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Wednesday, August 24, 2005

A Hot Debate

Over at No Oil For Pacifists a hot debate is going on about religious establishment/disestablishment.

Boomr is arguing that any views he considers religious cannot be passed into law under the Constitution. Carl is arguing against that position. My POV is that any person has the right to vote their conscience under the Constitution. If the particular views of enough people's consciences coincide, a law based on a particular ethos may be passed as long as such a law does not infringe upon the individual freedoms granted in the Constitution. It's rather hard to distinguish between different moralities or ethical concepts as to whether they are religious, irreligious or neither, and the Constitution certainly did not attempt to draw such a line.

Both Carl and Boomr agree that President Carter was a mistake. After that, most points are being fought out in an ardent debate.

Boomr believes one can rule out "morals" somehow from law and that indeed the Constitution did so. I don't think so, because all ethical systems take account of systems of morality. Even the idea that the state is restricted to passing laws that prevent actual objective harm is flawed, because the state does a great deal more and must.

Furthermore, by presuming that somehow an idea that any law based on some moral precept correlated with a religion is prohibited under the Constitution, Boomr is likely to inadvertently destroy human freedom. I know with great certainty that this is not his desire, but every time I have tried to logically explicate one of these constructed utilitarian ethical systems I have always seen the arguments extended as vastly expanding the power of the state and vastly constricting the freedom of the individual. Boomr does not desire this endpoint. I suspect strongly that Boomr would get closer to his real goals by entrusting his arguments to the electorate and seeing what they can come up with.

For an example, see this post about Frank vs Muth. The assertion was that a state law prohibiting incest must be invalid under the precedent of Lawrence vs. Texas. I asked how, given Lawrence vs Texas, one could plausibly claim that laws prohibiting incest could survive constitutional scrutiny. Boomr advanced the idea that the state had a legitimate interest in protecting genetic diversity in the offspring; therefore, laws prohibiting incestuous unions could be construed as constitutional. However, if I grant his contention, then the state has gained a great range of action over people's sex lives and reproductive choices under the Constitution that it did not have before. This I cannot grant; I fear the result. You can decide for yourselves.

The problem with trying to mandate that all laws must have a utilitarian basis is that they must be based on a logical and putatively objective justification, but more traditional systems of ethics have usually been worked out so as to have the minimal impact upon human lives. Furthermore, the utilitarian logic without the incorporated experience of the give and take of human collective experience tends to become totalitarian or self-aggrandizing. The majority of people simply don't enjoy restrictive systems and they waste society's energy - so the time-tested prohibitions and recommendations usually provide for more freedom than rules that we make up ourselves from scratch. They have evolved into a minimalist efficiency, so to speak. The utilitarians often ignore the merits of natural selection with respect to cultural institutions and seem to understand the importance of human freedom not at all.

Howard of Oraculations, IMO, hit the nail most closely on the head in writing (partly):
There is so much grey in this thing---the predator setting up the victim for years---and so on. I'd say incest happens between two consenting adults---brother and sister---and there is no coercion involved it is no affair of the state. But I have really been around, and from shocking personal involvement with incest victims I can tell you that almost every time incest occurs there is predator and prey.
Should it not be allowable for a culture to make the same observation and prohibit a disfunctional relationship which has a high probablity of involving further victims? I suppose this has to do with morality, but it is certainly a practical morality. Furthermore, it is really not all that restrictive, since it leaves a huge selection of legitimate partners available. So such a prohibition prevents serious and highly probable harm while resting as lightly as possible against those impaired.

Sometimes traditional cultural prohibitions are changed because something fundamental about the circumstances of the population changes. One example is birth control, which spawned the sexual revolution, although it turns out that there was quite a catch to that (the rapid pace of microbial evolution) and that the old rules had an unknown validity.

At any rate, I am far more willing to trust the fate of our culture to the judgments of the voting population on these matters rather than to a few armchair ethicists who can't have the depth of knowledge and practical experience of the problem that the entire people possesses. Furthermore, when the scope of the problem is unclear, the people will be able to correct their mistakes more quickly and efficiently than can be done within the context of a constitutional argument. Lastly, it is the people who will bear the weight of the restrictions, so the collective judgment of the individuals is likely to be carefully constructed to infringe their own freedom as little as possible. In many cases this will take the form of a social disapproval rather than a legal restriction.

I believe that the workings of democracy are more likely to advance human freedom than a constitutional priesthood dictating morality. I absolutely cannot see that Lawrence vs Texas was based on anything other than the pained consciences of the justices in the majority. I share their pain and I share their ethical view that the law was not a good law. However, I believe they have backed themselves into an absolutely indefensible legal corner. They should, at a minimum, have taken O'Connor's compromise. To get out they will have to nullify their own logic in Lawrence vs Texas or take over a vast range of human affairs and become a moral priesthood.

Hey Sis, Bro # 2 here.

This is nothing but the same old debate between Edmund Burke and Patrick Henry about the French Revolution. Burke on the side of Tradition, pointed out that Human insitutions have a great deal of collective wisdom contained within them, while PH wanted to rely on Human intellect to build a better society. Thomas Sowell discusses this in his book "A conflict of visons" Interestingly all discussed the role of religon,as in your review of the debate above. For some reason all socialist utopians dislike religon, I suppose becasue it says we cannot create the utopian heaven they seek here on earth, but must be happy within the confines of this imperfect world. One can see how successful Boomrs world view is by looking at the palces that have thrown traditon on the "scrap heap of history" and what resulted. I suppose the last two hundred and 10 years pretty much back up Burke and Sowell.

Good column.
Bro, you will find that the entire chain of argument conducted in the comments at No Oil For Pacifists is worth reading.

In sense you are correct that this is the new form of an old debate. However, what is of interest here is that the utilitarians have constructed a particular legal interpretation of the Constitution with which to work.

First, in general they do not give credence to the idea that the people have much collective wisdom. They would prefer that weighty questions be largely removed from the people's purview, and this can only be practically achieved by greatly expanding the role and scope of the federal judiciary.

Second, they construct a rational basis/First Amendment interpretation that, if it wins the day, would provide a justification for the federal judiciary to strike almost any law touching the conduct of human affairs. They assert that any legislation which ultimately tends to enforce any "religious" viewpoint is a violation of the Establishment clause. Thus, a huge range of laws touching social conduct can be challenged in court and in defense of such a law one can only assert in a court argument that the legislation has a rational basis.

This then allows the federal judges to pick and choose between world views and oversee the activity of state legislatures. There is also a well-entrenched legal coterie which does not feel itself bound by the text of the Constitution.

Robert H. Bork wrote the following in the introduction to his 1990 book "The Tempting Of America":
A few years ago I was invited to a small seminar of professors of constitutional law. During the discussion I argued that, the Constitution being law, there were some results courts could not legitimately achieve; rules cover some things and not others. A well-known Harvard law professor turned to me with some exasperation and said, "Your notion that the Constitution is in some sense law must rest upon an obscure philosophic principle with which I am unfamiliar."
M_O_M, I've replied to boomr's latest here. And that great Bork quote reminds me of an encounter with a "living Constitution" law school prof toward the end of this post.
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