to interpreting the law. According to Justice Scalia and now Justice Barrett, this analogy does not apply to interpreting the law, because there is only one right way to interpret either the Constitution or a statute, and that is the way which an adherence to the doctrines of textualism and originalism yields. But any study of the law should demonstrate the applicability of your analogy even to the law, and the fallacy in believing exclusively in textualism and originalism. In the example I offered in a previous comment, for example, dealing with the tension between freedom of religion and the separation of church and state, both of which appear in the 1st Amendment, there is not one correct textualist or originalist interpretation which will yield in the one correct result, as demonstrated in the two different views that emerged in the case of Board of Ed. of Kiryas Joel v. Grumet, Justice Souter’s view, representing the majority, and Justice Scalia’s dissent. However, while the different correct ways to lay a Beethoven concerto, and the different correct ways to interpret the philosophy of Hume or Kant or .... , do not have a critical effect on the lives of those who do not care about Beethoven and his concertos, or the philosophies of Hume or Kant, how the law is interpreted by those entrusted with the responsibility of making those interpretations does have critical and substantial implications for the rest of us.

On a separate note, another person with a mental disorder was shot and killed, this time by Philadelphia police, on Monday, leading to rioting and looting. The victim was African-American. He had bipolar disorder. Was the fact that he was Black, along with his perhaps odd behavior, make it easier for the police to see him as a threat and therefore warranting the use of deadly force?

On Tuesday morning, I happened to be in court on a Zoom hearing (a very strange, and cumbersome, way to practice law). This was before I learned of the news in Philadelphia. There were some 40 cases on the docket, a sad list of the downtrodden and misbegotten – a woman charged with assault who argued with the judge that she was the victim, not the perpetrator, and that she was calling in from work because she works 12 hours a day, 7 days a week, to support her family; a man charged with driving without insurance who was told the case would be dropped if he bought insurance, responding that there was no point in doing so, since his car was totaled; a man charged with driving under the influence who accepted responsibility, but explained he was going through a hard time since his wife had left him. They were of all colors and ethnicities, broke and forlorn.


Howie said...

Why not Freud or Marcuse?
They've influenced your thought, have they not?

MS said...

And then one case came up which caught my attention. It was a young Black man, appearing to be in his early twenties, who had been charged with trespassing. It was obvious from the beginning that he suffered from emotional problems – when the judge asked him to state his name, he refused, saying the judge would make fun of his stutter. The judge responded, no, I will not make fun of your stutter, and asked him instead to spell his name. He was defended by a public defender, who was Black and was representing several of the defendants in court that morning. Although the facts were a bit vague, as far as I could tell, the young man with the stutter was accused of trespassing on numerous occasions by walking in front of, or within, a housing development. He had been arrested by sheriff’s deputies several times for this “offense.” I waited for the public defender to offer a constitutional law defense, that, your honor, walking in a public place, even repeatedly in the same public place, and acting strange does not constitute trespassing, is not unlawful and cannot be the basis for a criminal prosecution just because the accused acts strangely. But she did not offer this defense. She explained that she was seeking help for this young man from social services and requested that her client be allowed to plead nolo contendere (admission of guilt, with no civil consequences for civil liability) and be released from jail with time served. The prosecutor, who was Black, said he was willing to accept the plea, and the court granted the plea. (The judge, by the way, is himself a former prosecutor, which is typical of a lot of courts in this country. Prosecutors who have reached their apex of advancement decide to go into politics or become judges. As judges, being former prosecutors, they tend to side with the police, which is why attorneys defending police officers often waive their right to a jury trial, preferring to rely on the pro-police bias of former prosecutors.) I was annoyed that the Black prosecutor did not show more empathy for a Black defendant, and recommend that the charges be dropped, but perhaps that is a form of racism on my part, expecting people of the same race to stand up for one another. All this time, I was thinking, social services is not going to alleviate his emotional problems, and he is probably going to be arrested for trespassing again, and again, and again, for something which is not even unlawful.


MS said...

Later that day, I Googled the number for the public defender’s office and looked at the list of public defenders to see if I could recognize the name of the attorney who had appeared in court that morning. I did not see her name, so I called the office and asked to speak to the chief public defender. I explained to her that I wished to speak to the public defender who had appeared in J. T’s court that morning. She asked why, and I explained that I just wanted to get an explanation of what exactly this particular defendant had been charged with. She said she would give the public defender my message and she would get back with me. About a half hour later, the chief public defender called me back, with Ms. D on the line. I asked Ms. D, what precisely was the young man with the stutter accused of. She responded that he had been arrested for repeatedly trespassing in the Sycamore Grove neighborhood. I asked if this was a gated community. She said no. I asked how was he trespassing? She responded that he was seen repeatedly walking in the neighborhood. I asked, how is that trespassing? Had he threatened anybody, was he selling drugs, did he enter any of the homes? No, he was trespassing. I said the Supreme Court has held on numerous occasions that a person cannot be arrested for being a vagrant, or for walking idly in public. At this point, her supervisor interrupted and said she was not going to allow her employee to be cross-examined, and that she had only gotten back to me because she thought I needed some information. I pushed back, saying I wasn’t telling her how to do her job, but this young man’s constitutional rights were being violated, and they would probably be violated again, because he was Black and had a mental disorder, and he was entitled to a constitutional defense. She asked if I wanted to take over the case, to which I responded that I already had too much work, but I would be willing to do the legal research for them and help write a brief, to which the chief public defender said if they needed my help, she would get back to me, and ended the call.

I have seen this before – people afraid of people who act strange, who see them as a threat. And it does not matter what color the person with the mental disorder is. It is not only the police who need to be educated about people with mental disorders, the general public needs to be educated as well.

LFC said...


I have not read all your comments here, but it is pretty clear, from a glance at Amy Coney Barrett"s 2O13 Texas L Rev article on stare decisis and from what she said at the hearings, that she does not think originalism is *the only* "correct" way to read the Constitution. She obviously thinks it's better than the other ways or she wouldn't be an originalist, but she has said she thinks "there is room for" different approaches to constitutional interpretation on the Court. I'm not sure this will matter in terms of how she actually decides cases, but I think it's worth pointing out anyway.

MS said...


This may only be a subjective difference of opinion, but no, I do not think it will matter in the way she decides cases. And I do not agree that in offering the concession that there are always other ways to interpret the law besides textualism and originalism, this demonstrates that Justice Barrett believes that there is not one right way to interpret the law in any given case. In any case that goes to the Supreme Court there is generally only one winner and one loser (there are exceptions, for example, when the Court rules that a case is not justiciable, or the Court remands the case for reconsideration in light of what the Court has said). As Justice Robert Jackson stated, the Court is not final because it is infallible, it is infallible because it is final. So, if a justice is a textualist/originalist, conceding there are other philosophical ways to view the interpretation of the law is not much of a concession, because the textualist/originailist is going to interpret the law in accordance with the way s/he views those doctrines dictate what the law is, and the alternative interpretations, using alternative methodologies, be damned. And so since there generally is only one winner and one loser (regardless the number of parties), the ruling rendered by the textualist/originalist is the only right ruling – and not just for now, but for all time, because for a textualist/orginalist, the law is written in stone by virtue of the words that have been used. This contrasts with the more liberal methodologies for interpreting the Constitution, for example, that regard the Constituion’s words as not written in stone, but evolving with the changes in society. So, that a ruling which is correct for today may need to be modified in the future. Such a view is anathema to a textualist/originalist, and so I stand by my assessment that textualist/orignialists like Justices Scalia and Barrett believe there is only one right decision in any given case, and that right decisions is how they have ruled, or if they are not in the majority, how they would have ruled.

s. wallerstein said...

I guess besides trying to understand a thinker's central claim, I'm also intrigued by their peripheral and at times contradictory claims. At some deep level I don't believe much in coherent systems of ideas. The world is too complex for any one system of ideas to do justice to it and I've known enough brilliant people to capture how much sophistry goes into constructing any system of ideas. Still, the thinkers whom you cite are full of insights worth pondering, even if the system as a whole doesn't convince me much.

By the way, I don't use the word "sophistry" above as a ethical condemnation, simply as a descriptive term. Some of my best friends are sophists.

Christopher J. Mulvaney, Ph.D. said...

There are stories told by the early ragtime players about how, when they took an exercise assigned by their piano teacher and added some syncopation, they were told to quit fooling around and play it the right way, i.e., the way it was written. That little story gets to fundamental difference between classical music and blues and jazz. In the latter the constraints on what note to play are set by the key of the song or the chord played at that point in time. So while there is a rather small set of proper, or acceptable ways of playing a Beethoven violin concerto, there is a much larger set of ways to play a blues or jazz composition. Let’s hear it for the expansion of musical freedom!

MS said...


Your comment suggests another analogy for members of the Supreme Court and their approaches to legal interpretation: The liberal jurists, e.g., Justices Ginsburg, Breyer, Sotomayor, Stevens, etc., are the jazz , extemporaneous interpreters of the law. Whereas the conservative members, e.g., Scalia, Alito, Thomas, Kavenaugh, etc., are the classicist interpreters, who rap your knuckles if you do not interpret the words of the law just as exactly as they were written.

Enam el Brux said...

Even jazz isn't played the way it's written in classical music notation. (My uncle was a jazz musician.)

Carl said...

MS, Thomas and Alito want you to think they're like classical musicians adhering to an Urtext, but in fact they use no less artistic license than Breyer and Sotomayor, and arguably use more.

MS said...


I fully agree. It’s called hypocrisy, “the tribute which vice pays to virtue.” (Francois de La Rochefoucauld)

Anonymous said...

Hilary Hahn? Professor, your street cred shot up beyond limits for name checking a young violinist like Hahn! I don't know why it should surprise me that you're aware of Hahn, but it does. --Dave F.

David Palmeter said...

Another field where the “notes” don’t change but the interpretation can change everything is drama. A few years ago, I saw a production of “Waiting for Godot” with Ian McKellen and Patrick Stewart. They played it as a comedy. They didn’t change a word of the script. It was done through tone of voice, facial expression, body language, and gesture. It was 180 degrees from the traditional, somber, life-is-meaningless approach to the play that is usually taken. Hilton Als, of the New Yorker, was outraged at their turning what he saw as serious drama into a comedy. I thought it was brilliant.

Christopher J. Mulvaney, Ph.D. said...

The analogy would leave the liberal members open to the accusation that ‘you’re making it up as you go along’, and ‘improvisation is no way to make law!!’ Scalia was an opera fan, and so I don’t expect he would have appreciated jazz. If the other textualists are also opera fans we may be on to something.

I enjoy reading your posts as I am sure to have learned from your clear, concise exposition about the law, However, if I remember correctly, you made the mentioned that it is improper to bring up the question of judicial philosophy during confirmation hearings. If I recall incorrectly, never mind, and ignore the following. If not, I frankly don’t see any social theoretic substance to the originalist and textualist positions and I wonder why they are seen as off limits. Rather, I see them as ideologies, i.e., a body of knowledge that purports to explain in neutral terms just how one should reach legal decisions that reinforce the idea that the decisions thus made are the incarnation of equality, freedom, justice and Bentham while it provably distorts reality to the benefit of the powers that be. (To steal a riff from Marx).

If you have the time, your thoughts would be appreciated.

LFC said...


MS of course can answer for himself (and maybe he has while I've been writing this comment), but I'm sure he didn't say that it's improper to bring up judicial philosophy during confirmation hearings. Rather, MS and I disagreed about whether it's legit for a Senator to *vote* against confirmation b.c -- as in the case of Barrett -- a nominee's judicial philosophy would significantly change the jurisprudential/ideological balance of the Court. I said that that is a legitimate ground for voting "no" on a nominee, and MS disagreed. MS then asked me whether I would take the same position if a Senator said he /she was voting no on a nominee to prevent a shift in the Court's balance to a 6-3 "liberal" majority as opposed to a 6-3 "conservative" one. I answered that if a (presumably) conservative Senator took that position, that wd be a legitimate ground for his/her vote.

Not to sound pretentious or anything, but my stance, as I see it, recognizes that while the Court is not solely or straightforwardly a political institution in the same way a legislature is, nominations to the Court have become politicized, probably irreversibly so, and a nominee's judicial philosophy legitimately has a role, v often a key role, to play when it comes to time for Senators to determine how to vote on a nominee. In short, in my view it's not improper for Senators to weigh judicial philosophy in deciding how they vote on a nominee. If anything, Senators should have tried to insist that some previous nominees, such as Sotomayor and Roberts for instance, be more explicit about their jurisprudential approaches during their hearings. Both of those, as I recall, mostly answered in platitudes. These days they all answer in generalities, but Roberts' and Sotomayor's answers were especially vacuous.

The substance and the attractiveness and the defensibility of a particular jurisprudential approach -- whether it's some form of originalism or some form of "living constitutionalism" (such as Breyer's "active liberty" as he apparently calls it) or some other view -- that's a separate question. I don't at all keep up w the literature on any of this, but I did read some years ago Mark Tushnet's 1988 book Red White and Blue, which is not always easy going but is a perceptive analysis by a leftish law professor of some of these questions, and includes what I thought was an insightful critique of originalism as it was then being touted by figures in the Reagan admin, among others, though I don't remember most of the details of Tushnet's analysis.

One of the many problems w originalism -- and I'll stop w this -- is that it cannot be applied in any kind of pure form b/c Justices in 2020 are dealing w questions often where the Court has built up a large body of precedent, and that precedent can't simply be overturned will-nilly if it clashes w some Justice's originalist precepts w/o resulting in, not to use a term of art, a royal mess. Scalia, the arch originalist, himself recognized this to some extent. Barrett has a footnote in her Texas L Rev article to Scalia's self-described "faint-hearted originalism," meaning that he was willing to let some precedents stand even if he thought they violated originalist canons of interpretation.

Christopher J. Mulvaney, Ph.D. said...

Thanks for clarifying the issues for me. I thought I was off the mark,

MS said...


I am getting to this answer a bit late, and appreciate LCF’s responding to your question earlier. I went back to check what I had written in my comments on the post “A Dark Observation On A Sunny Day” (Oct. 17), and I did say that the Republican senators were correct in arguing that from an academic standpoint Judge Barrett was more than qualified to be confirmed as Justice to the Supreme Court. Traditionally, that was enough to justify confirming a Supreme Court nominee – academic merit, judicial experience, a judicial temperament (not yelling at lawyers ofr parties in the courtroom), and integrity. All that changed with the ruling in Roe v. Wade (1972) and President Reagan’s nomination of Robert Bork to succeed Justice Lewis Powell, who retired, on the Supreme Court. The vote in Roe v. Wade had been 7-2, with Justices Rehnquist and White dissenting. The decision was written by Justice Blackmun, joined by Justices Burger, Douglas, Stewart, Marshall, Brennan, and Powell. The concurrence by Powell surprised a lot of court watchers and Republicans who had supported his nomination. He was a generally conservative Justice whose main focus was limiting extensions of governmental power. So, the Supreme Court telling the states that they could not criminalize abortions would seem to be a position that he would reject. But he didn’t, and there was a lot of speculation why, because he neither joined either of the written concurrences by Justices Burger or Douglas, nor did he write a separate concurrence of his own explaining his position.

Judge Bork, by the traditional standards applicable for considering confirmation to the S. Ct. was eminently qualified – he had been a law professor at Harvard, Solicitor General of the United States, and had served as a judge on the D.C. Circuit Court of Appeals for . six years. However, he had been explicit about his opposition to Roe – he had written law journal articles opposing it when he had been a law professor. So when his confirmation came up before the Senate, there was grave concern among those who supported a woman’s right to choose that Roe could be jeopardized by elevating Bork to the S. Ct. At the time that his nomination came up for consideration, there were only three of the original members of the majority which had approved the decision still sitting on the Court: Justices Blackmun, Marshall and Brennan. Douglas, Stewart and Burger had been replaced by Justices Stevens (replacing Justice Douglas), O’Connor (replacing Justice Stewart) and Scalia (who succeeded Rehnquist, who had been elevated to Chief Justice when Burger retired). Justices Stevens and O’Connor were regarded as liberal to moderate, and supporters of Roe. Justice Scalia was vehemently opposed to Roe. If Bork’s nomination was confirmed, the 7-2 make-up of the Court in favor of Roe would be reduced to 5-4. And then if another of the liberal justices retired or passed away (Justice Brenna, for example) while Reagan was President, the ratio would shift to 5-4 against Roe. So Bork’s nomination was vehemently opposed, particularly by Senator Kennedy, and he had a significant paper trail that could be used against him. Judge Bork got Borked by the Democratic controlled Senate Judiciary Committee – it would not confirm him and his nomination had to be withdrawn. Justice Powell was instead replaced by Justice Kennedy – which probably redounded to the benefit of those who support the right to gay marriage, which a Justice Bork would most definitely have opposed.


MS said...

Since the withdrawal of Bork’s nomination, whether one is a textualist and/or originialist, like Jusitce Scalia, has become a cause of concern for those who support the Roe decision regarding its survival. So now the judicial philosophies of nominees who would once have been considered eminently qualified to be confirmed for a seat on the Supreme Court have become the focus of analysis. And since Bork’s paper trail had done him in, a federal judge or law professor who has aspirations to being nominated to the Supreme Court will generally avoid expressing an opinion on its constitutionality. In the absence of an express opinion regarding a nominee’s view of Roe, whether a nominee expresses a judicial philosophy in support of textualism/originalism is the only clue the senators who support Roe have regarding how a nominee might rule on Roe. Judge Barrett was an unabashed proponent of textualism/originalism. Moreover, although she referred to certain decisions as super-precedents, whose status as precedents under stare deisis is irreversible, e.g., Marbury v. Madison; Brown v. Topeka, she refused to designate Roe as a decision in the category of a super-precedent. In sum, while I would prefer that S. Ct. nominees be evaluated exclusively based on their merit and judicial experience, if one is a supporter of a woman’s right to choose, the nominee’s judicial philosophy is critical, and Justice Barrett’s refusal to designate Roe v. Wade as a super-precedent does not bode well.

(On a separate note, in three comments that I made in relation to Prof. Wolff’s previous post, I asked some questions regarding the epistemological significance of the inability to disprove proposition p, and what Kant’s views regarding abortion might have been. No one has responded, and I don’t know if that is because my comments have not been seen, or because they have struck the readers as too silly to warrant a response. If the former, I would appreciate some input by the readers of Prof. Wolff’s blog.)

Michael said...


You wrote: "Regarding Kant's Ethics, is it possible to determine what Kant's views regarding abortion would be, or is this an idle speculation? Given his emphasis on reason in ethics, would the point at which a fetus could have the potential to reason (even if not the actual present ability to do so) be a consideration in determining the point at which during gestation it would be immoral to abort?"

Not a silly question. I'd be interested in seeing it get a response, too.

My knowledge of Kant's ethics is spotty. But FWIW, you might check out Allen W. Wood's book Kantian Ethics. I haven't read it, but abortion is one of the items in the index. I don't have time to peruse it right this moment, but I can get back with you later with a quick summary.

Off the top of my head, Kant's reputation on sexual ethics is not particularly forward-thinking. I've heard people tease him for arguing that masturbation violates the Categorical Imperative. He also once wrote of marriage as the "union of two people of different sexes with a view to the mutual possession of each other's sexual attributes."

Temperamentally, I'd expect him to side with the pro-lifers. Philosophically, however, I'd expect him to have some difficulty accounting for the fetal right to life, or right to be treated as an end-in-itself, given the undeveloped state of the fetus's rational faculties. But the difficulty is probably minor for him; there are animal rights advocates of a Kantian orientation, e.g. Tom Regan, who invoke a distinction between the moral agent and the moral patient, in response to the worry that non-rational beings such as children and non-human animals must lack moral status. (Christine Korsgaard may be another example.) It's been a while, but I think the upshot for Regan is that moral patients lack the capacity to make moral decisions (because of undeveloped rational faculties), but as patients, it still matters how they are treated by agents (who do have rational-ethical capabilities).

It's possible that I'm wrong, and it's possible that Kant's writings don't provide adequate basis for the agent-patient distinction and so forth.

On the other hand: Kantian ethics also emphasizes autonomy, and not treating people as mere means: This would render it very problematic (at least) to force a woman to undergo pregnancy against her will, particularly if the fetus doesn't clearly possess comparable moral status to ourselves. "I will make your reproductive decisions for you, because I believe we owe it to God to subordinate your projects and preferences to that of the non- or pseudo- or potential-person in your womb" - this sounds very un-Kantian to me.

MS said...


Thank you for your response. Emerson wrote that, “a foolish consistency is the hobgoblin of small minds.” I do not know why that would be the case, since inconsistency would suggest a disregard for rational thought. Be that as it may, your points suggest that some of Kant’s statements can lead to inconsistent results re ethics and the question of abortion. While I have a strong position regarding abortion – that a woman should have the right to abort up until the child is actually delivered – I appreciate that to many this seems barbaric and rationally unsupportable. The issue of abortion is perhaps the thorniest problem, from both a legal and ethical perspective, that has ever confronted the courts. It seems self-evident that slavery is totally immoral, and therefore readily amenable to judicial condemnation. Likewise, what constitutes cruel and unusual punishment – is imprisoning a 15 year-old for life cruel and unusual, even for a crime which if committed by a 35 year old would not constitute cruel and unusual punishment. But the question of abortion is different and knottier, particularly because it involves an additional entity aside from the mother, whose moral and legal status is open for debate. In previous comments, I have argued that there are certain rights which, despite not being expressly mentioned in the Constitution, it would be unconstitutional for a state to prohibit, e.g., prohibiting its citizens from dying their hair green. This is an easy question, since dying one’s hair green is am expression of one’s liberty, protected under the 5th and 14th Amendments, and dying one’s hair green infringes on no other’s rights. I view gay marriage in the same manner. Abortion, however, is different, because those who oppose abortion argue that at a certain point during gestation, abortion is harming another entity aside from the mother, and therefore her liberty interests should be subordinated to the rights of the fetus, assuming she was a willing decision-maker in the conception, which renders rape as an exception.

There is an Australian philosopher, Peter Singer, whose works I have not read but about whom I have read articles, and he certainly holds some philosophical views which I find both strange and inconsistent. On the one hand, he advocates for the rights of animals, primates in particular, because genetically they are extremely close to humans. On the other hand, he justifies both abortion up to birth, as well as infanticide in the case of children who suffer from disabilities which, according to him, render them less than fully sentient beings. And yet he advocates for the rights of animals. I don’t get it, but he is highly regarded in some academic circles.

Danny said...

in reference to the op, I wince at the use of the analogy.

about this:
'Was the fact that he was Black, along with his perhaps odd behavior, make it easier for the police to see him as a threat and therefore warranting the use of deadly force?'

Personally I think 'see him as a threat' is rather tendentious here, he was what, not actually a threat? Also, I hope these rioters enjoy looting Walmart and shooting each other for justice, because .. well, I'm being sarcastic. I think of the line 'they're friends of yours', here. Off the cuff, I recall somewhere reading that cops shoot and kill nearly 1,000 people every year. Whatever is the 'proper' number, I also wonder why police shoot so many times. I guess the shooting itself almost always lasts only seconds. Most of their shots are misses, I guess, and I am guessing. I'm also guessing about the anxiety and adrenaline of a high-stress deadly force incident. I also guess that officers are trained in use of force more than almost any other skill. Anyways, I'm not all about rubber bullets and tear gas personally but riots are destructive, dangerous, and scary. I guess that's obvious, but here again, I am guessing. Perhaps I underplay the real anger behind etc. It's not just people taking advantage?

Christopher J. Mulvaney, Ph.D. said...

Thanks for your response. My brother, a librarian, was at a conference after the Bork hearings. Bork was there hawking his book. an autographed copy and gave it to me for Christmas. It has wasted space on my bookshelf all these years. Con Law was a required course during my freshman year at G’town. It disabused me of any notion of becoming a lawyer. When working on my doctorate in political science Social and political theory was my major field, American government was my minor, but my concentration was political parties and elections, again avoiding con law. I am sorry I can’t offer any thoughts on you question re: Kant and abortion. Women have gone to mid-wives for millennia to end pregnancies. Should Roe be overturned, abortion will not end. Abortion rights groups will organize the necessary infrastructure to get women in need of an abortion to where they can get one legally. Before Roe, there was a sort of underground clergy network that put women in contact with safe abortion providers.

Stay healthy

MS said...


One can condemn the looting and arson committed purportedly to protest the murder of an unarmed Black man without rationalizing that the police may have had a proper motive for killing a person they regarded as threatening because he is acting strangely. Police use deadly force in confrontations with citizens all too often, rather than shooting to disable. And we have experienced too many instances where deadly force is unnecessarily used against innocent, unarmed Black men.

As an attorney, I have had my share of interactions with police. And it goes without saying that they have a dangerous job, that they often have to make split second decisions for which they should not be second guessed, and that they provide a public service which we cannot do without. (I do not support defunding of the police.) However, from my experience, there are not an insignificant number of bad cops, who are bullies in uniform who abuse their power, and who plant evidence on innocent citizens, who arrest without probable cause, and then, under oath, manufacture a probable cause. In point of fact, the reason I was in court this past Tuesday morning was because my client was myself, and I am challenging what started out as an alleged civil infraction, which the Washtenaw County Sheriff’s Dept., because of my objections to the allegation of a civil infraction, have converted into an allegation of a criminal misdemeanor, a matter which has significant potential consequences for my license to practice law. I am challenging this matter, and intend to take it as far up the legal system as I can. In addition, I have filed a federal lawsuit against the deputy sheriff who started this whole imbroglio, and have also named his employer, the County of Washtenaw (home of the University of Michigan). I am confident that I will prevail in the criminal misdemeanor matter (assuming my judge follows the law, which is not a given), because I have video evidence that I did not do what the deputy sheriff is claiming I did. So, although there is no excuse for looting and arson, I fully understand why they do it.

s. wallerstein said...

I agree with Emerson about consistency.

While consistency may be the basis for logical thought, it does not seem to me to be the basis for a rational life.

I change my mind about almost everything daily and from what I observe in the people whom I've known best, they also change their mind frequently and contradict themselves even though they may swear that they don't. Thought is a constant process of self-contradiction and if one convinces oneself that one is always consistent, then one is repressing that process. We learn from thinking through our ideas and contradicting them. Otherwise, we dig an ideological hole for ourselves from which we will never emerge and that gets worse as we get older.

Many of us have public political postures and we try to always be coherent with them. I can understand that, but there does seem to be a difference between letting one's mind contradict itself freely and being incoherent in one's actions. Others expect a certain coherence in our actions and it's probably wise not to disappoint them, but it also seems wise to let our contradictions flow without repressing them when we're not in public, when we're alone or with trusted friends.

If Plato's mind had not contradicted itself, he never would have written such great dialogues I believe.

Michael said...


Sorry to keep you waiting. I read Prof. Wood's take on the abortion issue as it relates to Kantian ethics (it's just pp. 95-100 in Kantian Ethics), and it was mostly consistent with my initial thoughts.

Wood invokes something similar to the "agent-patient" distinction; he calls it the distinction between persons in the "strict" sense and persons in the "extended" sense. It wouldn't be too far off to say that strict persons correspond to moral agents, and extended persons to patients. (I think the "agent-patient" language here is peculiar to Tom Regan.) Strict persons have the capacity to deliberate and act in rational-ethical ways, whereas extended persons are those in whom this capacity is dormant or undeveloped, who accordingly lack the autonomy to direct their lives, but who still have worth or dignity, such that to treat them as ends-in-themselves is to demonstrate respect for humanity's rational nature. (Wood probably has more to say about this elsewhere in the book; he goes through it pretty breezily in this section.)

As far as Wood is concerned, there is "some value" in the potential personhood of embryos and fetuses, but it isn't the value of a strict or even extended person. And what value they do have does not override the respect we owe to the women in whose bodies they develop: Women's right to exercise control over their bodies, for Wood, is not overridden by "a coercively enforceable right not to be killed or destroyed" on the part of unborn children.

What about Kant himself? The textual evidence is sparse and inconclusive. He states that small children are persons, and that the parental duties to children follow from conception onward. But (to quote Wood) "it appears he does not think the issue of when personhood begins can be settled directly by empirical inquiry."

Kant also states that when a pregnant woman commits suicide, she also murders her unborn child. But he also offers (without necessarily endorsing) the argument that the state has no duty to acknowledge the existence of "illegitimate" children, e.g. children conceived outside of marriage, which means that it violates nobody's rights when people abort them (or even commit infanticide) to preserve their honor.

(I say "without necessarily endorsing" because, as Wood puts it, Kant's purpose there may merely be "to diagnose a conundrum that arises from unenlightened social attitudes.")

One final, tangential note, re. Peter Singer: I'm pretty sure his stance on animal rights derives from Bentham's: "The question is not, 'Can they reason?' Nor, 'Can they talk?' But, 'Can they suffer?'" What grounds the rights of animals, or of anyone, is not exactly DNA: It's the capacity to suffer, to have life go well or badly as a sentient being. So, the suffering of an adult gorilla is more ethically weighty than the "suffering" of an embryo or fetus.

Christopher J. Mulvaney, Ph.D. said...

I am sorry for the delay in with this response. You mentioned “shooting to disable.” Very, very few people have the marksmen ship skills to do that. Certainly your average cop does not. They need to pass a test at the range and maintain that level of competence, but it is not enough to shot with the accuracy required to wound rather than kill, Even if one has the marksman ship skills, a high stress situation of the street is much different than the shooting range. Also, your average cop does not travel the self defense skills required to disarm a person menacing them with a knife, but any martial artist could tell you several ways to do it. Generally, police are taught to shot rather than allow a suspect to get into a hand-to -hand combat situation. A good friend of mine, and a black belt martial artist, has been teaching at the Vermont Police Academy for many years. Since the curriculum does not require more advanced training, he teaches extra classes on his own time for those who want to learn the self-defense techniques I referred to above.

I live in a town that is under a DoJ consent agreement regarding its cops. The behavior of the cops has improved somewhat, but the continued opposition of the police union, and upper management to the beat cop suggests to me that a complete overhaul is required. I’d tell every cop that they are one a one year contract, set new and higher standards to be met for hiring, and star te overhaul there. The day of the cop with a high school education, and an authority complex needs to end.