Jeremy Pierce: June 2009 Archives

One common complain on the left about conservative political views is that conservatives favor legislating morality. One thing they mean by this is the conservatives favor certain kinds of laws about certain kinds of issues that rely on a moral conception that differs from liberal moral views. For example, conservatives tend to favor laws that restrict abortion. Those who find abortion morally unproblematic complain that legislating morality is a bad idea, because legislators shouldn't declare what people should do on such issues.

I've always hated the expression, for a number of reasons, but one is that most laws legislate morality. Laws against murder enforce a moral standard that it's generally wrong to kill people. Laws against larceny enforce the moral standard that it's generally wrong to steal from other people. Laws against homosexual sodomy may pick out acts that not as many people think are wrong, but it isn't any more or less a legislation of a moral view than the uncontroversial laws that legislate morality.

It's another matter to restrict laws to outlaw harmful activity or to require consent for certain behavior that affects others. Some people mean just that when they say they oppose legislating morality. In other words, they oppose legislation against activities merely because those activities are morally wrong, and they require a further explanation of why they should be illegal: violation of consent or causing of harm. But harm and consent are moral reasons for favoring laws against such things, so it's still legislating morality. It may be that only certain moral reasons are the sort to justify laws, while others are not, but it's not entirely helpful to make this point by saying you oppose legislating morality. It's a confused way of making the point, and clarity would be served by making clearer distinctions among different aspects of morality.

To be consistent, such a view requires major revisions to our laws. We'd have to remove motorcycle helmet laws, unless it could be argued that the only purpose of such laws is to protect anyone who crashes with a motorcycle from greater liability for the greater amount of damage caused by not wearing a helmet. But that can be more easily achieved by holding those without helmets more liable for damage to themselves rather than fining them for not wearing a helmet. Helmet laws are designed to protect people from themselves, not to protect them from harming others. Even if we expand the legitimate class of laws to include such paternalistic laws, we'd still have lots of laws that might be called moralistic beyond harm to others, harm to self, and consent.

For example, laws against cannot be fully justified by the harm they cause to potential offspring or the fact that minors can't legally or morally consent. A brother and sister who want to have sex with each other can sterilize themselves to remove the possibility of harm to offspring, and they can consent if they're old enough. Why should we have laws against such sexual acts if the only issues that should affect legislation are harm and consent? One might argue that there's psychological harm from incestuous sex, but we don't outlaw everything that might cause psychological harm, and I think the argument that it causes harm might depend on the prior moral view that it's wrong to engage in incestuous sex. After all, there's a parallel argument that gay sex or even heterosexual pre-marital sex causes psychological harm. These are just a few examples. Our legal system would need some serious revision if we want to apply this approach to moral justifications for laws in any consistent way.

It occurred to me, though, that there's another reason the political left should generally resist speaking in terms of legislating morality. The left tends to favor a view of the role of judges that conservatives often call "legislating from the bench". Once you look at what's going on, you might even be willing to call it "legislating morality from the bench". Rasmussen conducted a poll during the election last fall that correlates views on the role of judges with votes for Obama and McCain. The question read: "Should the Supreme Court make decisions based on what's written in the Constitution and legal precedents or should it be guided mostly by a sense of fairness and justice?" 82% of McCain voters and only 29% of Obama voters took the first option, while 29% of McCain voters and 49% of Obama voters took the second option. For the record, President Obama himself has said that in the cases where the justices disagree strongly it should be the second option (but he strangely thinks this is only 10% of the cases that they disagree strongly, when it's a lot more than that).

Insofar as a judge's role is to interpret the law, the judge should indicate what the law means and enforce it even if the judge disagrees with the law. Justice Thomas exhibited such a role in his dissent to Lawrence v. Texas, the Supreme Court decision that banned laws prohibiting homosexual sodomy. Justice Thomas thought such laws were stupid. He wrote a separate opinion from Justice Scalia's dissent just so he could say that. It was a short opinion. His opposition to the majority wasn't because he thought it was a good idea on policy grounds to have laws against homosexual sodomy. It was just that he didn't think the Constitution prohibited such laws.

Insofar as a judge's role is to administer justice, on the other hand, it seems that the judge's obligation is to administer morality and enforce it in the cases where the law is not clear or is indeterminate, and what that amounts to is basically legislating from the bench, in particular legislating morality from the bench. If the standard liberal complaint is correct that it's bad to legislate morality, it becomes extremely hard for me to see how a judge should do exactly that by determining the just outcome when the laws don't settle what should be done. Even though this isn't strictly speaking legislation, it's equivalent to legislating in its effect, which is why the term "legislating from the bench" has seemed so apt to so many. It certainly does seem equivalent to legislating morality as far as I can tell, and it's a highly-regarded role for judges among those on the leftward side of the political spectrum. It gives me even less reason to be patient with those who complain about legislating morality.

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282 June 24 Fathom Deep: Sounding the Depths of God

283 July 1 The Limitless

284 July 8 Parableman

285 July 15 The Minority Thinker

286 July 22 Thoughts and Confessions of a Girl Who Loves Jesus

287 July 29 Brain Cramps for God

288 Aug 5 Jevlir Caravansary

289 Aug 12 Parableman

290 Aug 19 Fish and Cans

291 Aug 26 Who Am I?

Perhaps future-Justice Sotomayor's judicial inclinations on abortion will be tested relatively soon once she assumes Justice Souter's now-vacated (as of today) seat on the Supreme Court (pending her all-but-assured confirmation by the heavily-Democratic Senate). The 4th Circuit decided a case last week that considers the constitutionality of a Virginia abortion ban that in almost every respect is just like the federal law that the Supreme Court narrowly upheld in an opinion written by abortion swing-voter Justice Anthony Kennedy.

The federal law and the Virginia law differ in one respect. The federal law bans deliberate partial-births (defined by delivery up to a certain biological point) in order to kill the fetus. That procedure is outlawed as a method of abortion. The Virgina law bans one further thing. If a doctor is carrying out an abortion by another method, and the fetus happens to get past that point of delivery defined by the law as a partial-birth, it is a crime to kill it via any method. In other words, once the fetus reaches the point defined by the federal law as a partial-birth (whereby it's a crime to deliver the fetus to that point in order to kill it), it counts in Virginia as a crime of a similar level if the doctor goes ahead and kills the fetus whether the intention was to abort it that way or another way earlier in the process.

In other words, the difference between these two laws is that one does not criminalize deliberate attempts to kill the fetus after it reaches the relevant partial-birth stage as long as the doctor had planned to kill the fetus earlier but failed to do so. The other does criminalize that. Which law is more consistent? Surely the Virgina one. It criminalizes any killing past that point, whether there was an intention of killing beforehand or not. Compare the laws against disposing of an infant born from a failed abortion. The U.S. Senate unanimously supported such a law. It doesn't matter if the doctor intended to abort the fetus. If it got to the point where it would normally be illegal to kill it, the fact that it was born as a result of a failed abortion doesn't make it legal to kill it. This just extends the same sort of reasoning to the partial-birth abortion ban the federal government passed that the Supreme Court has declared constitutional. So it seems as if it's actually the logical implication of the federal law, even if the federal law didn't go this far. It basically relies on the principle, found in Judith Jarvis Thomson's famous 1972 paper defending abortion, that a woman doesn't have a right to the death of the fetus just because she has a right to be rid of it from her body.

The 4th Circuit vote was narrowly-divided 6-5 along lines that happen to correspond with the party of the presidents who appointed them. Judges don't often follow a narrow ideology reflecting exactly that of the president who nominated them, but in this case it did work out that way. One judge was appointed by President Clinton as a recess appointment and renominated by President George W. Bush as a courtesy (as presidents do from time to time for previous presidents of another party), but he really counts as a Clinton appointment, since Clinton appointed him initially. Those appointed by Presidents Reagan, Bush, and Bush signed the opinion that upheld the law. Those appointed by President Clinton signed the dissent (none remain from Carter and Obama's one nominee to that court hasn't been confirmed yet).

In effect, the Democratic appointees on the 4th Circuit Court of Appeals have endorsed the view that a woman not only has a right to be rid of the fetus but also has a right to its death if being rid of it most of the way doesn't kill it. Otherwise they have nothing to complain about if they're really following Supreme Court precedent (which does bind them). The dissent here strikes me as a pretty obvious case of ideology trumping the law, even granting all Supreme Court precedent as the law. I really hope that if the Supreme Court hears this case it will affirm the 4th Circuit judgment by a 6-3 margin. It will likely not get more than that since three justices remain who will likely seek to continue their opposition to laws like this, but I suppose it's barely possible even if extremely unlikely that Justices Stevens or Breyer will defer to precedent they didn't original support. But no one has any clue about Judge Sotomayor's views on this sort of issue. She could be well to the left of anyone on the Supreme Court for all I know, but it's certainly possible that she's even to the right of Justice Kennedy for all that she's written about the issue (which is basically nothing besides issues relating to the free speech of abortion protesters).


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One of the problems with Facebook's latest version is that it's no longer possible to import blog posts and keep them comment-free while directing comments to the actual blog. So I've got Facebook friends who comment in Facebook on my blog posts, and those comment threads never appear on my actual blog. One recent comment thread on the Facebook import of this post led to my observing something that hadn't occurred to me before about some of the strange new dynamics of developments in how affirmative action is practiced.

There's an interesting phenomenon now of colleges having higher standards for Asian applicants than they do for white applicants in order to keep the numbers closer to where they want them to be. The diversity argument for affirmative action is now being used to justify discrimination against Asians. Since the diversity argument is the only one the Supreme Court has been willing to recognize as constitutional, none of the other arguments for affirmative action can be used to make this unconstitutional (e.g. remedying past discrimination, counterbalancing current discrimination at other levels of society, reparations for past mistreatment). That makes this perfectly constitutional in its justification, as far as the Supreme Court is concerned.

But I'm wondering if it's against the spirit of the Supreme Court's official stance. The diversity justification is supposed to support the favoring of sufficient diversity in the academic environment, not to ensure exact representation of each group according to any prejudged percentages. Unless the number of Asian students at the higher levels of higher education is so high that it's hindering diversity, I suspect the architects of current case law (Justices O'Connor and Breyer) would frown on admitting Asians at lower rates. It might look a lot more like the quota system that the Supreme Court has declared unconstitutional rather than giving underrepresented groups a leg up to make sure they have a seat at the table. They're already doing that with non-Asian non-white groups, and it's not as if whites need a leg up to have a seat at the table.

I'm thinking the same thing is true about the schools that are lowering standards to admit more male students, given that women are becoming a noticeable majority in higher education. It's not as if men are in danger of losing a seat at the table or as if diversity is really threatened at this point by some lower numbers of men in higher education. This seems to be motivated by a desire to have the number of each sex be closer to their representation in society at large. Doesn't that seem to be the spirit of quotas that the Supreme Court has consistently affirmed as unconstitutional? I'm pretty sure at least six of the current members of the Supreme Court would take that view, given what I've seen from them on previous opinions. But I've never heard of anyone even suggesting that someone initiate a lawsuit to challenge these practices on these grounds.

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I came across a pretty good discussion of several of the bad arguments for and against Judge Sotomayor's nomination by Jonathan Turley. I recommend the whole thing, but one statement by him got my attention.

He says something that led me to compare an interesting phenomenon that arises with both Justice Thomas and Judge Sotomayor involving race. There are those who are happy that Judge Sotomayor is a Latina and will support her nomination for that reason alone, ignoring anything else. Then there are those on the left like Turley who would have preferred someone with more intellectual heft. On the right, there are those like me who are happy enough that Obama has nominated someone who by most reports will do little to move the Court to the left from where it currently is (and on some issues may well move it somewhat to the right, although on some issues we don't have any clue, and she could be far left for all we know). Then there are those on the right who have also pointed out that she's gotten some negative reviews in terms of her intellect, claiming that she's an affirmative action pick who is being chosen not because she's qualified but because she's Latina, sometimes even with the suggestion that she's unqualified.

So on both sides of the political spectrum we get objections that she's not an intellectual heavyweight. Turley is right to point out that this is not the same as saying she's stupid, as some have claimed these critics to be saying. Maybe some of them are, but Turley thinks she's quite smart but just not an intellectual heavyweight whose depth of understanding of the law and the historical background of the legal questions would shift legal opinion in significant ways, e.g. as Justice Scalia has done on the right and as Justice Brennan did on the left in the latter half of the 20th century. Such a statement is consistent with recognizing her intelligence as pretty high.

Then there's a third category. There are those who claim the statements about her intelligence are due to racism. She's Latina, so they must be assuming she's dumb. You find this on the right too, particularly when people criticize Justice Thomas. Senator Harry Reid, for instance, despite admitting to never having read an opinion by Jusice Thomas, was happy to spout off the general wisdom of the left that his opinions aren't very well-written, and I regularly see and hear comments about how he's not all that smart and just looks to Justice Scalia for guidance about what to do. Anyone who has spent much time looking at his opinions and anyone who has heard him speak would never hesitate to consider him to be a pretty intelligent person.

So what about the racist charge? Is it racist to say that someone is dumb when the person happens to be non-white? Of course not. Your reasons for thinking someone is unintelligent may be despite great reluctance to say such a thing of a non-white person in the public eye. You might genuinely think the evidence supports it, or you may trust the opinion of someone else who reported to you that someone is unintelligent. I think it's pretty immoral to call someone a racist merely because they happen to think someone who is non-white isn't very bright. There are, after all, people who aren't white who aren't that bright. I've tutored for some of the athletic teams at my university. Some of the students on those teams are very good academically, and others should never have made it into college. Some of those who never should have been accepted happen not to be white. They struggle to understand pretty basic philosophical concepts that most freshmen pick up pretty readily. It's racist to assume someone is dumb just because the person is black or Hispanic, but it isn't racist to conclude that someone who happens to be black or Hispanic is of low intelligence after becoming aware of actual evidence that the person is of low intellifence.

Nevertheless, I think there's something that these critics have right. I think there's a very strong presumption in individual cases of not accusing someone of wrongdoing or evil motives when there isn't strong evidence that they are ill-intentioned or doing wrong. Therefore, I think it's wrong to throw around racism charges for everyone who, for all you know, might be operating based on racist assumptions. Racist assumptions would explain how someone might conclude that someone who managed to graduate top of her class at Princeton University might be stupid. Racist assumptions similarly would explain how someone might say the same about the justice who managed to convince Justice Scalia to become more judicially conservative than he already was because of some pretty innovative and out-of-favor reasons that it hadn't even occurred to Scalia to consider. But to assume that racism is at work in any particular case violates the principle of charity that we ought to take in cases where we don't really know if someone is being downright evil in the way we're inclined to accuse them of being.

Such a strong presumption is for individual cases when we're ignorant of the details, perhaps even relevant ones about a person's inner life. That's consistent with recognizing that a claim is too ludicrous to be perpetuated so easily and frequently by people who should know better when we rarely see such claims about men who are nominated or serving on the Supreme Court. That might lead us to wonder if there is some kind of racist stereotype being perpetuated. In this case, I don't think it would be that Judge Sotomayor is being assumed by anyone to be unintelligent because she's Latina, but I wonder if some people among those who say this are more likely to believe such a claim when made about a Latina than they would if it were made about a man, especially a white man.



The 282nd Christian Carnival is coming Wednesday at Fathom Deep. The Christian Carnival is a weekly collection of some of the best posts of the Christian blogosphere. It's open to Christians of Protestant, Orthodox, and Roman Catholic convictions. One of the goals of this carnival is to offer our readers to a broad range of Christian thought. This is a great way to make your writing more well known and perhaps pick up some regular readers. For examples of past carnivals, see the Christian Carnival archive.
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I've been pretty busy teaching two intensive summer courses for the last few weeks, and I didn't have easy access to a computer for a good part of that time because Dell's next-day contract isn't exactly giving me next-day service due to some backlog problems (I still don't have full resolution from a problem that began something like 13 days ago.) But I did catch some people commenting that President Obama said that the U.S. would be one of the largest Muslim countries in the world if you just counted all the Muslims in the U.S., and I did see some people juxtaposing that comment with his claim during the election that the U.S. isn't a Christian country, claiming that he had contradicted himself.

There is a real tension between what he's doing with those two statements, but I don't think he contradicted himself. It turns out that one of his statements is hopelessly false. According to a Pew study, Muslims are about .6% of the U.S. population, which brings the total to less than 2 million. It seems France and Germany have more Muslims than the U.S. does, and most Muslim states are higher than that also. See Mollie Hemingway for some sources and some graphical presentations of the information. But the statements can be consistent even if one of them is false.

We need to ask first what it takes for a country to be Christian or Muslim. 1. Is a country a Christian country merely because its majority is Christian and its traditions are largely influenced by Christian traditions? 2. Or does there have to be an official declaration of Christianity as the nation's religion? 3. Or is that even enough, given that Christianity itself is a decidedly non-nationalizing religion, with strong resistance to seeing faith in the nationalized way that old-covenant religion in Israel was. The expansion to include all nations resists the very possibility of a Christian nation, according to Christian theology.

But what many people mean by using the adjective 'Christian' in this context is not any such thing but more that the government's structure, the legal tradition's views of human rights and assumptions of common law, and the nation's broader traditions are Christian-influenced in a strong enough way.

You have a very different situation with Islam. A nation can be Muslim in the weaker sense. It can also be Muslim in the second sense of being an officially-Muslim government, and in fact most nations that are Muslim in the first sense are also Muslim in the second. (I believe the only ones that haven't been have been controlled by a minority hierarchy of non-Muslims). But Islam explicitly affirms the third kind of being a Muslim nation, something Christianity never condones for itself. So that does change things, I think. It can much more easily be the case that a nation is unambiguously Muslim than it can be for a nation to be unambiguously Christian (in fact it's impossible for Christianity).

But will this help resolve the tension between the two Obama statements? I doubt his understanding of biblical theology is sufficient for him to come up with the view that it's impossible for a nation to be Christian in the third sense, but it's quite plausible that he meant the second sense when he said that the U.S. is not a Christian nation. It's pretty obviously not true if he meant it in the first sense, especially with his fairly broad sense of what it means to be a Christian. [And his view of Christianity is broader than mine, since he does consider himself a Christian, and I find it hard to include him given his denial of any afterlife, his conception of prayer as talking to himself, his reducing of the Holy Spirit to anyone's coming to see something that's true, and his conception of Jesus as merely bridging the God-human gap rather than having dealt with a serious problem of human sin interfering with any connection with God's holy nature. (See my Is Barack Obama an Evangelical? for further details on all that.) So with a broader conception of what counts as Christian, the numbers of Christians and the influence of Christianity in the U.S. will only appear to be stronger to someone like him than it would to someone like me with my more restrictive views of what is genuinely Christian.]

What about his statement about the U.S. being one of the largest Muslim countries if you only counted the Muslims. Even though the statement isn't even close to being true, I'm interested in what he meant to see if it's consistent with his statement about the U.S. not being a Christian nation. If he meant it in the second or third way, it's obviously false. I think he must have meant it in the first way. But saying something like that and meaning it in the first sense with Islam is perfectly consistent with resisting something along the same lines about Christianity and meaning it in the second sense. So I don't think his two statements are actually at odds, at least in terms of the consistency of the two things he meant with each statement.

Nevertheless, there might well be a tension between the pragmatic purpose of what he's trying to do in one case and the pragmatic purpose he's trying to achieve in the other. In the later case, he was looking toward a major speech trying to win over the Muslim world, so he wanted his audience in that speech to see that he was being positive about Muslim participation in American society. What was he doing in the first case? He was probably trying to satisfy the left's continued insistence that the religious right shouldn't control policies that people might disapprove of if they have other religious convictions or none at all. So the surface motivation is to be inclusive, a similar purpose to his later claim about Islam. Nevertheless, I do think the statement he made, in the context of why people do claim that this is a Christian nation, serves to send a message that Christian concerns are not to be included at the table when discussing certain kinds of policies. To the extent that that's true, I do think his statement serves an exclusionary purpose with socially-conservative religious voters, who were by and large turned off by his statement.

What he literally meant shouldn't have offended by it, but what he was trying to accomplish certainly does treat their concerns as unimportant. For that reason, I don't think those who are criticizing him for being inconsistent with these two statements are entirely wrong. There is something behind the first statement that is at odds with what he's trying to do with the second, at least if he wants to treat all religious expressions as legitimate and positive, which he at least says he wants to do.

One of the most reprinted articles on abortion in applied ethics anthologies is Mary Anne Warren's 1973 article "On the Moral and Legal Status of Abortion". Her general approach is to claim (without argument) that moral status has to do with personhood and then to claim (without argument) that personhood consists of having certain characteristics chosen in order to get the result that a fetus isn't a person. She does argue for the first claim in other work, particularly her discussions of animal rights, where she basically explains the heightened moral status of adult human beings in terms of pragmatic, non-intrinsic value (which I have to say isn't very satisfying as an account of moral rights, even if it might work for legal rights). But there's no actual argument for either claim in this article. She just takes it to be obvious that what opponents of abortion have long taken to be obvious is just false. Her account has always seemed to me to be question-begging, since the pro-lifer might not grant either premise.

But it's one thing to present a question-begging argument. It's quite another to misrepresent the opposition and to assert obvious falsehoods, and Warren does both. There are two real howlers in her article, and it amazes me that it gets as much attention as it does. I know of no better article defending the general approach she takes, so I continue to use it, but this isn't because I think her article is remotely good. It's because the position she defends probably has no better defense, and thus if I want to represent it among the possible views I'm going to discuss in class I might as well choose the most easily-accessible among the presentations of views like hers (particularly if I also teach her position on animal rights, where she does at least give some argument for the first premise). Plus, I spend enough time reading through new readings and preparing new material to teach whenever I use a new book in my endless quest to fight the rising textbook prices and the urge of students not to buy the books when the prices get too high. If I can limit the number of new readings I do, I will usually do so. So I continue to teach her article.

The two biggest problems in Warren's article are these:

(1) She gives an absolutely terrible argument against the view that potential personhood grants moral rights, one that grossly misrepresents even the crudest versions of such a view.
(2) Her view of personhood leads to some outrageous claims about moral status than no reasonable person should accept, and it's not even clear that her position is consistent in the end.

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It's not all that common that I find myself agreeing with Peter Singer on a controversial ethical issue, but I was reading a section of his book on the moral status of animals and came across a passage where he discusses racial differences, and I found his discussion refreshingly honest in a way that would come across as politically incorrect in many circles.

He complains that the primary opposition most people have toward racism seems to come from being able to see that people in different races aren't all that different, and thus discrimination against people of a certain race merely because of their race is arbitrary and morally unfounded. I've just started reading one of his articles directly on that topic, and I may well have something further to blog about it once I'm done, but in the animals discussion Singer registers some worries about this approach that I've long had myself, worries I don't see very many people expressing.

A great number of trees have been killed to try to defend the claim that there are no racial differences that might be remotely connected to anything morally significant. At any suggestion that part of the cause of the IQ gap has to do with something besides current racism, sociologists and psychologists do all sorts of empirical work trying to show that black students score lower when they know their race is being recorded with their score and such things. It's as if everything anti-racist hangs on being able to establish that the only possible cause of racial differences in test scores might be racism itself.

Singer points out that this assumption is actually the problem. If you assume that overcoming racism requires it to be a fact that there are no significant differences in intelligence between two given races, then the racist with some reason to see a difference will seem more excusable. If anti-racism rests on the assumption that there will never be a gap in intelligence between two races, what happens if you discover that, at least with respect to one method of registering differences, there is such a gap? What if part of the intelligence test gap actually comes from some biological differences in brain capacity that might make it harder to do certain tasks? Would that then make it all right to discriminate against people of that race? So basing the argument on empirical facts that might turn out to be false isn't the best idea.

The further thought that I've had is that, whenever you take an average on anything, you're bound to have averages that differ. It's almost overwhelmingly guaranteed that one of the averages will turn out to be closer than the other to the goal in question, even once you adjust for environmental factors. You're simply not going to be able to establish the view that there are no differences that lead to slightly higher averages on some measure with white people than with some non-white group. Such a result isn't just some remote possibility that we hope isn't true. It's almost certainly going to be true statistically speaking. If you manage to get a test that does fairly well at testing for skills of a certain sort, it's overwhelmingly likely that some racial groups will test better at it, because those people who happen to belong to certain races are not likely to have exactly the same average than those of every other race. One will turn out to be better on average, and that result would be a pretty poor excuse if someone wanted to use it to justify racism. If you took any random sampling of humanity and tested them, then took a different random sampling and tested them, it's extremely unlikely that they'd have the same average. If the average for blacks turned out to be lower than the average for whites, what would that tell us? Absolutely nothing of any consequence, since we would expect that the numbers couldn't be the same, and when you're talking large numbers of people with variable scores it might be reason to suspect divine intervention if you got exactly the same result for each group.

So I'm in full agreement with Singer about those who resist tooth and nail any possibility that there might be a lower average among one race when it comes to a particular measure of intelligence. It's a fruitless quest, and the factual discovery such people so strongly want to resist isn't really going to lead to enough of a morally-significant difference to justify the strong resistance.


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Late-Term Abortions

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I wanted to post on this over a week ago, but computer difficulties ensued, and my file of stuff to blog about was inaccessible. Bruce Alderman offers a fairly careful explanation of why some people who are otherwise inclined toward pro-life directions on abortion might allow for abortion in some late-term cases. He even goes far enough to say that most of the late-term cases should be less-controversially ok than even many of the earlier-term cases.

Shouldn't it be obvious that late-term cases should be more morally problematic than early-term ones? After all, those who think moral status develops from lower moral status to the full status of adult human beings will often say most of this development takes place in utero, and more pain is caused by late-term abortions as well, so those who base the moral question on how much pain is causes should think earlier abortions are not as bad. What Bruce points out, though, is that most late-term cases are often done for reasons that pro-lifers are more often willing to acknowledge as less problematic. The example he gives is of a teenager who had an abortion because her life was at risk if she continued the pregnancy. I'd be willing to guess that the exception most easily allowed by pro-lifers would be cases where it's two lives lost or one lost, and having an abortion leads to the only one lost. So I'm not sure allowing these cases leads to a view all that far removed from the typical pro-life position.

Where I think Bruce's view departs from the typical pro-life opposition to late-term abortions is that he notices that most late-term abortions are not for the typical reasons women give for early-term abortions. The vast majority of late-term abortions are to save the mother's life, to avoid pretty serious health consequences for the mother, or because some kind of major birth defect is discovered late in the game. This makes Bruce conclude that it's strange for pro-lifers to have such opposition to doctors who perform late-term abortions, as if those abortions are much worse than the early ones.

I do have a couple problems with Bruce's analysis (and the rest of this post is adapted from my original comment on his post). He seems to treat abortions having to do with life-threatening situations for the mother and those having to do with defects in the fetus as if they're in the same category. I wouldn't consider them remotely the same. I can understand an abortion to save the life of the mother, at least if she has other children to take care of. It would be a great tragedy, and I'm still not sure it's morally ok to perform an active killing of an innocent to save someone's life, but I can understand the motive.

I'm a lot less understanding of those who would have an abortion at 26 weeks just because they think there's a likelihood of some kind of disease or disorder in the child. That's no better than those who kill their child when they found out there's a risk (but certainly no guarantee given all the false positives of such tests) of Down Syndrome. That sort of act is just downright evil and cannot be motivated by anything but selfishness on the part of the parents or an extremely warped sense of what quality of life a Down Syndrome person can have. Lots of pro-choice people fully agree with me on this.

Not all cases are like this, though. Sometimes it's a matter of some condition that you know is there and that you know will not allow for continuing development past a few days or weeks. But isn't our obligation to care for such children and try to make their lives comfortable rather than killing them? The mere presence of such a child in the womb rather than having been born shouldn't change that. My suspicion is that the majority of late-term abortions are in this last category and not the life-saving category. Even if I'm wrong, they shouldn't be lumped together, and it would still follow that late-term abortion doctors would be doing something pretty seriously immoral if they do it for this reason, and most who do it are doing it for this reason at least sometimes.

That, of course, doesn't make it ok to kill doctors who perform late-term abortions, but I do think this is an important enough issue not to smooth over as if there's no distinction to be made between late-term abortions whose motivation is less bad and late-term abortions whose motivation is pretty awful.

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The 280th Christian Carnival is up at Crossroads: Where Faith and Inquiry Meet.

I've been looking at the case of the moral status of animals in my summer ethics class, and I've just finished rereading a piece by Tom Regan, who argues that animals have full moral rights and thus shouldn't be treated as means to human ends, including any use in laboratory experiments, for food, as pets, or for entertainment. His is just one of several views I'm looking at, and it's not new to me, since I've taught this article or another similar one several times in the past. So I wasn't expecting to notice an argument that I didn't remember from any of the previous times I included his work, but there's an argument about souls that strikes me now as particularly bad in a way that it surprises me not to have noticed it before.

He considers and dismisses several reasons people might have for thinking humans have rights that other animals do not have, and one in the list is the view that humans have immortal souls, and animals do not. His argument against this method of distinguishing the moral status of humans and animals was simply that the issue of whether humans have immoral souls is controversial, and we shouldn't base our stance on one controversial issue on our stance on one that's even more controversial.

I can't say I'm impressed by this argument. Most people who believe in immortal souls do not do so based on the controversial arguments offered by philosophers, most notably those of Plato and Descartes. There problems with their arguments. Someone who holds an alternative view has some pretty easy dodges. They can deny a premise or point out that certain inferences don't follow if materialism is true. Of course, the derision held for mind-body dualism among professional philosophers is reserved for few views, and philosophers who find these arguments unconvincing are usually unwilling to recognize that pretty much every philosophical argument for any position that doesn't command near-universal agreement is just like that. I'm not at all sure that Plato and Descartes' arguments are as bad as they're made out to be, so I'm not willing to grant that immortal souls are more controversial than views on animal rights, as Regan seems to think.

But there's a deeper reason why this argument can't easily succeed. If we do have immortal souls, then that might make a big difference in how we think about moral status. Suppose it does. Suppose also that there's no convincing argument either way. Does it follow that we shouldn't assume that we have immortal souls that animals lack? Suppose it does. I think it's only fair to say that we also shouldn't assume that we don't have such souls. Regan's claim that there's no good reason to think we have moral status that animals lack would then turn out to be true, but it would also be true that Regan has no good reason to think we don't have moral status that animals lack. We should hold no view either way, and he thinks he can just assume one stance on this issue that he thinks is more controversial than the question he's primarily writing about. He's done the same thing he's claiming the believer in immortal souls shouldn't do.

There is one reason you might favor one side, though. Regan could argue that he would assume one way rather than the other on this question because he's giving the benefit of the doubt to those who, if we ignore their possible rights, we do great wrong to. If we assume animal rights, we prevent what might be a serious wrong to animals. I should say that those who use this reason better not be pro-choice in the abortion issue on the ground that we don't know for sure if a fetus has moral status (and there are indeed people who take such a view, including the current President of the Unites States).

But there are at least two considerations that would at least moderate such a presumption. One is that the human benefit of various ways we treat animals, not least being the significant scientific advances from animal experimentation that produce benefits both for humans (and probably animals), means we would be doing a great wrong to humans (and possibly for animals) if it turned out that animals have no rights but we pretend they do.

But we also need to take into account the fact that a large number of people who believe in immortal souls do not do so because of philosophical arguments but because their religious beliefs include that view. To evaluate whether such people's beliefs are rational we'd have to evaluate the entire question of the rationality of religious belief, something I've certainly spent a lot of time on in other places but won't get into here. That's yet another controversial question, but if it turns out religious belief can be rational then there might well be a rational reason for thinking we do in fact have immortal souls that animals lack. Without knowing that, Regan's argument now has to rely on two unestablished conclusions and thus is doubly question-begging even if he's right that the other side's argument is question-begging.

I happen to think I've got good reasons for thinking my belief in immortal souls and in the non-existence of immortal souls in animals, even before I've considered the question of the moral status of animals. I don't think animals have no moral status, but I don't think Regan can dismiss a view held by the majority of the world's populace as easily as this, since he hasn't actually even given any arguments against the two views he'd need to resist for his argument to go through (although maybe he does do that elsewhere, but I doubt it since he does say that he hopes he does have an immortal soul, and he does speak once of God as if he believes in a divine being). I don't think the status of animals is anywhere near as simply as humans having full moral status because of immortal souls and animals have none because of no souls, but surely more needs to be said to refute that kind of consideration than simply noting that it's controversial.



The 280th Christian Carnival is coming Wednesday at Crossroads: Where Faith and Inquiry Meet. The Christian Carnival is a weekly collection of some of the best posts of the Christian blogosphere. It's open to Christians of Protestant, Orthodox, and Roman Catholic convictions. One of the goals of this carnival is to offer our readers to a broad range of Christian thought. This is a great way to make your writing more well known and perhaps pick up some regular readers. For examples of past carnivals, see the Christian Carnival archive.
To enter is simple. First, your post should be of a Christian nature, but this does not exclude posts that are about home life, politics, or current events from a Christian point of view. Select only one post dated since the last Christian Carnival (i.e. from the last Wednesday through the coming Tuesday). Then do the following:

Back during the nomination hearings for then-Judge Samuel Alito, Senator Barack Obama defended his vote to filibuster Alito, for reasons that included the following reasoning:

I believe firmly that the Constitution calls for the Senate to advise and consent. I believe that it calls for meaningful advice and consent that includes an examination of a judge's philosophy, ideology, and record. And when I examine the philosophy, ideology, and record of Samuel Alito, I'm deeply troubled.
I have no doubt that Judge Alito has the training and qualifications necessary to serve. He's an intelligent man and an accomplished jurist. And there's no indication he's not a man of great character.

But when you look at his record - when it comes to his understanding of the Constitution, I have found that in almost every case, he consistently sides on behalf of the powerful against the powerless; on behalf of a strong government or corporation against upholding American's individual rights.

If there is a case involving an employer and an employee and the Supreme Court has not given clear direction, he'll rule in favor of the employer. If there's a claim between prosecutors and defendants, if the Supreme Court has not provided a clear rule of decision, then he'll rule in favor of the state. He's rejected countless claims of employer discrimination, even refusing to give some plaintiffs a hearing for their case. He's refused to hold corporations accountable numerous times for dumping toxic chemicals into water supplies, even against the decisions of the EPA. He's overturned a jury verdict that found a company liable for being a monopoly when it had over 90% of the market share at the time.

It's not just his decisions in these individual cases that give me pause - it's that decisions like these are the rule for Samuel Alito, not the exception.

When it comes to how checks and balances in our system are supposed to operate - the balance of power between the Executive Branch, Congress, and the Judiciary, Judge Alito consistently sides with the notion that a President should not be constrained by either Congressional acts or the check of the Judiciary. He believes in the overarching power of the President to engage in whatever the President deems to be appropriate policy. As a consequence of this, I'm extraordinarily worried about how Judge Alito might approach issues like wiretapping, monitoring of emails, or other privacy concerns that we've seen surface over the last several months.

In sum, I've seen an extraordinarily consistent attitude on the part of Judge Alito that does not uphold the traditional role of the Supreme Court as a bastion of equality and justice for United States citizens.

By that standard, now-President Obama should find the current president's nominee disturbing for the same reasons he found the last Supreme Court nominee disturbing, at least if he's going to be consistent. In fact, he should promote a filibuster.

The 279th Christian Carnival is up at Participatory Bible Study Blog.

We've got two old and falling-apart minivans, and we're buying a newer one pretty soon. Both the old ones really are on their way out. We're going to have to get rid of one of them now, and the other might hang on for a little while, but I'm not fully sure which one to get rid of first. Here are the issues:

1998 Windstar:

1. exhaust system rotting through (several holes)
2. oil pan rusted through and leaking
3. transmission probably won't last too much longer (some resistance to shifting)
4. brake lines rusty but not leaking when last checked (but that was a while ago)
5. almost 135,000 miles
6. a lot less comfortable to drive for a number of reasons
7. registration expires mid-July and is probably not worth renewing
8. inspection is due in November and will certainly not pass without significant expense
9. lots of minor issues, but most are really inconveniences even if really annoying ones (and it looks much worse and has no CD player)

1999 Windstar:

1. We just put a good deal of money into some parts to get the check engine light off so it would pass inspection a few months ago.
2. almost 107,000 miles
3. I've been told it needs a coolant flush pretty badly, and I know it needs an oil change, but I'm not sure it's worth putting even that much money into it
4. The sub-frame under the engine has split just behind the right front tire, which affects steering, and the rest of the frame is rusting away from the central NY weather; if it breaks in another spot, the engine falls out (I've been told it would cost $600-$700 to put a new frame on). My mechanic said it's probably safe to drive it around town for now, but he declared that this is the end of the vehicle. I don't know if he intended the safety pronouncement to last as long as we've been driving it (a few weeks have passed), but maybe he did.
5. much of the engine itself is in good shape (new transmission at 82,000 miles)
6. several more minor problems that I can't remember, and somehow the reports from the dealer and mechanic have disappeared, but these were hidden problems that don't affect anything obvious in any immediate way yet

Either will probably last us until my summer teaching is over, and we'll have significantly less need for two vehicles once that ends at the end of June. So the expiration in July isn't a big problem if the 1997 van got us through that. I'd want a second vehicle by the time classes start at the end of August, though, and that van won't be legal after that. We're not putting any more money into it. But I'm guessing 1998 one may be less safe. Should we assume it will last as a relatively safe vehicle beyond mid-July anyway? We probably wouldn't use it much unless it lasted through August. It doesn't have the guaranteed expiration, though, so it might allow putting off buying another newer vehicle, and it may be safe enough to justify wanting to drive a more comfortable vehicle that looks and sounds nicer. But maybe it isn't.

I hate decisions like this. I don't even have any gut intuition one way or the other of what seems better or which I'd rather keep longer and which I'd rather get rid of sooner. We need to get rid of both, but having a second vehicle is kind of important for the moment. More often than not this summer it's been able to save us from some real headaches that we would have had otherwise, and I have to leave one school immediately after class to make it home in time to eat and make it to the next class, which means I don't want to depend on being able to have the only vehicle but also wouldn't want to rely on Sam having to come get me.

If you live in the District of Columbia, beware of parking your car in your own driveway. Unless your entire vehicle fits behind the front of your house (or technically the front of your front step), you'll be subject to a $20 ticket for parking in your own driveway. [Hat tip: Ilya Somin]

What are you supposed to do if your driveway doesn't go back far enough to fit your vehicles behind your front step? Maybe they don't make any driveways in D.C. that go back only as far as the front of the house, but I would highly doubt that. If this really is the law, they need to change it.

I spent a little time looking at Peter Leithart's Brazos commentary on I & II Kings a couple weeks ago. I'm not a big fan of this series, and I haven't found this volume much better than others I've looked at (despite being told by several people that it's pretty strong on certain things I care about). There's a lot of extremely strange speculation about the significance of the number of times a word is repeated, and I thought a lot of his connections across different texts were very unlikely. He also usually doesn't answer the burning questions I have when I read a text. But Leithart's strength is in critiquing others' views. One instance of his critique of a certain position that got me thinking was his discussion of certain Christian advocates of nonviolence (this was on p.40 for those following along at home). Leithart finds an interested tension between one mode of Christian pacifists' insistence on decrying all violence and a view on the atonement that you do find among some such pacifists.

Some of the Christian pacifists will often speak of non-physical violence, such as various kinds of coercion and systematic oppression. They want to say that various kinds of evils that aren't really violent should count as violence anyway because of what they do on a deeper level. So certain kinds of oppression such as racism, sexism, and poverty (which I note is a category mistake to call oppression) count as violent, even if no physical violence occurs. Leithart notices, however, that some of the people who make this move nevertheless want to resist seeing any violence in the atonement because they want to separate our salvation from having been achieved in a violent way. They thus reduce all combat language about Jesus' victory over the powers of evil as metaphorical for his non-violent methods coming to supremacy and violent ways being reduced. An example of our application would be I Peter's discussion of wives of non-believing husbands submitting to their husbands for subversive reasons, not because they advocate the particular things their husbands want them to do but in order for Christian living to win them over to Christ.

The problem Leithart notes is that this is every bit as coercive and violent as non-violent racism, sexism, and whatever policies causing poverty they might have in mind. That means those who are holding this particular combination of views are just using the word 'violence' in effect to mean "actions that I disagree with". Their opposition to violence then becomes trivial. This does seem to me to be a real abuse of language. If you want to oppose violence but then say that non-violent things are also violence, while saying all violence is wrong, you better be pretty careful about how you assign the term 'violence'. If it's just any kind of manipulative behavior that might influence someone against their preferences, then it's hard to see the very things they do approve of as nonviolent methods escaping their classification, and then the nonviolence they prefer to violence becomes just as bad. That's certainly not what Christian pacifists want to say. Wouldn't it be better just to restrict the term 'violence' to physical violence or to methods that actually destroy in some more significant sense?

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I have to agree with Ilya Solin about this. I've yet to put together my thoughts on the Sotomayor nomination fully, but this is an important point that I wanted to say something about separately. Regardless of your view of the correctness of Sotomayor's statement that a Latina just should be a better judge than a while male judge, such a view is not racism.

I tire of making this point on the left-leaning race blogs that I sometimes check in on. Racism, in its primary sense, is a negative attitude toward people of another race. Other things that might be called racist are so in a derivative way because those things are connected with racist attitudes. Thus certain acts are racist because they typically stem from such attitudes, and certain institutions are racist because they have a lot of such atittudes and acts woven into their very fabric. Jorge Garcia has an excellent philosophical defense of this approach in "The Heart of Racism".

When you call someone a racist, it doesn't mean they have innocent motives but participate in social practices that inadvertently cause racial harm. It doesn't mean they merely have false views about race or about races other than their own. It doesn't mean you can get away with ignoring race the many white people can much of the time. It doesn't mean you avoid some of the difficulties some others face because of race. The most immediatel thing converyed when someone is accused of being a racist is that the person has a deep-seated racial animosity or opposition to those of another race or that the person has views that those of another race are inferior, and these views have a negative emotional or attitudinal component. There are certainly things that can be called racism that don't fall into that category, but they're derivative of this fundamental meaning, and when you call someone a racist it sends entirely the wrong message if what you mean is something other than the primary meaning, because that's what people hear in such an accusation.

So it irks me when I hear conservatives making exactly the same blunder. It's not reverse racism to have the view that a Latina judge is likely to have experiences that influence her judging in positive ways, experiences that a white male judge wouldn't have. Calling someone a racist for thinking experiences common to the women of one ethnic group might make someone a better judge than people not in that category is as bad as calling someone a racist for opposing affirmative action or for claiming that the Democratic Senators at Clarence Thomas' nomination hearing were racists because they were willing to do anything, even smear his name with accusations that they had plenty of evidence against, if that's what it would take to prevent his confirmation. Rush Limbaugh and Newt Gingrich have violated their own principles on this one. Limbaugh is a regular complainer about how the left issues racism charges in cases when such charges are not warranted. Yet that's exactly what he's doing here. I'm pretty sure Gingich shares that view, and yet he's also apparently called her a racist. Regardless of whether her view is true (and I encourage you to look at Tom Goldstein's analysis of her discrimination rulings, a post I'll try to comment on in more detail as soon as I can, before you come to a final judgment on her ability to be fair on such matters), it's certainly ridiculous to say that she's a racist for holding it.


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