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Walgreens and the Conscience Clause

Earlier this month a woman in Arizona, Nicole Arteaga, tried to get a prescription filled at her local Walgreens. The prescription was for misoprostol, a drug that is often used to induce a medical abortion. It was prescribed to Arteaga by her physician for the reason that, after nine weeks of pregnancy, the development of the fetus has ceased. Without intervention Arteaga would have had a miscarriage, and was advised that the best course of action in her circumstances was to terminate the pregnancy early. The pharmacist, however, refused to fill her prescription, on the basis of a moral objection. Arteaga expressed in tweets and interviews afterwards that although she clearly explained to the pharmacist at the time that her situation was urgent, and while the pharmacist recognized that she was in distress, he nevertheless refused to fill her prescription. Continue reading “Walgreens and the Conscience Clause”

Canada’s Indigenous Water Crisis

Photograph of mountains and trees framing a lake

Canada is one of the world’s most water-rich countries. The Great Lakes, shared between Ontario and the US, account for eighteen percent of the world’s fresh surface water. And yet, many First Nations communities within Canada suffer from lack of access to clean water. There are currently 72 long-term boiling water advisories in effect on First Nations’ reserves. Justin Trudeau’s 2015 election platform included ending all such advisories by 2021. As of July 17, 2018, 67 such advisories had been lifted, while 34 had been added. At the same time, residents of the communities whose advisories have been lifted are concerned that lack of overhauling local infrastructure may endanger long-term prospects for clean water. Continue reading “Canada’s Indigenous Water Crisis”

Debating the Permissibility of Printable Guns

Photograph of a 3D printer with a person's hand on a computer mouse nearby

In 2013, Cody Wilson, a self-described anarchist, made headlines when he posted plans for a 3D printable pistol called “The Liberator” online.  The state department intervened and shut down the site, but not before the plans for the weapon were downloaded over a million times.  Wilson promptly sued the government. This week, the government reached a settlement with Wilson.  The settlement is quite favorable to Wilson and other gun rights advocates—it allows Wilson and others to proceed with their mission to post the instructions online. Continue reading “Debating the Permissibility of Printable Guns”

The Opioid Crisis and America’s Homegrown Cartels

photograph of a pill bottle with pills spilling out

The “crisis” of drugs in United States, dating at least to the “war” that Richard Nixon declared on “public enemy number one” in 1971, has seemingly become a permanent frame of our political life. After trillions of dollars spent and decades of chaos produced in Latin America, we have reached a point where the language of “crisis,” largely directed outside to other “sources,” seems to have moved home. But to what? Since 2016, drug overdoses have become the leading cause of death in America, 2/3 of which are related to opioids (a larger class that includes both plant-derived substances like heroin and semi-synthetics like oxycodone). For many, statistics like this are not necessary to recognize that, no matter which way you put it, the opiate crisis is our crisis. But how far are we willing to go in recognizing our complicity in it? Many will have to continue to deal with overdoses, withdrawal, relapse, and an unfortunate number of deaths. Socially, we should be questioning the corporate, marketing, and governmental practices that have reaped billions of dollars from an epidemic that is largely homegrown. Continue reading “The Opioid Crisis and America’s Homegrown Cartels”

Reputation over Potential: “Classic” Humor, Art History, and the Women on the Other Side

Black and white photograph of a cubist exhibition in a museum

As I explore in “The Unexpected Tension of Netflix’s Nanette,” Hannah Gadsby revolutionizes comedy with her show Nanette when she quits being funny. Gadsby works within a male-founded and dominated genre, using the same platform that so many white straight men before her have used to sell cheap jokes at the cost of marginalized groups.

Gadsby repeats occasionally during the hour-long show that she has to quit comedy. At first her proclamation seems like the central joke that the sketch keeps returning to; however, her assertion becomes to feel more real the more that people watch, and they may begin to wonder if her comedy is revolving around a truth. Midway through the show, Gadsby jokes that it does not look like she can quit comedy because she does not have a backup plan with just a 15-year-old art history degree on her resume. Gadsby goes on to say about the artists whom she studied: “They were dead then, they’re just deader.”

Gadsby discusses what she learned from her art history degree, explaining how she realized that women have two roles in the narrative of art: the virgin or the whore. Judged by sex, women see themselves through the male gaze in any introductory art history course. Men craft the pictures. Women lay naked on the bed. Men are the geniuses. Women are the models. Gadsby gives the example of Picasso, one of the most lionized artists in art history, providing one of his quotes: “Each time I leave a woman, I should burn her. Destroy the woman, you destroy the past she represents.” A prime example of a woman-hater that has reached historic idolization, Picasso and his infamous misogyny is often cast as tormented genius. “I understand the world that I live in because of art history,” Gadsby says. “I understand the world that I live in, and my place in it. I don’t have one.”As someone who is attracted to women, she does not fit into one of the two patriarchal categories that artists like Picasso worked to perpetuate.

Gadsby says in one of her jokes that she is often introduced “as that lesbian comedian.” Her identity separates her from other comedians because our society values heterosexuality and gender conformity. In one of her early self-deprecating jokes about lesbians lacking a sense of humor—the irony being palpable since Gadsby is the one providing comedy for the audience of an almost 6,000 seat theater—she comments, “That is not my joke. It is an oldie, oldie but a goldie. A classic, it was written, you know, well before even women were funny.” In the first half of her show, Gadsby provides a sample of the comedy that has motivated her decision to quit the career.

In order to work her way into comedy as a gender non-conforming woman, Gadsby has built her career on those jokes that do not belong to her because the genre of entertainment does not either. Gadsby asks, “Do you understand what self-deprecation means from somebody who already exists in the margins? It’s not humility. It’s humiliation. I put myself down in order to speak. In order to seek permission to speak. And I simply will not do that anymore. Not to myself. Or anyone who identifies with me. And if that means that my comedy career is over then so be it.” Patriarchal institutions are all about performing, conforming, and filling your destined role because they become incredibly challenging to change from the outside looking in.

Later in the show Gadsby challenges this kind of “classic” humor: “Do you know who used to be an easy punchline? Monica Lewinsky.” One of the many jokes about Lewinsky’s sex life and weight comes from the famous comedian Jay Leno: “Monica Lewinsky has gained back all the weight she lost last year. . . . In fact, she told reporters she was even considering having her jaw wired shut, but then, nah—she didn’t want to give up her sex life.” Bill Clinton, then a 49-year-old married man with the most powerful position in the United States, had an affair with a 22-year-old intern. But the criticism, humiliation, and focus came down on Lewinsky’s body and sexual agency.

Jessica Bennett’s Time article, “The Shaming of Monica: Why We Owe Her an Apology,” details the “slut-shaming” humiliation that Lewinsky faced, including a Fox News poll in which 46 percent voted that Lewinsky was an “average girl” while the other 54 percent chose the second option, classifying her as a “young tramp looking for thrills.” Fox News did not invent that dichotomy just for Lewinsky. That average girl or tramp dichotomy has been around through centuries of art history, bringing us back to the virgin or whore. The main poll that came out about Clinton in the wake of his impeachment was his skyrocketing 73 percent approval rating.

Gadsby diverts her criticisms to the man who abused his power and her own industry that helped him get away with it: “Maybe if comedians had done their job properly and made fun of the man who abused his power then perhaps we might have had a middle aged woman with an appropriate amount of experience in the White House instead, as we do, a man who openly admitted to sexually assaulting vulnerable young women because he could.” History repeats itself when powerful men learn about what they can get away with and women learn that that their worth will be determined by which category they fit into: the virgin or the whore.

Returning to a discussion of art history, Gadsby not only compares Trump to Clinton, but also to Picasso. In the article, “Hannah Gadsby on how Picasso is the Donald Trump of the art world, and why we need to rethink art galleries,” Dee Jefferson elaborates on the connection between Trump and Picasso—two powerful and untouchable men—that Gadsby hints at during Nanette through her comment: “The greatest artist of the 20th century. Let’s make art great again, guys.”

Gadsby brings up how she commonly receives advice to “[s]eparate the man from the art.” Yet that dissociation takes deliberate effort and a compromising approach to prioritizing what matters. In his article, published by The Telegraph in April of 2016, Mark Hudson, an art critic and writer, attributes the worsening of Picasso’s misogyny toward his first wife, Olga Khokhlova, whom he stayed with for 18 years: “As their relationship disintegrated and she became increasingly delusional, his depictions of her and women in general grew ever more hateful – tortured masses of teeth, limbs and vaginas.” Ten years into their marriage, Picasso began a relationship with an underaged girl, Marie-Thérèse Walter, that lasted nine years. Khokhlova’s suffering mental health in her relationship with Picasso does not make her to blame for Picasso’s hatred of women, but rather a victim of it. This representation of Picasso is not specific to Hudson alone, and I do not mean to criticize Hudson specifically. His article is one of the many examples of how victim-blaming comes naturally in our society in order to preserve a famous man’s reputation.

A common argument to preserve Picasso’s notoriety favors excusing his misogyny as a symptom of the time period: Picasso was just a product of his sexist environment. However, that sexism stays alive in how we frame, praise, and preserve his genius and reputation today. Hudson describes the 17-year-old Marie-Thérèse Walter—who met Picasso when he was 45—with unflattering superficiality: “[b]londe, of equable temperament and athletic physique – but completely ignorant of art – Walter was immortalised in images of melting, idyllic eroticism in which we feel her guiltless enjoyment of her own sensuality and the artist’s complete satisfaction in regarding it.” Even today, we still judge a 17-year-old girl in terms of her appearance and sexuality through the male gaze.

In his Vanity Fair article, John Richardson writes about Walter and Picasso’s courtship: “Although she always claimed to have resisted Picasso for six months, she was sleeping with him a week later. They needed to be very discreet, for she was six months under the conventional age of consent.” Richardson turns a predatory, law-breaking situation into a bit of gossip. Blaming Walter’s inability to “resist” Picasso’s seduction, Richardson liberates Picasso from any wrongdoing. In his language, Richardson implies that Walter did not fit in the Fox News “average girl” category. The problem with this language and logic is that Richardson is talking about a minor. The phrase “conventional age of consent” downplays the fact that she was a legally underaged individual, unable to give consent legally. The fact that their affair was secret — so secret that Picasso would take Walter to have sex in attics in various estates or in the garden shed behind her mother’s house — was not for modesty’s sake, but due to its criminal nature.

We do not cast Picasso as a sexual predator or a power-abuser using his age and fame to manipulate young women, but rather as a man dabbling in his appetites and finding muses to provoke his artistic genius. Gadsby discusses how Picasso justified the fact that Walter was not even half his age by claiming that they were both in their prime: his art career was flourishing, and Walter had youth and beauty. Perhaps the reasons that Walter “offered Picasso little on an intellectual level”—as Hudson claims—is due to their 28 year age difference and her limited life experience.

Similarly, Picasso’s affair with Walter parallels the power discrepancy between Lewinsky and Clinton.“[Clinton] was the most powerful man on the planet,” Lewinsky recalls. “He was 27 years my senior”—an age gap that is just a year shy of Picasso and Walter’s. She continues, “He was, at the time, at the pinnacle of his career, while I was in my first job out of college.” The media and comedians slandered Lewinsky’s decision-making, failing to spotlight the judgement of the 49-year-old man with the job of making decisions for the future of a powerful nation. By adjusting our perspective from the innately patriarchal lens that so often filters the story to a rational and sympathetic approach, a different narrative arises out of Walter and Picasso’s and Lewinsky and Clinton’s affair.

Walter’s place in history melds with Picasso’s representation of her sexuality. We see her through his eyes, and she lives in the shadow of Picasso’s reputation. Hudson’s article provides a summary of each Picasso girlfriend and model at the end: after a sentence about she and Picasso met, Hudson summarizes “She gave him a daughter, Maia, in 1935, at about the time she was supplanted in Picasso’s affections by Dora Maar. She hanged herself in 1977.” This barebones synopsis of her life provides the only mention of her suicide.

Instead of analyzing the unhealthy strain of Picasso’s manipulation on two of his mistresses, Hudson describes the two women—one who would later have “suffered a complete mental collapse” and the other who would eventually kill herself—with reductive nonchalance and a sort of humor: “When Maar and Walter later met in his studio, the ensuing argument degenerated into an all-out catfight between the two women, an incident Picasso later described as one of his ‘choicest memories.’” With this kind of degrading diction, these two very young women’s suffering becomes solidified as self-serving entertainment for Picasso — who sought control over both women.

Hudson titled his article “Pablo Picasso: women are either goddesses or doormats”—a quote that the 61-year-old Picasso told a 21-year-old student and mistress, Françoise Gilot. Hudson affords Gilot the most flattering summary even though it relies on backhanded compliments: “This young aspiring artist – just 21 when they met – seems to have handled Picasso’s cruelties and perversities with amazing deftness, and was the only woman to leave him entirely voluntarily, with her dignity more or less intact.” Even though she does fit into the “virgin” category in the art historical narrative, affecting her “dignity” as Hudson hints at, Gilot earns Hudson’s approval through her ability to endure Picasso’s torment.

Deeming Jacqueline Roque as the last of Picasso’s mistresses and “the one most in control,” Hudson also credits her because she “finally got Picasso to behave, and created a tranquil base for his last years.” Roque married Picasso in 1961, but Hudson does not linger on the fact that she also eventually killed herself. About Roque, Hudson’s article ends on the idea: “Like the other six women, she had collaborated in what is arguably the greatest artistic oeuvre of all time. Whether it was worth the pain, only she would be able to say.” Despite the clear suffering that they encountered in their relationships with Picasso, these women reached the peak of traditional women’s involvement in art historical memory: model to the founder of Cubism.

Was Picasso’s Woman in Hat and Fur Coat worth Walter’s life? Was preserving Clinton’s approval ratings worth Lewinsky’s public shaming and humiliation? As Gadsby says, we need to stop prioritizing a man’s reputation over a woman’s potential. Khokhlova, Walter, Marr, Gilot, Roque, Lewinsky, the upwards of 80 women who have accused Harvey Weinstein of sexual predation, the 18 women—according to Time—who have accused Trump of sexual misconduct, and all the women who have been shamed, silenced, and prevented from speaking out against a powerful man deserve justice. “A 17 year old girl is just never ever in her prime. Ever,” Gadsby asserts. “I am in my prime. Would you test your strength out on me?”

My series on Hannah Gadsby’s Nanette will continue in my next article, in which I will analyze two of Picasso’s most revolutionary works, his Portrait of Gertrude Stein and Les Demoiselles d’Avignon. I will address the question of whether we can truly separate the man from the art and if that objectivity would be more harmful or beneficial.  

 

Could Gender-Blind Casting Limit Epistemic Injustice?

Photograph of Edwin Austin Abbey's painting of a scene from Shakespeare's King Lear

Following on the heels of her 2018 Tony award for her role in the revival of Edward Albee’s Three Tall Women, Glenda Jackson is set to reprise her portrayal of the title role in King Lear when it comes to Broadway next season. Lear’s extreme emotional range has led many to consider the role to be one of Shakespeare’s most difficult characters to portray, but Jackson’s embodiment of the mad king in Deborah Warner’s 2016 production at London’s Old Vic was hailed by audiences and critics alike as an artistic and cultural success. Undoubtedly, Jackson’s talent will once again have an opportunity to shine in New York, but this example of gender-blind casting (Jackson did not play “Queen” Lear) offers an interesting suggestion for addressing a problem within the world of entertainment — one that Miranda Fricker called “hermeneutical marginalization.”

In her 2007 book Epistemic Injustice: Power and the Ethics of Knowing, Fricker outlined various ways that an individual might be wronged when they face a disadvantage to accessing or sharing knowledge that others can access freely. Some kinds of epistemic injustice are preceded by what Fricker called hermeneutical marginalization, which are particularly evident in the case of marginalized groups, whose reports of mistreatment, for example, might be ignored or minimized by audiences with greater social power. This concept, as explained by Dr. Emily McWilliams on the Examining Ethics podcast, is what happens “when members of non-dominant groups don’t get to fully participate in the process of meaning-making as we develop our shared pool of concepts through which we communicate.”

Many examples of attempts towards this sort of marginalization can be found in wide-spread responses to recent productions of shows like Hamilton, comic books like Thor and Spider-Man, and movies like Star Wars, Ocean’s Eight and the 2016 reboot of Ghostbusters. When John Boyega was named as a primary cast member of the then-unreleased Star Wars VII: The Force Awakens in 2015, white supremacists called for a boycott of the franchise on the grounds that it should be “kept white.” Donald Glover endured similarly racist criticisms after he was proposed as a possible choice to take over the role of Spider-Man in 2012, as has the cast of Lin-Manuel Miranda’s award-winning Broadway show Hamilton for its re-envisioning of the American founders. When Marvel Comics recast the character of Jane Foster as the new Thor in 2014, detractors criticized the move as “politically correct bullsh**,” a complaint also suffered by the rebooted Oceans Eight and Ghostbusters projects. The upcoming season of the BBC’s Doctor Who that will premiere later this year with Jodie Whittaker at the helm of the T.A.R.D.I.S. faced the same criticism. In particular, the 2016 Ghostbusters film withstood an organized campaign of sexist attacks that was specifically designed to damage the movie’s profitability, even before the film was actually released. In each case, the attempt to remove these criticized women and people of color from the meaning-making process of big-budget storytelling means that they have been likewise victimized by Fricker’s hermeneutical marginalization.

And while endeavors like the Time’s Up campaign and the #MeToo movement have offered opportunities to spread awareness and aid to victims of such marginalization, it seems unlikely that gender-bending reboots hold much promise for changing the landscape of American culture — in fact, as Alexandra Petri has argued, they may actually contribute to the problem of “the male experience being taken as a proxy for the human experience.” Instead of intentional gender-bending, perhaps Glenda Jackson’s gender-blind casting may offer an opportunity to provoke a more widespread “mooreeffoc” moment in the minds of an audience.

Coined by Charles Dickens as reported in his biography by G.K. Chesterton, “mooreeffoc” refers to the sign on the windowed door of a coffee room, read backwards from the inside, to indicate the sudden re-appreciation of something previously taken for granted. Much like how someone might at first be confused, then suddenly pleased to realize that they now understand something obvious in a new light (as when realizing that you can, in fact, read an at-first-confusing sign), the mooreeffoc moment comes uncontrollably when one recovers a “freshness of vision” (to quote J.R.R. Tolkien’s description of the effect) about something previously considered trite.

This is what is needed for representation in Hollywood and beyond: not simply more diverse roles and casts (although that is certainly crucial), but the proper appreciation of those casts on the part of the public at large. Though Fricker promoted a “virtue of hermeneutical justice” wherein sensitivity to “some sort of gap in the collective hermeneutical resources” might function to offset or even prevent the harms done by hermeneutical injustices like marginalization, gender-bending casting decisions do not seem to serve such a purpose. Unfortunately, dominant groups — members of which would do well to reconsider their marginalizing attitudes and actions – will likely continue to raise questions (however unfounded) of political intentions and suspicious concerns over subversive messaging surrounding these roles. Indeed, gender-bending productions may currently be too charged to promote reflective considerations that could precipitate a mooreeffoc.

Yet gender-blind casting might bypass such accusations entirely with its firm foundation on simple actorial merit. Although many may not realize it, gender or race-blind casting has led to some of the more memorable roles in cinematic history, such as Morgan Freeman’s portrayal of Red in The Shawshank Redemption and Sigourney Weaver’s depiction of Ellen Ripley in the Alien franchise. Certainly, if diverse representation is to truly become more common in Western entertainment, then even resistant audiences must come to have a freshness of vision about the possibilities for the depiction of fictional characters (and, by extension, individuals in general). Particularly in light of research that indicates the empathy-promoting power of literature and immersive storytelling, proving to suspicious members of dominant social groups that members of marginalized groups perform perfectly well in the same roles might offer the very wedge needed to provoke a mooreeffoc moment. If gender-blind-casting could bring about this effect even if only for a time — therefore offering an alternative pathway to promote a more equitable entertainment industry — then it seems like it would be worth considering more frequently.

The Moral Messages of Violence in Media

Season two of the The Handmaid’s Tale returns with darker themes and more overt torture and sexual violence directed at the majority female cast. The dystopian drama depicts the practical consequences of misogynistic theocracy that takes power in the face of environmental collapse and widespread infertility, set in an eerily similar near-future America.

The violence in The Handmaid’s Tale is often compared to another hulking series, Game of Thrones. Both use liberal amounts of violence against women to keep their plot moving, but to different effect:

The Handmaid’s Tale isn’t glamorizing atrocities against women, exactly, or sanitizing them in the way that Game of Thrones or other prestige dramas might sanitize rape. The brutality is the point—the show wants us to experience the logical extension of institutionalized misogyny and theocratic governance.”

Indeed:

In shows like True Detective and Game of Thrones, the focus on female debasement is often criticized precisely because female suffering is positioned as entertainment. What happens on The Handmaid’s Tale is different, as violence against women plays out as a kind of morality tale.”

Visceral scenes in books, TV, and movies are a way of conveying the lived experiences and realities that audiences might struggle to relate to. In speculative fiction like The Handmaid’s Tale, showing in detail what would result from misogynist value systems and authoritarian, theocratic regimes can bring home how horrible the lives of the oppressed would be.

Art helps us to relate to experiences and realities that are different from our own, and can have a positive moral impact for this reason. People that read more novels have been shown to have greater emotional intelligence. However, when the perspectives and experiences are particularly graphic and violent, or run the risk of normalizing or sanitizing the persecution or rate of violence against an oppressed group, this raises questions about the ethics of continuing to portray the experiences of violence in detail.

Should we need to experience the pain of others to have their suffering be morally salient to us?

Legislators who become more feminist when they have daughters occupy an interesting dialectical space. While it is a positive step of course, it is good to adopt policies that recognize the fundamental equality of people the fact that they had to care for a daughter in order to tap into the moral reality is more than a bit distressing.

A further complication is the notion that there may just be an epistemically unbridgeable gap between communities that rely on one another for support regarding their experiences. It may just not always be possible to fully grasp another person’s everyday reality. It would be a great misfortune to discover immovable obstacles might bar someone from fully sympathizing with another person and experiencing the appropriate moral emotions regarding their plight.

Moral emotions such as sympathy, indignation, care, and regret play different roles of significance depending on the ethical theory you favor. Consequentialist views such as utilitarianism focus not so much on the emotional or motivational landscape that leads to action, but rather the result of our behaviors. If you make people have a better life out of indifference or kindness, it amounts to the same thing from an ethical perspective for utilitarians. Other views on morality heavily favor the emotions; care ethics and feminist views focus on our relationships to one another and tending to our roles appropriately. A behavior done out of sympathy would have a different moral assessment than the same behavior done out of indifference.

Given these considerations, we could reflect on art that attempts to bring pain and suffering into view in different ways. If the value in question is one of developing the appropriate moral response to suffering, we may ask: is this really necessary? (Isn’t this a case where we should really be able to get to the moral emotions on our own, as in the case of the legislators realizing women are people only when they’ve faced a daughter of their own?) Or, are there countervailing concerns, such as those raised in the discourse around the sexual violence in Game of Thrones? (Is this violence normalizing an already troubling reality?)

There are rich and nuanced questions regarding the consumption of art that includes graphic and detailed violence against marginalized groups. It puts pressure on how we conceive of our moral burdens in relating to one another, and how we experience the messages media sends us.


This article has a set of discussion questions tailored for classroom use. Click here to download them. To see a full list of our discussion questions, check out the Educational Resources page.

“Ill-Humors” of Society: The Politicization of the Supreme Court

What is at stake in this generation’s Supreme Court? In light of the wave of impactful conservative decisions this year and a Congress embattled over the future of the Court’s composition and political leanings, the highest judicial body of the country has moved to the center of a broader political crisis and partisan divisiveness. Echoing Hamlet, something is “out of joint” in the structure of American politics. But to what extent has the Supreme Court been a sufficient and reliable joint of our democracy? Appreciating the situation of the Court requires considering both its origin as an institution and the partisan context in which it has, contrary to the vision of its architects, become entangled and politicized.

The question of the political nature of the Court has intensified of late partly due to a series of recent judicial decisions that divide along party lines: upholding executive bans on racially profiled immigration, (provisionally) vindicating the right of commercial groups to discriminatorily select their customer base, and declaring that public sector workers cannot be required to pay for collective bargaining with government employers. Social-liberalism must certainly reckon with these decisions from below, both legally and culturally, on behalf of the rights and liberties guaranteed by the Constitution and our obligations to international human rights statutes. There is a broader way of summarizing our situation via the Court and as a society: are we most protected by a court whose majorities adjudicate on principle or one that bases decisions according to political agendas? If the former, we should reflect on the principles by which the Court does or should judge. If the latter, we should rethink the role, existence, and coming-to-be of a Court whose origin James Madison once hailed as a “important and novel experiment in politics” and whose function Alexander Hamilton praised as “the citadel of the public justice and the public security.”

Debates and concerns surrounding the Supreme Court of the United States are neither new nor inconsequential. The Constitution itself outlines few and relatively open strictures to guide the make-up and operation of its highest federal court. Its current state (the number of justices, the scope of its judgment) has thus varied and been determined by legislative decisions, debates, and legal precedents throughout history. Given its evolution, the judicial body has had significant say in landmark decisions, hailed diversely as advancing progress and justifying the country’s worst moral atrocities. The same institution (albeit in different Courts) overturned its previous vindication of racial segregation (Brown v. Board of Education 1954) less than a century after ruling that African-American slaves were property and not citizens (Dred Scott v. Sandford 1857). The recent Trump v. Hawaii decision upheld the right of the President to deny specific ethnic groups entry on security grounds while also overruling the Courts’ past decision to intern Japanese citizens on the same justification (Korematsu v. United States 1944). History changes, and with it the appointed interpreters of its legal and social fabric who are themselves human products of their time and place. But to what extent is partisanship an essential and unavoidable feature of a court system that was originally intended to be a neutral, apolitical “bulwark” against the interests and fluctuations of political ideologies?

The arguments of Federalist Papers No. 78 are clear on the two-fold purpose of the Supreme Court: providing a final “interpretative” appraisal of the legality of all legislative acts according to the Constitution, and a stability in the conditional, lifelong tenure of the judges against the swaying political prerogatives of governing institutions. In short, for Hamilton, the Court should be an antidote to the partisanship of Congress. Its judgment should function as a check on the “force and will” of changing legislative bodies, and thus a source of principled decision against the caprices of the public and the partisan usurpation of public interest. Since the Constitution represents the inviolable rights of the “people,” the Court serves as the “intermediary” between the people and those who claim to govern them. It is a legal body, not a political one. It judges and interprets, and it neither rules nor should be ruled.

The language of disease evoked by Hamilton is neither arbitrary nor simply rhetorical, since the founders understood their novel project to be a complex and vital organism that would not function perfectly and which needed internal therapeutics. “This independence of the judges,” Hamilton argued, is necessary to “guard the Constitution and the rights of individuals from the effects of those ills humors [that] sometimes disseminate among the people themselves, and which … have a tendency … to occasion dangerous innovations in the government, and serious oppression of the minor party in the community.” For Hamilton, there will inevitably be times when elected representatives, an ideologically feverish electorate, or the sway of private interest groups produce oppressive, damaging, or unconstitutional laws. The advantage of a Supreme Court is thus the protection of both minoritarian and majoritarian rights under the Constitution. Without judicial independence, the best feature of democratic worlds becomes the death of democracy itself: “liberty can have nothing to fear from the judicatory alone, but would have everything to fear from its union with either of the other departments.” Fearing the reprisal from partisan constituencies, current members of both parties in the Senate now weigh whether to vote in line with President Trump’s nominee. This fear of the partisan merger of the three branches is our current reality.

In 2017, with the support of a united Republican Congress, Senate Majority Leader Mitch McConnell spearheaded a successful effort to indefinitely postpone a Senate vote on then sitting President Barack Obama’s constitutional right to nominate a Supreme Court Justice. Through changes to Senate rules, this effort countered decades of relatively fair bi-partisan consideration of nominees in favor of a partisan obstruction of any oppositional nomination. In lieu of an upcoming election year, the Senators’ argument was that the voters should ultimately decide on who should appoint such a prominent and lengthy position. Critics will note the equivalence here in Justice Kennedy’s retirement three months before midterm elections which may turn control over the Senate. But for many, these exceptional situations only highlight the intense politicization of the Court’s appointment process. During McConnell’s effort, a Quinnipiac poll found that 68% of people polled thought that “the process of confirming Supreme Court justices has become too partisan,” while only 22% regarded it as “not partisan enough” or the “right amount.”

This is not a new concern. In 1881, Senator John T. Morgan, himself concerned with the disadvantage of Southern States in federal representation following the Civil War, noted that since the Courts’ birth “rival political parties … began to claim it as a right, and to urge it as a party duty, to put judges on the bench who were decided, able, and zealous in their support of party measures and party declarations of political principles. It would be very difficult, in recent times, to a cite a single exception to this rule.” Morgan continues: “To place the federal judiciary entirely under the control of one political party is an almost irrevocable step in the direction of absolute government.” Perhaps now we can say that to leave the Court in the hands of the party system would be to acquiesce to an oligarchic system of power that has long governed us.

Critics will argue that the political appointment of justices, whose tenures span over different legislative regimes, does not entail that they will necessarily vote along party lines or with political motives. Furthermore, focusing on partisan voting in the Court ignores the fact that the majority of its decisions are not split along these lines (though it has increasingly done so). These considerations, however, are dampened by the fact that the nomination process has now become an explicit political weapon in an open partisan war. Ethically, our situation is one of envisioning measures that, as the founders of the Constitution themselves intended, could mitigate the encroachment of the legislature on the judiciary. These range from the extremes of abolishing the Court itself to amending the power of appointment in favor or either “assisted appointments” or the direct democratic elections of Justices.

There are practical challenges to all these measures, but perhaps their arguments hinge on whether the American people want a say in the people and principles that judge them. If they do, then it is important to remember that the Constitution is changeable by design. Thomas Jefferson once criticized the idea of a Constitution that would be “too sacred to be touched” and a mentality of his generation that only the founders would have the right to, as Thomas Paine eloquently described their power, “begin the world over again.” The history of Amendments are one instance of an augmented political system, and the spirit of the Supreme Court itself another. As Hannah Arendt notes in On Revolution, the special authority of the Court’s interpretative power is “exerted in a kind of continuous constitution-making” (Penguin, 2006, 192). Crises and prolonged stalemates are, if anything, opportunities to return to the drawing board.

The American political system is a holistic structure, and the problems of the Court are not isolated. When treating a disease, practitioners know that addressing the symptom is inadequate. If the disease of partisanship has spread to those organs with the power to regulate it, then looking to the source of the party-system might be medically advisable for the sake of the health of the body politic.

On Bad Artists, Good Art

Photograph of an older TV with "The Bill Cosby" displayed on it

It is becoming a common occurrence to read in the news that one of your favorite actors, musicians, filmmakers, or other celebrity does not have the quality of moral character that you perhaps thought they did. Examples are plentiful: Bill Cosby has been convicted on three cases of aggravated assault against women (and been accused of many more); Harvey Weinstein was recently indicted on rape chargers; Kevin Spacey has been accused of sexually propositioning a minor; Spotify recently decided to remove the songs of R Kelly from the platform amid many allegations of sexual assault; and most recently (at least, at the time of writing this) Rosanne Barr’s racist tweets resulted in the cancellation of the reboot of her show Rosanne. What inevitably follows each new accusation, indictment, arrest, or general revelation are articles, opinion pieces, and discussions online and in print asking the same question: is it okay for me to watch shows, or movies, or listen to music, made by people who have done reprehensible things? Continue reading “On Bad Artists, Good Art”

Some Normative Perspectives on Borders and Asylum Seekers

In recent weeks, President Trump’s administration has shocked both Americans and the international community by separating families of migrants and asylum seekers at the southern border. Two-thirds of Americans objected to these practices, many noting the likeness of forced separations and internment camps to the Third Reich. On June 20th, Trump reversed the policy with an executive order. The administration was subsequently mandated by federal judge Dana Sabraw to reunite families it separated within 30 days. However, reunification efforts will be a complex process.

The detainment and separation of young children from their families struck a chord. Many people recognized egregious moral violations in this practice. Among the protests and national outcry, a movement to abolish ICE has gained traction with support from such public figures as Samantha Bee and recent Senate candidate Chelsea Manning. Manning’s platform went so far as to propose an open border policy. While her Senate bid failed, Manning’s proposal is not so radical as it may appear. Philosophers like Michael Sandel are leading public debates on open borders.

The most common justification for selective borders come from political realism and arguments for state sovereignty. As political realism is less concerned with ethics than political theory, I will focus on other more recent normative — or how one should act — justifications for national borders (and the national interests they presumably protect).

The first normative perspective is communitarianism. Communitarian philosophy arose in critique of liberalism’s abstract individualism. Communitarians emphasize the role of particular societies in which individuals live. They argue, with some plausibility, the Hegelian insight that communities accord individuals meaning, identity, relationships and spheres of action. This philosophical perspective has a political cousin in local patriotism, grassroots movements, community organizing, and can also provide justifications for multicultural theory and policy. Collectivities, including nations, can shape and guarantee spheres of freedom for its inhabitants.

At the same time, there exist debased versions of communitarian discourses which communitarian philosophers would not endorse. The most notorious example of such was the Nazi ”Volksgemeinschaft or ideal of a unified German national community united by race. Part of Trump’s base appears to have adopted a Nazi-lite version of Völkisch theory, articulated by alt-right spokesperson Richard Spencer’s ”white nationalism”. Trump’s well-documented racialization and criminalization of “illegal aliens” resonated strongly Spencer’s white nationalist following.

Charles Mills argued that, in fact, much of modern Western political philosophy is built on a contract for the creation and maintenance of whiteness. He identified in writers such as Kant evidence of a “racial contract”, designed to shape notions of citizenship and statehood exclusively for white access and in defense of white interests, while constructing the domain of the non-white (slaves, First Nations, and other colonized groups). Here in particular we can note the shaky foundations of colonial states’ claims to border sovereignty.

A second explicitly ethical tradition that can be used in defense of selective borders is utilitarianism: promoting the greatest happiness for the greatest number. A utilitarian could argue that a privileged nation should welcome as many refugees or asylum seekers as could be sustained with the quality of life maintained by the privileged state. Or, alternatively, a utilitarian could argue that the previous suffering or risk of the refugee is so extreme as to be necessarily improved by taking up residence in the new country. In either case, there would generally be an upper limit for the amount of happiness that the utilitarian is able to distribute in a welfare state.

An illustration of the challenge of limited resources appears in the ”Lifeboat Ethics” of ecologist Garrett Hardin. Hardin provides a simplified but cogent model of resource-conscious moral reasoning. Picture a lifeboat with capacity for sixty persons. A nautical disaster has occurred, leaving fifty people on board. One hundred more hapless souls struggle nearby to stay afloat on the ocean’s surface. Should (some of) these hapless souls be taken aboard? If so, why and under what conditions? How do we decide? Do the ones in the boat have a prior claim to the ones outside of the boat? Hardin’s example is illustrates a particular “hard choice” version of ethics in a world that is becoming an ecological catastrophe– not everyone can be saved. This approach was questioned in a later work by Diane Brzozowski (2003) which illustrated with real case studies that, on some occasions at least, it is possible to save many or all concerned.

Thus far, these defenses might arguably be used to limit immigration to some extent. But are they sufficient to limit havens for refugees and asylum seekers? What about when “Lifeboat Ethics” becomes more than a metaphor, and people’s lives or fundamental freedoms are at stake?

From some major ethical traditions, turning away people who face harm or risk in their home countries are never defensible. In the wake of World War II, the principle of non-refoulement (international law against the repatriation of refugees and asylum seekers) was established (though not strictly observed by Western states). Non-refoulement derives from the UN Declaration on human rights, enjoining state parties to commit to the dignity of individual lives and fundamental freedoms. ”Human rights’ discourses are examples of pure deontological ethics, i.e. universalizable laws that cannot be chipped away by expedience. Another example of an entitlements theory (though one more based in measurement of human welfare rather than in a legal notion of “right”) is the capabilities approach. Initially formulated by Amartya Sen, the capabilities approach was adapted by Martha Nussbaum specifically in response to limitations of Rawlsian liberal theory which limited states’ responsibilities within their own borders.

Other ethical perspectives which mandate taking responsibility for refugees and asylum seekers are humanitarian grounds. These include the cosmopolitan approach, named from an early Stoic conception of human beings as ”citizens of the world” rather than of individual states. Arguably, thinkers like Peter Singer (who discounts geopolitical difference as a ethically relevant factor in deciding whom to help) represent contemporary cosmopolitan ethics. Cosmopolitanism dictates that our obligations to others in need are not restricted to narrow local circles of concern. Another ethical tradition that is likely to include needy others outside one’s borders is “care ethics”. Carol Gilligan, the founder of care ethics, observed that that women exhibit a unique approach to responsibilities for others and selves in a relational model, an alternative to both deontological and consequentialist ethics narrowly conceived.

One of the most parsimonious ethical theories lies in one simple principle: the harm limitation. While best known under John Stuart Mill’s articulation that one’s range of freedoms is limited by ensuring a like freedoms for others, it also appears in thinkers such as Pufendorf. A more stringent version of the harm principle is seen in the “negative duty” argument taken up by some ethical philosophers. We have an obligation not to harm others by our actions or our negligence. Thus, for example, Thomas Pogge would argue that we have a negative duty to not cause global poverty by our participation in an unjust international economic order. Taken in this broad perspective, there can be many circumstances in which Western countries are directly or indirectly responsible for the harms that refugees and asylum seekers face, as Matthew Gibney points out in his book, “The Ethics and Politics of Asylum” (Cambridge 2004). Thus, if a country has an outsized portion of responsibility for global warming by causing the most carbon emissions, they are responsible for the consequences that are borne by more geographically vulnerable states and the consequent surge of refugees. Similarly, if one nation covertly installed a dictator or encouraged armed conflict, there is a direct causal relationship of harm in those who seek refuge from conflict or persecution. Gibney also argues that partial responsibility can occur (Pogge’s example of participating in an unjust economic order that creates victims and winners could be one example).

But let us imagine us a case in which the privileged destination state is assumed to be wholly uninvolved in the miseries faced by the refugee or asylum seeker. Are they responsible for the ensuing harm if they dismiss the harassed individual or family at the border? By definition, a refugee and an asylum seeker have little options. It appears that President Trump’s administration’s confessed policy of family separation as deterrence is explicitly intended harm: deter asylum seekers by making their arrival in the US as horrific as the situation they left behind. In this case, they are obviously introducing more harm into the lives of these individuals and families seeking refuge, and have justly raised international outcry. But what are genuinely ethical ways to respond to refugees and asylum seekers, supposing there to be a limited lifeboat? Is it time to abandon both the narrowly nationalist and lifeboat perspectives to realize that we are all in this together?

This question will only become more serious as Western states contend with the rapidly changing global climate and the effects of the international economic order, with all the political and ecological ramifications of a vastly unequal neoliberal globalism. It’s clear that we need forward-thinking, ethical leadership. Instead of turning the clock back to 1939, we need to confront the challenges of the 21st century critically and openly.

The Ethics of Deterrence: Australian Offshore Immigration Detention

Photograph of a long row of dark green tents

For over five years, the Australian Government has enforced a policy of not allowing asylum seekers or refugees attempting to reach its shores by boat to enter the country, and of ensuring that no persons who attempt to do so will be settled in Australia. Ever. As the government’s own disseminated advertising says: No Way. You will not make Australia home Continue reading “The Ethics of Deterrence: Australian Offshore Immigration Detention”

The Unexpected Tension of Netflix’s Nanette

photograph of a microphone and a dark background

“I don’t feel comfortable in a small town. I get a bit tense. Mainly because I’m in this situation,” Hannah Gadsby, a gender non-conforming comedian, says, airing her hands over her navy T-shirt and open blue blazer with a black lapel. “And in a small town, that’s alright. From a distance. People are like, ‘Oh, good bloke.’ And then you get a bit closer and then it’s like, ‘Oh no, no, trickster woman, what are you doing?”

Released on Netflix June 19th, Nanette has reached international attention. Gadsby’s opening string of jokes that introduce her comedy show at the Sydney Opera House seem like a humorous introduction to her life and the small Australian island of Tasmania where she comes from; however, they actually foreshadow the whole show. From a distance, comedy seems safe. You know what you are getting out of the genre. If you get offended by a joke, you’re too sensitive or don’t have a good enough sense of humor.

Ironically, Gadsby, the comedian running the show, says that people tell her all of the time, “Don’t be so sensitive.” I’m sure that many of us have laughed at jokes with which we were uncomfortable just because everyone else did. Maybe we have even walked out after a comedy show a bit sick to our stomachs about some offhand humor. But Gadsby’s show is unlike any other because she liberates us from the groupthink and easy laughter, raising her expectations for the audience. In fact, it would be inappropriate to laugh during the serious portions of her show. She brings a question into the mix that you would never expect out of a comedy show: “Why is insensitivity something to strive for?” She challenges her audience to think critically, and her show navigates humor and heartbreak.

Gadsby jokes about people apologizing for calling her sir: “I love being mistaken for a man because just for a few moments, life gets a hell of a lot easier. I’m top shelf normal, king of the humans,” she shouts in a deep voice. “I’m a straight white man.” Just like her initial physical appearance to passing strangers, her comedy show invites the audience in with disarming self-deprecating humor before challenging the genre and making people consider the price of her jokes. Trickster woman.

An audience member complained after her show once that there was “not enough lesbian content,” which becomes a refrain that she repeats in a sarcastically bitter voice throughout Nanette. Gadsby jokes, “I cook dinner way more than I lesbian. But nobody ever introduces me as that chef comedian, do they?” In her profession and life, her sexuality becomes a marker for her person: a label to boil down her comedy. She does not identify as transgender nor believe that lesbian is an appropriate identifier for her, but other people are eager to categorize.

A comedian would not be introduced as that straight comedian. Comedians would not be described as male or white. The expectations for their content are not qualified. People with intersectional aspects of their identities become “not normals”—to use Gadsby’s words—while the people who trump them in race, sexuality, class, ability, and gender privilege become the baseline normal with the top of the privilege ladder being simply: a comedian.

Another refrain throughout the show is her announcement that she has to quit comedy. Reflecting on her career as a whole, she says, “When I first started the comedy over a decade ago, always, nothing but lesbian content.” She tells her humorous tale about coming out to her mother and a joke about a young man who was about to fight her at the bus stop because he thought that she was a man flirting with his girlfriend. The jokes work. The audience erupts in laughter.

Halfway through the show, Gadsby says, “Let me explain to you what a joke is.” She continues, “a question that I have artificially inseminated with tension. I do that. That’s my job.” Gadsby can control tension so well because—as a gender non-conforming woman—she has been familiar with it since childhood: “I didn’t have to invent the tension. I was the tension.”

Contributing to why she wants to quit comedy, she explains, “In a comedy show, there is no room for the best part of the story. Which is the ending. In order to finish on a laugh, you have to end with punchlines.” Sharing the third part ending of her coming out story, she says, “The best part of that story is that mum and I have a wonderful relationship now.” She pauses, shrugging her shoulders and looking around. “Look what I’ve done to the room. No tension. You all just go, ‘Eh, good on you.’”

With a happy ending, the tension dissipates. Through comedy, Gadsby cannot share full stories, especially the ones that skyrocket the tension and fail to conclude in a punchline that eases our worries. Revisiting the story that she told about the young man at the bus stop, she says, “I couldn’t tell the part of the story when that man realized his mistake. And he came back. And he said, ‘Oh, no, I get it. You’re a lady f**got. I’m allowed to beat the sh*t out of yous,’ and he did. He beat the sh*t out of me, and nobody stopped him.” She did not report him to the police or go to the hospital, explaining, “[B]ecause I thought that is all I was worth.”

Leaving us hanging, Gadsby does not give us the antidote to tension. She does not offer us the relief of laughter that she has been providing audiences for over ten years, proclaiming, “And this tension is yours, I am not helping you anymore. You need to learn what this feels like because this, this tension, is what not normals carry around inside of them all of the time because it is dangerous to be different.” Gadsby carries that third part of the story every time that she relives the tension of the first two parts that make up the joke, but this time she uses her platform to share the whole thing.

Gadsby shares that her mother once told her that she felt badly for raising her as if she were straight, telling Gadsby, “I made it worse because I wanted you to change because I knew the world wouldn’t.” Well, in this revolutionary show, Gadsby quits playing into the same humor that has launched her career all of the way to the stage at the Sydney Opera House. Instead, she uses the genre to upend it. Trickster woman. And instead of an hour of changing herself, she spends it changing the world through genius, humor, heartbreak, and sensitivity.

The Ethics of Human Head Transplants Explored: Part Two

Black and white photograph of a medical student examining a person on a table

In a previous post, I explored several ethical questions arising out of the work of renegade surgeons pushing to conduct the first “human head transplant.” One remaining but intriguing conundrum concerns the identity of the person who would emerge from the transplant, should it prove to be successful. The radical nature of the surgery places some doubt as to who legitimately is the “donor” and who the “recipient.” The surgery is commonly referred to as a “human head” transplant, possibly because we are used to seeing small, discrete organs as the objects of donation. However, note that this moniker seems to get it backwards, at least in terms of how the surgeons and potential participants understand the surgery. It is the original owner of the head who is understood to be receiving a new body as donated organ. Thus, the surgery should go by the name “whole body” transplant. Continue reading “The Ethics of Human Head Transplants Explored: Part Two”

Should the United States Supreme Court Be Abolished?

Photograph of the US Supreme Court framed by shrubbery

The Supreme Court is back at the forefront of political debate given the recent string of contentious decisions affecting key parts of the President’s political agenda (the Travel Ban), the culture wars (Masterpiece Cakeshop), and the labor movement (Janus). Even more, the recent announcement of Justice Kennedy’s retirement means that the Supreme Court’s ideological balance is likely to sway further to the right — and it may stay that way for some time, given the justices’ lifetime appointments. This makes landmark decisions such as Roe V. Wade vulnerable to being overturned. The time seems ripe for reflection on the moral and political justification for having a Supreme Court with its ultimate power of judicial review. Is this institution so undemocratic that it ought to be abolished in favor of majoritarian procedures for deciding the thorniest social issues of the day? Continue reading “Should the United States Supreme Court Be Abolished?”

Political Incivility, Justified?

Photograph of many people holding signs at a political rally

“Civility” has been in the news recently. Stories of allegedly uncivil behavior in politics have received much coverage. The most recent event to kick off so much consternation was the decision of the owner of the Red Hen Restaurant in Virginia to refuse to service to Press Secretary Sarah Sanders because of the Trump Administration’s family separation policy and the President’s desire to ban transgender people from serving in the military. Even more recently, Maxine Waters, a Democratic congressperson, told rally attendees that protestors should take even more confrontational steps against Administration officials—confronting them as they go about their daily lives pumping gas, shopping, or eating in restaurants. The President himself has been accused many times of acting uncivilly towards others. One need only browse his past tweets to see comments using demeaning and insulting language to describe individuals he views as enemies of himself or his administration. Continue reading “Political Incivility, Justified?”

To Tip or Not to Tip: D.C.’s Ballot Initiative 77

Photograph of a clear glass jar with dollars in it

As debates about immigration stirred up controversy in the capital, D.C. held its primary elections last Tuesday, with citizens casting their vote for mayor, city council, representatives in Congress, and most controversially, Ballot Initiative 77. Though news from the capital usually takes the form of Congress’ latest political battle, Initiative 77 made national headlines due to the intense debate that it caused amongst D.C. residents. The initiative asked voters whether or not the pre-tipped minimum wage should be raised from $3.33 to $15 per hour by 2026. On Tuesday June 19th, it passed, winning 55% of the vote and signaling division among D.C. residents. What lies at the heart of this disagreement amongst D.C. residents? Is tipping consistent to American values or a way of reinforcing race and class divisions? And is the “Save Our Tips” campaign truly representative of the tipped workforce? Continue reading “To Tip or Not to Tip: D.C.’s Ballot Initiative 77”