The Civil War followed the election of Lincoln- that proves that victory in the ballots might be necessary but insufficient to prevent the Republican insurgency We are dealing with zealots who somehow literally regard the constitution as a book of the Bible They are Jihadis for Jesus
With trepidation, given the last Green installment linked to by RPW, I opened this new Green missive. I was pleasantly surprised; the statement is erudite, to say the least, instructive, informative, provocative, and best of all, very nicely written. All in all, an impressive and timely essay.
Everything is going to hell, with no vision and no leadership to speak of. But we are not without irony. Pelosi yearns for a "stronger Republican party."
Although I agree with Philip Green’s condemnation of the leaked Opinion overturning Roe v. Wade, and his aspersion of J. Alito, his comments about Article IV, Sec. 2 regarding the right of a state to demand the return to that state of any citizen of that state who is charged with a crime, is the basis for allowing a state to demand extradition to the state any individual who has been charged or convicted of a crime in that state. It does not allow the extradition to a state an individual who has committed acts in another state which, if those acts had been committed in the first state, would have constituted a crime. So, if a citizen of Mississippi travels to New York to obtain an abortion that she may not obtain in Mississippi, Mississippi may not demand under this provision that N.Y. extradite the woman to Mississippi. In the case of the Fugitive Slave Act, the Act was based on pre-Civil War slave state laws which made it a crime in a slave state for a slave to escape to another state which did not have slavery. By escaping, the crime was committed in the slave state.
What the provision which Phil Green cites would permit would be if a woman in Mississippi somehow obtained an abortion in Mississippi and then moved to N.Y. after the abortion, Mississippi could demand the extradition of the woman to Mississippi. But if Roe v. Wade is overturned, and the law of Mississippi is declared constitutional, few, if any, physicians are going to risk performing abortions in Mississippi.
Moreover, under the Full Faith and Credit provision in Sec. 1 of Article IV, if a woman in Mississippi traveled to N.Y. to obtain an abortion she could not obtain in Mississippi, if she returned to Mississippi after obtaining the abortion in N.Y., she could not be arrested in Mississippi for having gone to N.Y. to obtain the abortion. The abortion Civil War which Phil Green is envisioning is not going to happen. Which is not, by any means, my condonation of the anticipated overturning of Roe v. Wade.
"(b) “Attempt to perform or induce an abortion” means to do or omit anything that, under the circumstances as the person believes them to be, is an act or omission that constitutes a substantial step in a course of conduct planned to culminate in the performance or induction of an abortion in violation of this section."
If there be a hell, I highly doubt that either Joseph Leo or Midge Decter have been condemned to spend eternity there. Joseph Leo was a stalwart defender of free speech and held contempt for the dominance of politically correct speech on college campuses, a cause with which I agree. Regarding Ms. Decter, although her neoconservative affiliations may not have been to your or my liking, I hardly think that deserves consignment to the flames of hell.
Oops, my mistake, Leonard Leo still curses us with his presence (hope can blind). John did make too much of campus stuff, and as Chef says, "There's a time and a place for everything and that's college." Still, I'll allow no Hell for him.
The movement Decter was an important part of has at least a high six figure body count and played its part in what will likely end us. She stays and in a lower circle.
I was not aware of Midge Decter's passing until aaall mentioned it. I just read the NYT obituary. The obit focuses on her criticism of the women's liberation movement but spends less time on her opposition to the gay rights movement, encapsulated in a notorious Commentary article from, iirc, the early 80s. Toward the end of the obit it quotes Gore Vidal's description of her as "a virtuoso of hate." Really not too far off the mark, istm.
If there be a hell, I highly doubt that either Joseph Leo or Midge Decter have been condemned to spend eternity there. Joseph Leo was a stalwart defender of free speech and held contempt for the dominance of politically correct speech on college campuses, a cause with which I agree.
There you go: God is great and Marc Susselman his prophet!
Affinity with Marc Susselman is the criterion to decide who goes or not to hell. I used to believe it was fulfillment of the Lord's commandments.
But, of course, one and the other are the same thing. :-)
PS,
Marc, one more reason for you to volunteer to fight in Ukraine. You'll come back as a battle-hardened warrior and war hero. Handy in the new Civil War, uh?
No one is going to burn in hell. There are no sins, although there are crimes, that is, violations of the law including international law.
I thought, mistakenly, that one of the things that distinguishes "us" (there also is no "us") from "them" (there seems to be a "them") that we're not fundamentalists, we don't condemn others to hell, we debate the issues rationally or at least try to, we don't divide the universe into "pure" ones and "impure" ones.
My better nature tells me that I should ignore you and follow the counsel of others not to feed trolls such as you. Oh well. I am curious, however, how you reach the conclusion that aaall, who is the individual who condemned them to hell, is not claiming to be God’s prophet, but I, who asserted that they do not deserve to be condemned to hell am thereby acting as God’s prophet? Where is the logic in that? Oh, right, you are a jackass and unable to think logically.
s.w., I don't know how things are in Chile but up here things are way beyond rational discussion. Next two elections go south and we are Pinochet adjacent. Anyway (and sadly) I can't condemn anyone to much of anything, I can only judge and hope (Buddhists, Christians, or Hindus - at least one might be right). It would be cool to have a friend like this:
I don't resonate to pure or impure but if you follow the recent goings on in state legislatures over CRT, LGBQT, elections, and reproductive care it's pretty clear that folks on the right are wired wrong.
MS, as you were dissed as a prophet perhaps there's a bear in BLZ's future.
Chile is very tribal. The 1973 coup was an act of aggression by the "bad" tribe against the "good" tribe.
I'm with the "good tribe". I worked in human rights full-time from 1985 to the end of the dictatorship in 1989.
That tribal split is still there. The coup and dictatorship left a wound which will take generations to heal, if it ever heals.
While I'm with one tribe, tribalism turns me off. It makes people stupid, dogmatic and sanctimonious. Both tribes even seem to have a certain semi-conscious interest in prolonging the tribal conflict. I have my tribal days to be sure, but all in all, while I am a member of the left tribe, I'll continue to militate against tribalism, dogmatism, moral self-righteous and fundamentalism wherever I find them.
I respect your point of view and your hostility towards dogmatism and fundamentalism. I would just point out that even within tribes, there are members who support the position of the tribe not out of dogmatism, but because they have analyzed the issues and have concluded that the cause of their tribe is the more rational, just, and fair cause vis a’ vis other tribes. By virtue of that analysis and conclusion, they support and advocate the cause of the tribe with a fervor and dedication which may appear to be dogmatism, but which is necessary if the cause of the tribe is to succeed over the cause of the opposing tribe(s). As Donne wrote, no man is an island. No one can improve the world acting in isolation, and joining with others in support of the more rational, fair, and just cause is necessary if that cause is going to have any hope of succeeding, and they have to demonstrate their support of the cause with a fervor and dedication which some may mistake for dogmatism.. The trick, I think, is, while acting with the other members of the tribe, to keep one’s eye on what about their cause makes it the more rational, just and fair than the cause of the opposing tribe(s). Although I used to have contempt for Liz Cheney as a right-wing dogmatist, for example, she has demonstrated her independence of thought and the ability to avoid the dogmatism of the tribal Republicans, and has earned my respect. I guess I am saying that you should not assume that because an individual fervently supports the cause of a particular tribe, it does not necessarily mean that the individual is a dogmatic tribalist.
I agree that one tribe is more just than the other. I'd also say that one tribe is more caring than the other and that counts too.
For me it's a question of mental health. All of us "get off" on belonging to a greater cause. We feel part of something larger than our own petty daily neurotic worries and hang-ups. The sense of moral superiority feeds our egos, and our indignation at the other tribe pumps up the adrenaline, giving us a drug rush that lasts longer than a shot of whiskey.
Belonging to a tribe is an addictive drug and like all addictive drugs, helps us escape from ourselves, but finally we have to come down and face ourselves, our relationships with partners, children and neighbors, etc. So in the interests of our own mental health and self-awareness (which for me is an important virtue) I find it wise to have one foot in the tribe and the other in my own kitchen. That's hard to do and I don't always manage it myself.
I am reminded of several recent discussions here related to your having proposed a set of scenarios for consideration that you assumed everyone would agree involve immoral, even monstruous, behavior. The fundamental problem there was that you failed to account for the fact that, as you explain here, people absolutely do recognize differences between "us" and "them," and that while everyone would agree that it would be immoral to treat someone who is part of one's own group in those ways (eg "to dismember a human being while the human being is still alive and conscious"), there are many who would say that treating someone who is an "other" in those ways could be moral, depending on the circumstances.
If someone recognizes a 15-week-old conceptus as one of "us," then in that someone's view, taking any action intended to harm the conceptus is the same as (in your words) bashing in the skull of a newborn that has just been born. If someone views people who worship a different deity (or who worship the same deity but in a "foreign" way) as "other," it can result in them justifying as moral the enslavement or even extermination of those others:
"The Lord spoke to Moses saying, 'Take revenge for the children of Israel against the Midianites; afterwards you will be gathered to your people.' So Moses spoke to the people, saying, 'Arm from among you men for the army, that they can be against Midian, and carry out the revenge of the Lord against Midian.' ...
They mounted an attack against Midian, as the Lord had commanded Moses, and they killed every male. ... The children of Israel took the Midianite women and their small children captive, and they plundered all their beasts, livestock, and all their possessions....
Moses said to [the officers of the army], 'Did you allow all the females to live? They were the same ones who were involved with the children of Israel on Balaam's advice to betray the Lord over the incident of Peor, resulting in a plague among the congregation of the Lord. So now kill every male child, and every woman who can lie intimately with a man you shall kill. And all the young girls who have no experience of intimate relations with a man, you may keep alive for yourselves.'" Numbers 31 ___ "When the Lord, your God, brings you into the land to which you are coming to possess it, He will cast away many nations from before you: the Hittites, the Girgashites, the Amorites, the Canaanites, the Perizzites, the Hivvites, and the Jebusites, seven nations more numerous and powerful than you.
And the Lord, your God, will deliver them to you, and you shall smite them. You shall utterly destroy them; neither shall you make a covenant with them, nor be gracious to them.
You shall not intermarry with them; you shall not give your daughter to his son, and you shall not take his daughter for your son.
For he will turn away your son from following Me, and they will worship the gods of others, and the wrath of the Lord will be kindled against you, and He will quickly destroy you.
But so shall you do to them: You shall demolish their altars and smash their monuments, and cut down their asherim trees, and burn their graven images with fire.
For you are a holy people to the Lord, your God: the Lord your God has chosen you to be His treasured people, out of all the peoples upon the face of the earth." Deuteronomy 7
I question why you have raised this issue in the context of my dialogue with s. wallerstein, but, in any case, without getting into a long and complicated theological discussion with you about the passage you quote, I would agree, and I think most people would agree – including most Jews other than, perhaps the ultra-Orthodox – that what Hashem purportedly ordered the Israelites to do in the passage you quote was immoral. In any event, what is described in that passage never occurred. The general consensus among biblical scholars, including Israeli biblical scholar, is that the passage was written by scribes in Babylonia after the southern kingdom of Judea was conquered by the Babylonians in 586 B.C.E. and the Hebrews were enslaved and exiled to Babylon. The scribes wrote this and other passages in order to give the exiled Hebrews hope that one day Hashem would allow them to return to Judea, and to what had been the northern kingdom of Israel, which had been conquered by the Assyrians. And it was King Cyrus, the founder of the Persian empire, who conquered the Babylonians and allowed the Hebrews to return to Judea and build the Second Temple.
If your point is that different tribes have different views of morality, that is obvious. But I stand by the examples I offered as examples of immoral conduct, regardless whether there may be those who dissent. By the way, maintaining that it is immoral to bash in the skull of a healthy, newborn human child in no way is a comment on the morality or immorality of aborting a fetus at any stage in it development before it is born. The fact that Justice Alito disagrees with me does not detract from my position that bashing in skull of the child after s/he is born is immoral.
None of this has anything to do with s. wallerstein’s observation that tribal thinking can often lead to irrational dogmatism. My point was that within certain tribes there are individuals who, at the same time that they support the tribe’s cause with vigor and dedication, it is not necessarily the case that by so doing they can automatically be labeled irrational dogmatists.
Marc Susselman: I stand by the examples I offered as examples of immoral conduct, regardless whether there may be those who dissent.
It is an example of immoral conduct as you define immoral conduct. But why should other people be expected to agree with your opinions on morality?
Marc Susselman: maintaining that it is immoral to bash in the skull of a healthy, newborn human child in no way is a comment on the morality or immorality of aborting a fetus at any stage in it development before it is born
Missing the point entirely. You do not accept the fetus as part of the in-group, so termination of its existence is not immoral in your view; you do view a newborn as part of the in-group, so terminating its existence is immoral in your view. For those who call themselves "pro-life," the fetus is as much a part of the in-group as the newborn is.
Marc Susselman: I think most people would agree – including most Jews other than, perhaps the ultra-Orthodox – that what Hashem purportedly ordered the Israelites to do in the passage you quote was immoral.
Biblical scholars writing today, you, and most Jews other than perhaps the ultra-Orthodox have your own views of what is moral. But apparently someone else had a very different view than you, and committed their view to scripture. And many people, including many who are not Jewish, continue to believe that these acts of genocide that were allegedly mandated by God were moral.
So, again, your examples of immoral acts depend on your universalizing your own views of morality, in which, apparently, all human beings from the moment of birth should be considered part of an in-group whose members cannot morally be enslaved, tortured, etc. It shouldn't be hard to see that not everyone agrees, or has agreed in the past, with that view of who should be included in the in-group.
As for why I raised this point now, it occurred to me a week or so ago that the problem with your examples involved failure to see the significance of us-vs-them when it comes to morality, and I had planned to bring it up if the topic came up again and I had a bit of free time. Prof Wolff's blog posts in the interim weren't really relevant. It was only now that the more recent discussions in the comments both on abortion rights and on us-vs-them made the topic relevant again.
You are, I believe, wrong in your claim that whether proposition x regarding the treatment of other human beings depends on whether the other human beings belong to the in-group. The in-group, in all of my examples, with the exception of my example of torturing animals, is the group of human beings. And the test I would apply is the-shoe-is-on-the-other-foot test. If any human being claimed the it is not immoral to enslave other human beings, I would say, fine, then we will enslave you and see if you object. And it bashing in the head of a healthy newborn is not immoral, then we take one of your newborns of yours, and of your relatives and of your friends, and bash their heads in, and see if you object. Etc. This is just the Golden Rule put into practice, and as soon as someone threatens to ignore the Golden Rule’s application to those who are amoral, they all of sudden recognize the validity of the Golden Rule.
You are, or claim to be, a moral nihilist. Perhaps we should make you the first candidate. Care to be enslaved?
And for a guy who claims there are no legitimate moral judgments, you seem to post a lot of comments purporting to judge the moral values of others. For example, on Dec. 21, 2021, you wrote the following:
“And don't get me started on Gore's vice presidential nominee, Joe Lieberman, for whom you Nader-haters apparently voted. Lieberman had been hankering for a military asssault on Iraq even before Gore chose him for the ticket. Lieberman continued to support Bush's Iraq war effort during his own presidential campaign in 2003.”
If there are no valid moral judgments, including your own, on what basis did you criticize Joe Lieberman’s views on invading Iraq? If there are no valid moral judgments, on what basis was the invasion of Iraq “wrong”? On what basis is the killing of innocent civilians “wrong”? On what basis are your repeated criticisms of the Democrats on this blog “correct” or “morally justified”? There is a word for people like you who speak out of both sides of their mouths. The word is “hypocrite.”
We've been through this at least 10 times before and I can't speak for Eric, but it's not necessary that objective moral principles exist for me to make moral judgments.
I can judge the invasion of Iraq to be wrong because first of all, it's a violation of international law, but above all, because I, as a person, have certain ethical commitments which do not depend on morality being objective, but on the books I've read, the way I was educated, the people I've talked to, my unconscious psychological makeup, my genes, the zeitgeist, etc.
To follow what Richard Rorty says in the book Contingency, Irony and Solidarity, which I previously discussed in my conversation with Professor Zimmerman, I'm a "liberal ironist", that is, someone who recognizes that his or her basic principles are contingent (on all the factors I outlined above and possibly others), yet goes on acting on them because they are his or her principles, not because they are otherwise objective.
We've been through this so many times that I'm not going to argue about with you, but I wanted to state my position. Eric may differ from me of course.
All you have offered is an empirical explanation of how you have come about to have the values you have by virtue of which you render moral judgments. It says nothing about whether your moral judgment have, or not have, any validity. And a person who claims that moral judgment are entirely personal and idiosyncratic has no business making judgments purporting to be moral judgments, which you do even more often than Eric.
It´s funny but a philosopher as important as Brian Leiter, a member of the faculty of the University of Chicago, is a moral anti-realist and much of what I say comes from two of his books which I have read. Leiter makes moral and political judgments all the time in his blog, Leiter Reports, and is highly estimed among professional philosophers.
"...morality is determined by sentiment. It defines virtue to be whatever mental action or quality gives to a spectator the pleasing sentiment of approbation; and vice the contrary."
And here is an alternative version, to address your reliance on international law.
1. Assume that there are no valid moral judgments.
2. All expressions of international law purport to assert what constitutes right and wrong conduct by nations in their interactions with one another.
3. To say that conduct x by a nation is right, or is wrong, is a moral judgment.
4. The invasion of Iraq by the United States and its allies, resulting in the death of thousands of innocent civilians, violated international law and was therefore “wrong” in a moral sense, not simply in a legal sense.
5. Proposition (1) is therefore necessarily false.
According to the strict definition of a reductio absurdum argument, as Prof. Wolff pointed out regarding the reductio absurdum argument I offered several months ago, the subordinate propositions must follow from the first proposition and result in a contradiction. So here is a modification of my last argument to conform to the strict form of a reduction absurdum argument.
1. Assume that there are no valid moral judgments.
2. Any expression of international law is not an assertion of morally right or wrong conduct among nations, but only an arbitrary assertion of law.
3. To say that conduct x by a nation is right, or is wrong under international law, is not a moral judgment that they should not engage in that conduct for moral reasons.
4. The invasion of Iraq by the United States and its allies, resulting in the death of thousands of innocent civilians, violated international law, but was not therefore “wrong” conduct in a moral sense, but no more than the violation of an arbitrary principle of international law.
5. Proposition (4) is erroneous.
6. Proposition (1) is therefore necessarily false.
I'm not a philosopher and haven't read a lot of the relevant works, but I would suggest the following: I'm not sure validity in this context is the same as objectivity, but you seem to be treating the two words as synonymous.
For example, I would maintain that the moral judgment that bashing in the head of a newborn is wrong is a valid moral judgment, in the sense that it reflects what any person with what one might call a minimally moral perspective on the world would agree with.
But a valid moral judgment need not be objective in the sense of belonging to a category of Truths that exist in some pristine conceptual cupboard or drawer that one can open and find a set of objective Truths in, the way you can open a desk drawer and find a pencil, or a kitchen drawer and find some silverware.
In other words, valid moral judgments exist *in the world* and their validity derives in part from their consonance with a recognizably "human" sense of right and wrong, a sense that may have some biological or evolutionary roots (or not -- I'm not sure). But that sense of right and wrong does not need any further "grounding" in an argument about objective morality, or at least it's not patently unreasonable to suggest that it doesn't.
That's why someone like Leiter or s.w. or anyone else who is not a moral "realist" can make moral judgments without being hypocritical: they are making moral judgments that they see as valid, even though they don't claim that they're objective.
You may be interested that Leiter, in his book Morality Psychology with Nietzsche, finds a lot of similarities between Nietzsche and Hume in their naturalism and their moral anti-realism. Leiter believes that Nietzsche is a superior moral psychologist to Hume and presents a lot of contemporary empirical psychological research to show that.
This is my response to David, LFC, s. wallerstein, and I assume Leiter:
I use the terms “valid moral judgment” and “objective moral judgment” interchangeably, and believe they are equivalent. My online dictionary defines “objective” as follows: “ (of a person or their judgment) not influenced by personal feelings or opinions in considering and representing facts.” The fact that what one regards as a “valid moral judgment” is influenced by one’s upbringing, social influences, etc., does not detract from their being objective. In order for them to be valid, they necessarily must be objective. Hume’s assertion that all moral judgments are no more than the expressions of one’s personal preferences, and therefore have no objective validity, is just his ipse dixit. Just because David Hume wrote this, as distinguished and respected a philosopher as he is, does not entail that what he believes is unequivocally, undeniably true. Why should an ipsi dixit by David Hume have any greater validity than an ipsi dixit by anybody else? It is my position that a moral judgment can be as valid and objective as an axiom in geometry, which need not be proved and is assumed to be true.
The rejoinder that the moral judgment that basing in the head of a healthy newborn human child is just the assertion of my nonobjective belief and can not have the same validity as the axiom that the shortest distance between two points is a straight line is rebutted by LFC’s recognition, “that sense of right and wrong does not need any further "grounding" in an argument about objective morality, or at least it's not patently unreasonable to suggest that it doesn't.”
s. wallerstein’s anticipated rejoinder that my proposed moral judgment cannot be valid, because there have been societies which routinely killed infant girls by leaving them exposed to the elements to perish. Their belief that this was not wrong or immoral is not the equivalent of believing that the shortest distance between two points is a straight line. My rejoinder? I suspect that there are people who would deny the axiom that the shortest distance between two points is a straight line, because they are incapable of rational thought. A society in which its members routinely – perhaps over the strident objections of the mother – leave its baby infant girls out in the elements to die are likewise incapable of rational moral thought. After all, these same people believed that there was a panoply of human like gods – Zeus, Hera, Athena, Demeter, Apollo, etc., who behaved like humans, but who also had supernatural powers. Why should they be credited with having rational moral thought?
The rejoinder that who then, is to determine whose moral judgments are the real, valid moral judgments given the panoply of different moral judgments offered by different societies? Those who believe that the dictates by Hashem in Eric’s quotation from Deuteronomy are valid moral judgments, I would say to them, “Fine, then let’s subject your family to death and see if you object.” I could offer as a defense to the moral judgment that it is immoral to leave infant girls exposed to the elements to perish that it is immoral because such a death causes the infants pain, and it is immoral to gratuitously cause pain to humans, of any age. However, there are some infants who are born with a neurological disorder which prevents them from feeling pain, so according to my moral judgment there is nothing immoral about leaving such children exposed to the elements to die. So, I have to revise the moral judgment to something more basic: It is immoral to deliberately take the life of any human being without a rational justification. What is a rational justification? Self-defense is rational – if someone threatens to take your life, you have the right to defend yourself and take that person’s life instead. You do not have the right to take a person’s life who has not threatened your life, but has, rather, stolen your car.
A right-wing racist might retort, I believe it is immoral for people of different races to engage in sexual intercourse – it is immoral for an African-American woman and a Caucasian man to engage in sexual intercourse. When challenged for the rational basis for this moral judgment, the right-wing racist just repeats, “It is immoral for people of different races to engage in sexual intercourse, period.” That, I respond, is not a rational reason. It is an ipsi dixit. Why, then, the racist responds, is it immoral to deliberately take the life of any human being without a rational justification? This is just your ipsi dixit. No it is not, I retort, because imbedded in the moral judgment is the requirement that it be justified by rationality, the capacity for which is what distinguishes the human species from all other species. A chimpanzee who arbitrarily kills a rival chimpanzee who is challenging the former’s right to be the alpha chimpanzee has not acted immorally. Chimpanzees, and all other species, are not capable of moral or immoral behavior. Asserting that it is immoral for members of different races to engage in sexual intercourse is not based on any rational justification, and therefore is not a valid, nor an objective, moral judgment.
The rejoinder, well, MS all you are doing is substituting what you believe is rational for what others believe is rational. Your argument is circular. Unless there are valid moral judgments which can be rationally justified, then there are no valid moral judgments, and we are all in a terrible state of affairs. None of you who make routinely make moral judgments on this blog regarding Trump’s behavior, the behavior of the Republicans, the right of Russia to defend itself against the existential threat presented by the expansion of NATO, etc. etc, have a rational right to make such judgments, and you are all hypocrites. And to respond by saying, Well, no, our criticisms are not intended to be moral judgments, they are just our opinions which are derived from our personal preferences, which are in turn the product of our upbringing and the social environment in which we live – like the fact, as s. wallerstein pointed out the he, by chance, had a friend who introduced him to certain writings which influenced how he thought in the future – if that is all your opinions are based on, then none of them deserve to be given credence as offering alternative forms of conduct which should have been followed instead of what actually occurred. Recommending that something else “should” have been done is a moral judgment.
I can say no more than that it is self-evident to a rational thinker, just as the axiom that the shortest distance between two points is self-evident.
It is self-evident that bashing in the skull of a healthy newborn human child is immoral is self-evident. Enslaving another human being, requiring that the individual perform work for his/her owner against his/her will, without being financially compensated, is immoral. That it is moral to forbid individuals of different races to engage in sexual intercourse is not self-evident.
Those who claim that the two moral judgments above are not self-evident are being disingenuous.
I haven't read Hume's ethical writings, so I'm just responding to the quote from a few comments above; it wouldn't surprise me to learn that Hume already addressed these points:
I'm not sure that anyone "really" believes that moral actions are simply those that elicit a pleasing sentiment of approval from the spectator. I would expect the spectator to admit, if pressed, that from her point of view, there's a difference between saying "It displeases me to see acts of theft" and "Theft is immoral" - after all, it seems very likely that she would also wish to say "Theft is immoral regardless of how I happen to feel about it." (E.g., "Even if I had never been born, theft would be immoral.")
I can't think of any reason the spectator would be reluctant to say this, unless she happened to be troubled by metaethical worries which inclined her to "settle" for the Humean position, thinking it less philosophically objectionable than the alternative. (The alternative might conjure up an image of someone aping Socrates out of a naive expectation that philosophical argumentation can change the attitudes of bullies, or purify their souls of evil, or whatnot.)
Also, it seems easy to think of actions that we condemn "in the abstract" or even out of mere habit, without actually experiencing any guttural sense of "boo, disapprove!" - like when reading fiction or ancient history. But I doubt that Hume would be especially worried by this sort of thing; he might've found an easy way to accommodate it, or he might have treated it in the same spirit as the "missing shade of blue" case. ("...this instance is so singular, that it is scarcely worth our observing, and does not merit, that for it alone we should alter our general maxim.")
But at the end of the day, it might well be that the Humean position (or something like it) is the one that's closest to the truth, or least problematic. I don't have time to elaborate at the moment - mainly wanted to point out some difficulties.
I share your conclusions as to the morality of the examples you give, but I don't see how you or I could prove to someone else that the contrary is immoral in the way that we could prove that water does not boil at 50 degrees. As to your second example, requiring people to work without compensation, well there were many Americans who thought there was noting immoral about it. In fact, by converting their slaves to Christianity and eternal life in heaven (with no work) they believes they were doing them a favor.
Your example of crushing a child's head certainly would be seen by most people as immoral. But that doesn't make it an objective fact. It just means that most people feel that way. What we approve of we say is moral; what we disapprove of we say is immoral.
What better example is there than abortion? Many people sincerely see it as immoral; many don't. Which view is objectively true and why? Why is it more than personal feelings of approval or disapproval?
It's weird to claim that the ancient Greeks were not capable of rational thought. There's as much evidence for the existence of Zeus and Hera as there is for Jehovah and the Virgin Mary.
And here we are talking philosophy when the father of Western philosophy was Plato and I do believe that Plato has the capacity for Western thought. Greek tragedy, such as that Sophocles and Aeschylus does appear to come from rational thinkers and Thucydides is a lot more rational when he comes to analyzing international affairs than most journalists on CNN today.
I can't believe that you are seriously offering this argument. Are you claiming that people who often think rationally are incapable of irrational thought regarding any topic?
I don’t agree that because people living in the Confederacy thought it was morally OK to enslave people based on their race because by converting them to Christianity they were actually doing them a moral favor disproves that what they did was self-evidently immoral. And the fact that I cannot prove this to them, the way that I can prove the boiling point of water, does not detract from my position. Moral judgments are not subject to the same form of proof as scientific judgments, the same way that I cannot prove to an irrational person that the shortest distance between two points is a straight line, no matter how many times I draw straight lines and demonstrate there is no other line which joins the two points which is shorter. I do not have to demonstrate to people who are biased, or racist, or amoral, or nihilistic, that it is self-evident that it is immoral to enslave other human beings based on their race.
I would note that all of the proposed moral judgments which I have offered are prohibitive, not prescriptive. Rationally justifying prescriptive moral judgments, e.g., one has a moral obligation to intercede in order to prevent the enslavement of another, is more difficult than identifying and justifying prohibitive moral judgments. But I believe if we can agree on what constitutes a valid prohibitive moral judgment, that is a big step in and of itself.
Regarding abortion, the basis premise at issue is whether a human being has the right to control over his/her own body. Is it immoral for me, if I wish, to self-amputate one or both of my legs, as long as I seek medical attention in order to prevent the bleeding from causing my death? I believe that no rational human being would claim I do not have the right to commit self-amputation as long as it does not result in suicide (putting aside the morality of suicide). So, at what point during the pregnancy does a woman lose the right of control over her body? Those opposed to abortion in its extreme form would say she loses that right at conception, that a zygote as the same right over control over its body without interference as the mother does. I would argue that this is an irrational argument – why would a zygote, which has no brain to speak of, no spinal cord, no arms, no legs, etc., have as much of a right over control over its body without the interference of the mother as the mother has the right of control over her body? If they insist they are right, I dismiss them as being irrational – it is not my obligation to convince irrational people of the irrationality of their position. The next question is, at what point of the development of the zygote, to embryo, to fetus does the right of the embryo or fetus of control over its body equal the right of the mother to control her body, and why? The answer to this question must be subject to rational analysis, and not merely some theological belief, which is prohibited by the 1st Amendment’s prohibition against the establishment of religion. I maintain that Alito’s leaked Opinion is a rationalization for constitutionalizing his Catholic faith, and therefore violates the 1st Amendment.
By the way, this distinction marks the difference between the Jewish version of the Golden Rule – Do not do onto others that which you would not want done unto you – from the Christian version of the Golden Rule – Do unto others as you would have them do unto you.
Of the Ten Commandments, eight are prohibitive, and two are prescriptive.
• You shall have no other God's before me. • Thou shalt not make unto thee any graven images. ... • Thou shalt not take the name of the Lord thy God in vain. ... • Remember the Sabbath day and keep it Holy. ... • Honor your father and mother. ... • Thou shalt not kill. ... • Thou shalt not commit adultery. ... • Thou shalt not steal. • You shall not bear false witness against you neighbor. • You shall not covet.
I do not maintain that all 8 of the prohibitive Commandments are valid moral judgments. Moreover, there is also the argument that each of the prescriptive Commandments can be reworded as prohibitive Commandments, i.e., Do not not remember the Sabbath day and keep it Holy; Do not not honor your father and mother. I am not now prepared to address this issue, since I have other professional demands on my time.
As I'm sure many of the commentators here are aware, there was a brief efflorescence of thinking about rationality and irrationality among Anglo-American philosophers in the late 1960s, and a major aspect of which involved reflections upon the material presented in Evans-Pritchard's Witchcraft, Oracles and Magic among the Azande (1937). I mention this because it seems to me that some of the points at issue here on morality and rationality were also discussed therein, and sometimes with the same feel of clash of hardened positions. The issues are of course very complex, too complex (for me) to address in a blog comment. But to me it's always salutary to remember that, after having tried some of the decision-procedures of the Azande, Evans-Pritchard concluded that looking at some chicken entrails to determine which day you should go to the market is a perfectly serviceable way of making decisions and living one's life.
I am not familiar with Evans-Prtichard , or his work entitled Witchcraft, Oracles and Magic, but I will check on Amazon to see if there is a reasonably priced copy available.
Let me, say, however, that anyone who would propose that “looking at some chicken entrails to determine which day you should go to the market is a perfectly serviceable way of making decisions and living one's life” is not, in my opinons, an exemplar of rational thought. I assume he made this comment with tongue in cheek.
None of what you say makes a moral judgment objective. What's an objective fact is that you believe something is or is not moral. That doesn't determine whether it is in fact, objectively moral. You have your justification for when life begins and when, therefore, abortion is immoral. It is an objective truth, as true as the fact that water freezes below 32 degrees, that many share your view. It's also an objective truth that many do not.
Please correct me if I'm wrong but my impression is that Professor Wolff is also a moral anti-realist.
He has told the story of trying to find an objective basis for his ethical and political ideals and not getting anywhere and then one day a student suggested to him that it's simply a question of deciding which side you are on. It's a commitment (as Sartre would say) or a choice. That suggestion from a student, Professor Wolff said, was a sort of revelation or epiphany and he realized that finally, one decides which side one is on without any metaphysical or objective basis beyond all the many real-life, empirical factors that make up one's decisions.
Regarding abortion, it is an objective fact that a zygote is a form of life, just as much as it is an objective fact that a paramecium is a form of life. Neither, however, is a form of human life – this is an objective, and not dependent on how anti-abortionists define “human life.” To the extent that they argue that a zygote represents a form of human life they are objectively wrong. It represents “a potential human life.” The 14th Amendment protects the life and liberty of persons – actual persons, not potential persons. So then the argument becomes when does the potential human life of the zygote become an actual human life, and therefore a “person” entitled to protection under the 14th Amendment. This question is also subject to rational, objective analysis. How can a fetus, which has not brian, no central nervous system qualify as nothing more than a potential human being, when it is that brain, and that central nervous system which distinguishes the human species from paramecia, from plants, from fish, from lizards and reptiles; from other mammals, including other primates, such as the great apes? When that differentiation in the brain and central nervous system occurs is an objective fact, and until it occurs the potential human life is not an actual human life entitled to the protection of “persons” under the 14th Amendment. This is not an argument based on my personal preference, or your personal preference, or the personal preference of probably dissenting Justices Breyer, Kagan and Sotomayor. It is based on objective fact. That others do not accept these facts as objective facts does not mean that they are objective facts. It means that they are being intellectually disingenuous, and intellectually disingenuous arguments, despite their occasional success in the Supreme Court, does not make them any less disingenuous.
Regarding your comment about what constitutes an objective “truth.” Yes, it is an objective truth that I believe that bashing in the skull of a healthy, newborn human child is immoral. This is an objectively true statement about what I believe. The fact that the statement about my belief is objectively true does not entail that necessarily the belief itself is no more than a belief which itself is not objectively true, anymore than may believing that the shortest distance between two points is a straight line entails that the belief itself is not objectively true. That belief is objectively true because it is self-evident, regardless how many people may be unable to comprehend that it is self-evidently true. By the same token, my belief that bashing in the skull of a healthy, newborn human child is immoral is self-evident, regardless how many people may not accept that it is self-evident.
I’m done. I have other professional obligaitons calling out to me.
I just read s. wallerstien’s comment about what he extrapolates is Prof. Wolff’s view on the issue. He may or may not be correct about his conclusion that Prof. Wolff is ant anti-realist on the issue of moral judgments. With all due respect to Prof. Wolff, I don’t see that it makes a difference. He has expressed numerous convictions on the blog regarding the reprehensible conduct of former Pres. Trump, of the Republicans, of Russia’s invasion of Ukraine. I suspect that he believe that all of these convictions are not just expressions of his personal preference, but that they are objectively true. These assertions imply that the individuals who acted as they did, whose actions he has criticized, should have acted otherwise. Why should they have acted otherwise? Just to please Prof. Wolff? I don’t believe he believes that.
All of this stems form the presupposition that whatever one believes, that belief must be subject to some sort of proof. I submit that this is nonsense. The axioms of Euclidean Geometry are not subject to proof. We believe them because they are self-evidently true, regardless of one’s preference. Why cannot other, non-mathematical beliefs about human conduct also be self-evidently true, like that bashing in the skull of a healthy, newborn human child is an immoral act?
On the Alito draft opinion, I've made this point before but it seems worth making again. He does not have to address the question of "personhood" for purposes of getting 5 votes for this opinion because a glance at the first pages is enough to see that he's going to maintain that a woman has no constitutional right to an abortion, period.
If the holding is that a woman has no constitutional right to an abortion, period, then the Alito opinion does not have to explicitly balance competing interests (the woman's vs. the fetus's), because, on its view, there are no competing interests to balance. So the Alito opinion does not have to get into the question of whether a zygote is a "person" under the 14th amendment or just "potential human life." If the holding is that a woman has no right to an abortion, then the question of the exact status of the fetus is irrelevant to the holding, especially if it's arrived at by historical (or pseudo-historical) analysis purporting to show that the right to an abortion is not "deeply rooted in the nation's history or traditions."
To be sure, the question of personhood is relevant to the philosophical/moral issues surrounding abortion, but the (apparent) structure of the Alito draft is such that he doesn't have to address it.
Marc, As you implicitly acknowledge in your phrasing, I did not say that consulting chicken entrails is 'rational', only presumptively 'serviceable', at least in the context of one way of living. As I said, I find the issues too complex to comment on in this context, but, well, okay, how about this: Without attempting to justify the claim, it seems to me that ascriptions to actions of morality/immorality or rationality/irrationality without consideration of context typically involve impoverishing distortions of human life, in at least two ways: (a) they assume that there is a kind of systematicity to such ascriptions by virtue of their place among indeterminately many other judgments, and that the system (of morality or rationality) as a whole is governed by one or a small number of ultimate values; and (b) they assume that such ascriptions are made (i) as the result of some small number of patterns of reflection and reasoning, themselves again specifiable without regard to context, and (ii) that the results of such processes of reasoning and reflection are sufficiently determinate to apply without further qualification to some action, itself sufficiently determinate to anchor securely such ascription.--Again, this is an area of great complexity, but if one accepts my points (themselves quite obscure and asserted without argumentation), then picking out certain actions and declaring them '(im)moral' or '(ir)rational' per se is not a fruitful way of orienting oneself towards the world. A further problem is the question of addressee: to whom does one imagine oneself addressing such ascriptions, and under what circumstances does one imagine such ascriptions are persuasive: In a seminar room? To the Gestapo at the door? --Of course I know that you will find this unconvincing.--It seems to me that most of the world's moral 'systems', as they are actually lived, share something of the form of 'Do not covet thy neighbor's wife, although by all means rape and enslave thy neighbor's neighbor's wife'. About the only moral systems known to me that in practice avoid the 'although' and so are consistent are the admirable ones of the Buddha and of the sky-clad Jains.--One way of responding to such considerations would be lessen one's concern for whether an action is rational or immoral, and focus instead on whether the action is helpful or kind or beautiful or serviceable.--I continue to think that a fruitful way into the issues is anthropological reflection, such as Dan Sperber's essay 'Apparently Irrational Beliefs': http://www.dan.sperber.fr/wp-content/uploads/1982_apparently-irrational-beliefs.pdf
Human culture isn't so binary. There's isn't a a stark binary division where on the one hand, morals are objectively true like water freezes at zero degrees centigrade and on the other hand, morals are personal preferences like I prefer my coffee with milk, especially soy milk.
Just like there's a general collective agreement that Shakespeare is a great poet and that Mozart is a great composer, there's a general collective agreement these days that slavery is wrong. In addition, among those of us on the left there's a general collective agreement that women should have the right to choose over the question of abortion. That's not a personal preference of mind, it's the collective wisdom of a fairly large sector of humanity with which I generally identify. That's the side I'm on.
That's not because women's right to abortion is an objective truth, but because for me and for many others we identify with the woman's movement, we tend to prefer to pay attention to what women, including the women in our lives, say than to what representatives of male superiority and machismo say. That's all, it's life and life only, as the Nobel prize winning poet says.
You've written paragraph after paragraph, but you haven't addressed the central issue: is there such a thing as an objective moral truth for all people in all times in all places? You make an extended argument regarding abortion and various times during a pregnancy. Those are certainly facts that policy makers must consider, but none is objective in the sense that it is right in any objective sense. You are stating your substantive moral beliefs and the reasons for them. Many people--including me--probably agree with most, if not all of them. You've given good reasons why we should. But you haven't said what it is that makes them objective. I'm still with Hume.
It's worth noting that Kant sought to refute Hume with the categorical imperative. I think the categorical imperative is an excellent guide to what I think human behavior should be, but I don't see it as refuting Hume's more metaphysical point that our moral values are based on our subjective feelings of right and wrong, or, more accurately, whether we approve or disapprove of particular conduct, and not on any non-human value that exists in the universe independent of humans and their feelings.
Would you mind fleshing out that statement about the Categorical Imperative? I'm just curious - I'm not very well-acquainted with Kantian ethics, but in my experience, it takes a bit of work to make the CI sound clear and plausible, without overemphasizing certain of Kant's ethical "quirks" (e.g., never lie, never masturbate, never waive the punishment of a murderer awaiting execution).
From what I've seen, the "selling points" of the CI are its similarity to the Golden Rule, and to the question that every parent asks their misbehaving child, "What would you think if someone behaved that way toward you?" Plus there's the formulation that has us "never treat people as mere means, but always as ends unto themselves" - the meaning of that isn't 100% clear, but it seems to land in the vicinity of "Don't 'lord over' people and use them for alien purposes."
I also get the sense that Kant wishes to settle these disputes about moral justification and objectivity and so forth by suggesting something along the lines of: Moral deliberation does not (and cannot) take place in a "philosophical vacuum" free of prior commitments - instead, it takes place against a (normally unarticulated) background of presuppositions and tacit understanding, which could in theory be spelled out to show that every rational agent qua rational agent has the same conception of the moral law.
Is that far off? It sounds like good stuff, by the way, but I'm not convinced that there couldn't possibly be an escape hatch of sorts for the Humean: "Sure, on the correct analysis of rational agency, respect for the moral law means never exploiting a fellow person. But so what? Maybe I myself happen to feel indifferent to the idea of rationality."
You are wrong. The statement by J. Alito at the beginning of the leaked Opinion is a conclusion. It is not the argument itself. Even as disingenuous as J. Alito is, no Justice of the Supreme Court would begin a decision by stating the conclusion and mean by that, take it or leave it. The rest of Alito’s Opinion is an argument seeking to justify the conclusion that there is no constitutional right to an abortion. He bases his conclusion on two primary analyses – the history of abortion, and his concept of what rights are encompassed within the concept of “ordered liberty.” It is with respect to this latter analysis that I take issue. That analysis ignored the very language of the very language of the 14th Amendment, which protects both the life and liberty interest of persons – not potential persons.
I am starting to feel like Michael Corleone in Godfather III: “Just when I thought I was out, they pull me back in!”
I have to say that I believe you are both are the victims of some rather confused thinking. Why would a morally objective judgment have to be true at all times throughout the universe? Why would it matter on Alpha Centauri whether how human beings on Earth treat each other is moral or immoral? There is only one universal constant – the speed of light. Even the temperature at which H2O freezes varies depending on the ambient air pressure and elevation. Your precondition that moral judgments must be universally applicable is a specious precondition which makes identifying such judgments infeasible.
Let me offer another reduction ad absurdum argument.
1. No woman has the right to control her own body.
2. Therefore, no woman has the right to decide for herself when she will evacuate her bladder.
3. Therefore, no woman has the right to decide for herself if and when she is going to cut her hair.
4. Therefore, no woman has the right to decide for herself whether to cut off one of her legs.
5. Propositions 2-4 derive from proposition 1, and are absurd.
This leads to the objectively valid moral judgment that a woman, any woman, has the right to control her own body. Does it have to be true on Alpha Centauri in order to qualify as an objectively valid moral judgment? Of course not.
From this objectively valid moral judgment, I derive the argument set forth above that since a woman has the right to control her own body, she has the right to have an abortion up until the fetus in her womb has developed into an entity which is physiologically distinguishable from all other species by virtue of having developed a brain and central nervous system which is physiologically and anatomically unique to human beings.
Would David Hume, whose Enquiry Concerning the Principles of Morals I have read, say that proposition 1 is not a morally idefensible judgment regardless one’s culture, that it is no more than a statement of the preference of certain humans, and nothing more? If he would, I maintain he would be wrong.
You quote Michael Corleone, but if you had been born Michael Corleone, who, as I recall, was a devout Catholic of the generation of my parents (and probably yours), you would not agree that a woman has a right to abortion.
There are so many posts right now I'm not sure which one I'm replying to. But as to your question above regarding whether David Hume would agree with your first statement, that a woman has control over her own body, misses the point Hume is making.
Your post presents (convincingly so far as I'm concerned) a substantive argument about abortion. Hume isn't dealing with that kind of question. He is not arguing whether that substantive argument is correct or incorrect; he's asking where our view of it--whatever that view is--comes from.
I happen to agree with you on the substance. Where does my agreement come from? In Hume's 18th Century terms, it comes from my approval of what you are saying.
Hume’s anthropological/sociological analysis of the derivation of our moral judgments says nothing about the objective validity or invalidity of those judgments. My view regarding abortion and a woman’s right to control her body derive my rational thinking about the issue, not from my upbringing or political influences. How I derived my belief is irrelevant. What is relevant is whether my assertion that a woman (and for that matter men, transgenders, etc.) has a right to control her body is an objectively valid moral judgment, and I dare J. Alito to look me in the eye and say otherwise.
" ... is an objectively valid moral judgment protected under Sec. 1 of the 14th Amendment, and I dare J. Alito to look me in the eye and say otherwise."
Kant did wish to meet Hume's point and he offered the categorical imperative, phrasing it in different ways. The versions in the translation I have are these:
1. Act only in accordance with that maxim through which you can at the same time will that it become a universal law.
2. So act that you use humanity, whether in your own person or in the person of any other, always at the same time as an end, never merely as a means.
3. Act in accordance with the maxims of a member giving universal laws for a merely possible kingdom of ends.
I'm a little reluctant to get into a discussion of Kant because I haven't read him a long time, and when I did I struggled. It would be good if Prof. Wolf weighed in on this. He's plays in the major leagues. I'm just a fan.
You're absolutely right: Hume said nothing about the objective validity of our judgments. He merely asked where they come from. You've stated where yours come from. Someone else could say much the same thing and reach the opposite conclusion. Hume would say that each of your judgments are based, ultimately, on your subjective reactions of approval or disapproval.
I get to p.29 and I find this: "One may disagree with this belief [about when life begins] (and our decision is not based on any view about when a State should regard pre-natal life as having rights or legally cognizable interests)..."
This is exactly my point: Alito is holding that there is no liberty interest in abortion, and therefore he does not have to address when the fetus becomes a person with rights. Why not? Because if there's no liberty interest in abortion, it does not matter when the fetus becomes a person.
Now I understand that you think his conclusion about the scope of "liberty" is wrong. So do I. But that's not my point. I'm making a point about the logical structure -- such as it is -- of the draft. Why would Alito say on p. 29 that his decision is "not based on any view" about when "pre-natal life" acquires rights if, in fact, this was not the case?
The draft opinion is not based on whether the 14th Amendment protects "potential life." It simply isn't based on that. I'll prob. finish reading the thing, but I'd be v surprised if my conclusion in this respect changes.
Any constitutional lawyer worth his salt would say that Alito’s argument is sophistry, because the starting point of the issue is the wording of the 14th Amendment and what is the nature of the liberty interest which persons possess which the Amendment is protecting. Alito is being disingenuous by not addressing this question. He has to deal with the initial issue regarding what is the liberty interest of the mother which the 14th Amendment protects. He cannot deny that a mother who is pregnant is a person and has a liberty interest which the Amendment protects. What is the scope of the liberty interest in the context of the existence of a fetus which the mother is carrying in her womb. Alito’s assertion that he is not going to address “when a State should regard pre-natal life as having rights or legally cognizable interests” is a cop-out. The 14th Amendment applies to the states. He want to avoid a question which is constitutionally unavoidable, and his Opinion is specious. Can he make a specious argument and get away with it. Perhaps. But I will be interested in reading what the dissents say. 10 to 1 they say things along the lines of what I have been arguing.
“Hume would say that each of your judgments are based, ultimately, on your subjective reactions of approval or disapproval.” This where I disagree with Hume (heaven forbid), because this observation says nothing about whether those beliefs are objectively valid. Explaining the sources of one’s beliefs is irrelevant to evaluating whether those beliefs are objectively valid. We all have beliefs which are the products in large part of our socio-economic upbringing, the things our parents and siblings talked about, etc., etc. None of this is relevant to evaluating whether the beliefs are themselves valid or invalid, Einstein grew up in a secular Jewish home. He suffered from dyslexia. He was a rebellious student and excelled in physics and mathematics. He began pondering the nature of light and whether the speed of light on a moving object would have the same Doppler effect as the generation of sound on a moving object. He concluded that since the speed of light was fixed, regardless the speed of the object which was emitting it, that there were consequences regarding time and motion. Did his upbringing perhaps influence his inquisitive mind? No doubt. Many other scientists with different upbringing rejected is theory of special relativity. The differences in their upbringing did not determine whether they or Einstein were objectively correct. I see no reason why differences in upbringing which influence our views on what constitute valid moral judgments should determine whose moral judgments are objectively valid any more than they determine whose judgments in physics or mathematics are valid. The obvious difference is that with regard to theories in physics, whether a theory is valid or invalid can be determined via empirical observation. But it does not follow from this that moral judgments cannot be objectively valid, any more than whether the shortest distance between two points cannot be objectively valid if there are no empirical experiments which can prove that it is objectively valid.
An interesting point is that in Roe, Justice Douglas, who concurred with the majority, wrote that he would have based the decision not on the 14th Amendment but the 9th: "The enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people."
I know absolutely nothing about 9th Amendment jurisprudence, and how those words have been interpreted. But on their fact they acknowledge rights not otherwise specified in the Constitution. How those rights are determined, I don't know, but I find Douglas' argument intriguing.
Marc--if you are familiar with 9th Amendment jurisprudence I'd appreciate a brief (I emphasize BRIEF!) tutorial.
Despite your oblique aspersion regarding the length of my comments, I have decided to accommodate your request.
The short answer is that the Supreme Court has never rested any decision exclusively or primarily on the 9th Amendment. Whenever it has been referred to in a decision, the 9th Amendment has been referred to in conjunction with several other Amendments, primarily the 14th, and the 9th Amendment gets lost in the mix. Prof. Laurence Tribe, no conservative, has said of the 9th Amendment: “It is a common error, but an error nonetheless, to talk of ‘ninth amendment rights.’ The ninth amendment is not a source of rights as such; it is simply a rule about how to read the Constitution.”
Reliance on the 9th Amendment in concurring opinions by J.’s Douglas and Goldberg (remember him?) were cast aside as ludicrous by J. Stewart in his dissent:
“…to say that the Ninth Amendment has anything to do with this case is to turn somersaults with history. The Ninth Amendment, like its companion, the Tenth … was framed by James Madison and adopted by the States simply to make clear that the adoption of the Bill of Rights did not alter the plan that the Federal Government was to be a government of express and limited powers, and that all rights and powers not delegated to it were retained by the people and the individual States. Until today, no member of this Court has ever suggested that the Ninth Amendment meant anything else, and the idea that a federal court could ever use the Ninth Amendment to annul a law passed by the elected representatives of the people of the State of Connecticut would have caused James Madison no little wonder.”
Since Griswold was decided in 1965, the 9th Amendment has not been invoked by any majority decision to justify its ruling. I am quite sure that if Roe v. Wade had been based on the 9th Amendment, J. Alito would have dismissed it just as he has dismissed the reference to liberty in the 14th Amendment. He would say that the term “people” may refer to the pregnant mother, but it all refers to the fetus she is carrying in her womb, and the fetus has just as much right to the rights reserved to the people as she does.
There, done. A mere 392 words, a Susselman record.
In light of the horrid, racist mass killing in Buffalo yesterday, I have a brief story about inter-racial relations that my wife and I experienced last night.
We were driving at around 7:30 P.M. to meet another couple for dinner in Hazel Park, Michigan. As I drove onto the entry ramp to access the highway, I heard a loud bang, and my car began to skid. I succeeded in getting control of the vehicle and pulled onto the shoulder of the highway. I assumed I had blown a tire, but when I got out of the car to check my tires, there was no blown tire. When I got back in the car and put the transmission into drive, the car shuddered. I realized something more serious than a blown tire had occurred. I got out my cell phone to call AAA, but, as luck (or negligence) would have it, my cell phone was dead. So my wife and I got out of the car and walked back up the ramp to the nearby Dunkin’ Donuts . I asked if I could borrow a cell phone (I actually first asked if they had a pay phone, and the employees looked at me as if I were an alien). I tried to call Uber, but there was no answer. I tried to call a taxi company, but there was no service in the town we live in. So we decided we had to walk home, which was about 4 miles away. I bought a half-dozen donuts, and we were on our way, my younger wife in the lead, as I stumbled along clinging to the box of donuts.
The walk home was compounded by the fact that there were no sidewalks along the avenue we were traversing, just grass embankments. I tried to keep up our spirits by cracking jokes and singing songs – like I Broke the Law. My wife did not find any of this amusing. At one point I suggested that she should pull a Claudet Colbert stunt from the movie “It Happened One Night.” (I am sure that David and s. wllerstein will recall the scene, probably considered sexist today.) My wife was wearing slacks, and she did not think that her calves would have the same impact as Claudet Colbert’s, so she declined.
At one point I tripped and fell, clutching the box of donuts to my chest. We were about 1/3 of the way home by 9:00 P.M., when we had to start walking on the narrow shoulder, as cars whizzed by us. Suddenly, a car pulled up and a woman asked if we were OK. There was another passenger in the car, but we could not see them, we only heard their voices . We told them what had happened to our car, and that we were walking home. They said they had been driving in the opposite direction, and when they saw these two elderly people walking on the road, they turned around. They expressed concern that what we were doing was dangerous. I told them that we lived nearby, and asked if they would be willing to drive us home. They said, absolutely, get in. My wife got in the back seat; the man in the front passenger seat moved to the back seat, and told me to sit in the front passenger seat. As I got into the car, I saw that they were African-American. I was, frankly, overjoyed to see that two African-Americans would stop to help two elderly Caucasians. My wife offered a twenty-dollar bill to the woman who was driving, but she declined to take the money. My wife insisted, and she finally accepted, saying she could use it to pay for gas, since the gas prices were so high. She told us that she is a care-giver for her grandmother, who is 104 years old and that this caused her to worry about us. I did not know at this point about the shooting in Buffalo. I do not know if they knew. They drove us to our home, and I invited them in, but they declined – they had to buy groceries for the grandmother. I asked them to wait so I could go in the house and get paper to write down their names, addresses and phone numbers. I gave the male passenger, whose name was Will, my business card and told them that if they ever needed a lawyer, to give me a call.
They left and we thanked them again and told them to stay safe. As I rested in the house after the long walk, I thought, would a Caucasian couple stop to help two elderly African-Americans whom they saw walking along a highway? Perhaps, but given racial profiling, probably not. Actually, I felt good that we were in a position to have received a favor from an African-American couple, and thought, maybe, just maybe, there is still hope for this country. But some white punk in New York has just made things much more difficult.
Nice story, one of those rare incidents that restore one's lost faith in others. Trying to think of one myself, I keep recalling so many dog walkers who don't restrain their beloved pets by tightening the leash on narrow sidewalks and drivers who turn aggressively forcing me to increase my pace as I walk legally within the crosswalks. I came up with one: a few years ago I dropped my keys in the supermarket while taking my wallet out to pay and I didn't not notice that. I had already walked about a block from the supermarket (I have no car) when a young man, another customer, came running up to me with my keys. Basic decent gestures are rare these days and maybe they always were.
Here's a talk by Richard Rorty: do we need ethical principles? https://www.youtube.com/watch?v=SDAdveMYHFs
Thank you for your comment and the story about the restoration of your wallet. These incidents do help to restore one’s hope in humanity, but they are all too rare. The two people who stopped to help my wife and myself are such an example. They possess an inner voice which told them that they had to act. Rather than let the immediate task which they were engaged in, - getting groceries for the grandmother – they put that task aside to help two strangers. Before they stopped to help us, 100s of other cars had passed us by whose drivers were focused on some immediate task, but none of them stopped. This couple stopped, and their willingness to do so sets them apart form most other people.
I started watching the lecture by Prof. Rorty that you linked to, but given its length I will have to finish watching it later, but his opening example of how the traditional ethical principles which are taught in philosophy courses – the principle of utilitarianism and the categorical imperative – would not help the Frenchman considering to join the resistance during WWII what to decide. They would leave him without direction. I will finish watching it later on, and thank you for the link.
On CBS This Morning, there was a segment about Chef Jose Andres’, the founder of the World Central Kitchen. The WCK goes to countries where there has been a natural disaster to prepare meals in the native cuisine to feed the starving. He is now in Ukraine, preparing meals for the refugees. He is fairly wealth, since he own several prestigious restaurants around the world. But he doesn’t have to do what he does. He does it because he believes it is the right thing to do. Would utilitarianism or the categorical imperative tell him to do this? As Prof. Rorty points out in the opening to his lecture, they do not. The balancing called for by utilitarianism gives no answer, because one cannot measure the net happiness against the net unhappiness that one’s actions cause. If Chef Andres’ did not go to Ukraine to feed the starving, he would not be treating the Ukrainians he would never have met as means rather than ends, because he would never have met them. He said during the interview, “It is at times when humanity is at its worst, that humanity can reveal itself at its best.” A cynic might respond that it should not take the worst of humanity to bring out the best of humanity. But he has responded even when he is feeding those who have been the victims of a natural disaster which has not been caused by man’s inhumanity. The bottom line is, I guess, that some people have an inner voice that tells them what is the ethical thing to do, regardless what other commitments one has, a voice which many others lack. As Jimminy Cricket said, “Let your conscience be your guide.”
Stewart wrote: "all rights and powers not delegated to it were retained by the people and the individual States."
That would seem to open the way to substantive Ninth Amendment jurisprudence: it concedes that there are such rights and would seem to invite an argument that abortion or whatever is one of them.
I have a book titled, "The Rights And Wrongs Of Abortion," a collection of pro- and anti-abortion essays. The first essay is by Prof. Jarvic, professor of philosophy at MIT. The essay is superb.
Marc you might want to look at a blog on ethical issues by a philosopher with street cred online: The Philosophers Beard. You might even want to debate him on some of his provocative posts. He operates under the assumption that ethics is objective. I believe Locke figured ethics is like math
A lot of amicus briefs were filed in the abortion case, and there is a post at the SCOTUS blog that rounds up and summarizes some of them.
In the part of Alito's draft that I've read (first 40 pp or so), he mentions an amicus brief filed on behalf of the American Historical Assn and the Organization of American Historians on the side of affirming Roe and Casey (obvs. Alito mentions it only to dismiss its arguments). This amicus brief is quite short, about 30 pp, and counsel on it are Hogan Lovells, a big Wash. D.C. law firm.
There is a link from which one can download this brief (as I just did), if interested.
Btw, Marc has said that one of the things that's wrong w Alito's draft is that it ignores the "very language" of the 14th amendment. However, the language (or as lawyers sometimes say, the plain language) of the 14th amendment can't resolve this case, bc the 14th amendment, while it uses the word "liberty," does not, as far as I'm aware, define "liberty."
So what's wrong w Alito's draft is not that it *ignores* the language but rather how it *interprets* the language, and more specifically how it interprets the two substantive due process criteria.
Correct, the 14th Amendment does not define “liberty.” But its scope has been delineated in prior S. Ct. decisions, decisions which Alito ignores. In a comment on a previous post, I quoted the following language from the plurality opinion in Planned Parenthood v. Casey:
“Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. … Our cases recognize ‘the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.’ … Our precedents ‘have respected the private realm of family life which the state cannot enter.’ … These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of he universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” (Case citations omitted.)
This quotation relies on prior S. Ct. precedents which have held that the concept of liberty encompasses “the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” In overturning Roe v. Wade by the ipsi dixit that there is no constitutional right to an abortion, Alito is not just overturning Roe v. Wade; he is overturning all the case precedents cited in Casey which have held the decision whether to bear or beget children is a fundamental right protected by the 14th Amendment. If that decision is not protected by the 14th Amendment, then a state could pass legislation akin to that in China prohibiting a married couple from having more than 2 children. That would clearly be unconstitutional. So, if a state cannot limit how many children a family can have, how can it by the same token demand that a woman give birth to a child the woman does not want? Which brings us to the second word that Alito is ignoring – “person.” It is clear that a pregnant woman is a person under the 14th Amendment. Alito could not possibly deny this. Consequently, as a person under the 14th Amendment, she is “free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.’ But that liberty interest does not give her the right to take the life of another person, like her cheating husband. So, ultimately, the issue comes down to whether by having an abortion, is the mother, whose liberty interest is protected by the 14th Amendment, taking the life of another person. Alito’s ipsi dixit that there is no constitutional right to an abortion ignores this question, which comes down to whether a fetus is a person which has a liberty interest comparable to the mother’s liberty interest. I maintain that just as it is obvious that the mother is a person under the 14th Amendment, it is equally obvious that a zygote is not a person entitled to the protection of the 14th Amendment. A zygote is a potential person. But the 14th Amendment does not protect the liberty interest of a potential person. It only protects persons, not potential persons. So Altio’s ipsi dixit does in fact ignore the language of the 14th Amendment.
Maybe the estates of the 10 deceased individuals who were gunned down in Buffalo on Saturday should sue Fox News and Tucker Carlson for proselytizing Replacement Theory, the theory which inspired the shooter and which claims that minorities and immigrants are replacing Caucasians and taking away from them the country which is rightfully theirs.
Are Fox News and Tucker Carlson protected by the 1st Amendment’s right of free speech? Perhaps not. 42 U.S.C. § 1985(3) prohibits any group of individuals to conspire to deprive any group of people of their rights under the Constitution where the conspiracy is based on “class based animus.” What is unique about 42 U.S.C. § 1985(3) is that it does not require state action. It applies to individuals who act in concert, without the involvement of the state. The conspiracy would be between Fox News and Tucker Carlson. In Beauharnais v. Illinois, 343 U.S. 250 (1954), the Supreme Court held that an Illinois statute which criminalized the dissemination of literature which “exposes the citizens of any race, color, creed or religion to contempt, derision, or obloquy or which is productive of breach of the peace or riots” was not unconstitutional. The use of the disjunctive indicated the statute applied even in the absence of a breach of the peace or riot. The Court rejected the petitioner’s claim that his dissemination of hand-bills in Chicago which called for the mayor of Chicago to prevent African-Americans from continuing to move to Chicago was protected by the 1st Amendment. Beauharnais is still good law - it has never been overturned by the Supreme Court.
Absolutists who support the 1st Amendment right of free speech, like the ACLU, hate the Beauharnais decision, and maintain that it should no longer be considered good law, even though it has not been overturned. The question is, is hate speech which denigrates Blacks, Jews, Latinos, etc., protected by the 1st Amendment? Should hate speech which uses the N- word be protected by the 1st Amendment? Should Congress pass a federal law like that which was enacted in Illinois and which the S. Ct. held was not unconstitutional to prevent the further dissemination of such speech on the internet? Does hate speech like that which inspired the shooter to kill in Buffalo serve the purpose of the 1st Amendment to facilitate communication and dialogue among people? Does hate speech constitute the kind of speech the 1st Amendment was adopted to protect?
I don't have any idea about U.S. Constitutional law, but in general I follow John Stuart Mill's proposal that free speech be unlimited except in the case of clear, direct and immediate incitement to violence.
However, I can see that in a climate of increible political polarization and violence, some curbs on hate speech even when there is not a clear, direct and immediate incitement to violence should be instituted. I don't know exactly where the line should be drawn and how.
By the way, such rules work both ways. If we institute laws which prohibit Tucker Carlson from spouting whatever racist nonsense he spouts because it can indirectly incite to violence, those laws will also limit the right to hate speech which indirectly incites to violence against the cops, etc.
I agree with you on the point that Alito is not respecting the case-law language re "free from unwarranted governmental intrusion into matters [etc.]" though, as usual w const law, a lot hangs on words like "unwarranted" and "intrusion." But for sure, the dissents will refer, properly, to that language. If a state bans abortion completely, that wd be, istm, an unwarranted intrusion in the sense that it forces some women to have children they don't want.
The particular language in Casey about defining one's own concept of existence and the mystery of life doesn't, however, add anything, and Alito brushes that particular passage aside by saying that one is free to define one's own concept of the mystery of life but not always to act on it.
"If a state bans abortion completely, that wd be, istm, an unwarranted intrusion in the sense that it forces some women to have children they don't want."
Maybe this time, but on the previous occasion, regarding the war in Ukraine, the piece wasn’t very good
ReplyDeleteThe Civil War followed the election of Lincoln- that proves that victory in the ballots might be necessary but insufficient to prevent the Republican insurgency
ReplyDeleteWe are dealing with zealots who somehow literally regard the constitution as a book of the Bible
They are Jihadis for Jesus
With trepidation, given the last Green installment linked to by RPW, I opened this new Green missive. I was pleasantly surprised; the statement is erudite, to say the least, instructive, informative, provocative, and best of all, very nicely written. All in all, an impressive and timely essay.
ReplyDeleteEverything is going to hell, with no vision and no leadership to speak of. But we are not without irony. Pelosi yearns for a "stronger Republican party."
Although I agree with Philip Green’s condemnation of the leaked Opinion overturning Roe v. Wade, and his aspersion of J. Alito, his comments about Article IV, Sec. 2 regarding the right of a state to demand the return to that state of any citizen of that state who is charged with a crime, is the basis for allowing a state to demand extradition to the state any individual who has been charged or convicted of a crime in that state. It does not allow the extradition to a state an individual who has committed acts in another state which, if those acts had been committed in the first state, would have constituted a crime. So, if a citizen of Mississippi travels to New York to obtain an abortion that she may not obtain in Mississippi, Mississippi may not demand under this provision that N.Y. extradite the woman to Mississippi. In the case of the Fugitive Slave Act, the Act was based on pre-Civil War slave state laws which made it a crime in a slave state for a slave to escape to another state which did not have slavery. By escaping, the crime was committed in the slave state.
ReplyDeleteWhat the provision which Phil Green cites would permit would be if a woman in Mississippi somehow obtained an abortion in Mississippi and then moved to N.Y. after the abortion, Mississippi could demand the extradition of the woman to Mississippi. But if Roe v. Wade is overturned, and the law of Mississippi is declared constitutional, few, if any, physicians are going to risk performing abortions in Mississippi.
Moreover, under the Full Faith and Credit provision in Sec. 1 of Article IV, if a woman in Mississippi traveled to N.Y. to obtain an abortion she could not obtain in Mississippi, if she returned to Mississippi after obtaining the abortion in N.Y., she could not be arrested in Mississippi for having gone to N.Y. to obtain the abortion. The abortion Civil War which Phil Green is envisioning is not going to happen. Which is not, by any means, my condonation of the anticipated overturning of Roe v. Wade.
This is in the Mississippi law:
ReplyDelete"(b) “Attempt to perform or induce an abortion” means to do or omit anything that, under the circumstances as the person believes them to be, is an act or omission that constitutes a substantial step in a course of conduct planned to culminate in the performance or induction of an abortion in violation of this section."
https://law.justia.com/codes/mississippi/2018/title-41/chapter-41/gestational-age-act/section-41-41-191/
Get a burner phone and only use OTC tests and cash. Hey, it is Mississippi so never forget:
https://www.youtube.com/watch?v=LJ25-U3jNWM
A small silver lining. I've lived long enough to read the obituaries of John Leo and Midge Decter who left this coil this week for warmer places.
ReplyDeleteaaall,
ReplyDeleteIf there be a hell, I highly doubt that either Joseph Leo or Midge Decter have been condemned to spend eternity there. Joseph Leo was a stalwart defender of free speech and held contempt for the dominance of politically correct speech on college campuses, a cause with which I agree. Regarding Ms. Decter, although her neoconservative affiliations may not have been to your or my liking, I hardly think that deserves consignment to the flames of hell.
Oops, my mistake, Leonard Leo still curses us with his presence (hope can blind). John did make too much of campus stuff, and as Chef says, "There's a time and a place for everything and that's college." Still, I'll allow no Hell for him.
ReplyDeleteThe movement Decter was an important part of has at least a high six figure body count and played its part in what will likely end us. She stays and in a lower circle.
I was not aware of Midge Decter's passing until aaall mentioned it. I just read the NYT obituary. The obit focuses on her criticism of the women's liberation movement but spends less time on her opposition to the gay rights movement, encapsulated in a notorious Commentary article from, iirc, the early 80s. Toward the end of the obit it quotes Gore Vidal's description of her as "a virtuoso of hate." Really not too far off the mark, istm.
ReplyDeleteMarc Susselman wrote
ReplyDeleteIf there be a hell, I highly doubt that either Joseph Leo or Midge Decter have been condemned to spend eternity there. Joseph Leo was a stalwart defender of free speech and held contempt for the dominance of politically correct speech on college campuses, a cause with which I agree.
There you go: God is great and Marc Susselman his prophet!
Affinity with Marc Susselman is the criterion to decide who goes or not to hell. I used to believe it was fulfillment of the Lord's commandments.
But, of course, one and the other are the same thing. :-)
PS,
Marc, one more reason for you to volunteer to fight in Ukraine. You'll come back as a battle-hardened warrior and war hero. Handy in the new Civil War, uh?
No one is going to burn in hell. There are no sins, although there are crimes, that is, violations of the law including international law.
ReplyDeleteI thought, mistakenly, that one of the things that distinguishes "us" (there also is no "us") from "them" (there seems to be a "them") that we're not fundamentalists, we don't condemn others to hell, we debate the issues rationally or at least try to, we don't divide the universe into "pure" ones and "impure" ones.
B. L. Zebub,
ReplyDeleteMy better nature tells me that I should ignore you and follow the counsel of others not to feed trolls such as you. Oh well. I am curious, however, how you reach the conclusion that aaall, who is the individual who condemned them to hell, is not claiming to be God’s prophet, but I, who asserted that they do not deserve to be condemned to hell am thereby acting as God’s prophet? Where is the logic in that? Oh, right, you are a jackass and unable to think logically.
s.w., I don't know how things are in Chile but up here things are way beyond rational discussion. Next two elections go south and we are Pinochet adjacent. Anyway (and sadly) I can't condemn anyone to much of anything, I can only judge and hope (Buddhists, Christians, or Hindus - at least one might be right). It would be cool to have a friend like this:
ReplyDeletehttps://southpark.cc.com/video-clips/ivbdif/south-park-you-are-the-bad-guy
I don't resonate to pure or impure but if you follow the recent goings on in state legislatures over CRT, LGBQT, elections, and reproductive care it's pretty clear that folks on the right are wired wrong.
MS, as you were dissed as a prophet perhaps there's a bear in BLZ's future.
Anonymous,
ReplyDeleteChile is very tribal. The 1973 coup was an act of aggression by the "bad" tribe against the "good" tribe.
I'm with the "good tribe". I worked in human rights full-time from 1985 to the end of the dictatorship in 1989.
That tribal split is still there. The coup and dictatorship left a wound which will take generations to heal, if it ever heals.
While I'm with one tribe, tribalism turns me off. It makes people stupid, dogmatic and sanctimonious. Both tribes even seem to have a certain semi-conscious interest in prolonging the tribal conflict. I have my tribal days to be sure, but all in all, while I am a member of the left tribe, I'll continue to militate against tribalism, dogmatism, moral self-righteous and fundamentalism wherever I find them.
s. wallerstein,
ReplyDeleteI respect your point of view and your hostility towards dogmatism and fundamentalism. I would just point out that even within tribes, there are members who support the position of the tribe not out of dogmatism, but because they have analyzed the issues and have concluded that the cause of their tribe is the more rational, just, and fair cause vis a’ vis other tribes. By virtue of that analysis and conclusion, they support and advocate the cause of the tribe with a fervor and dedication which may appear to be dogmatism, but which is necessary if the cause of the tribe is to succeed over the cause of the opposing tribe(s). As Donne wrote, no man is an island. No one can improve the world acting in isolation, and joining with others in support of the more rational, fair, and just cause is necessary if that cause is going to have any hope of succeeding, and they have to demonstrate their support of the cause with a fervor and dedication which some may mistake for dogmatism.. The trick, I think, is, while acting with the other members of the tribe, to keep one’s eye on what about their cause makes it the more rational, just and fair than the cause of the opposing tribe(s). Although I used to have contempt for Liz Cheney as a right-wing dogmatist, for example, she has demonstrated her independence of thought and the ability to avoid the dogmatism of the tribal Republicans, and has earned my respect. I guess I am saying that you should not assume that because an individual fervently supports the cause of a particular tribe, it does not necessarily mean that the individual is a dogmatic tribalist.
Marc,
ReplyDeleteI agree that one tribe is more just than the other. I'd also say that one tribe is more caring than the other and that counts too.
For me it's a question of mental health. All of us "get off" on belonging to a greater cause. We feel part of something larger than our own petty daily neurotic worries and hang-ups. The sense of moral superiority feeds our egos, and our indignation at the other tribe pumps up the adrenaline, giving us a drug rush that lasts longer than a shot of whiskey.
Belonging to a tribe is an addictive drug and like all addictive drugs, helps us escape from ourselves, but finally we have to come down and face ourselves, our relationships with partners, children and neighbors, etc. So in the interests of our own mental health and self-awareness (which for me is an important virtue) I find it wise to have one foot in the tribe and the other in my own kitchen. That's hard to do and I don't always manage it myself.
Marc Susselman,
ReplyDeleteI am reminded of several recent discussions here related to your having proposed a set of scenarios for consideration that you assumed everyone would agree involve immoral, even monstruous, behavior. The fundamental problem there was that you failed to account for the fact that, as you explain here, people absolutely do recognize differences between "us" and "them," and that while everyone would agree that it would be immoral to treat someone who is part of one's own group in those ways (eg "to dismember a human being while the human being is still alive and conscious"), there are many who would say that treating someone who is an "other" in those ways could be moral, depending on the circumstances.
If someone recognizes a 15-week-old conceptus as one of "us," then in that someone's view, taking any action intended to harm the conceptus is the same as (in your words) bashing in the skull of a newborn that has just been born. If someone views people who worship a different deity (or who worship the same deity but in a "foreign" way) as "other," it can result in them justifying as moral the enslavement or even extermination of those others:
"The Lord spoke to Moses saying, 'Take revenge for the children of Israel against the Midianites; afterwards you will be gathered to your people.' So Moses spoke to the people, saying, 'Arm from among you men for the army, that they can be against Midian, and carry out the revenge of the Lord against Midian.' ...
They mounted an attack against Midian, as the Lord had commanded Moses, and they killed every male. ... The children of Israel took the Midianite women and their small children captive, and they plundered all their beasts, livestock, and all their possessions....
Moses said to [the officers of the army], 'Did you allow all the females to live? They were the same ones who were involved with the children of Israel on Balaam's advice to betray the Lord over the incident of Peor, resulting in a plague among the congregation of the Lord. So now kill every male child, and every woman who can lie intimately with a man you shall kill. And all the young girls who have no experience of intimate relations with a man, you may keep alive for yourselves.'"
Numbers 31
___
"When the Lord, your God, brings you into the land to which you are coming to possess it, He will cast away many nations from before you: the Hittites, the Girgashites, the Amorites, the Canaanites, the Perizzites, the Hivvites, and the Jebusites, seven nations more numerous and powerful than you.
And the Lord, your God, will deliver them to you, and you shall smite them. You shall utterly destroy them; neither shall you make a covenant with them, nor be gracious to them.
You shall not intermarry with them; you shall not give your daughter to his son, and you shall not take his daughter for your son.
For he will turn away your son from following Me, and they will worship the gods of others, and the wrath of the Lord will be kindled against you, and He will quickly destroy you.
But so shall you do to them: You shall demolish their altars and smash their monuments, and cut down their asherim trees, and burn their graven images with fire.
For you are a holy people to the Lord, your God: the Lord your God has chosen you to be His treasured people, out of all the peoples upon the face of the earth."
Deuteronomy 7
Eric,
ReplyDeleteI question why you have raised this issue in the context of my dialogue with s. wallerstein, but, in any case, without getting into a long and complicated theological discussion with you about the passage you quote, I would agree, and I think most people would agree – including most Jews other than, perhaps the ultra-Orthodox – that what Hashem purportedly ordered the Israelites to do in the passage you quote was immoral. In any event, what is described in that passage never occurred. The general consensus among biblical scholars, including Israeli biblical scholar, is that the passage was written by scribes in Babylonia after the southern kingdom of Judea was conquered by the Babylonians in 586 B.C.E. and the Hebrews were enslaved and exiled to Babylon. The scribes wrote this and other passages in order to give the exiled Hebrews hope that one day Hashem would allow them to return to Judea, and to what had been the northern kingdom of Israel, which had been conquered by the Assyrians. And it was King Cyrus, the founder of the Persian empire, who conquered the Babylonians and allowed the Hebrews to return to Judea and build the Second Temple.
If your point is that different tribes have different views of morality, that is obvious. But I stand by the examples I offered as examples of immoral conduct, regardless whether there may be those who dissent. By the way, maintaining that it is immoral to bash in the skull of a healthy, newborn human child in no way is a comment on the morality or immorality of aborting a fetus at any stage in it development before it is born. The fact that Justice Alito disagrees with me does not detract from my position that bashing in skull of the child after s/he is born is immoral.
None of this has anything to do with s. wallerstein’s observation that tribal thinking can often lead to irrational dogmatism. My point was that within certain tribes there are individuals who, at the same time that they support the tribe’s cause with vigor and dedication, it is not necessarily the case that by so doing they can automatically be labeled irrational dogmatists.
Marc Susselman: I stand by the examples I offered as examples of immoral conduct, regardless whether there may be those who dissent.
ReplyDeleteIt is an example of immoral conduct as you define immoral conduct. But why should other people be expected to agree with your opinions on morality?
Marc Susselman: maintaining that it is immoral to bash in the skull of a healthy, newborn human child in no way is a comment on the morality or immorality of aborting a fetus at any stage in it development before it is born
Missing the point entirely. You do not accept the fetus as part of the in-group, so termination of its existence is not immoral in your view; you do view a newborn as part of the in-group, so terminating its existence is immoral in your view. For those who call themselves "pro-life," the fetus is as much a part of the in-group as the newborn is.
Marc Susselman: I think most people would agree – including most Jews other than, perhaps the ultra-Orthodox – that what Hashem purportedly ordered the Israelites to do in the passage you quote was immoral.
Biblical scholars writing today, you, and most Jews other than perhaps the ultra-Orthodox have your own views of what is moral. But apparently someone else had a very different view than you, and committed their view to scripture. And many people, including many who are not Jewish, continue to believe that these acts of genocide that were allegedly mandated by God were moral.
So, again, your examples of immoral acts depend on your universalizing your own views of morality, in which, apparently, all human beings from the moment of birth should be considered part of an in-group whose members cannot morally be enslaved, tortured, etc. It shouldn't be hard to see that not everyone agrees, or has agreed in the past, with that view of who should be included in the in-group.
As for why I raised this point now, it occurred to me a week or so ago that the problem with your examples involved failure to see the significance of us-vs-them when it comes to morality, and I had planned to bring it up if the topic came up again and I had a bit of free time. Prof Wolff's blog posts in the interim weren't really relevant. It was only now that the more recent discussions in the comments both on abortion rights and on us-vs-them made the topic relevant again.
Eric,
ReplyDeleteYou are, I believe, wrong in your claim that whether proposition x regarding the treatment of other human beings depends on whether the other human beings belong to the in-group. The in-group, in all of my examples, with the exception of my example of torturing animals, is the group of human beings. And the test I would apply is the-shoe-is-on-the-other-foot test. If any human being claimed the it is not immoral to enslave other human beings, I would say, fine, then we will enslave you and see if you object. And it bashing in the head of a healthy newborn is not immoral, then we take one of your newborns of yours, and of your relatives and of your friends, and bash their heads in, and see if you object. Etc. This is just the Golden Rule put into practice, and as soon as someone threatens to ignore the Golden Rule’s application to those who are amoral, they all of sudden recognize the validity of the Golden Rule.
You are, or claim to be, a moral nihilist. Perhaps we should make you the first candidate. Care to be enslaved?
Post-script:
ReplyDeleteEric,
And for a guy who claims there are no legitimate moral judgments, you seem to post a lot of comments purporting to judge the moral values of others. For example, on Dec. 21, 2021, you wrote the following:
“And don't get me started on Gore's vice presidential nominee, Joe Lieberman, for whom you Nader-haters apparently voted. Lieberman had been hankering for a military asssault on Iraq even before Gore chose him for the ticket. Lieberman continued to support Bush's Iraq war effort during his own presidential campaign in 2003.”
If there are no valid moral judgments, including your own, on what basis did you criticize Joe Lieberman’s views on invading Iraq? If there are no valid moral judgments, on what basis was the invasion of Iraq “wrong”? On what basis is the killing of innocent civilians “wrong”? On what basis are your repeated criticisms of the Democrats on this blog “correct” or “morally justified”? There is a word for people like you who speak out of both sides of their mouths. The word is “hypocrite.”
Marc,
ReplyDeleteWe've been through this at least 10 times before and I can't speak for Eric, but it's not necessary that objective moral principles exist for me to make moral judgments.
I can judge the invasion of Iraq to be wrong because first of all, it's a violation of international law, but above all, because I, as a person, have certain ethical commitments which do not depend on morality being objective, but on the books I've read, the way I was educated, the people I've talked to, my unconscious psychological makeup, my genes, the zeitgeist, etc.
To follow what Richard Rorty says in the book Contingency, Irony and Solidarity, which I previously discussed in my conversation with Professor Zimmerman, I'm a "liberal ironist", that is, someone who recognizes that his or her basic principles are contingent (on all the factors I outlined above and possibly others), yet goes on acting on them because they are his or her principles, not because they are otherwise objective.
We've been through this so many times that I'm not going to argue about with you, but I wanted to state my position. Eric may differ from me of course.
s. wallerstein,
ReplyDeleteAll you have offered is an empirical explanation of how you have come about to have the values you have by virtue of which you render moral judgments. It says nothing about whether your moral judgment have, or not have, any validity. And a person who claims that moral judgment are entirely personal and idiosyncratic has no business making judgments purporting to be moral judgments, which you do even more often than Eric.
Marc,
ReplyDeleteIt´s funny but a philosopher as important as Brian Leiter, a member of the faculty of the University of Chicago, is a moral anti-realist and much of what I say comes from two of his books which I have read. Leiter makes moral and political judgments all the time in his blog, Leiter Reports, and is highly estimed among professional philosophers.
Sorry,
ReplyDeleteEven a highly esteemed academic/philosopher can be a hypocrite. Relying on such a person's arguments is not a substitute for rational argument.
And here is my reductio ad absurdum argument proving my position:
ReplyDelete1. Assume that there are no valid moral judgments.
2. All moral judgment are no more than the expression of one’s personal preference, the result of one’s life experiences, with no validity whatsoever.
3. I believe that conduct x is morally wrong and ought not be engaged in by other human beings.
4. Proposition (1) is therefore necessarily false.
Q.E.D.
"...morality is determined by sentiment. It defines virtue to be whatever mental action or quality gives to a spectator the pleasing sentiment of approbation; and vice the contrary."
ReplyDeleteDavid Hume
And here is an alternative version, to address your reliance on international law.
ReplyDelete1. Assume that there are no valid moral judgments.
2. All expressions of international law purport to assert what constitutes right and wrong conduct by nations in their interactions with one another.
3. To say that conduct x by a nation is right, or is wrong, is a moral judgment.
4. The invasion of Iraq by the United States and its allies, resulting in the death of thousands of innocent civilians, violated international law and was therefore “wrong” in a moral sense, not simply in a legal sense.
5. Proposition (1) is therefore necessarily false.
Q.E.D.
According to the strict definition of a reductio absurdum argument, as Prof. Wolff pointed out regarding the reductio absurdum argument I offered several months ago, the subordinate propositions must follow from the first proposition and result in a contradiction. So here is a modification of my last argument to conform to the strict form of a reduction absurdum argument.
ReplyDelete1. Assume that there are no valid moral judgments.
2. Any expression of international law is not an assertion of morally right or wrong conduct among nations, but only an arbitrary assertion of law.
3. To say that conduct x by a nation is right, or is wrong under international law, is not a moral judgment that they should not engage in that conduct for moral reasons.
4. The invasion of Iraq by the United States and its allies, resulting in the death of thousands of innocent civilians, violated international law, but was not therefore “wrong” conduct in a moral sense, but no more than the violation of an arbitrary principle of international law.
5. Proposition (4) is erroneous.
6. Proposition (1) is therefore necessarily false.
Q.E.D.
David Paometer,
ReplyDeleteI disagree with David Hume. Horrors! How dare I disagree with David Hume.
Marc,
ReplyDeleteI'm not a philosopher and haven't read a lot of the relevant works, but I would suggest the following: I'm not sure validity in this context is the same as objectivity, but you seem to be treating the two words as synonymous.
For example, I would maintain that the moral judgment that bashing in the head of a newborn is wrong is a valid moral judgment, in the sense that it reflects what any person with what one might call a minimally moral perspective on the world would agree with.
But a valid moral judgment need not be objective in the sense of belonging to a category of Truths that exist in some pristine conceptual cupboard or drawer that one can open and find a set of objective Truths in, the way you can open a desk drawer and find a pencil, or a kitchen drawer and find some silverware.
In other words, valid moral judgments exist *in the world* and their validity derives in part from their consonance with a recognizably "human" sense of right and wrong, a sense that may have some biological or evolutionary roots (or not -- I'm not sure). But that sense of right and wrong does not need any further "grounding" in an argument about objective morality, or at least it's not patently unreasonable to suggest that it doesn't.
That's why someone like Leiter or s.w. or anyone else who is not a moral "realist" can make moral judgments without being hypocritical: they are making moral judgments that they see as valid, even though they don't claim that they're objective.
LFC
ReplyDeleteYou're echoing David Hume, as do I.
I've never really read Hume, so that's nice to know ;)
ReplyDeleteYou may be interested that Leiter, in his book Morality Psychology with Nietzsche, finds a lot of similarities between Nietzsche and Hume in their naturalism and their moral anti-realism. Leiter believes that Nietzsche is a superior moral psychologist to Hume and presents a lot of contemporary empirical psychological research to show that.
ReplyDelete"...the moral feelings are a normal feature of human life."
ReplyDelete- Rawls, _A Theory of Justice_ (1st Ed.), p. 487
This is my response to David, LFC, s. wallerstein, and I assume Leiter:
ReplyDeleteI use the terms “valid moral judgment” and “objective moral judgment” interchangeably, and believe they are equivalent. My online dictionary defines “objective” as follows: “ (of a person or their judgment) not influenced by personal feelings or opinions in considering and representing facts.” The fact that what one regards as a “valid moral judgment” is influenced by one’s upbringing, social influences, etc., does not detract from their being objective. In order for them to be valid, they necessarily must be objective. Hume’s assertion that all moral judgments are no more than the expressions of one’s personal preferences, and therefore have no objective validity, is just his ipse dixit. Just because David Hume wrote this, as distinguished and respected a philosopher as he is, does not entail that what he believes is unequivocally, undeniably true. Why should an ipsi dixit by David Hume have any greater validity than an ipsi dixit by anybody else? It is my position that a moral judgment can be as valid and objective as an axiom in geometry, which need not be proved and is assumed to be true.
The rejoinder that the moral judgment that basing in the head of a healthy newborn human child is just the assertion of my nonobjective belief and can not have the same validity as the axiom that the shortest distance between two points is a straight line is rebutted by LFC’s recognition, “that sense of right and wrong does not need any further "grounding" in an argument about objective morality, or at least it's not patently unreasonable to suggest that it doesn't.”
s. wallerstein’s anticipated rejoinder that my proposed moral judgment cannot be valid, because there have been societies which routinely killed infant girls by leaving them exposed to the elements to perish. Their belief that this was not wrong or immoral is not the equivalent of believing that the shortest distance between two points is a straight line. My rejoinder? I suspect that there are people who would deny the axiom that the shortest distance between two points is a straight line, because they are incapable of rational thought. A society in which its members routinely – perhaps over the strident objections of the mother – leave its baby infant girls out in the elements to die are likewise incapable of rational moral thought. After all, these same people believed that there was a panoply of human like gods – Zeus, Hera, Athena, Demeter, Apollo, etc., who behaved like humans, but who also had supernatural powers. Why should they be credited with having rational moral thought?
(Continued)
The rejoinder that who then, is to determine whose moral judgments are the real, valid moral judgments given the panoply of different moral judgments offered by different societies? Those who believe that the dictates by Hashem in Eric’s quotation from Deuteronomy are valid moral judgments, I would say to them, “Fine, then let’s subject your family to death and see if you object.” I could offer as a defense to the moral judgment that it is immoral to leave infant girls exposed to the elements to perish that it is immoral because such a death causes the infants pain, and it is immoral to gratuitously cause pain to humans, of any age. However, there are some infants who are born with a neurological disorder which prevents them from feeling pain, so according to my moral judgment there is nothing immoral about leaving such children exposed to the elements to die. So, I have to revise the moral judgment to something more basic: It is immoral to deliberately take the life of any human being without a rational justification. What is a rational justification? Self-defense is rational – if someone threatens to take your life, you have the right to defend yourself and take that person’s life instead. You do not have the right to take a person’s life who has not threatened your life, but has, rather, stolen your car.
ReplyDeleteA right-wing racist might retort, I believe it is immoral for people of different races to engage in sexual intercourse – it is immoral for an African-American woman and a Caucasian man to engage in sexual intercourse. When challenged for the rational basis for this moral judgment, the right-wing racist just repeats, “It is immoral for people of different races to engage in sexual intercourse, period.” That, I respond, is not a rational reason. It is an ipsi dixit. Why, then, the racist responds, is it immoral to deliberately take the life of any human being without a rational justification? This is just your ipsi dixit. No it is not, I retort, because imbedded in the moral judgment is the requirement that it be justified by rationality, the capacity for which is what distinguishes the human species from all other species. A chimpanzee who arbitrarily kills a rival chimpanzee who is challenging the former’s right to be the alpha chimpanzee has not acted immorally. Chimpanzees, and all other species, are not capable of moral or immoral behavior. Asserting that it is immoral for members of different races to engage in sexual intercourse is not based on any rational justification, and therefore is not a valid, nor an objective, moral judgment.
The rejoinder, well, MS all you are doing is substituting what you believe is rational for what others believe is rational. Your argument is circular. Unless there are valid moral judgments which can be rationally justified, then there are no valid moral judgments, and we are all in a terrible state of affairs. None of you who make routinely make moral judgments on this blog regarding Trump’s behavior, the behavior of the Republicans, the right of Russia to defend itself against the existential threat presented by the expansion of NATO, etc. etc, have a rational right to make such judgments, and you are all hypocrites. And to respond by saying, Well, no, our criticisms are not intended to be moral judgments, they are just our opinions which are derived from our personal preferences, which are in turn the product of our upbringing and the social environment in which we live – like the fact, as s. wallerstein pointed out the he, by chance, had a friend who introduced him to certain writings which influenced how he thought in the future – if that is all your opinions are based on, then none of them deserve to be given credence as offering alternative forms of conduct which should have been followed instead of what actually occurred. Recommending that something else “should” have been done is a moral judgment.
MS, how do you establish the fact that a moral judgment is valid or objective? (In two or three sentences, if possible.)
ReplyDeleteDavid,
ReplyDeleteI can say no more than that it is self-evident to a rational thinker, just as the axiom that the shortest distance between two points is self-evident.
It is self-evident that bashing in the skull of a healthy newborn human child is immoral is self-evident. Enslaving another human being, requiring that the individual perform work for his/her owner against his/her will, without being financially compensated, is immoral. That it is moral to forbid individuals of different races to engage in sexual intercourse is not self-evident.
Those who claim that the two moral judgments above are not self-evident are being disingenuous.
Correction:
ReplyDelete"... that the shortest distance between two points is a straight line is self-evident."
I haven't read Hume's ethical writings, so I'm just responding to the quote from a few comments above; it wouldn't surprise me to learn that Hume already addressed these points:
ReplyDeleteI'm not sure that anyone "really" believes that moral actions are simply those that elicit a pleasing sentiment of approval from the spectator. I would expect the spectator to admit, if pressed, that from her point of view, there's a difference between saying "It displeases me to see acts of theft" and "Theft is immoral" - after all, it seems very likely that she would also wish to say "Theft is immoral regardless of how I happen to feel about it." (E.g., "Even if I had never been born, theft would be immoral.")
I can't think of any reason the spectator would be reluctant to say this, unless she happened to be troubled by metaethical worries which inclined her to "settle" for the Humean position, thinking it less philosophically objectionable than the alternative. (The alternative might conjure up an image of someone aping Socrates out of a naive expectation that philosophical argumentation can change the attitudes of bullies, or purify their souls of evil, or whatnot.)
Also, it seems easy to think of actions that we condemn "in the abstract" or even out of mere habit, without actually experiencing any guttural sense of "boo, disapprove!" - like when reading fiction or ancient history. But I doubt that Hume would be especially worried by this sort of thing; he might've found an easy way to accommodate it, or he might have treated it in the same spirit as the "missing shade of blue" case. ("...this instance is so singular, that it is scarcely worth our observing, and does not merit, that for it alone we should alter our general maxim.")
But at the end of the day, it might well be that the Humean position (or something like it) is the one that's closest to the truth, or least problematic. I don't have time to elaborate at the moment - mainly wanted to point out some difficulties.
Marc,
ReplyDeleteI share your conclusions as to the morality of the examples you give, but I don't see how you or I could prove to someone else that the contrary is immoral in the way that we could prove that water does not boil at 50 degrees. As to your second example, requiring people to work without compensation, well there were many Americans who thought there was noting immoral about it. In fact, by converting their slaves to Christianity and eternal life in heaven (with no work) they believes they were doing them a favor.
Your example of crushing a child's head certainly would be seen by most people as immoral. But that doesn't make it an objective fact. It just means that most people feel that way. What we approve of we say is moral; what we disapprove of we say is immoral.
What better example is there than abortion? Many people sincerely see it as immoral; many don't. Which view is objectively true and why? Why is it more than personal feelings of approval or disapproval?
It's weird to claim that the ancient Greeks were not capable of rational thought. There's as much evidence for the existence of Zeus and Hera as there is for Jehovah and the Virgin Mary.
ReplyDeleteAnd here we are talking philosophy when the father of Western philosophy was Plato and I do believe that Plato has the capacity for Western thought. Greek tragedy, such as that Sophocles and Aeschylus does appear to come from rational thinkers and Thucydides is a lot more rational when he comes to analyzing international affairs than most journalists on CNN today.
s. wallerstien,
ReplyDeleteI can't believe that you are seriously offering this argument. Are you claiming that people who often think rationally are incapable of irrational thought regarding any topic?
.David,
ReplyDeleteI don’t agree that because people living in the Confederacy thought it was morally OK to enslave people based on their race because by converting them to Christianity they were actually doing them a moral favor disproves that what they did was self-evidently immoral. And the fact that I cannot prove this to them, the way that I can prove the boiling point of water, does not detract from my position. Moral judgments are not subject to the same form of proof as scientific judgments, the same way that I cannot prove to an irrational person that the shortest distance between two points is a straight line, no matter how many times I draw straight lines and demonstrate there is no other line which joins the two points which is shorter. I do not have to demonstrate to people who are biased, or racist, or amoral, or nihilistic, that it is self-evident that it is immoral to enslave other human beings based on their race.
I would note that all of the proposed moral judgments which I have offered are prohibitive, not prescriptive. Rationally justifying prescriptive moral judgments, e.g., one has a moral obligation to intercede in order to prevent the enslavement of another, is more difficult than identifying and justifying prohibitive moral judgments. But I believe if we can agree on what constitutes a valid prohibitive moral judgment, that is a big step in and of itself.
Regarding abortion, the basis premise at issue is whether a human being has the right to control over his/her own body. Is it immoral for me, if I wish, to self-amputate one or both of my legs, as long as I seek medical attention in order to prevent the bleeding from causing my death? I believe that no rational human being would claim I do not have the right to commit self-amputation as long as it does not result in suicide (putting aside the morality of suicide). So, at what point during the pregnancy does a woman lose the right of control over her body? Those opposed to abortion in its extreme form would say she loses that right at conception, that a zygote as the same right over control over its body without interference as the mother does. I would argue that this is an irrational argument – why would a zygote, which has no brain to speak of, no spinal cord, no arms, no legs, etc., have as much of a right over control over its body without the interference of the mother as the mother has the right of control over her body? If they insist they are right, I dismiss them as being irrational – it is not my obligation to convince irrational people of the irrationality of their position. The next question is, at what point of the development of the zygote, to embryo, to fetus does the right of the embryo or fetus of control over its body equal the right of the mother to control her body, and why? The answer to this question must be subject to rational analysis, and not merely some theological belief, which is prohibited by the 1st Amendment’s prohibition against the establishment of religion. I maintain that Alito’s leaked Opinion is a rationalization for constitutionalizing his Catholic faith, and therefore violates the 1st Amendment.
(Continued.)
By the way, this distinction marks the difference between the Jewish version of the Golden Rule – Do not do onto others that which you would not want done unto you – from the Christian version of the Golden Rule – Do unto others as you would have them do unto you.
ReplyDeleteOf the Ten Commandments, eight are prohibitive, and two are prescriptive.
• You shall have no other God's before me.
• Thou shalt not make unto thee any graven images. ...
• Thou shalt not take the name of the Lord thy God in vain. ...
• Remember the Sabbath day and keep it Holy. ...
• Honor your father and mother. ...
• Thou shalt not kill. ...
• Thou shalt not commit adultery. ...
• Thou shalt not steal.
• You shall not bear false witness against you neighbor.
• You shall not covet.
I do not maintain that all 8 of the prohibitive Commandments are valid moral judgments. Moreover, there is also the argument that each of the prescriptive Commandments can be reworded as prohibitive Commandments, i.e., Do not not remember the Sabbath day and keep it Holy; Do not not honor your father and mother. I am not now prepared to address this issue, since I have other professional demands on my time.
As I'm sure many of the commentators here are aware, there was a brief efflorescence of thinking about rationality and irrationality among Anglo-American philosophers in the late 1960s, and a major aspect of which involved reflections upon the material presented in Evans-Pritchard's Witchcraft, Oracles and Magic among the Azande (1937). I mention this because it seems to me that some of the points at issue here on morality and rationality were also discussed therein, and sometimes with the same feel of clash of hardened positions. The issues are of course very complex, too complex (for me) to address in a blog comment. But to me it's always salutary to remember that, after having tried some of the decision-procedures of the Azande, Evans-Pritchard concluded that looking at some chicken entrails to determine which day you should go to the market is a perfectly serviceable way of making decisions and living one's life.
ReplyDeleteProf. Rapko,
ReplyDeleteI am not familiar with Evans-Prtichard , or his work entitled Witchcraft, Oracles and Magic, but I will check on Amazon to see if there is a reasonably priced copy available.
Let me, say, however, that anyone who would propose that “looking at some chicken entrails to determine which day you should go to the market is a perfectly serviceable way of making decisions and living one's life” is not, in my opinons, an exemplar of rational thought. I assume he made this comment with tongue in cheek.
Marc,
ReplyDeleteNone of what you say makes a moral judgment objective. What's an objective fact is that you believe something is or is not moral. That doesn't determine whether it is in fact, objectively moral. You have your justification for when life begins and when, therefore, abortion is immoral. It is an objective truth, as true as the fact that water freezes below 32 degrees, that many share your view. It's also an objective truth that many do not.
David Palmeter,
ReplyDeleteI agree with you.
Please correct me if I'm wrong but my impression is that Professor Wolff is also a moral anti-realist.
He has told the story of trying to find an objective basis for his ethical and political ideals and not getting anywhere and then one day a student suggested to him that it's simply a question of deciding which side you are on. It's a commitment (as Sartre would say) or a choice. That suggestion from a student, Professor Wolff said, was a sort of revelation or epiphany and he realized that finally, one decides which side one is on without any metaphysical or objective basis beyond all the many real-life, empirical factors that make up one's decisions.
David,
ReplyDeleteI cannot spend much more time on this issue.
Regarding abortion, it is an objective fact that a zygote is a form of life, just as much as it is an objective fact that a paramecium is a form of life. Neither, however, is a form of human life – this is an objective, and not dependent on how anti-abortionists define “human life.” To the extent that they argue that a zygote represents a form of human life they are objectively wrong. It represents “a potential human life.” The 14th Amendment protects the life and liberty of persons – actual persons, not potential persons. So then the argument becomes when does the potential human life of the zygote become an actual human life, and therefore a “person” entitled to protection under the 14th Amendment. This question is also subject to rational, objective analysis. How can a fetus, which has not brian, no central nervous system qualify as nothing more than a potential human being, when it is that brain, and that central nervous system which distinguishes the human species from paramecia, from plants, from fish, from lizards and reptiles; from other mammals, including other primates, such as the great apes? When that differentiation in the brain and central nervous system occurs is an objective fact, and until it occurs the potential human life is not an actual human life entitled to the protection of “persons” under the 14th Amendment. This is not an argument based on my personal preference, or your personal preference, or the personal preference of probably dissenting Justices Breyer, Kagan and Sotomayor. It is based on objective fact. That others do not accept these facts as objective facts does not mean that they are objective facts. It means that they are being intellectually disingenuous, and intellectually disingenuous arguments, despite their occasional success in the Supreme Court, does not make them any less disingenuous.
Regarding your comment about what constitutes an objective “truth.” Yes, it is an objective truth that I believe that bashing in the skull of a healthy, newborn human child is immoral. This is an objectively true statement about what I believe. The fact that the statement about my belief is objectively true does not entail that necessarily the belief itself is no more than a belief which itself is not objectively true, anymore than may believing that the shortest distance between two points is a straight line entails that the belief itself is not objectively true. That belief is objectively true because it is self-evident, regardless how many people may be unable to comprehend that it is self-evidently true. By the same token, my belief that bashing in the skull of a healthy, newborn human child is immoral is self-evident, regardless how many people may not accept that it is self-evident.
I’m done. I have other professional obligaitons calling out to me.
I just read s. wallerstien’s comment about what he extrapolates is Prof. Wolff’s view on the issue. He may or may not be correct about his conclusion that Prof. Wolff is ant anti-realist on the issue of moral judgments. With all due respect to Prof. Wolff, I don’t see that it makes a difference. He has expressed numerous convictions on the blog regarding the reprehensible conduct of former Pres. Trump, of the Republicans, of Russia’s invasion of Ukraine. I suspect that he believe that all of these convictions are not just expressions of his personal preference, but that they are objectively true. These assertions imply that the individuals who acted as they did, whose actions he has criticized, should have acted otherwise. Why should they have acted otherwise? Just to please Prof. Wolff? I don’t believe he believes that.
ReplyDeleteAll of this stems form the presupposition that whatever one believes, that belief must be subject to some sort of proof. I submit that this is nonsense. The axioms of Euclidean Geometry are not subject to proof. We believe them because they are self-evidently true, regardless of one’s preference. Why cannot other, non-mathematical beliefs about human conduct also be self-evidently true, like that bashing in the skull of a healthy, newborn human child is an immoral act?
Here I stand. I can do no other.
On the Alito draft opinion, I've made this point before but it seems worth making again. He does not have to address the question of "personhood" for purposes of getting 5 votes for this opinion because a glance at the first pages is enough to see that he's going to maintain that a woman has no constitutional right to an abortion, period.
ReplyDeleteIf the holding is that a woman has no constitutional right to an abortion, period, then the Alito opinion does not have to explicitly balance competing interests (the woman's vs. the fetus's), because, on its view, there are no competing interests to balance. So the Alito opinion does not have to get into the question of whether a zygote is a "person" under the 14th amendment or just "potential human life." If the holding is that a woman has no right to an abortion, then the question of the exact status of the fetus is irrelevant to the holding, especially if it's arrived at by historical (or pseudo-historical) analysis purporting to show that the right to an abortion is not "deeply rooted in the nation's history or traditions."
To be sure, the question of personhood is relevant to the philosophical/moral issues surrounding abortion, but the (apparent) structure of the Alito draft is such that he doesn't have to address it.
Marc, As you implicitly acknowledge in your phrasing, I did not say that consulting chicken entrails is 'rational', only presumptively 'serviceable', at least in the context of one way of living. As I said, I find the issues too complex to comment on in this context, but, well, okay, how about this: Without attempting to justify the claim, it seems to me that ascriptions to actions of morality/immorality or rationality/irrationality without consideration of context typically involve impoverishing distortions of human life, in at least two ways: (a) they assume that there is a kind of systematicity to such ascriptions by virtue of their place among indeterminately many other judgments, and that the system (of morality or rationality) as a whole is governed by one or a small number of ultimate values; and (b) they assume that such ascriptions are made (i) as the result of some small number of patterns of reflection and reasoning, themselves again specifiable without regard to context, and (ii) that the results of such processes of reasoning and reflection are sufficiently determinate to apply without further qualification to some action, itself sufficiently determinate to anchor securely such ascription.--Again, this is an area of great complexity, but if one accepts my points (themselves quite obscure and asserted without argumentation), then picking out certain actions and declaring them '(im)moral' or '(ir)rational' per se is not a fruitful way of orienting oneself towards the world. A further problem is the question of addressee: to whom does one imagine oneself addressing such ascriptions, and under what circumstances does one imagine such ascriptions are persuasive: In a seminar room? To the Gestapo at the door? --Of course I know that you will find this unconvincing.--It seems to me that most of the world's moral 'systems', as they are actually lived, share something of the form of 'Do not covet thy neighbor's wife, although by all means rape and enslave thy neighbor's neighbor's wife'. About the only moral systems known to me that in practice avoid the 'although' and so are consistent are the admirable ones of the Buddha and of the sky-clad Jains.--One way of responding to such considerations would be lessen one's concern for whether an action is rational or immoral, and focus instead on whether the action is helpful or kind or beautiful or serviceable.--I continue to think that a fruitful way into the issues is anthropological reflection, such as Dan Sperber's essay 'Apparently Irrational Beliefs': http://www.dan.sperber.fr/wp-content/uploads/1982_apparently-irrational-beliefs.pdf
ReplyDeleteHuman culture isn't so binary. There's isn't a a stark binary division where on the one hand, morals are objectively true like water freezes at zero degrees centigrade and on the other hand, morals are personal preferences like I prefer my coffee with milk, especially soy milk.
ReplyDeleteJust like there's a general collective agreement that Shakespeare is a great poet and that Mozart is a great composer, there's a general collective agreement these days that slavery is wrong. In addition, among those of us on the left there's a general collective agreement that women should have the right to choose over the question of abortion. That's not a personal preference of mind, it's the collective wisdom of a fairly large sector of humanity with which I generally identify. That's the side I'm on.
That's not because women's right to abortion is an objective truth, but because for me and for many others we identify with the woman's movement, we tend to prefer to pay attention to what women, including the women in our lives, say than to what representatives of male superiority and machismo say. That's all, it's life and life only, as the Nobel prize winning poet says.
my error:
ReplyDeletethat should read "personal preference of mine", not "of mind".
Marc,
ReplyDeleteYou've written paragraph after paragraph, but you haven't addressed the central issue: is there such a thing as an objective moral truth for all people in all times in all places? You make an extended argument regarding abortion and various times during a pregnancy. Those are certainly facts that policy makers must consider, but none is objective in the sense that it is right in any objective sense. You are stating your substantive moral beliefs and the reasons for them. Many people--including me--probably agree with most, if not all of them. You've given good reasons why we should. But you haven't said what it is that makes them objective. I'm still with Hume.
It's worth noting that Kant sought to refute Hume with the categorical imperative. I think the categorical imperative is an excellent guide to what I think human behavior should be, but I don't see it as refuting Hume's more metaphysical point that our moral values are based on our subjective feelings of right and wrong, or, more accurately, whether we approve or disapprove of particular conduct, and not on any non-human value that exists in the universe independent of humans and their feelings.
Would you mind fleshing out that statement about the Categorical Imperative? I'm just curious - I'm not very well-acquainted with Kantian ethics, but in my experience, it takes a bit of work to make the CI sound clear and plausible, without overemphasizing certain of Kant's ethical "quirks" (e.g., never lie, never masturbate, never waive the punishment of a murderer awaiting execution).
ReplyDeleteFrom what I've seen, the "selling points" of the CI are its similarity to the Golden Rule, and to the question that every parent asks their misbehaving child, "What would you think if someone behaved that way toward you?" Plus there's the formulation that has us "never treat people as mere means, but always as ends unto themselves" - the meaning of that isn't 100% clear, but it seems to land in the vicinity of "Don't 'lord over' people and use them for alien purposes."
I also get the sense that Kant wishes to settle these disputes about moral justification and objectivity and so forth by suggesting something along the lines of: Moral deliberation does not (and cannot) take place in a "philosophical vacuum" free of prior commitments - instead, it takes place against a (normally unarticulated) background of presuppositions and tacit understanding, which could in theory be spelled out to show that every rational agent qua rational agent has the same conception of the moral law.
Is that far off? It sounds like good stuff, by the way, but I'm not convinced that there couldn't possibly be an escape hatch of sorts for the Humean: "Sure, on the correct analysis of rational agency, respect for the moral law means never exploiting a fellow person. But so what? Maybe I myself happen to feel indifferent to the idea of rationality."
LFC,
ReplyDeleteYou are wrong. The statement by J. Alito at the beginning of the leaked Opinion is a conclusion. It is not the argument itself. Even as disingenuous as J. Alito is, no Justice of the Supreme Court would begin a decision by stating the conclusion and mean by that, take it or leave it. The rest of Alito’s Opinion is an argument seeking to justify the conclusion that there is no constitutional right to an abortion. He bases his conclusion on two primary analyses – the history of abortion, and his concept of what rights are encompassed within the concept of “ordered liberty.” It is with respect to this latter analysis that I take issue. That analysis ignored the very language of the very language of the 14th Amendment, which protects both the life and liberty interest of persons – not potential persons.
David and s. wallerstein,
ReplyDeleteI am starting to feel like Michael Corleone in Godfather III: “Just when I thought I was out, they pull me back in!”
I have to say that I believe you are both are the victims of some rather confused thinking. Why would a morally objective judgment have to be true at all times throughout the universe? Why would it matter on Alpha Centauri whether how human beings on Earth treat each other is moral or immoral? There is only one universal constant – the speed of light. Even the temperature at which H2O freezes varies depending on the ambient air pressure and elevation. Your precondition that moral judgments must be universally applicable is a specious precondition which makes identifying such judgments infeasible.
Let me offer another reduction ad absurdum argument.
1. No woman has the right to control her own body.
2. Therefore, no woman has the right to decide for herself when she will evacuate her bladder.
3. Therefore, no woman has the right to decide for herself if and when she is going to cut her hair.
4. Therefore, no woman has the right to decide for herself whether to cut off one of her legs.
5. Propositions 2-4 derive from proposition 1, and are absurd.
6. Conclusion 5 contradicts proposition 1, therefore proposition 1 is false.
This leads to the objectively valid moral judgment that a woman, any woman, has the right to control her own body. Does it have to be true on Alpha Centauri in order to qualify as an objectively valid moral judgment? Of course not.
From this objectively valid moral judgment, I derive the argument set forth above that since a woman has the right to control her own body, she has the right to have an abortion up until the fetus in her womb has developed into an entity which is physiologically distinguishable from all other species by virtue of having developed a brain and central nervous system which is physiologically and anatomically unique to human beings.
Would David Hume, whose Enquiry Concerning the Principles of Morals I have read, say that proposition 1 is not a morally idefensible judgment regardless one’s culture, that it is no more than a statement of the preference of certain humans, and nothing more? If he would, I maintain he would be wrong.
Marc,
ReplyDeleteYou quote Michael Corleone, but if you had been born Michael Corleone, who, as I recall, was a devout Catholic of the generation of my parents (and probably yours), you would not agree that a woman has a right to abortion.
Oh Lord, if I quote a movie character I automatically adopt all of his character flaws>
ReplyDeleteMarc,
ReplyDeleteThere are so many posts right now I'm not sure which one I'm replying to. But as to your question above regarding whether David Hume would agree with your first statement, that a woman has control over her own body, misses the point Hume is making.
Your post presents (convincingly so far as I'm concerned) a substantive argument about abortion. Hume isn't dealing with that kind of question. He is not arguing whether that substantive argument is correct or incorrect; he's asking where our view of it--whatever that view is--comes from.
I happen to agree with you on the substance. Where does my agreement come from? In Hume's 18th Century terms, it comes from my approval of what you are saying.
David,
ReplyDeleteHume’s anthropological/sociological analysis of the derivation of our moral judgments says nothing about the objective validity or invalidity of those judgments. My view regarding abortion and a woman’s right to control her body derive my rational thinking about the issue, not from my upbringing or political influences. How I derived my belief is irrelevant. What is relevant is whether my assertion that a woman (and for that matter men, transgenders, etc.) has a right to control her body is an objectively valid moral judgment, and I dare J. Alito to look me in the eye and say otherwise.
Addendum:
ReplyDelete" ... is an objectively valid moral judgment protected under Sec. 1 of the 14th Amendment, and I dare J. Alito to look me in the eye and say otherwise."
Michael,
ReplyDeleteKant did wish to meet Hume's point and he offered the categorical imperative, phrasing it in different ways. The versions in the translation I have are these:
1. Act only in accordance with that maxim through which you can at the same time will that it become a universal law.
2. So act that you use humanity, whether in your own person or in the person of any other, always at the same time as an end, never merely as a means.
3. Act in accordance with the maxims of a member giving universal laws for a merely possible kingdom of ends.
I'm a little reluctant to get into a discussion of Kant because I haven't read him a long time, and when I did I struggled. It would be good if Prof. Wolf weighed in on this. He's plays in the major leagues. I'm just a fan.
Marc,
ReplyDeleteYou're absolutely right: Hume said nothing about the objective validity of our judgments. He merely asked where they come from. You've stated where yours come from. Someone else could say much the same thing and reach the opposite conclusion. Hume would say that each of your judgments are based, ultimately, on your subjective reactions of approval or disapproval.
Marc,
ReplyDeleteI'm (finally) reading Alito's draft opinion.
I get to p.29 and I find this:
"One may disagree with this belief [about when life begins] (and our decision is not based on any view about when a State should regard pre-natal life as having rights or legally cognizable interests)..."
This is exactly my point: Alito is holding that there is no liberty interest in abortion, and therefore he does not have to address when the fetus becomes a person with rights. Why not? Because if there's no liberty interest in abortion, it does not matter when the fetus becomes a person.
Now I understand that you think his conclusion about the scope of "liberty" is wrong. So do I. But that's not my point. I'm making a point about the logical structure -- such as it is -- of the draft. Why would Alito say on p. 29 that his decision is "not based on any view" about when "pre-natal life" acquires rights if, in fact, this was not the case?
The draft opinion is not based on whether the 14th Amendment protects "potential life." It simply isn't based on that. I'll prob. finish reading the thing, but I'd be v surprised if my conclusion in this respect changes.
LFC,
ReplyDeleteAny constitutional lawyer worth his salt would say that Alito’s argument is sophistry, because the starting point of the issue is the wording of the 14th Amendment and what is the nature of the liberty interest which persons possess which the Amendment is protecting. Alito is being disingenuous by not addressing this question. He has to deal with the initial issue regarding what is the liberty interest of the mother which the 14th Amendment protects. He cannot deny that a mother who is pregnant is a person and has a liberty interest which the Amendment protects. What is the scope of the liberty interest in the context of the existence of a fetus which the mother is carrying in her womb. Alito’s assertion that he is not going to address “when a State should regard pre-natal life as having rights or legally cognizable interests” is a cop-out. The 14th Amendment applies to the states. He want to avoid a question which is constitutionally unavoidable, and his Opinion is specious. Can he make a specious argument and get away with it. Perhaps. But I will be interested in reading what the dissents say. 10 to 1 they say things along the lines of what I have been arguing.
David,
ReplyDelete“Hume would say that each of your judgments are based, ultimately, on your subjective reactions of approval or disapproval.” This where I disagree with Hume (heaven forbid), because this observation says nothing about whether those beliefs are objectively valid. Explaining the sources of one’s beliefs is irrelevant to evaluating whether those beliefs are objectively valid. We all have beliefs which are the products in large part of our socio-economic upbringing, the things our parents and siblings talked about, etc., etc. None of this is relevant to evaluating whether the beliefs are themselves valid or invalid, Einstein grew up in a secular Jewish home. He suffered from dyslexia. He was a rebellious student and excelled in physics and mathematics. He began pondering the nature of light and whether the speed of light on a moving object would have the same Doppler effect as the generation of sound on a moving object. He concluded that since the speed of light was fixed, regardless the speed of the object which was emitting it, that there were consequences regarding time and motion. Did his upbringing perhaps influence his inquisitive mind? No doubt. Many other scientists with different upbringing rejected is theory of special relativity. The differences in their upbringing did not determine whether they or Einstein were objectively correct. I see no reason why differences in upbringing which influence our views on what constitute valid moral judgments should determine whose moral judgments are objectively valid any more than they determine whose judgments in physics or mathematics are valid. The obvious difference is that with regard to theories in physics, whether a theory is valid or invalid can be determined via empirical observation. But it does not follow from this that moral judgments cannot be objectively valid, any more than whether the shortest distance between two points cannot be objectively valid if there are no empirical experiments which can prove that it is objectively valid.
An interesting point is that in Roe, Justice Douglas, who concurred with the majority, wrote that he would have based the decision not on the 14th Amendment but the 9th: "The enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people."
ReplyDeleteI know absolutely nothing about 9th Amendment jurisprudence, and how those words have been interpreted. But on their fact they acknowledge rights not otherwise specified in the Constitution. How those rights are determined, I don't know, but I find Douglas' argument intriguing.
Marc--if you are familiar with 9th Amendment jurisprudence I'd appreciate a brief (I emphasize BRIEF!) tutorial.
David,
ReplyDeleteDespite your oblique aspersion regarding the length of my comments, I have decided to accommodate your request.
The short answer is that the Supreme Court has never rested any decision exclusively or primarily on the 9th Amendment. Whenever it has been referred to in a decision, the 9th Amendment has been referred to in conjunction with several other Amendments, primarily the 14th, and the 9th Amendment gets lost in the mix. Prof. Laurence Tribe, no conservative, has said of the 9th Amendment: “It is a common error, but an error nonetheless, to talk of ‘ninth amendment rights.’ The ninth amendment is not a source of rights as such; it is simply a rule about how to read the Constitution.”
Reliance on the 9th Amendment in concurring opinions by J.’s Douglas and Goldberg (remember him?) were cast aside as ludicrous by J. Stewart in his dissent:
“…to say that the Ninth Amendment has anything to do with this case is to turn somersaults with history. The Ninth Amendment, like its companion, the Tenth … was framed by James Madison and adopted by the States simply to make clear that the adoption of the Bill of Rights did not alter the plan that the Federal Government was to be a government of express and limited powers, and that all rights and powers not delegated to it were retained by the people and the individual States. Until today, no member of this Court has ever suggested that the Ninth Amendment meant anything else, and the idea that a federal court could ever use the Ninth Amendment to annul a law passed by the elected representatives of the people of the State of Connecticut would have caused James Madison no little wonder.”
Since Griswold was decided in 1965, the 9th Amendment has not been invoked by any majority decision to justify its ruling. I am quite sure that if Roe v. Wade had been based on the 9th Amendment, J. Alito would have dismissed it just as he has dismissed the reference to liberty in the 14th Amendment. He would say that the term “people” may refer to the pregnant mother, but it all refers to the fetus she is carrying in her womb, and the fetus has just as much right to the rights reserved to the people as she does.
There, done. A mere 392 words, a Susselman record.
David, s. wallerstein,
ReplyDeleteRemember this profound song about the law from 1965?
https://www.youtube.com/watch?v=ci3AQqSKirA
In light of the horrid, racist mass killing in Buffalo yesterday, I have a brief story about inter-racial relations that my wife and I experienced last night.
ReplyDeleteWe were driving at around 7:30 P.M. to meet another couple for dinner in Hazel Park, Michigan. As I drove onto the entry ramp to access the highway, I heard a loud bang, and my car began to skid. I succeeded in getting control of the vehicle and pulled onto the shoulder of the highway. I assumed I had blown a tire, but when I got out of the car to check my tires, there was no blown tire. When I got back in the car and put the transmission into drive, the car shuddered. I realized something more serious than a blown tire had occurred. I got out my cell phone to call AAA, but, as luck (or negligence) would have it, my cell phone was dead. So my wife and I got out of the car and walked back up the ramp to the nearby Dunkin’ Donuts . I asked if I could borrow a cell phone (I actually first asked if they had a pay phone, and the employees looked at me as if I were an alien). I tried to call Uber, but there was no answer. I tried to call a taxi company, but there was no service in the town we live in. So we decided we had to walk home, which was about 4 miles away. I bought a half-dozen donuts, and we were on our way, my younger wife in the lead, as I stumbled along clinging to the box of donuts.
The walk home was compounded by the fact that there were no sidewalks along the avenue we were traversing, just grass embankments. I tried to keep up our spirits by cracking jokes and singing songs – like I Broke the Law. My wife did not find any of this amusing. At one point I suggested that she should pull a Claudet Colbert stunt from the movie “It Happened One Night.” (I am sure that David and s. wllerstein will recall the scene, probably considered sexist today.) My wife was wearing slacks, and she did not think that her calves would have the same impact as Claudet Colbert’s, so she declined.
At one point I tripped and fell, clutching the box of donuts to my chest. We were about 1/3 of the way home by 9:00 P.M., when we had to start walking on the narrow shoulder, as cars whizzed by us. Suddenly, a car pulled up and a woman asked if we were OK. There was another passenger in the car, but we could not see them, we only heard their voices . We told them what had happened to our car, and that we were walking home. They said they had been driving in the opposite direction, and when they saw these two elderly people walking on the road, they turned around. They expressed concern that what we were doing was dangerous. I told them that we lived nearby, and asked if they would be willing to drive us home. They said, absolutely, get in. My wife got in the back seat; the man in the front passenger seat moved to the back seat, and told me to sit in the front passenger seat. As I got into the car, I saw that they were African-American. I was, frankly, overjoyed to see that two African-Americans would stop to help two elderly Caucasians. My wife offered a twenty-dollar bill to the woman who was driving, but she declined to take the money. My wife insisted, and she finally accepted, saying she could use it to pay for gas, since the gas prices were so high. She told us that she is a care-giver for her grandmother, who is 104 years old and that this caused her to worry about us. I did not know at this point about the shooting in Buffalo. I do not know if they knew. They drove us to our home, and I invited them in, but they declined – they had to buy groceries for the grandmother. I asked them to wait so I could go in the house and get paper to write down their names, addresses and phone numbers. I gave the male passenger, whose name was Will, my business card and told them that if they ever needed a lawyer, to give me a call.
(Continued)
They left and we thanked them again and told them to stay safe. As I rested in the house after the long walk, I thought, would a Caucasian couple stop to help two elderly African-Americans whom they saw walking along a highway? Perhaps, but given racial profiling, probably not. Actually, I felt good that we were in a position to have received a favor from an African-American couple, and thought, maybe, just maybe, there is still hope for this country. But some white punk in New York has just made things much more difficult.
ReplyDeleteMarc,
ReplyDeleteNice story, one of those rare incidents that restore one's lost faith in others. Trying to think of one myself, I keep recalling so many dog walkers who don't restrain their beloved pets by tightening the leash on narrow sidewalks and drivers who turn aggressively forcing me to increase my pace as I walk legally within the crosswalks. I came up with one: a few years ago I dropped my keys in the supermarket while taking my wallet out to pay and I didn't not notice that. I had already walked about a block from the supermarket (I have no car) when a young man, another customer, came running up to me with my keys. Basic decent gestures are rare these days and maybe they always were.
Here's a talk by Richard Rorty: do we need ethical principles?
https://www.youtube.com/watch?v=SDAdveMYHFs
Marc,
ReplyDeleteA great story, and thanks for the briefing on the 9th Amendment.
s. wallerstein,
ReplyDeleteThank you for your comment and the story about the restoration of your wallet. These incidents do help to restore one’s hope in humanity, but they are all too rare. The two people who stopped to help my wife and myself are such an example. They possess an inner voice which told them that they had to act. Rather than let the immediate task which they were engaged in, - getting groceries for the grandmother – they put that task aside to help two strangers. Before they stopped to help us, 100s of other cars had passed us by whose drivers were focused on some immediate task, but none of them stopped. This couple stopped, and their willingness to do so sets them apart form most other people.
I started watching the lecture by Prof. Rorty that you linked to, but given its length I will have to finish watching it later, but his opening example of how the traditional ethical principles which are taught in philosophy courses – the principle of utilitarianism and the categorical imperative – would not help the Frenchman considering to join the resistance during WWII what to decide. They would leave him without direction. I will finish watching it later on, and thank you for the link.
On CBS This Morning, there was a segment about Chef Jose Andres’, the founder of the World Central Kitchen. The WCK goes to countries where there has been a natural disaster to prepare meals in the native cuisine to feed the starving. He is now in Ukraine, preparing meals for the refugees. He is fairly wealth, since he own several prestigious restaurants around the world. But he doesn’t have to do what he does. He does it because he believes it is the right thing to do. Would utilitarianism or the categorical imperative tell him to do this? As Prof. Rorty points out in the opening to his lecture, they do not. The balancing called for by utilitarianism gives no answer, because one cannot measure the net happiness against the net unhappiness that one’s actions cause. If Chef Andres’ did not go to Ukraine to feed the starving, he would not be treating the Ukrainians he would never have met as means rather than ends, because he would never have met them. He said during the interview, “It is at times when humanity is at its worst, that humanity can reveal itself at its best.” A cynic might respond that it should not take the worst of humanity to bring out the best of humanity. But he has responded even when he is feeding those who have been the victims of a natural disaster which has not been caused by man’s inhumanity. The bottom line is, I guess, that some people have an inner voice that tells them what is the ethical thing to do, regardless what other commitments one has, a voice which many others lack. As Jimminy Cricket said, “Let your conscience be your guide.”
Further on the Ninth:
ReplyDeleteStewart wrote: "all rights and powers not delegated to it were retained by the people and the individual States."
That would seem to open the way to substantive Ninth Amendment jurisprudence: it concedes that there are such rights and would seem to invite an argument that abortion or whatever is one of them.
Here's a link to what I regard as a classic about abortion.
ReplyDeleteDDA,
ReplyDeleteI have a book titled, "The Rights And Wrongs Of Abortion," a collection of pro- and anti-abortion essays. The first essay is by Prof. Jarvic, professor of philosophy at MIT. The essay is superb.
Judith Jarvis Thomson
ReplyDeleteI stand corrected. Prof. Judith Jarvis Thomson.
ReplyDeleteMarc you might want to look at a blog on ethical issues by a philosopher with street cred online: The Philosophers Beard.
ReplyDeleteYou might even want to debate him on some of his provocative posts.
He operates under the assumption that ethics is objective.
I believe Locke figured ethics is like math
Howie,
ReplyDeleteThank you for the suggestion. I will check it out.
A lot of amicus briefs were filed in the abortion case, and there is a post at the SCOTUS blog that rounds up and summarizes some of them.
ReplyDeleteIn the part of Alito's draft that I've read (first 40 pp or so), he mentions an amicus brief filed on behalf of the American Historical Assn and the Organization of American Historians on the side of affirming Roe and Casey (obvs. Alito mentions it only to dismiss its arguments). This amicus brief is quite short, about 30 pp, and counsel on it are Hogan Lovells, a big Wash. D.C. law firm.
There is a link from which one can download this brief (as I just did), if interested.
Here:
https://www.historians.org/news-and-advocacy/aha-advocacy/aha-amicus-curiae-brief-in-dobbs-v-jackson-womens-health-organization-(september-2021)
Btw, Marc has said that one of the things that's wrong w Alito's draft is that it ignores the "very language" of the 14th amendment. However, the language (or as lawyers sometimes say, the plain language) of the 14th amendment can't resolve this case, bc the 14th amendment, while it uses the word "liberty," does not, as far as I'm aware, define "liberty."
ReplyDeleteSo what's wrong w Alito's draft is not that it *ignores* the language but rather how it *interprets* the language, and more specifically how it interprets the two substantive due process criteria.
To remove ambiguity, that shd read: the two "substantive due process" criteria.
ReplyDeleteLFC,
ReplyDeleteCorrect, the 14th Amendment does not define “liberty.” But its scope has been delineated in prior S. Ct. decisions, decisions which Alito ignores. In a comment on a previous post, I quoted the following language from the plurality opinion in Planned Parenthood v. Casey:
“Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. … Our cases recognize ‘the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.’ … Our precedents ‘have respected the private realm of family life which the state cannot enter.’ … These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of he universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” (Case citations omitted.)
This quotation relies on prior S. Ct. precedents which have held that the concept of liberty encompasses “the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” In overturning Roe v. Wade by the ipsi dixit that there is no constitutional right to an abortion, Alito is not just overturning Roe v. Wade; he is overturning all the case precedents cited in Casey which have held the decision whether to bear or beget children is a fundamental right protected by the 14th Amendment. If that decision is not protected by the 14th Amendment, then a state could pass legislation akin to that in China prohibiting a married couple from having more than 2 children. That would clearly be unconstitutional. So, if a state cannot limit how many children a family can have, how can it by the same token demand that a woman give birth to a child the woman does not want? Which brings us to the second word that Alito is ignoring – “person.” It is clear that a pregnant woman is a person under the 14th Amendment. Alito could not possibly deny this. Consequently, as a person under the 14th Amendment, she is “free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.’ But that liberty interest does not give her the right to take the life of another person, like her cheating husband. So, ultimately, the issue comes down to whether by having an abortion, is the mother, whose liberty interest is protected by the 14th Amendment, taking the life of another person. Alito’s ipsi dixit that there is no constitutional right to an abortion ignores this question, which comes down to whether a fetus is a person which has a liberty interest comparable to the mother’s liberty interest. I maintain that just as it is obvious that the mother is a person under the 14th Amendment, it is equally obvious that a zygote is not a person entitled to the protection of the 14th Amendment. A zygote is a potential person. But the 14th Amendment does not protect the liberty interest of a potential person. It only protects persons, not potential persons. So Altio’s ipsi dixit does in fact ignore the language of the 14th Amendment.
Maybe the estates of the 10 deceased individuals who were gunned down in Buffalo on Saturday should sue Fox News and Tucker Carlson for proselytizing Replacement Theory, the theory which inspired the shooter and which claims that minorities and immigrants are replacing Caucasians and taking away from them the country which is rightfully theirs.
ReplyDeleteAre Fox News and Tucker Carlson protected by the 1st Amendment’s right of free speech? Perhaps not. 42 U.S.C. § 1985(3) prohibits any group of individuals to conspire to deprive any group of people of their rights under the Constitution where the conspiracy is based on “class based animus.” What is unique about 42 U.S.C. § 1985(3) is that it does not require state action. It applies to individuals who act in concert, without the involvement of the state. The conspiracy would be between Fox News and Tucker Carlson. In Beauharnais v. Illinois, 343 U.S. 250 (1954), the Supreme Court held that an Illinois statute which criminalized the dissemination of literature which “exposes the citizens of any race, color, creed or religion to contempt, derision, or obloquy or which is productive of breach of the peace or riots” was not unconstitutional. The use of the disjunctive indicated the statute applied even in the absence of a breach of the peace or riot. The Court rejected the petitioner’s claim that his dissemination of hand-bills in Chicago which called for the mayor of Chicago to prevent African-Americans from continuing to move to Chicago was protected by the 1st Amendment. Beauharnais is still good law - it has never been overturned by the Supreme Court.
Post-script:
ReplyDeleteAbsolutists who support the 1st Amendment right of free speech, like the ACLU, hate the Beauharnais decision, and maintain that it should no longer be considered good law, even though it has not been overturned. The question is, is hate speech which denigrates Blacks, Jews, Latinos, etc., protected by the 1st Amendment? Should hate speech which uses the N- word be protected by the 1st Amendment? Should Congress pass a federal law like that which was enacted in Illinois and which the S. Ct. held was not unconstitutional to prevent the further dissemination of such speech on the internet? Does hate speech like that which inspired the shooter to kill in Buffalo serve the purpose of the 1st Amendment to facilitate communication and dialogue among people? Does hate speech constitute the kind of speech the 1st Amendment was adopted to protect?
I don't have any idea about U.S. Constitutional law, but in general I follow John Stuart Mill's proposal that free speech be unlimited except in the case of clear, direct and immediate incitement to violence.
ReplyDeleteHowever, I can see that in a climate of increible political polarization and violence, some curbs on hate speech even when there is not a clear, direct and immediate incitement to violence should be instituted. I don't know exactly where the line should be drawn and how.
By the way, such rules work both ways. If we institute laws which prohibit Tucker Carlson from spouting whatever racist nonsense he spouts because it can indirectly incite to violence, those laws will also limit the right to hate speech which indirectly incites to violence against the cops, etc.
MS
ReplyDeleteI agree with you on the point that Alito is not respecting the case-law language re "free from unwarranted governmental intrusion into matters [etc.]" though, as usual w const law, a lot hangs on words like "unwarranted" and "intrusion." But for sure, the dissents will refer, properly, to that language. If a state bans abortion completely, that wd be, istm, an unwarranted intrusion in the sense that it forces some women to have children they don't want.
The particular language in Casey about defining one's own concept of existence and the mystery of life doesn't, however, add anything, and Alito brushes that particular passage aside by saying that one is free to define one's own concept of the mystery of life but not always to act on it.
"If a state bans abortion completely, that wd be, istm, an unwarranted intrusion in the sense that it forces some women to have children they don't want."
ReplyDeletehttps://balkin.blogspot.com/2022/05/fishkin-on-dissent-transcendent.html
aaall
ReplyDeleteThanks for the link. Read it.