Politics: June 2007 Archives

Marty Lederman raises an interesting inconsistency argument against two opinions the Supreme Court handed down yesterday, both touching on free speech and both written by Chief Justice Roberts. If you want to read the opinions themselves, they are Morse et al v. Frederick and Federal Election Commission v. Wisconsin Right to Life, Inc. Here are the quotes Lederman compares:

From Wisconsin Right to Life: “Because WRTL’s ads may reasonably be interpreted as something other than an appeal to vote for or against a specific candidate, they are not the functional equivalent of express advocacy,” the Chief wrote. In defining what qualifies as “express advocacy,” "the court should give the benefit of the doubt to speech, not censorship."
From Morse: ''The message on Frederick's banner is cryptic. But Principal Morse thought the banner would be interpreted by those viewing it as promoting illegal drug use, and that interpretation is plainly a reasonable one.''

I think the key would be to distinguish between different contexts for the two statements. If the context, the kind of case, and the circumstances of when it might be ok to act on the speech in some way differ in the right ways, then there's no inconsistency. In the school case, the issue wasn't whether it was a criminal act to say it. It was whether the school had the right to make a rule against it and thereby punish him in a non-legal way. It could outlaw that kind of speech within certain contexts, the Court concluded.

The other case didn't involve disciplining a student in a school for violation of a speech code or some such thing. It was about whether certain actions violate a law prohibiting a certain kind of speech.

I can understand why someone would think the burden of proof is much higher for establishing that someone has broken a law than it is for establishing that someone has broken a school speech code.

The other issue is that express advocacy seems to be a narrower concept in the Chief's mind, and there's no such narrower concept at work in the Bong Hits case.

I haven't read the opinions, so I don't know what Chief Justice Roberts would actually say, but I think I can make sense of why someone might view both cases differently even though both involve free speech. An interesting question is whether the dissenters, who also took opposite views on the two cases, can also provide a justification for wanting to restrict free speech in the campaign finance case while allowing it in the school case. They probably can, but I haven't read the opinions, and I haven't given it much thought.

I do think it's noteworthy that when people make such inconsistency claims they often forget to apply them to both sides. If conservatives favor restricting abortion but oppose animal rights, that has equal potential for inconsistency as favoring animal rights but opposing fetal rights. If conservatives have to explain how it's consistent to oppose abortion but favor the death penalty, then liberals who oppose the death penalty but favor legal abortion also need to explain how those positions are compatible. In any these cases, there isn't necessarily an actual inconsistency, but the charges are often made without considering that the opposite views might also have the same potential inconsistency.

Anti-Busing Absolutism

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This week, we're supposed to hear from the Supreme Court on a couple cases involving race-based assignment to elementary schools in order to ensure diversity at all schools (as opposed to race-based assignment of elementary schools in order to ensure segregation). I'm not sure yet that I have a view on the case. I plan to read the opinions carefully when they appear. I rarely do that. I think I've only read two Supreme Court opinions straight through when they appeared, and those were the sodomy and affirmative action decisions in the summer of 2003. But both were issues I was teaching about that summer, and I have particular interest in both issues because I regularly focus on both in ethics classes. This will be another case that draws my interest, but in this case I'm nowhere near as sure of what I think. I do think there's a difference between these cases and the segregation cases, but I also think there might be worries about how these programs work in the details. I may very well end up having mixed feelings about whatever the ruling is.

But here's one argument from Ed Whelan of Bench Memos that I cannot come close to endorsing, at least in its current form:
And how many American parents believe that any four-year-old should be forced to endure two daily 90-minute bus rides for any reason, much less in order to satisfy some social engineer’s rigid vision of racial balance?

I can understand that one more white kid in a white-dominated school is unfortunate in some ways, and I can understand concluding that it's not so bad that it's worth a 90-minute bus ride twice a day. But "for any reason"? What about a severely autistic kid who simply doesn't talk who needs a full-day pre-school program with none available in the entire county, and the closest one turns out to be one of the best in the entire region? And it's not fully 90 minutes. It's more like 75 (although it really is more like 90 for the other kid who rides his bus). And what if the kid actually enjoys the ride? I can't think of any better situation for my four-year-old than this, and it's unfortunate that the country can't keep paying for him to do it next year because of ridiculous state law requiring all kids his age to go to kindergarten regardless of any needs for further intensive pre-school services first.

This isn't really more than a quibble with his language, which could have been easily made to accomodate this sort of thing. If he hadn't spoken in such an absolute, he might have been accurate about most Americans' views. Even people who value diversity in education (and I'm certainly one of them, and I think it's ideal to have it at the earliest stages) may not think it's worth a 90-minute bus ride twice a day. But I think it's worth emphasizing a largely true generalization here. The more absolute you make a statement, the less likely it is to be true, especially when you're dealing with political issues, which are usually more complex than other issues (and especially more complex than either side of most debates will admit). I don't know very many Americans who, when presented with our situation, would think that we're immoral for sending Isaiah from Syracuse to Utica and back five days a week. The previous program he was in basically stalled his development right after he'd begun asking for things occasionally and using context-appropriate words occasionally (and then stopped right when he went to the half-day program), and he was making progress in this new program within a couple weeks of going there (and now is asking for things regularly, both with pictures and with actual words). Helping a four-year-old who is stuck whining and pointing to be able to ask for things with verbal language (never mind the other ways they've helped him out, which are fairly significant) is certainly worth the bus ride to another county, and even if he didn't like the bus ride I'd say that.

I've just finished Jorge Gracia's Surviving Race, Ethnicity, and Nationality: A Challenge for the Twenty-first Century, which I've blogged about briefly before. Overall, it's an excellent treatment of the metaphysical issues about race, ethnicity, and nationality. Gracia's primary focus is defending the existence of all three, explaining what they all are, distinguishing amongst them, and responding to objections against using such categories.

It's carefully argued and very clear. I can't see how someone can think through the ethical and political issues involving these three categories without having first thought about these more fundamental issues, and this is the best treatment of them that I've seen. It's treating an issue usually covered by continental philosophers but with the tools of analytic metaphysics, which is a breath of fresh air for me, since I'm trying to do the same thing.

I'm actually a little worried about what sort of positive view I'm going to end up with in my dissertation, because he's already come up with a similar enough view, and I think he's basically right. I'm sure I'll come up with something distinctive as I go, but this is the best discussion of the metaphysical status of race that I've seen yet, and I've been immersed in this literature for some time now. The other issues aren't my area, but I found his discussions of them helpful, particularly his arguments for what the differences are and why it's important to distinguish them.

I came across a nice little quote near the end that doesn't relate at all to my dissertation, but I found it both insightful and intriguing, and I thought readers of this blog might find it interesting as well:

The common idea that colonialism is responsible for the conflicts that afflict some parts of the Third World because colonial powers carved out states without regard to racial and ethnic differences assumes that it is a good thing to have states that are ethnically and racially homogeneous and divided along ethnic and racial lines. I am not going to defend colonialism, or the way colonial powers created states in the territories that once they controlled. I do not believe these are defensible causes, and their defense appears to be morally repugnant. It is quite clear that colonial powers created artificial states without nations. But their mistake was not neglecting ethnic or racial boundaries, but rather forming states without regard for nationality. Instead of helping to develop nations out of disparate ethnic and racial groups based on a common will to live under a system of laws with the aims of justice and the good of their members, they mostly drew lines on a map based on expediency and their own national or state interests.

I've always just accepted this argument whenever I've heard it. There really have been all manner of problems appearing in parts of the world where the boundary lines have been redrawn by colonial powers, separating ethnic groups down the middle and forcing them into states with other ethnic groups. But the solution wouldn't be making ethnic groups line up exactly with nations. That's a recipe for making every ethnic disagreement an international disagreement, and it makes outsiders of anyone who happens not to be in that ethnic group who is in the state. But as Gracia notes, the problem isn't arbitrary dividing lines, as if different ethnic groups couldn't form a nation and thrive. The problem is that those who colonized and drew the lines didn't engage in nation-building, i.e. they didn't work toward bringing these people to be part of a nation seeking a common system of laws to govern them for their own best interests.

Stem Cell Rhetoric

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From Hillary Clinton's statement on the Bush veto of the stem cell funding bill
You know, later today, apparently, the president will veto a bill passed by Congress to support stem cell research.
Now, this is research that...holds such promise for devastating diseases. Yesterday, I met with a group of children suffering from juvenile diabetes. I co-chair the Alzheimer's caucus in the Senate. I've worked on helping to boost funding for research to look for cures and a way to prevent so many devastating diseases. And we know that stem cell research holds the key to our understanding more about what we can do. So let me be very clear: When I am president, I will lift the ban on stem cell research.
This is just one example of how the President puts ideology before science, politics before the needs of our families, just one more example of how out of touch with reality he and his party have become. And it's just one more example as to why we're going to send them packing in January 2009, and return progressive leadership to the White House. 

No mention of the president's actual reasons for vetoing the bill. No mention that a large percentage of U.S. voters have strong moral objections to their tax dollars funding the deaths of human embryos. The way she tells the story, there are the people who want to help look for cures for diseases, and there are those who are just mean and prefer that sick people to get better.

Further, she gives a very clear implicature that there is a ban on stem cell research by talking about lifting it. But there is no such ban. Period. There is a ban on federal funding for such research, but no one has ever banned the research itself, at least in this country, and several states are now funding the research. So she misrepresents the position of the president and much of the opposing party, and then she says something about the current policy that's pretty much the moral equivalent of a lie.

Next, she makes it sound as if this is ideology and politics on one side and science and the needs of families on the other side. Yet there's no need to deny anything that scientific study has shown on the issue in order to argue against federal funding for embryonic stem cell research. There is information that each side of the debate downplays (e.g. the successes of adult stem cells, the potential for other methods of getting stem cells, and so on). Both sides want to tilt the evidence a little in their direction, but there's no way she can make the argument that her side is always on the side of science, while the other side is always against it. Neither case is based on science, in fact, since both views can admit the same scientific information. The real issue is about whether certain kinds of scientific research are immoral, and a lot of people do think this particular kind is thoroughly immoral, while others think there's absolutely nothing wrong with it.

As I've discussed before, Sam Brownback recently penned an editorial that The New York Times ran, clarifying his views on faith and reason, particularly with regard to evolution. I've seen several people discussing this response by evolutionary biologist Jerry Coyne, but nothing I've seen details just how far off the mark the Coyne piece is.

It contains several philosophical mistakes and demonstrates serious ignorance about the subject matter under discussion, which happens to be philosophy (not science), as I hope will become clear shortly. But, most disturbingly, it drastically misrepresents Brownback's view. This post consists of an almost-fisking of the piece. I do not quote the entire piece, but I've selected out quite a number of important excerpts. My not discussing something doesn't mean I agree with it. I'm simply focusing on what I do know, and I don't really know any biology, which though it's not the main subject does occupy an important part of his argument. I'm thus sticking to what I do have some expertise in, something I think Coyne ought to do in the future rather than doing bad philosophy while calling it science.

I'll start with one bit toward the end of the piece, because it illustrates the biggest misunderstanding Coyne relies on, and then I'll work through the piece in order.

According to Brownback, we should reject scientific findings if they conflict with our faith, but accept them if they're compatible. But the scientific evidence says that humans are big-brained, highly conscious apes that began evolving on the African savannah four million years ago. Are we supposed to reject this as "atheistic theology" (an oxymoron if there ever was one)?

This is a clear fallacy:

1. Brownback says we should reject scientific findings if they conflict with our faith
2. the scientific evidence says that humans are big-brained, highly conscious apes that began evolving on the African savannah four million years ago
3. Therefore, Brownback says we should reject the claim that humans are big-brained, highly conscious apes that began evolving on the African savannah four million years ago

I'm missing the crucial premise that it conflicts with the faith to hold that humans are big-brained, highly conscious apes that began evolving on the African savannah four million years ago. Since Brownback doesn't assert that claim, the argument doesn't apply. He does say that he believes microevolution is true, and he does say that he doesn't think macroevolution could be true in a way that requires a materialistic, deterministic metaphysic. What he doesn't say is that macroevolution without a materialistic, deterministic metaphysic is false or incompatible with his faith. He is perfectly silent on that issue. Only if he did say that would Coyne's argument even get going.

I've seen the following argument several times in recent months:

1. Hate crime laws make a penalty more severe only because of a different intent.
2. If you increase the penalty for a crime merely because of the motive, you are criminalizing a motive, i.e. a thought.
3. Therefore, hate crime laws are really criminalizing people's views and thus are thought crime laws.

The result is that a number of conservative organizations have been resisting hate crime laws and calling them thought crimes. Family Research Council is one group that has been doing this. When Congress had a bill on hate crimes in front of them, they were sending daily emails calling the bill a thought crime bill. I thought it was inaccurate to label it that way at the time, and I'm even more convinced of it now after reading Eugene Volokh's post from a few weeks ago on the subject. Volokh points out that we do this sort of thing all the time, and no one has any qualms about it. Treason is a thought crime, on this view. If I stole a government document in order to destroy it for the fun of it, it wouldn't be treason. But if I did it to sell it to North Korea or Iran, it might be treason. Also, murder or manslaughter can differ in terms of intent, as can different degress of murder from each other and different degrees of manslaughter from each other. Intent is extremely common as a means of distinguishing between different kinds of crimes with different penalties. Even less controversial discrimination laws can distinguish between different penalties (or whether a crime has even been committed) according to intent.

If those things count as thought crimes, then we shouldn't be opposed to legislating against thought crimes. But I think it's probably better to recognize that none of these things counts as thought crimes. A thought crime would be thinking something without doing anything further and then being arrested merely for having the view.

I haven't said anything about whether there are good reasons to favor or to resist including sexual orientation as specially protected in terms of hate crimes. I think there are reasons offered on both sides that have some merit. But it's silly to oppose these laws simply because they treat two murders or assaults as different according to motive. It's true that both are assaults, but they do have different moral factors that apply to them. One is a worse assault. At the same time, we don't always recognize morally important issues as affecting what kind of crime someone committed or even whether they committed a crime. I'd love to try to think through (at some point, not today) which factors count as legitimate ones in terms of motive. But ruling it out merely because it does involve motives is at best ignorant of how law generally works in this country with regard to different motives for the same act.

Civil libertarianism is a general emphasis on individual rights as opposed to government interference in how people choose to live their lives. Some people hold to civil libertarianism purely as a political philosophy, and others base it in a kind of moral libertarianism about there being nothing morally wrong with most of the things they favor allowing people to do legally. Someone like Larry Flynt, publisher of Hustler magazine, had better take the latter view when it comes to sex-related acts that he wants legal, at least unless he's going to admit to being a thoroughly immoral person. So I suspect that what's grounding his advocacy of first-amendment free-speech rights for the porngraphy industry that he's part of is a moral libertarianism. There's nothing wrong with what his magazine publishes, so there should be no laws against it.

What he doesn't like is social conservatives who speak out against sex-related acts of certain sorts and then commit acts privately that many of their constituents would disapprove of. This is what's called hypocrisy, provided that it's not just a moment of weakness but a regular pattern of saying one thing and doing another, with full realization that their words apply to themselves and just no willingness to let that affect their life. We just heard Flynt on the radio talking about his campaign to catch politicians doing this sort of thing by paying anyone a million dollars if they can come up with photographs of politicians in the act.

Something seems funny about the position Flynt is taking. He denies that this is revenge against those who have caused him legal trouble in the past. So what is his motivation? Would you expect a civil libertarian who thinks people should pretty much be able to do what they want to be concerned about what these politicians are up to? It's not as if he thinks those acts are immoral or anything. So it's not the acts that he has a problem with. The only things left that he could complain about are (1) their public stance and (2) the disconnect between their public stance and their private behavior. I'm not sure either justifies what Flynt is doing, at least not unless you add some additional moral premise that might move in the opposite direction of the moral libertarianism that often undergirds civil libertarianism.

Flynt has a legitimate complaint against the policy recommendations of social conservatives, given his civil libertarianism. On his view those policies are terrible. He objects to restrictions that prevent people from getting married to other people of the same sex, mutilating their fetuses to death, using chemicals (i.e. drugs) to destroy themselves and the kids in their neighborhood that they deal them to, taking advantage of desperate people in order to have sex with them (i.e. hiring prostitutes), taking advantage of desperate people in order to photgraph them nude (i.e. running a porn magazine), and so on. He wants people to be free to do those things, and he thinks he has a moral objection to stopping people from doing such things. So the views of social conservatives are, on his view, wrong.

I haven't had much to say recently about the substance of the immigration debate playing itself out in the U.S. Congress, media, and presidential debates. I did discuss it when he first proposed it. I agree with Republican politicians at most about 55% of the time and Democrats at most about 35% of the time (and that's people like Joe Lieberman), according to a rough estimate from this test. This is an issue on which I don't agree with the main base of either party. I probably agree more with the president, Senator John McCain (R-AZ), and Senator Kennedy (D-MA) on the general kind of mediating position to take, and I probably would have grave concerns about the way it's being implemented in the current bill, but I've not looked at it in enough detail to have a lot to say. Justin Taylor links to several Hugh Hewitt posts that get into the legal details and practical implications, but I don't have the patience or time to look into any of that carefully enough to evaluate it. I do think it's interesting that hardly anything Hewitt says has all that much to do with the main complaints of the base of either party.

I did want to register some thoughts I've had over the last few weeks about some arguments I'm seeing. They seem to me to be terrible arguments, and some of what I've been thinking hasn't been emphasized very much in what I've had the time to hear on the radio and read on a few blogs I've managed to check in on.

1. Here's one argument I won't accept. Some say that finding a pathway for illegal immigrants to mend their ways and become legal is somehow condoning their illegal entry. I disagree. It would be bad if people who enter illegally can get a pathway to citizenship that's easier than people who enter legally. That would be rewarding illegal entry. But you can condone without rewarding. What does condoning involve? Reducing a penalty is not condoning. It is reducing a penalty. Condoning would be saying that it's not wrong. Changing a law so that the penalty is different, even if you do so retroactively for people who've already broken the law, does not mean the act was not criminal. There is still a stiff penalty even in the proposed bill. It requires temporary deportation and a pretty severa fine. How is it condoning something to reduce a penalty from permanent deportation to temporary deportation and a huge fine? The very notion seems to me to misunderstand what condoning even is.

2. The motivation for this bill is an attempt to find a middle ground between two extremes, and I think most people will agree that both of those extremes are bad even if they don't accept that this particular middle ground is the right way to go. Some will see it as too close to one or the other extreme. I think it's worth keeping in mind that the intent is good, since it's at least in principle trying to find that mediating position.

One extreme would be simple amnesty. Those who have committed crimes in entering this country will be pardoned, and they will be allowed to enter the pathway to citizenship more easily (because of their cheating shortcut) than those who entered legally. I don't think anyone wants that, once you put it that way, although some have offered policy changes that would have that effect. The other extreme would be to insist on carrying out the impossible task of finding and deporting all illegal immigrants and preventing the people responsible for doing that kind of thing from fighting more serious problems like Islamicist terrorism.

According to this story, James Dobson is on the pragmatist side of the pro-life camp, favoring the incrementalist approach to restricting abortion and thus earning the ire of those who think it is immoral to endorse any law or judicial decision that allows any abortion. His praise for the recent Supreme Court decision upholding the partial-birth abortion bad, and his endorsement of that ban to begin with, count as such pragmatist incrementalisms. After all, the ban only bans some abortions, and Justice Kennedy's opinion upholds the legality of abortion in most cases.

Dobson's difficulty is that he was treating what he saw as pragmatism among those who could vote for Rudy Giuliani against Hillary Clinton as thoroughly immoral, something he could never see himself doing. His reason seems to me to be parallel to the reasoning of those who are currently critizing him for being too pragmatist on these other issues. So is he consistent in taking these very different attitudes to things that some will treat both as pragmatist compromise.

I criticized Dobson's stance on the first issue, and for exactly the same reasons I want to say that he's taking the better approach on this second issue. But because I think the same reasons matter n both cases, I'm wondering if he can consistently treat the two cases as different in a way that justifies his vastly different language about each. Is there some principled reason why he could take what many would see as a pragmatist line on abortion laws and judicial decisions while calling someone immoral for taking a similar stance on which candidates to vote for? I'm not sure what such a principle might be. I can't think of any crucial difference between the two issues that helps distinguish them in the way he needs.

Jonathan Adler is belittling Sam Brownback's relatively nuanced (for a politician) position on evolution. The comment thread is getting pretty heated, almost entirely in a direction that seems to me to miss the most important factor in interpreting his position. I would go so far as to say that most of the commenters are immorally taking Brownback's position in the least charitable way possible.

Roughly speaking, the problem seems to be that Senator Brownback is using language that leaves the issue wide open, where what he says is consistent with anything from theistic evolution to six-day creationism. The charge is that he is using coded language that's supposed to tell six-day creationists he's with them, while also using coded language to tell theistic evolutionists that he's with them, or something like that anyway. The assumption is that he couldn't be genuinely conflicted on this issue in a way that's consistent with rationality. I want to suggest that the most plausible interpretation of his comments is not the political coded language one but that he really is conflicted in such a way and that it even results from rational conflictedness.

Given that many people do think the most reasonable interpretation of the first chapters of Genesis is that the world was really created in six days 10,000 years ago (note: I don't think this is the most reasonable interpretation of Genesis 1:1-2:3, given its poetic elements, but I can understand how an intelligent, rational person might think it is), I can understand why he might genuinely feel conflicted, resulting in the following views:

1. Whatever the Bible teaches is true.
2. The Bible's teaching can be interpreted in a way that's consistent with the consensus among contemporary scientists, but some interpretations are more reasonable than others.
3. Science isn't infallible and has often been very wrong, even when scientists are correct at the time to think their best information leads them to that view. Most of the time these are minor variations, but sometimes they are major overthrows.
4. The most plausible interpretation of the Bible conflicts with the contemporary consensus.

I can easily see why an intelligent, informed person who knows all the science and understands why the consensus holds what it does might still refrain from holding any belief whatsoever on whether speciation occurred in the way the consensus says it did. The key is to insist both that (a) our interpretation of the scripture might be wrong and (b) our science has at least some chance of being wrong, while insisting that (c) whatever the Bible does say is true (whether our interpretation is correct or not) and (d) whatever a perfect scientific study would result it will almost certainly be correct.

Only if you assume from the outset that divine revelation about such matters is impossible could you end up concluding that such a person is irrational.

Mark Goodacre points to the attention Deirdre Good's new book Jesus' Family Values is getting. Her argument is basically that Jesus had no family values, on the following ground:

1. Jesus challenged some of the societal expectations people in his cultural context had about families.
2. Jesus doesn't spend a lot of time on some of the moral perspectives assumed by all first-century Jews because of the background of the Hebrew scriptures, i.e. he focuses on where the people of his time were misinterpreting or violating the spirit of the Hebrew scriptures.
3. Jesus predicts that families will divide over him, without ever saying that those who reject his followers in this way and put them to death are right to cause such division.
4. We see no sign of Jesus calling his foster father Joseph by the name he reserved for his heavenly Father.

She also says (falsely) that the word 'family' never appears in the New Testament. Now the English word never appears in the Greek, but a simple online search would have shown her that many English translations use the word regularly (see the ESV, NIV, HCSB, TNIV, NLT). Maybe she got some not quite true information about the KJV not having the word in the NT (it does have it once), but that has nothing to do with the content of the Greek NT itself but more to do with the English language at the time the KJV was translated (or rather the English language of a couple centuries earlier, which is what the KJV translators were translating the Bible into). [Update: see the comments for a more careful presentation of her view, why it's a little better than this, and why I still disagree with it.]

Now maybe the bulk of her argumentation is good, and maybe her conclusions aren't as radical as this presentation makes it look, but the impression of what I'm getting is that she's trying to send a message that pretty much everything those who speak of "family values" consider to fall under that would have been foreign to Jesus, and he'd in fact take the opposite views on many of those issues. The implicature is that those who say they derive their moral and political views from the Bible on these issues are in fact making them up whole cloth.

As I said in the comments on Mark's post, this is a very strange argument. For one thing, Jesus did speak about family values. He lambasted the Pharisees for taking the money they should have been using to care for their parents and dedicating it to God with a vow so they could use it now and not have to support their parents. He gives his mother to John to take care of her. He treats the love of the father for the prodigal son as an image of perfect, divine love, which affirms such love for wayward children.



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