Wednesday, February 22, 2006

All Your Uterus Are Belonging to Us: 2006 Edition

South Dakota has passed a law banning abortions in almost all cases.

Info at Reuters.

Well, that didn't take long.


44 Comments:

Blogger Tom Van Dyke said...

Good. Let's discuss it. And by "us" I mean us as a nation, if not us as this little karass here.

I'd intimated in a previous discussion that the dreaded "religious right" only got concerned with politics when government started to become the arbiter of society's mores, rather than society itself.

Astute critics of Roe v. Wade, especially on the left, have noticed this. If Roe were overturned tomorrow, absent a constitutional amendment formalizing a protection of abortion as a right or of, um, "blastocysts" as having legal status (and a consensus exists for neither), the states would go back to banning it here, protecting it there.

I do not know if an arm's length discussion of this as political philosophy is possible, but here goes.

(My own position is that I have a lot of uncertainty about the particulars of abortion, the whens, whys and hows. There are those with absolutist positions on each side, both of which I am uncomfortable. I believe I'm in the majority on this, and that is the thrust of my inquiry.)

10:41 PM  
Anonymous Anonymous said...

"I'd intimated in a previous discussion that the dreaded "religious right" only got concerned with politics when government started to become the arbiter of society's mores, rather than society itself.

Astute critics of Roe v. Wade, especially on the left, have noticed this. If Roe were overturned tomorrow, absent a constitutional amendment formalizing a protection of abortion as a right or of, um, "blastocysts" as having legal status (and a consensus exists for neither), the states would go back to banning it here, protecting it there."

Tom,

I'm afraid I don't understand what you mean when you say the government became 'the arbiter of society's mores'. Can you give some examples?

In the particular case of abortion, consider the following two conditions, which are purposely oversimplified and not representative of every possible position:

1) The state prohibits women, whether they believe in choice or not, from getting abortions.

2) The state permits a woman to decide for herself whether to seek an abortion based on her personal beliefs.

I believe the latter is much less an impositon of morality onto the citizens of a state than the former. Each woman's decision about whether abortion is right or wrong in no way affects the ability by another woman to make her own decision.

I know several women who say that they personally would never have an abortion, but don't believe that it is their right, nor a legitimate power of the state, to determine that others may not make this choice.

I also don't understand why it's undesirable, granting your major premise, for the federal government to be the arbiter of society's mores, but desirable for the state government to do so.

11:48 AM  
Anonymous Anonymous said...

P.S. I would also add that a careful reading of Federalist #10 shows that Madison believed that the more localized the political system, the more likely the majority can conspire to suppress the rights of the minority. This was probably never more true than when an attempt to impose morality on others.

Hence, the vesting of more power in the federal government, which is answerable to more groups, and certainly more disparate groups, mitigates against this possibility.

Word for word, by Publius:

"The other point of difference is, the greater number of citizens and extent of territory which may be brought within the compass of republican than of democratic government; and it is this circumstance principally which renders factious combinations less to be dreaded in the former than in the latter. The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other. Besides other impediments, it may be remarked that, where there is a consciousness of unjust or dishonorable purposes, communication is always checked by distrust in proportion to the number whose concurrence is necessary.

Hence, it clearly appears, that the same advantage which a republic has over a democracy, in controlling the effects of faction, is enjoyed by a large over a small republic, -- is enjoyed by the Union over the States composing it. Does the advantage consist in the substitution of representatives whose enlightened views and virtuous sentiments render them superior to local prejudices and schemes of injustice? It will not be denied that the representation of the Union will be most likely to possess these requisite endowments. Does it consist in the greater security afforded by a greater variety of parties, against the event of any one party being able to outnumber and oppress the rest? In an equal degree does the increased variety of parties comprised within the Union, increase this security. Does it, in fine, consist in the greater obstacles opposed to the concert and accomplishment of the secret wishes of an unjust and interested majority? Here, again, the extent of the Union gives it the most palpable advantage."

12:02 PM  
Blogger Tom Van Dyke said...

The problem lies in the judiciary, not the legislature, doing the deciding.

I'm not really on the federalism thing here, but the whole thing in general. When the law of the land is contrary to the mores of the people, that is not good, sez Montesquieu. I agree.

Further, if "imposing morality" is bad, then I suppose the default position for a society is amorality. I do not think a society can survive under such a philosophy.

Besides, we cannot help but legislate morality. To rule that a blastocyst is not human and has no legal rights is a moral judgment in itself.

4:35 PM  
Anonymous Anonymous said...

"Further, if "imposing morality" is bad, then I suppose the default position for a society is amorality. I do not think a society can survive under such a philosophy."

This conclusion depends upon the fallacy of the undistributed middle, or some such similar thing. The point is that law and morals may coincide, but not necessarily. That is, whatever moral proscriptions *may* be necessary for the functioning of a society should be embedded in a nation's laws, not because they are moral, but rather because they permit a functioning society. Not for some other unimportant reason like they make someone feel good or get him into heaven or some such thing. So since morality is neither a necessary nor sufficient reason for law, we need not consider it.

If morality and law were necessarily related, we would have laws against adultery, lying, cheating etc. We have no such laws, and neither should we. I take Madison's adage "if men were angels, there would be no need of government", not to mean that we should moralize via government in an attempt to make men angels, but that we should take care that one person's behavior, moral or not according to their own beliefs, does not infringe upon another person's inherent rights; and more important, that the government in no way infringes on a person's rights, except to mediate between conflicts between one person's rights and another's.

As far as "we cannot help but legislate morality", if you mean it as the law coincidentally reflecting a common morality among society, then fine. If you mean that morality can dictate what the law is, I would ask the following:

1) How do we decide whose morality should govern?

2) Assuming the normative morality in a given nation is say, a certain religion, do you then approve of theocracy?

All of this is not to say that people can't consider morality when they cast their votes. They're welcome to consider whatever they wish; heck, there are indications that in past elections people voted for the guy they thought they'd like to drink with. I don't think trends like that make for a very good result, but that doesn't mean there's anything reasonable that can be done about it.

4:59 PM  
Anonymous Anonymous said...

P.S. I would throw it back at Montesquieu: When the mores of the people is contrary to the bedrock law of the land, that is not good.

I think a certain amount of flexibility is OK. Our founding documents allow a pretty wide berth for variations in norms and mores to be expressed via legislation. However, when strictures like respect for human rights, separation of powers, protection of the rights of the minority etc. are forsaken, the whole edifice is threatened.

That is, we can experiment with changes based on changing norms and societal principles, but when we violate the core principles upon which the nation was founded, something big has got to give - Constitutional amendments, revolution or some such thing.

5:10 PM  
Blogger Tom Van Dyke said...

Exactly. I hold that the core principles of the Founding are more than just the words of the constitution, and far more than the interpretation of them by 5 Supreme Court justices.

Their preemption of the legislature and thereby the people certainly runs afoul of Madison's dream of the greater universialization of sovereignty.

(BTW, there happens to be a weighty discussion of the principles of our founding, whether they lie in the Constitution or the DofI. And are the Federalist Papers more authoritative than, say, Locke?

1) How do we decide whose morality should govern?

Indeed. I'd say that there must be a consensus, and a strong one, for changing mores. The burden of proof lies on the changer. America didn't start with the signing of the Constitution. There was a whole set of conventions and mores already in place, which the Constitution was simply designed to manage, not create from scratch.

We do not know exactly how and why a society coheres. We use government to alter it at great peril. I'm not against change, but it should go slowly. In fact, somebody or other thought that the individual states would be ideal cauldrons in which to test new recipes, a little at a time.

2) Assuming the normative morality in a given nation is say, a certain religion, do you then approve of theocracy?

Why not? My consideration of the philosophy of politics doesn't begin or end with the American constitution. Are the people sovereign or are they not?

(PS---Re Montesquieu, you can't fire the people.)

6:56 PM  
Anonymous Anonymous said...

I agree that one cannot limit the understanding of our founding principles to the philosophy of one man, or two men, or probably even three. The thinking of such greats as Locke, Hume, Montesquieu, Blackstone and Rousseau are all evident in the writings of our founders. The writings of Jefferson, Madison, Hamilton, Jay, Adams, can all be said to be an amalgam of the Enlightenment thinkers.

They obviously didn't take the entirety of any of the Enlightenment thinkers, including Locke. Locke, for example, thought that any time one added his labor to material, that the product belonged solely to the laborer, something which would be anathema to the capital formation necessary for a market economy.

That being said, there were fundamental disagreements even among the founders about things such as how to counterbalance competing interests and rights and the apportionment of power. However, I think that the closer the relationship a certain treatise or essay has to the actual codification of our system of government, the greater the weight it must be given.

Therefore, the Constitution itself, and the Bill of Rights, to the extent their intent and delineation can be clearly construed, are owed the greatest deference in practice. I would give next preference to the Federalist Papers because they reprsent an explanation to the citizens of the newly minted nation of what they were a part of and why it was designed as such.

I would say, though, that nowhere in any of the important documents is sanction given to government on the basis of morality; to the founders, morality was indistinguishable from religion. It represented a code of PERSONAL behavior, and was between man and his God. And they explicitly forbade state sponsorship of religion and the requirement of any expression of religious piety as a prerequisite for public service.

And I really meant to ask, would you want to live in a theocracy? I do agree with you on self-determination, but I, for one, would not want to live in a theocracy. I value liberty too much. And by liberty, I mean, as Jefferson said:

"Liberty consists in the freedom to do everything which injures no one else; hence the exercise of the natural rights of each man has no limits except those which assure to the other members of the society the enjoyment of the same rights. These limits can only be determined by law."

I would also ask for an example of a theocracy which you don't personally consider oppressive.

And no, you can't fire the people, but you risk the loss of faith of the people in our system of government, with all the attendant risks of social unrest. I'd rather take my chances with following the rules as they were drawn. It's worked pretty well for over 200 years.

P.S. You've still not given an example of where government has attempted to become the 'arbiter of society's mores'.

10:44 PM  
Anonymous Anonymous said...

"Further, if "imposing morality" is bad, then I suppose the default position for a society is amorality. I do not think a society can survive under such a philosophy."

This also jumps out at me because it presupposes something which is not necessarily true. Namely, that if government doesn't impose morality, then it won't exist. Can you adduce any evidence for this?

What's more, weren't you trying to lecture me in a previous thread that there should be a 'distinction between society and government' or some such concept? I just don't understand how using the coercive power of government to enforce societal norms, rather than merely the laws necessary to effect our security and preserve our rights, furthers this demarcation between society and government that you deem so important.

Can you explain?

11:33 PM  
Blogger Tom Van Dyke said...

The answer to your first question, where has the government imposed mores not held generally by the society, I suppose would be Roe v. Wade.

To your second, society existed in the United States before the constitution. The question is whether the government is today imposing amorality.

3:14 AM  
Anonymous Anonymous said...

Well, first of all, granting your premise that the general society doesn't hold the mores underpinning Roe v. Wade, which is highly dubious, I fail to see how it's imposing either a positive case for any specific morality or amorality.

To review, the permission of an autonomous person to make her own choice in NO WAY imposes a morality on that person, since they are a creature of free will; furthermore, it in no way imposes a morality, or immorality, on the other members of society by permitting that person to make her choice.

The introduction of the doctrine of fetus as person is to introduce something which is not accepted as fact, certainly not as factually accurate as claiming that the woman making the decision is a person possessing rights. To grant the former equal legal status to the latter IS an imposition of morality, because it is chiefly from institutions that declare themselves to be moral arbiters (and without the accountability the government has) from whence that conclusion arises; scientifically and philosophically it is controversial to say the least.

I'm not saying you're not entitled to believe it; nor would I automatically label such a person a wacko. A la Voltaire, I think a person's right to believe as they wish, and act upon those beliefs to the extent it doesn't infringe upon the rights of other members of society, is a right that should be defended to the death. Just like my right to do the same. This is the essence of liberty.

The question of whether the government today is imposing amorality to me is easily answered, and the answer is no. If you believe otherwise, you need to give an example of where it is not permitting a person to exercise the free will which inheres in them, except as it affects another's rights. If the government were either forcing a woman to have an abortion, or forcing her not to have an abortion, THAT would be an imposition of morality or immorality, depending on one's personal beliefs.

11:26 AM  
Anonymous Anonymous said...

Also, regarding enforced A-morality, that would be the case in the example of abortion if the government were somehow forcing each woman to make this decision on some other basis than morality, such as economic utility, superstition or eugenics. That is clearly not the case. The basis on which the decision is being made is not in question, only the ability to make the decision.

1:20 PM  
Blogger Tom Van Dyke said...

Your arguments are all being made from the individual's point of view, not society's. I have two points here, BTW: the reason for the rise of a religious right, and the question that deals with the nature of society. They overlap a bit---in the first instance, I apply no judgment, merely offer an explanation; for the second, we must ask what a society is and whether it is distinct from its government.

Not so strangely enough, we are recreating Edmund Burke and Thomas Jefferson's views on the French Revolution. Jefferson thought it was great; Burke thought that replacing the mores and structure of a society that had organically evolved for some 1000s of years with bright new "rational" ideas in one swoop might not necessarily be a good thing. Of course, Burke, often called the first conservative, was correct. :-)


I understand your argument of course, and it applies to most moral issues, but relegating the ethics of abortion to "choice" is of course amoral, or perhaps more precisely moral neutrality, which you may plug into my arguments above for "amoral."

I do not believe a society can survive with the philosophy of moral neutrality. I could be wrong, but I don't like what I see in Europe, which is conducting that experiment as we speak.

3:28 PM  
Anonymous Anonymous said...

Let's discuss it. And by "us" I mean us as a nation, if not us as this little karass here.

This is a karass? I thought it was a granfalloon. If it's a karass, someboday email Bob Putnam and tell him to stop worrying about our stock of social capital.

By the way, most of the religious right doesn't want to impose their particular sect on the rest of us (no suburban sprawl in heaven!), but they do assert that they cannot live and let live in a society whose allowed mores offend them the way Roe v. Wade does. Islamists - and even Islam in general - make the same extensive claims but are much more thoroughgoing in the range of behaviors which they find offensive.

There are American Taliban in the Christian right Their vision of America is explicitly theocratic and opposed to the Constitution. But the more common position of the Christian right is Antonin Scalia's - that the Constitution still carries all of its 17th century baggage, including what they imagine was the popular contemporaneous Christianity (even if the some of the framers themselves were Christian more culturally than doctrinally).

4:19 PM  
Blogger Winston Smith said...

Just wanted to say that I'm trying to catch up on this thread. Looks damn interesting.

4:21 PM  
Anonymous Anonymous said...

Tom,

The problem with your argument is that it can be used to implicitly question the existence of America in the first place.

Do you think a strong case can be made for constructing our government on the basis of the mores expounded by the chiefs of the Lakota, Sioux, Seminole, etc? The creation of the colonies and the United States certainly qualifies as replacing the mores and structure of a society that evolved organically for 1000 years in one fell swoop, or at least very rapidly.

That society existed before government is meaningless to me. Lots of societies predate government, and they are even aided in their continuance by the existence of government. You see, you are free to join a convent or monastery or nudist colony or any group founded on the basis of some shared morality now because government provides the protection against one segment of society (or some small self-contained society) infringing on the ability of another to live as it chooses.

It is a testament to the fairness and durability of our type of government that it can allow for the ability of these self-conained societies to exist mostly on their own terms (notwithstanding, in the case of Native Americans, the initial injustices which were done to them). To foist any one of their moralities onto the general population would be counter to the principles of our founding, and tantamount to what sent the Pilgrims here in the first place.

Burke's argument also suffers from the is --> ought weakness. That something has existed for many years doesn't necessarily make it good and just. That requires argument otherwise. I would be willing to grant that he has a point as far as one being wary of changing a system that has "worked" for many years in a rash fashion. However, it is important to consider just WHO it had worked for those many years.

An obvious example that would give one pause is the *institution* of slavery.

6:01 PM  
Blogger Tom Van Dyke said...

And there are Jacobins on the left, LL, whom I believe hold far more sway. Good that you appeciate at least what Scalia is saying, per Lawrence vs. Texas and the like, even if you disagree. It is easy to caricature his thought.

Glad you like the discussion, WS. So do I.


LC, Let's keep in mind that Edmund Burke was also a liberal, a classical liberal, and I consider myself one. "Conservative" is a misnomer in many ways, and is only meaningful when used in opposition to "radical," not "liberal."

The question is not whether we should change, because we must, but when and how. Burke supported the American revolution, and was far more appalled and vociferous against slavery than, say, Jefferson was.

But where modern politics and philosophy part from Burke (and me) is that they largely consider society's conventions as arbitrary if not simply predatory. This certainly is often true, but they are also the glue that has gotten us this far.

To fail to understand what we have before changing it is folly. If we can cannot fully understand it, then changing it a little at a time seems most prudent.

There is no real support or ability for the American Taliban to "impose" anything at this point. They only became politically active to stop or slow the imposition of moral neutrality on social issues that were, in a "culturally Christian" way (sharp locution, that), considered settled until the last 40 or so years.

Lots of societies predate government, and they are even aided in their continuance by the existence of government.

But governments come and go, while the people are still there. The problem for the "culturally Christian" right is that they felt they lost any voice in how our society shall order itself, as the government, rather than aiding its continuance, in their view (and on some issues, mine) disrupted it.

6:49 PM  
Anonymous Anonymous said...

Tom,

All of that still in no way is an argument in favor of using government to impose morality. Neither is there a good reason for government to stifle morality. The lone exception to both of those principles is when someone's rights are infringed by another's behavior, either moral or immoral.

You seemed insistent that society and government be maintained as two distinct entities. Fine. Then let society dictate morality if it wishes, via norms of behavior, peer pressure, whatever. Just don't enlist the coercive power of government to demand behavior that some group or another believes to be right or prohibit behavior that it believes to be wrong. Except as is necessary to secure our rights, which is why governments are instituted among men. The underpinning of liberty is that you are free to act as you wish, provided you do no harm to me.

I must say that some of your writing here has a whiff of paranoia. You've still failed to give an example of where our government has imposed amorality, prohibited anyone's moral behavior or anything of the like. It seems like you've bought the Christian right's story of victimization, whereby they complain about the denial of their right to impose their morality on me.

As for Burke and liberalism, I really don't care what you call it. Labels only result in semantic disputes and are often obstacles to clear thinking, rather than clarifiers. I prefer to just argue the point at hand.

10:03 PM  
Blogger Tom Van Dyke said...

I am speaking merely of doing and undoing, and who is doing the imposing; babies and bathwater, and the nature of radicalism.

You may call Edmund Burke whatever you like. I am trying to use a vocabulary familiar to you, since you are unfamiliar with mine, so that we might communicate. Moreover, "classical liberalism" has a standard meaning. If you do not care about it, I shall attempt to find something more to your liking.

Burke was both more progressive (slavery) and more conservative (anticipating the folly that was the "rationalist" French Revolution) than Jefferson. Do with that what you will.

And you may call me anything you like as well, Mr. Carroll, but let's get one thing very clear: I haven't bought anything. My thoughts are my own, albeit with not some small assist from the giants upon whose shoulders we all stand. Yet.

3:13 AM  
Anonymous Anonymous said...

Still waiting for that example...[crickets].

12:56 PM  
Blogger Tom Van Dyke said...

I believe I've answered your questions and assertions as thoroughly as space and relevance permit. I have spoken my piece and really have little more to add. Thank you for the discussion, which was very helpful to me. Turns out Burke agrees with me even more than I thought. :-)

"Modern ideologies attempt to simplify politics by lifting certain principles—liberty, equality, fraternity—out of their surrounding historical conditions. As Blakemore’s analysis makes clear, however, Burke shows that there is no genuine alternative to a politics that engages culture and society as one finds it."

6:04 PM  
Anonymous Anonymous said...

Well, I don't really see how you answered my request for an example, but I didn't mean to offend, if I did.

I'm not doubting the wisdom of all the thinkers you cite; they each offer their own brilliance to be treasured. Certainly more brilliant than I, though not necessarily my namesake. ;)

What I still don't understand is the compatibility of your admonition that society and government are to be separate and discrete entities, and your belief that government should enforce the prevalent morality of society. Those two seem awfully hard to reconcile to me, and the latter seems anathema to an open society.

6:47 PM  
Blogger Tom Van Dyke said...

Well, yes I did begin to take offense, LC, and rather than escalate or close communication, I thought a timeout would be best. But I accept your sincerity, and have enjoyed this very much, so let's continue.

Strangely enough, I see the need for space (not necessarily separation) between society and government because that space will allow experimentation and growth, both of which are certainly necessary to a healthy society. Roe v. Wade actually preempted the organic laboratory that having only some states allow abortion would have yielded.

It cannot be questioned that the American family underwent a great disintegration after the ruling; whether abortion is responsible or how much (if at all) is impossible to tell at this point, since there was such a constellation of factors at work.

I consider it a radical decision, and a radical change. I am opposed to radicalism. There are Jacobins and there are Taliban. I am opposed to both. The burden of proof lies on those who want to change things, and they must convince at least the majority of their countrymen that they are correct. (This is all Scalia is saying in Lawrence v. Texas.) Until then, it is the status quo that gets the benefit of the doubt, not because it's "right," but because it has a track record of at least some success, where the radical idea has none.

It took me awhile to realize you were asking about successful theocracies. I think most early civilizations like the Egyptians or Mayans had religion as their organizing principles, and they did OK, it seems. Not that I like theocracy any more than the French Revolution---neither model (and they are really the same, only one has a God and the other has man's reason as its deity) permits much space between government and society.

But I must fall back on the consent of the governed as the first principle of just government. If people want such things, I suppose they will have them. Cuba is totalitarian but keeps the political murder of its citizens to a minimum. I might be willing to take at face value that the people there like it that way. When Castro dies, we shall see what sort of regime they choose.

As to an "open society," I must again fall back on classical liberalism, which seeks the essential balance between order and liberty, neither of which are sufficient in themselves. It is my opinion that Europe and about half of America pursue the latter with no thought to the former. Now in Europe, I think the populace is pretty much behind what I would call libertinism, so it's their call, but I think it will prove to be a disaster. In the United States, I think the government has overstepped in social policy, where it changes society instead of the converse. Society, when it reaches a consensus, should change the law. For the constitution to be used as a weapon against the majority in the name of "rights" I think is untenable.

Should the government enforce, say, marriage laws? Yes, but only because there are material concerns, i.e. children, involved. If there were no such thing as children, I think at least my own views would be different on many issues.

Should government "enforce" the mores of society? I wouldn't put it that way---I'd say that it should not work at cross-purposes to them, and I believe it has. Hence my position, and the rise of the "religious right." (Again I would point out that "culturally Christian" is more accurate than the image of Falwell thumping on Leviticus.)

If government had not attempted to get ahead of society, and against its will, there would not be a religious right.

I do not think we in United States appreciate the order that our society's mores have wrought; we take it for granted. Our war of independence was fought rather cleanly with our rather civilized parent, and our own civil war was nothing like civil wars across this globe, where the fighting is house to house, man to man, and habd to throat. For many, liberty is useless because they enjoy not an ounce of order.

Europe is discovering this now, on a smaller but burgeoning scale. They have taken order for granted themselves, although they have had precious little of it until after the Second World War. We shall see where their modernist experiment leads.

10:16 PM  
Anonymous Anonymous said...

"Should government "enforce" the mores of society? I wouldn't put it that way---I'd say that it should not work at cross-purposes to them, and I believe it has."

But it inevitably WILL work at cross-purposes when society seeks to violate the rights of the nation's citizens. That is the purpose of both the Bill of Rights and the rejection of pure democracy by our founders. And as Madison wrote, this propensity is greater the smaller and more provincial the group. To believe that the majority has the right to coerce its chosen code of personal behavior from the minority, except as is necessary to preserve rights, is to have an un-American belief. Or, put more simply, just becuase the majority believes something doesn't make it right.

The government does need to balance competing rights, but those rights do not include the right not to be offended; that is the rub of laws that attempt to coerce or prohibit types of personal behavior that do no harm to other citizens. If you believed such laws were appropriate, you would approve of anti-blasphemy laws, including censorship of certain offensive cartoons. I don't. The fact that some segment of society is going to be offended is not to me sufficient justification for infringing on free speech. The same goes for the Lawrence decision and others like it. If they don't like it, they don't have to do it.

What you're assuming about Roe v. Wade also is that the decision somehow CREATED the right of a woman to control her own body. That's obvious when you say:

"The burden of proof lies on those who want to change things, and they must convince at least the majority of their countrymen that they are correct."

That is wrong. That right existed beforehand, and the decision was an affirmation of that right so it wouldn't be extirpated by those who believed it to be morally wrong; this despite no harm to them. So your organic laboratory, in this case, was an affront to the principle that one has the right to the control of his or her own body.

You also seem to confuse 'consent of the governed' with 'not willing to risk one's life to change it'. I suppose it depends on the degree of oppression whether a populace will be willing to risk life and limb to remove it. That may vary from place to place. In certain places, a prohibition against soccer may be sufficient.

And I don't consider mere staying power to be indicative of a *successful* society. Yes, the Egyptians and Mayans had long-lasting societies, but they arose organically, were ethnically homogeneous, rigidly hierarched and didn't experience immigration. A similar example is the Persians - they have remained largely intact for thousands of years. Do you consider the Iranian theocracy of today *successful*? I suppose if you use continued viability as your only criterion, you could say yes.

The United States, and to a lesser extent Europe, have developed on the basis of immigration and the assimilation of those from other societies. I would agree that Europe has not been successful at this assimilation, but it's BECAUSE they have attempted to enforce with too heavy a hand the societal norms that existed within their nations. They have assumed that conformity would somehow promote harmony, equality and all those other wonderful things. That's not true. The United States, where immigrants are free to carve out their own niche and maintain their societal traditions and customs, has been much more successful in this regard. To the extent they don't infringe on the rights of others, new arrivals to our nation are free to follow whatever norms of behavior they wish. Eventually, the desire of immigrants to maintain their customs and the pre-existing society they joined arrive at a new equilibrium. The term melting pot is quite apt.

11:28 AM  
Blogger Tom Van Dyke said...

Muslims are not free to come to the US and practice polygamy. Beings from the planet Zenon are not free to land in New York and practice incest. (West Virginia maybe, but not New York.)

We make moral judgments in the name of order, the stability of society, all the time.

Scalia (and I) simply assert that it is better to make these judgments by majority rather than default (or in essence anarchy), which is declaring all the tough issues matters of neutrality.

Your starting point for argument of things human and political is the constitution, altho you'll find your arguments on rights have their foundation in the D of I. But by founding rights on the endowment of a creator, you'll find that contemplates natural law, a higher moral order, which the modern project rejects.

By coincidence (or perhaps not), I caught Scalia on C-Span last night speaking on many of these subjects; unfortunately there's no transcript. However it is available on internet video. If you have the time, I think you'll find it of worth, if not for his answers, for the questions his position raises.

4:24 PM  
Blogger Tom Van Dyke said...

(If nothing else, I have no doubt that you can come up with better challenges than the irrelevant, moronic, and flat out rude rejoinders with which several lefties in attendance sullied the procedings in the Q&A.)

5:13 PM  
Blogger Tom Van Dyke said...

Ah. I just serendipitously ran a partial transcript of one of the more interesting parts; altho it's only tangential to our discussion, I'll pass it on anyway. (This particular idiot seems to be from the far right LaRouchians rather than the left):

IDIOT: I wanted to iterate [sic] what that gentleman over there said, um, seeing your agility today, with these aforesaid bad people, is, uh, is quite humbling. Um, I just wanted to ask you one question, though, on this idea of moral relativism, um, and that is, how, when you’re combating such bad people, um, do you argue for moral relativism without citing such obvious anti-American sources like John Locke or [unintelligible].

SCALIA: Gee, I’m, I, I, I, I don’t th –, I don’t take your, uh, attribution of, of agility to be a compliment. [Laughter] Uh, the, the, uh, and I certainly have never . . . have never endorsed moral relativism. To the contrary, I have said that I believe in natural law.

IDIOT: But you say it’s subjective.

SCALIA: I’m not a moral relativist at all.

IDIOT: Entirely subjective.

SCALIA: I don’t say it’s entirely subjective. I do believe that there is a right and a wrong.

IDIOT: No, you –

SCALIA: The trouble is, my perception of it is not the same as yours. And therefore, I have no right to im –

IDIOT: That’s relativism!

SCALIA: No it isn’t. No it isn’t. I think there’s a right and a wrong answer. And I would say my perception of the moral law is right and yours is wrong! [Applause.] All I’m saying — all I’m saying — all I’m saying is that our perceptions are different. Yours happens to be wrong — that doesn’t make me a moral relativist.

5:26 PM  
Anonymous Anonymous said...

"Muslims are not free to come to the US and practice polygamy. Beings from the planet Zenon are not free to land in New York and practice incest. (West Virginia maybe, but not New York.)

We make moral judgments in the name of order, the stability of society, all the time."

No, we make laws that coincidentally express some person or group's particular morality because they protect the rights of people.

Polygamy and incest are outlawed because they've been determined to be harmful to children who, not being able to petition the state to protect their interests themselves on account of minority/immaturity, require the state to codify their protection. Some children get subordinated in polygamous marriage systems. The attention of the father and the family tends to focus on the heir. Not to mention increased frequency of child and spousal abuse. I think the harmful effects of incest are self-evident.

But more generally, I still don't understand why the state is involved with marriage at all anyway, except as pertains to legal rights, inheritance etc.

And the Constitution is my starting point for all things LEGAL, not political. Politics is a great open expanse of possibilities which can be animated by anything from morality to science. People are free to vote for whomever they want, for whatever reason they want. They're free to organize, protest, boycott, whatever.

There's a relatively wide area on which current politics can tread - it is only required that government not infringe on our rights unless absolutely necessary. Nobody is seeking to outlaw 'society'. It will still exist, regardless of whether its moral preponderances are enforced through government or not.

It's worth noting that, whatever norms and customs may have existed in their societies prior to joining the union, the various states accepted the Constitution and Bill of Rights as the law of the land. That included the ceding of some powers to them as states, in return for abiding by the priciples contained in those documents.

So whatever the D of I said, the finished product of state creation by the founders was what the Constitution and B of R said. That's why none of the states was required to attest to conducting itself in accordance with the D of I, and why every single one of our public servants swears to do their best to defend and uphold the Constitution, not the D of I.

"But by founding rights on the endowment of a creator, you'll find that contemplates natural law, a higher moral order, which the modern project rejects."

I don't really care about the origin of the rights. I care about the quality and value of the rights, and the extent to which their protection makes our nation prosperous and happy. The Aztecs' concept of natural law and a higher moral order included human sacrifice. Can you show me how you know our *creator* is right and theirs is wrong? Without referring to moral externalities, like human sacrifice is icky and the right to private property is nice?

10:06 PM  
Anonymous Anonymous said...

P.S:

You're right about that Scalia dialogue. I don't agree with Scalia in general, but he's a smart guy, and was apparently in a battle of wits with an unarmed man. ;)

10:12 PM  
Blogger Tom Van Dyke said...

The Aztecs' concept of natural law and a higher moral order included human sacrifice. Can you show me how you know our *creator* is right and theirs is wrong?

No, I can't. Neither can Scalia, and that is his (my) explicit point.


No, we make laws that coincidentally express some person or group's particular morality because they protect the rights of people.

"Rights" is a discussion of its own. But substitute "good," and you actually have the theory behind natural law. Libertinism hurts man, both the individual and his society. Aquinas submits, and so do I, that natural law does not depend on the Bible, merely that they are in harmony. With some predictable divergences, Plato, Aristotle, et al., arrived at the same place, a higher moral order, that is good for man.

Perhaps "rights" are the greatest good, the highest moral order. That is not at issue here, and I'll pull back from the cosmos to talk about the law along with you.

Let me say again this has been enjoyable, and helpful in my own inquiry. To sum up, I will not, and I don't believe the Founders would, cede questions of right and wrong, how shall man live, to process, because I believe that is the way to destruction. Moral neutrality is relativism, as Scalia so brilliantly delineates.

I live in California, where many moral issues are decided to my moral repugnance. Still, as part of the social contract, I will accede to them. I will defend a land where the mores are decided in good conscience, by whatever means they use to inform their consciences, by the majority of my fellow citizens. I can ask no more from my governance. I consent.

But I will not accept moral neutrality and moral castration as the ethos of my society, that I cannot seek to change the minds and hearts of my countrymen, that we might be morally admirable, and good, at least in our own eyes. I will not die for relativism, and you can't make me. Relativism is everything, and so, it is a sterile nothing.

This, I believe, is the crisis of the West, that has been discussed by people like me for nearly 100 years. Europe is facing this right now. Gordon Brown, the putative next PM of the UK, is speaking on C-Span right now on this, on "Britishness," on identity, on what Aristotle called a society's ethos.

Mr Brown sounds worried.

12:17 AM  
Anonymous Anonymous said...

But since we can't agree definitively on what that *Natural Law* is, why should the default condition be the imposition of morality in order to protect against some 'libertinism' that hurts man or his society in some mysterious way? For which you can't even give an example of that *hurt*?

I'm certainly not persuaded on the hurting of the man himself argument, since I have a right to hurt myself if I choose, especially if the perception of hurt is in your eyes only, not mine. And the imposition of morality is not necessary to prevent harm to society if you include my parameter of disallowing behavior which infringes on the rights of others.

So I would again submit that since it's neither necessary nor sufficient to impose morality on society via government, we needn't consider it.
The burden of proof is on those who want to impose their morality on me to prove why it's necessary.

And neither will religion, or whatever form of morality you like, wither away just because the government doesn't endorse and enforce it. The Soviet citizenry didn't just become non-religious just because government strictures forced the church to go underground. So I certainly don't see how a lack of government imprimatur for morality or religion is going to result in its disappearance from society either.

I have no problem with society making normative judgments and engaging in social movements like demonstrations, boycotts, peer pressure and even 'shunning' when it is offended by some person's behavior. That is their right. What I have a big problem with is using the machinery of our government, which was created to allow people the freedom to behave as they wish provided they don't harm others, to coercively impose their beliefs on me. It's political correctness by another name.

11:46 AM  
Anonymous Anonymous said...

"But I will not accept moral neutrality and moral castration as the ethos of my society, that I cannot seek to change the minds and hearts of my countrymen, that we might be morally admirable, and good, at least in our own eyes."

This is a strawman, Tom.

Nobody's saying you can't do that. Go out, get rich, and buy a TV station, or a newspaper or something like that. Write a book. Write letters to the ediotor. Do whatever you want yourself to persuade whoever you want to believe whatever you want.

What you still haven't given me is a reason why it's the GOVERNMENT'S job to do such a thing. You're not asking to be able to *persuade* people to act in some way you deem desirable. You're asking to be able to *force* them to behave as such.

I believe that is antithetical to the principles of our nation.

11:51 AM  
Anonymous Anonymous said...

"To sum up, I will not, and I don't believe the Founders would, cede questions of right and wrong, how shall man live, to process, because I believe that is the way to destruction. Moral neutrality is relativism, as Scalia so brilliantly delineates."

There's still a huge lacuna in your and Scalia's argument, though. And that is, once again, why is it that government should be the enforcer of moral strictures? That one set of moral values may be *superior* to another, which is a possibility, still doesn't imply that it should be made mandatory for all.

It then also ceases to be morality, which is a code of personal conduct, but merely obedience. Not the proper purview of government.

12:58 PM  
Blogger Tom Van Dyke said...

Who sez morality is merely a code of personal conduct?

"Slaves have human rights because they're fully human."

---That's your opinion. The constitution says slavery is just fine. If you think holding slaves is immoral, don't hold any.---Joe Slaveholder, 1825.

That is the seduction of relativism. It believes it does not make moral judgments, but it cannot help but do so. Neutrality is a judgment in itself. Under current operation, the government is imposing relativism, and the reality is that it does so in contravention of the organic operation of society.

And that's the difference: society is organic, law is necessarily artificial, or, to use a better philosophical vocabulary, conventional. Conventions without consent are tyranny, although consent in a society will never be unanimous. That is the nature of societies.

You have to see Scalia's whole talk if you want to get past the surface. But he begins to say (before being interrupted) that as a jurist, he does not impose his morality of natural law.

However, a society cannot function without some sort of ethos. Caring for the poor, or providing universal health care, all these things are put into moral terms. And government is a function of society, not the other way around. That's why it's government's job. You cannot separate it from society.

You can separate the constitution from its roots, and we have (to our detriment, IMO), substituting "penumbrations" for foundations. Scalia points out that constitutional law was decided based on natural law until the Erie case in 1938. Now cases are decided on another "moral" basis, that of rights.

But both are belief systems. There is no getting around that. Scalia, and I, I suppose, meet this new reality halfway at least in asking only that our operative belief system, whatever it shall be, be embraced by a majority of our citizens and not dictated by the courts.


There is no shortcut around deciding right and wrong. Morality is not a mechanism. There are far more examples of societal convention (and moral judgment) that we routinely accept without examination, like abjuring cannibalism. They are part of us, part of our ethos. You cannot abolish ethos; you cannot yield the duties of conscience to the sterility of law, for in doing so, you abolish society, and you abolish man.

5:06 PM  
Anonymous Anonymous said...

"That is the seduction of relativism. It believes it does not make moral judgments, but it cannot help but do so."

That's because you're tautologically defining every question as a moral one, when there may be other standards of judgment. When you let morality subsume every possible decision modality, of course every thing is moral; of course I can't help but make moral judgments, because somebody is going to pass judgment on that decision as moral or immoral based on his belief system. There are people who think the decision whether to shave or not is a moral one. The fact that anything can plausibly be labelled as such is why we 'cannot help but' make *moral* judgments.

You're still not acknowledging that there are reasons for laws independent of their morality. The point about slavery is ridiculous because, even though it's morally abhorrent, it hinges on the simple fact that a slave is plainly a person, which makes the slaveholder you quoted an idiot, but not solely on the basis of morality. If he told you a person in a wheelchair wasn't a person because he didn't have two arms and two legs, would you need a moral argument to counter him?

It creates a nice circle back to your insistence, arbitrarily, that the determination of whether a blastocyst is a person is a moral question, and that somehow your moral answer to that question should dictate everyone's behavior, rather than more generally agreed upon criteria.

"Caring for the poor, or providing universal health care, all these things are put into moral terms. And government is a function of society, not the other way around. That's why it's government's job. You cannot separate it from society."

Now I'm really confused. Are society and government separate, as you argued previously, or not?

I mean, sure, I believe 100% that all of those things are totally moral. I just don't think that's either a necessary nor sufficient justification for the government to do them. It's not that I don't think there are other reasons it should do them; I do.

And I'm not sure you really want to depend on a 'libertinism is harmful to society' type argument, because things like massive income inequality are much more damaging to society than libertinism; should we forcibly redistribute wealth? What about banning alcohol and fatty foods due to their deleterious effects on society? Should we ban them? How about gas guzzlers - should we outlaw them? I do think steps could be taken to compensate society for the damage that these things cause, in a spirit of just cost assignment. But I don't think they should be banned. Maybe I'm being unfair, but the fact that it's so easy to caricature that position seems to me to be a prima facie case that it's not a very defensible one.

I also think that the cannibalism example is easily dismissed because don't you think that the person to be eaten had rights? Rights which were codified in the Bill of Rights? Though I can't personally see the practice of cannibalism as a MORAL practice in any sense, a much more parsimonious explanation is that it would seem to violate the rights of the eaten, wouldn't you say?

I don't really know if, as you say, "Society can't function without some kind of ethos", but whether it can or not does mean that government should be enforcing some kind of ethos. You really believe that just because the mere fact that the coercive power of government is not brought to bear to keep the population virtuous, that virtue will disappear? Why has religion flourished in this nation despite a rigid wall separating it from government?

I think I don't believe it because I just haven't seen any evidence for it.

10:46 PM  
Anonymous Anonymous said...

"You cannot abolish ethos; you cannot yield the duties of conscience to the sterility of law, for in doing so, you abolish society, and you abolish man."

You said yourself that societies pre-dated government. So if the society can exist without government at all, it can also exist without government enforcement of societal norms and customs.

11:15 PM  
Blogger Tom Van Dyke said...

To you first part, I see the problem. You consider your moral assertions to be facts.


To the second, governments can destroy societies.

2:14 PM  
Anonymous Anonymous said...

No, I require facts before I can make reasonable moral assertions. A fact is something which is generally agreed to be true. 'A blastocyst is a person' is NOT A FACT.

Governments can destroy societies. Yes, by heavy-handedly enforcing compliance with certain societal norms OR by heavy-handedly enforcing non-compliance with certain societal norms. Neither of which is occurring in our country.

3:03 PM  
Blogger Tom Van Dyke said...

A fact is something which is generally agreed to be true.

That is not a fact. Hence, our impasse.

3:06 PM  
Anonymous Anonymous said...

The critical issue is whether I believe my moral assertions are TRUTH. Because I'm skeptical that they can ever attain that, I'm not comfortable imposing them on others via government.

The belief that one's moral convictions are truth is a good reason for him or her to live by them, but because of human fallibility, it is not a good reason for forcing others to live according to them.

3:26 PM  
Anonymous Anonymous said...

A thought experiment to make the distinction between factual and moral determinations:

If you found remains buried in my backyard, and there was no way to determine whether they were human or not, would you think it reasonable to prosecute me for murder? Is the question of determination/identification a MORAL question?

3:42 PM  
Blogger Tom Van Dyke said...

What do you do with the bones? Give 'em to your dog? Make soup?

5:13 PM  
Anonymous Anonymous said...

Soup. You can make one hell of a bisque.

10:38 PM  
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