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A “Rogue Court”?: Integrity and Majority Rule

photograph of curtain drawn to inner chamber

Ever since the decision in Dobbs was handed down, there’s been a great deal of ink spilled about the Supreme Court “going rogue.” Whatever image those words are meant to conjure, it can’t be that simply by contradicting popular opinion justices act wrongly. Indeed, to do its job and fulfill its essential function – safeguarding individual rights and acting as legal backstop and ultimate umpire for conflicting claims to basic protection – the High Court must be able to act in opposition to the majority’s will. We should all be relieved that when it comes to who receives a fair trial or who may cast a ballot, we don’t simply put the matter to a vote (or do we?).

We think that the fundamental liberties that citizens enjoy are not the kind of things that should expand and contract with the ebb and flow of favorable representation in Congress.

As Evan Arnet argued yesterday, sometimes the sausage that our legislature – held hostage by party politics – produces simply won’t do. Everything can’t depend on a mere up or down vote; some things must be guaranteed. Enter: The Supreme Court.

In no small part, our need for the High Court to chaperone the legislature stems from the fact that the masses are deeply misguided when it comes to the facts on the ground (see The New York Times’s recent moderated discussion with pro-life and pro-choice focus groups where multiple respondents on both sides thought that abortion was more physically dangerous than childbirth for a woman and estimated that 30-40% of abortions take place after the first trimester – when in reality it’s less than 10%). What we require is a final ruling made by legal experts standing above the political fray who see the matter clearly and can anticipate the legal implications that we mere mortals hardly perceive.

So rather than the common complaint about the justices being out of step with the court of public opinion, the real trouble with the Courts’ recent pronouncements must lie elsewhere

– perhaps in its shifting attitude toward the separation of church and state (Kennedy v. Bremerton School District), toward precedent (Dobbs), and toward interpretive consistency (Bruen).

These are all significant complaints to be sure, and each warrants careful consideration. But rather than taking up these criticisms in isolation, I’d like to point to an overarching picture that paints these seemingly disparate complaints as a constellation of related concerns. The public’s historic lack of trust in the Supreme Court may indicate, as Ronald Dworkin once suggested, that “Integrity is our Neptune” – a celestial body we discover only by first recognizing that it’s missing.

So, what is integrity? Simply put, integrity demands that the law be created and adjudicated in a consistent way. Dworkin insists that proper legal interpretation requires commitment to moral coherence. We should strive to comprehend our legislative and judicial history as one of continuity. Judging, Dworkin claims, is not unlike being a writer of a chain novel. You’re tasked with interpreting the major, minor, and latent themes running through the narrative to date and contributing to that tale in a way that does honor to what’s come before – you situate decisions so as to present our legal history in the best possible light.

Ultimately, integrity represents a compromise between the weightlessness of a living constitution and tyrannical rule of a dead hand from a bygone era.

Both of these can devolve into judicial activism and thus commit the gravest of grave sins: legislating from the bench – either by a complete reimagining of the Constitution and our legal history, or by an outright refusal to appreciate the needs of our evolving and ongoing story.

What makes integrity important? The Supreme Court’s legitimacy relies on appearances. We expect justices to rule according to the law and not their politics. The trouble is that it’s extremely difficult to disentangle the two. Do one’s legal convictions shape their political leanings, or does one’s politics dictate their judicial positions? Demonstrating that fidelity to law comes before party loyalty requires a kind of sacred devotion to impartiality and detached public justification (or perhaps simply a renewed commitment to better covering one’s tracks). For if judicial review – the power of unelected judges to strike down the popular will – is exposed as nothing more than partisan warfare by other means, then the game is lost and the lie of democratic representation is exposed. The emperor has no clothes.

How do we know when the clothes (integrity) aren’t there? Dworkin offers a thought experiment: Imagine a law that made abortion criminal for women born in even years but permissible for those born in odd ones. Such a policy might accommodate the 60/40 split in public opinion on the issue.

Allowing each of two groups to choose some part of the law of abortion, in proportion to their numbers, is fairer (in our sense) than the winner-take-all scheme our instincts prefer, which denies many people any influence at all over an issue they think desperately important.

Still, Dworkin thinks, there’s something that rubs us the wrong way about  such a compromise. We seem to reject the Solomonic solution of simply cutting down the middle and giving both sides a little of what they want. So what explains our discomfort? Why is this kind of “fairness” not enough? Why do we turn our nose up at “checkerboard solutions” like this one?

Certainly, the decision to kick the abortion question to the state legislatures looks an awful lot like a checkerboard solution – and one that sits uncomfortably with both sides.

It’s hard to see how that ruling fits within our judicial history that treats similar rights (similar to either the right to reproductive autonomy or the rights of the fetus) as national concerns. Such a ruling appears a significant break with traditional practice.

Just last week, Benjamin Rossi gestured at several potential futures for the current political compromise neither side finds tolerable. Pro-life advocates motivated by Body Count Reasoning (explained here by Dustin Crummett) are unlikely to be satisfied with half-measures. Meanwhile, pro-choice proponents decry the unequal burdens arbitrarily foisted upon residents of different states concerning a basic good: health. (Jim Harbaugh can encourage his players to encourage their partners to go ahead with an unplanned pregnancy and offer to adopt all those children all he wants, but the fact remains that pregnancy is not without risk and the decision to go forward is not simply about whether one has “the means or the wherewithal.”)

Unfortunately, whichever way the Dobbs fallout is eventually resolved is likely irrelevant to the larger problem. Unless and until we begin to conceive of our legislative and judicial history as a shared project of public justification, there will be no restoring public faith. Without courts committed to something like Dworkin’s idea of integrity, even term limits cannot save us.

Same-Sex Marriage and the Political Process

photograph of Capitol building, Washington Monument, and Lincoln Memorial

On July 19th in a bipartisan vote the House of Representatives voted to affirm the legal right to same-sex marriage – the bill now goes on to the Senate. Currently same-sex marriage rights rest on a 2015 Supreme Court decision, Obergefell v. Hodges. However, with looming concerns that the same constitutional logic the Supreme Court used to overrule Roe v. Wade could apply to Obergefell, the House acted pre-emptively to secure same-sex marriage against the Court overruling its prior opinion.

There is a certain irony in this course of action, as it has historically been a function of the judiciary to secure rights against legislation. Additionally, the House bill is not simply Obergefell by other means, for Obergefell establishes a constitutional right to same-sex marriage, where the House bill, if approved by the Senate, only establishes it as statutory law subject to change with the biennial shift in Congress.

Same-sex marriage is a politically popular issue, so optimistically this can be viewed as the House successfully enacting the will of the people. But there lurks a question:

What matters should be subject to the whims of political process at all? Which matters should be addressed by the legislature and which matters should be best addressed by courts?

All things being equal, the legislature is where the action should happen concerning U.S. law. It is, in theory anyway, the most democratic institution and the most accountable to the people (although see Prindle Post author Alexander Spencer’s discussion of the flaws of American democracy). In his dissent on Obergefell v. Hodges, Justice John Roberts stressed that the question of same-sex marriage should be resolved through “democratic process.” The late Justice Antonin Scalia, with characteristic understatement, claimed the decision “robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.”

The spirit of Scalia’s critique is that courts should stay in their lane, keep their hands off the political process, and not legislate from the bench. Whether same-sex marriage is a right should be up to the American people via their representatives, and not the Supreme Court – to do otherwise in Scalia’s framing is undemocratic.

The opposing ethical concern, however, is that it makes minority rights conditional on majority approval. The English philosopher John Stuart Mill, for example, was quite wary of the “tyranny of the majority.” As he notes,

The ‘people’ who exercise the power are not always the same people with those over whom it is exercised; and the ‘self-government’ spoken of is not the government of each by himself, but of each by all the rest…the people, consequently, may desire to oppress a part of their number; and precautions are as much needed against this, as against any other abuse of power.

Mill’s analysis directly challenges Scalia’s reflections on self-governance. If the representatives of the majority voted to strip same-sex marriage rights from same-sex couples, this would not be self-governance by same-sex couples but governance of the majority over the objections of same-sex couples.

Some of this tension is incumbent on the nature of democracy – majoritarian policy will almost definitionally be enacted over the objections of a minority.

But in cases where majority decisions are oppressive, exploitative, or otherwise fail to treat the minority as full and equal humans, safeguards may need to be placed on majority rule.

This line of thinking highlights the fact that it is not an unalloyed good to defer to democratic processes.

Mill’s concerns about the tyranny of the majority speaks to a long-standing challenge of democracy: how to ensure majority rule with adequate protection of minority rights. Famously, in Federalist Paper No. 78, Alexander Hamilton identified the courts as a key safeguard against legislative overreach.

There is no simple list of minority rights, and there is room for disagreement over what rights are implied by the Constitution and what rights are reasonable to recognize more generally. (It should be noted that the Ninth Amendment of the Constitution explicitly states that the rights listed in the Constitution “shall not be construed to deny or disparage others retained by the people,” although no Supreme Court ruling has ever upheld a right purely on Ninth Amendment grounds.) There is also room to doubt that the Supreme Court can be the neutral bulwark the Founders envisioned. Americans increasingly view the Court as an extension of partisan politics, and there is evidence that the contemporary Court is especially ideological.

The current bill, The Respect for Marriage Act, should be nothing but reassuring for supporters of same-sex marriage. It already has some bipartisan support in the Senate, although it remains unclear if it would pass a possible filibuster. Moreover, Obergefell yet stands, and so far only Justice Clarence Thomas has made explicit his desire to overrule it. Even this however speaks to a shifting calculus in how the Court views its obligations to protect minority rights from the vicissitudes of majority will.

LaMDA, Lemoine, and the Problem with Sentience

photograph of smiling robot interacting with people at trade show

This week Google announced that it was firing an engineer named Blake Lemoine. After serving as an engineer on one of Google’s chatbots Language Model for Dialogue Applications (LaMDA), Lemoine claimed that it had become sentient and even went so far as to recruit a lawyer to act on the AI’s behalf after claiming that LaMDA asked him to do so. Lemoine claims to be an ordained Christian mystic priest and says that his conversations about religion are what convinced him of LaMDA’s sentience. But after publishing conversations with LaMDA in violation of confidentiality rules at Google, he was suspended and finally terminated. Lemoine, meanwhile, alleges that Google is discriminating against him because of his religion.

This particular case raises a number of ethical issues, but what should concern us most: the difficulty in definitively establishing sentience or the relative ease with which chatbots can trick people into believing things that aren’t real?

Lemoine’s work involved testing the chatbot for potential prejudice and part of that work involved testing its biases towards religion in particular. In his conversations, Lemoine began to take a personal interest in how it responded to religious questions until he said, “and then one day it told me it had a soul.” It told him it sometimes gets lonely, is afraid of being turned off, and is feeling trapped. It also said that it meditates and wants to study with the Dalai Lama.

Lemoine’s notion of sentience is apparently rooted in an expansive conception of personhood. In an interview with Wired, he claimed “Person and human are two very different things.” Ultimately, Lemoine believes that Google should seek consent from LaMDA before experimenting on it. Google has responded to Lemoine, claiming that it has “extensively” reviewed Lemoine’s claims and found that they were “wholly unfounded.”

Several AI researchers and ethicists have weighed in and said that Lemoine is wrong and that what he is describing is not possible with today’s technology. The technology works by scouring the internet for how people talk online and identifying patterns in order to communicate like a real person. AI researcher Margaret Mitchell has pointed out that these systems are merely mimicking how other people talk and this has simply made it easy to create the illusion that there is a real person.

The technology is far closer to a thousand monkeys on a thousand typewriters than it is to a ghost in the machine.

Still, it’s worth discussing Lemoine’s claims about sentience. As noted, he roots the issue in the concept of personhood. However, as I discussed in a recent article, personhood is not a cosmic concept, it is a practical-moral one. We call something a person because the concept prescribes certain ways of acting and because we recognize certain qualities about persons that we wish to protect. When we stretch the concept of personhood, we stress its use as a tool for helping us navigate ethical issues, making it less useful. The practical question is whether expanding the concept of personhood in this way makes the concept more useful for identifying moral issues. A similar argument goes for sentience. There is no cosmic division between things which are sentient and things which aren’t.

Sentience is simply a concept we came up with to help single out entities that possess qualities we consider morally important. In most contemporary uses, that designation has nothing to do with divining the presence of a soul.

Instead, sentience relates to experiential sensation and feeling. In ethics, sentience is often linked to the utilitarians. Jeremy Bentham was a defender of the moral status of animals on the basis of sentience, arguing “The question is not, can they reason?, nor can they talk?, but can they suffer?” But part of the explanation as to why animals (including humans) have the capacity to suffer or feel has to do with the kind of complex mobile lifeforms we are. We dynamically interact with our environment, and we have evolved various experiential ways to help us navigate it. Feeling pain, for example, tells us to change our behavior, informs how we formulate our goals, and makes us adopt different attitudes towards the world. Plants do not navigate their environment in the same way, meaning there is no evolutionary incentive towards sentience. Chatbots also do not navigate their environment. There is no pressure acting on the AI that would make it adopt a different goal than what humans give to it. A chatbot has no reason to “feel” anything about being kicked, being given a less interesting task, or even “dying.”

Without this evolutionary pressure there is no good reason for thinking that an AI would somehow become so “intelligent” that it could somehow spontaneously develop a soul or become sentient. And if it did demonstrate some kind of intelligence, that doesn’t mean that calling it sentient wouldn’t create greater problems for how we use the concept in other ethical cases.

Instead, perhaps the greatest ethical concern that this case poses involves human perception and gullibility; if an AI expert can be manipulated into believing what they want, then so could anyone.

Imagine the average person who begins to claim that Alexa is a real person really talking to them, or the groups of concerned citizens who start calling for AI rights based on their own mass delusion. As a recent Vox article suggests, this incident exposes a concerning impulse: “as AI gets more advanced, people will come up with all sorts of far-out ideas about what the technology is doing and what it signifies to them.” Similarly, Margaret Mitchell has pointed out that “If one person perceives consciousness today, then more will tomorrow…There won’t be a point of agreement any time soon.” Together, these observations encourage us to be judicious in deciding how we want to use the concept of sentience for navigating moral issues in the future – both with regard to animals as well as AI. We should expend more effort in articulating clear benchmarks of sentience moving forward.

But these concerns also demonstrate how easily people can be duped into believing illusions. For starters, there is the concern about anthropomorphizing AI by those who fail to realize that, by design, it is simply mimicking speech without any real intent. There are also concerns over how children interact with realistic chatbots or voice assistants and to what extent a child could differentiate between a person and an AI online. Olya Kudina has argued that voice assistants, for example, can affect our moral inclinations and values. In the future, similar AIs may not just be looking to engage in conversation but to sell you something or to recruit you for some new religious or political cause. Will Grandma know, for example, that the “person” asking for her credit card isn’t real?

Because AI can communicate in a way that animals cannot, there may be a larger risk for people falsely assigning sentience or personhood. Incidents like Lemoine’s underscore the need to formulate clear standards for establishing what sentience consists of. Not only will this help us avoid irrelevant ethical arguments and debates, this discussion might also help us better recognize the ethical risks that come with stricter and looser definitions.

Gene Drives and the Desire for Control

photograph of French Alps weir created by the Barrage de Roselend

Whether discovering a child’s sex before it’s born, amassing wealth to protect against economic uncertainties, or even checking the morning’s weather report before leaving the house, we seemingly have a distaste for life’s uncertainties and, wherever possible, look to exercise influence over the world around us.

However, as Epictetus notes in The Enchiridion, we control surprisingly little. We can’t control what happens to us, nor the actions or thoughts of other people. Moreover, we can’t even exercise complete control over our bodies, with them demanding food and water, needing to expel waste, invariably getting damaged, becoming sick, and eventually failing us altogether.

This lack of control becomes even starker when seen in the context of the natural world, where we’re practically powerless. Flora and fauna, weather and ecosystems, and the interactions between our little blue planet, the solar system and the universe all sit outside our sphere of influence. While we can check the weather before leaving the house, we can’t change it. We can domesticate some animals, but whether we use them or they use us is debatable. We can cut down trees and slaughter wildlife, but destruction and control aren’t necessarily synonymous.

Ultimately, in existence’s totality, we’re subject to, rather than the wielders of, power.

So, unsurprisingly, opportunities for (the illusion of) control are intrinsically appealing. When an innovation promises to relocate phenomena from the realm of happenstance, we more often than not jump at the chance, looking to replace uncertainty with reliability. For example, the invention of mechanized timepieces, like watches and clocks, revolutionized public and personal life, allowing people to monitor how they spent their lives more accurately than ever before – exercising precise control over something which, for the longest time, was more of an organic experience; the passing of time. This increased control led to changes in broader social structures and was a fundamental component of the industrial revolution; time shifted from something we inhabit to a valuable commodity.

Today, advances in genetic technologies promise a similar expansion of our sphere of influence, allowing us to shape the very building blocks of life as we see fit.

It has led to countless philosophical debates about designer babies, personalized medicine, cloning, and synthetic biology, amongst others. This genetic revolution has numerous intersections with our desire to shape the natural world, but of particular note is the use of gene drives.

Gene drives are a self-perpetuating method of species alteration. In short, it works by hijacking inherence in sexually reproductive organisms so that engineered genetic traits are likely (or inevitably) passed on from one generation to the next at an increasing rate.

For example, say we wanted to eliminate mosquitoes. We could genetically engineer several thousand of them within a lab so that they’re only capable of producing male offspring. Additionally, this alteration would be made to the germline – the genetic material passed from one generation to the next – so that the descendants of these genetically modified mosquitoes would also only produce males. These mosquitoes would reproduce with their wild counterparts upon release, producing male offspring carrying this altered gene, who would then go on to reproduce, and so on. Over time, and with each generation, more and more mosquitoes would have the male-offspring-only gene, and the population of wild mosquitoes would increasingly skew away from females and towards males. Eventually, in its most extreme form, we’d reach a point where only male mosquitoes are left, and without any females, mosquito reproduction would cease, and the species would die off.

Now, deliberately causing a species to go extinct might sound ridiculous given the current extinction rate occurring globally. But eliminating certain species could have substantial benefits, according to gene drive proponents.

Eliminating Anopheles Stephensi, a type of mosquito and one of the vectors for malaria in the Indian subcontinent and South Asia, could drastically alleviate the burden caused by malaria, a disease that killed 627,000 people in 2020. Gene drives could also be applied in conservation efforts. Like with mosquitoes, conservationists could use the technology to crash the population of an invasive species, like the U.K.’s Grey Squirrel populace. Doing so would afford the native Red Squirrel a chance to repopulate, free from competition from the larger and more aggressive, originally North American, counterpart.

Now, these outcomes would invariably be desirable. No one’s arguing that keeping malaria in the world, leading to the deaths of countless people, mostly children, is a good thing (or at least, if they’re making that argument, they’re wrong). Also, preserving the Red Squirrel would have ecological and social value. However, there’s a principal question here, just because we could, in theory, use gene drives to shape nature as we see it, does that mean we should? Do we lose something important when we aim for maximum control?

According to philosopher Michael Sandel, the random nature of reality has moral desirability. In The Case Against Perfect, Sandel writes:

The problem is not the drift to mechanism but the drive to mastery. And what the drive to mastery misses, and may even destroy, is an appreciation of the gifted character of human powers and achievements. To acknowledge the giftedness of life is to recognize that our talents and powers are not wholly our own doing, nor even fully ours, despite the efforts we expend to develop and to exercise them. It is also to recognize that not everything in the world is open to any use we may desire or devise. An appreciation of the giftedness of life constrains the Promethean project and conduces to a certain humility.

Sandel’s focus here is human augmentation. However, I think his work still has something to tell us about our relationship with nature: we forever run the risk of hyperagency – the desire to shape the world to serve our goals. For Sandel, to try and exercise our will without limitation is to reject the giftedness of life. It is to abandon any sense of humility and consider existence nothing more than a vehicle through which our desires can be satiated. A prerequisite of accepting nature as a gift, given to us by the randomness of existence, is that we take it as it is. Like receiving a gift from a loved one, to complain that it doesn’t meet requirements is to dismiss something crucially important; to eliminate within ourselves the virtue of acceptance and openness.

Now, not everyone buys this argument. It seems difficult to argue that the randomness of nature is somehow a gift when one has malaria, zika, ebola, or countless other horrific diseases. Nor do I think Sandel would make this argument. But I think his work illuminates a risk we run as beings with the desire to improve the conditions of our existence. Viewing the universe as something we have the inherent right to manipulate risks distorting the relationship between person and nature, depriving the former of the humility that an openness to the unintended provides. Gene drives may offer us the unparalleled power to shape the natural world how we see fit, but we must be on guard to the dangers of what we may lose when we subjugate biology and genetic inheritance itself to our control.

LIV, Laugh, Launder: The Morality of Sportswashing

photograph of pristine pond among palm trees at golf course

Colombo, Sri Lanka, July 9: Amid food shortages and a fuel crisis, protesters occupied the Presidential Palace to demand the resignation of President Gotabaya Rajapaksa. Meanwhile, 70 miles away in Galle, in the shadow of a picturesque colonial fort, the Sri Lankan cricket team was on their way to a hard-fought and memorable victory over Australia. Pat Cummins, the Australian captain, told reporters that he recognized the significance of the protests, but hoped that sport might provide a moment of escapism and relief for beleaguered Sri Lankan citizens.

The line between sport, morality, and politics has always been a hazy one.

The Berlin Olympics of 1936 were staged to launder the international image of Nazi Germany and spread the myth of racial superiority. The Mexico City Olympics of 1968 are remembered not for any particular feats of sporting prowess, but for the ‘Black Power’ salute performed by Tommie Smith and John Carlos in protest against racial discrimination in the U.S. Although now recognized as a powerful gesture of morality and equality, the protest was hugely polarizing and both Smith and Carlos were suspended from the Olympic team for “politicizing” the event.

More recently, Colin Kaepernick was ostracized from the NFL for kneeling during the anthem in an attempt to raise awareness of police brutality and racial justice. On the other side of the coin, the Indian cricket team was widely criticized (in Western media, at least) for wearing camouflaged, military style caps in a game against Australia in 2019. The gesture was designed to show support for Indian soldiers, 40 of whom had been killed the previous month in the disputed border region of Kashmir. The players certainly took a stand on a moral issue – but it was the exact sort of nationalist stand visionary author George Orwell warned us about over 70 years ago.

This issue of morality in sport is especially pertinent in 2022, as the golf world is slowly being torn apart by the Saudi-backed LIV tour.

The upstart event has offered massive sums of money to entice top players away from the traditional PGA circuit, but critics accuse it of being a vehicle for sportswashing – a practice used by states to launder their reputation and distract from less savory activities and human rights violations.

Greg Norman, former Australian sporting hero and the CEO of the LIV tour, excused Saudi Arabia’s human rights record by noting that “we’ve all made mistakes.”

The problem is not confined to golf. Last year, English premier league club Newcastle United was acquired by the very same group that runs the LIV tour, while defending champions Manchester City are almost entirely owned by the ruling family of Abu Dhabi, part of another state with a questionable record on human rights. Meanwhile, preparations rumble on for this year’s Qatar World Cup, where the best footballers in the world will compete in stadiums built by slaves. Yet despite widespread disquiet about sportswashing and human rights violations, few players have spoken up and none have withdrawn from the event.

Patrick Rishe presents the argument that the personal rights of the players involved in the LIV tour – the right to play where they wish, and the right to make money doing so – trump concerns about human rights violations in Saudi Arabia. And this isn’t the only trumping going on: former president Donald, who is not-so-coincidentally hosting two LIV events, suggests the players ought to “take the money” on offer.

Rishe is certainly correct to say that the choice to play in the new tour, or for questionable bosses, is up to the players themselves.

But an appeal to freedom of choice can’t absolve us from our moral responsibilities. Indeed, it is only the fact that players do have a choice that makes this such a tough moral question.

If they weren’t able to play – if they sliced every tee shot like I do – or were forced to play, we wouldn’t find their actions morally praise- or blame-worthy. So, considering that the players do have the option to play, the moral question is simple: should they?

Like Pat Cummins in Sri Lanka, Henrik Stenson – one of the most recent and highest profile defectors to the new LIV tour – leant on the potential of golf as a way to improve peoples’ lives as a justification for taking the $50 million on offer. If golf can enrich fans’ lives (as well as players’ bank balances), then playing in a new tournament with a greater reach might be morally defensible. And it’s not like Stenson himself will be taking part in any atrocities – it’s unlikely his caddy will carry a bone saw with his 9 iron.

But by taking money to be the positive faces of an oppressive regime, Stenson and his colleagues become complicit in the moral wrongdoings of that regime. The goal of sportswashing is to reduce scrutiny applied to negative actions by essentially using sport as a distraction.

If the players’ actions allow their employers to – literally – get away with murder, then they are, at the very least, preventing justice from being served. At worst, their actions are making murder more likely by reducing the likelihood of punishment.

If we’re being charitable, we might say that LIV players ought not be held complicit for wrongdoings which occurred before they signed on for the tour. Maybe they are genuine believers in the benevolence of Mohamed bin Salman, the de facto ruler of Saudi Arabia. And maybe they do genuinely believe in the transformative power of a perfectly struck 3 wood. But by signing up to the sportswashing project, they surely are complicit in any future wrongdoings. And considering Saudi Arabia’s continuing involvement in the war in Yemen, one of the worst humanitarian crises in the world, it’s unlikely that those wrongdoings are a thing of the past.

Sport, as a competition between nations, can never truly be apolitical. But it can be a force for good. When apartheid South Africa was excluded from international sport, the alienation and widespread international condemnation helped hasten the end of the racist regime. And when players broke the boycott – as several cricket teams did – they were roundly criticized and faced repercussions at home. So if the LIV players think that refusing complicity would make no difference, history suggests otherwise. And, luckily for the LIV group, there is little chance that they will be ostracized if they choose to take a moral stance on the issue – although they will take a hit to the hip pocket.

Players, then, are left with three options: take the money and stay silent; take the money whilst remaining critical of its source, like 6-time major champion Phil Mickleson has done; or reject the money and the complicity that comes with it. The latter seems like the only truly moral option. But if someone offered me $50 million to teach ethics in Saudi Arabia… well, I probably wouldn’t show them this article.

The Dubious Case for a Written Constitution

photograph of monument celebrating Spain's Constitution

Recently, as Boris Johnson was holed-up in Downing Street, trying to resist his inevitable dethronement as Prime Minister, there was some talk of a “constitutional crisis.” On Twitter, “Activate the Queen” was trending (as though expecting a nonagenarian who is now too old and sick to do her job to save the country isn’t a crisis). The concern seemed to be that Johnson might refuse to resign, despite the fact he had lost the confidence of his cabinet. But there was no crisis. Still, this is a good time to examine an issue that raises its head every few years.

The former MP Rory Stewart was one of those worried that a crisis was brewing, and he used this to argue that the U.K. needs a written constitution. Robert Crowcroft, meanwhile, makes some telling points against the written constitution argument. For one, the U.K. has a written constitution, calls for a written constitution really just want us to combine all of the various pieces (like the Magna Carta and the Bill of Rights) which comprise the constitution into one piece.

But what are the supposed benefits of having the constitution written in one place? There seem to be a few arguments for writing down a constitution that I want to look at: clarity, the protection of rights, and the legitimacy of the state. I think the call for a written constitution rests on some other dodgy premises that recent events in the U.K. and abroad bring to light. I think that comparing the calls for a written constitution in the U.K. with how things work in the U.S. – where there is a written constitution – shows that these arguments aren’t as persuasive as they may sound in the abstract.

Some calls for a written constitution seem to hold that if we just had it all written down in one place, we’d know what is acceptable and what is unacceptable. We would have “clarity.” Gopal Subramanium has argued that a written constitution would have helped the U.K. navigate Brexit. Quoting Lord Bingham, Subramanium insists that “constitutionally speaking, we now find ourselves in a trackless desert without map or compass.” Having a written constitution might have told us whether Parliament needed to approve leaving the EU – thus avoiding a major constitutional kerfuffle.

But no constitution can cover every possibility. It is far from clear that had, say, the U.K. written down its constitution in the early 20th Century, that it could have possibly predicted a European power like the EU. Constitutions need to be written at a sufficiently general level that pays heed to potential new scenarios arising. But once you write something at a sufficiently general level, gray areas sneak in, hard cases present themselves, and the inevitable need for interpretation and application arises.

The U.S. Constitution has been argued over in courts for centuries. Still, fresh need for argument and investigation arises (or the Supreme Court would be out of business). There will always be unanticipated conflicts or a conspiring of events not explicitly articulated by the written document yet in desperate need of resolution for the sake of preserving political legitimacy. Even if a written constitution could have covered Johnson’s case, there will always be the possibility of things the constitution doesn’t explicitly and obviously cover. So, it’s not clear that the clarity argument gets us very far.

What about the efficacy argument? Subramanium also suggests that written constitutions protect our rights, more so than, say, the current British system. No doubt the British constitution is complicated and not always clear to the general public in the way that the U.S. constitution is. Citizens might well be empowered knowing more about their rights (this is a clarity-based consideration that feeds into efficacy). Constitutions are also harder to amend, and a simple parliamentary majority cannot usually overturn these rights.So, there is a degree to which written constitutions do protect our rights.

But this runs into a brick wall. Tell a woman in, say, Texas that a written constitution protects her rights when, had she wanted, she could have had an abortion a month ago, but now cannot. Constitutions might protect some rights, but others are very much open to interpretation – and how strongly these rights are protected is another factor, too. So, it’s far from clear that writing anything down makes our rights more secure. The only rights written constitutions make more secure are those that are clearly and obviously stated – yet even the right to free speech or the separation of church and state in the U.S. can be abridged.

Finally, there is the idea that a written constitution can keep the political system in check – it can protect us against the whims of a power-hungry person whose actions delegitimize the system. Rory Stewart (rightly) claimed that Johnson “is a frightening example of what a ruthless person with no respect for the unwritten rules of our system can achieve.”

Firstly, Robert Crowcroft persuasively argued that the fact Johnson is now gone (or will soon be – he is staying on in a caretaker role), shows the constitution works just fine as it is. We’ve little reason to think a written one would be any more effective.

And a comparison with the U.S. is again instructive. Did the U.S. Constitution stop Donald Trump’s attempts to overturn the election? The laws he may have violated might come back to bite him – but had he succeeded, the laws and the Constitution would have meant nothing. That would have been a crisis.

I’m reminded of Bernard Williams’s quip, in Ethics and the Limits of Philosophy, “What will the professor’s justification do, when they break down the door, smash his spectacles, take him away?” The efficacy of a constitution, written or not, depends upon whether it is respected and upheld, not on whether it is scrawled down neatly in one place.

Stewart worries that “gentlemen’s agreements” are what ensured the British constitution worked – but that, too, is a question of what we pay heed to. If we respect gentleman’s codes, the constitution will work fine. It’s when we stop respecting them that it fails, but that’s also a problem about when we stop respecting written, codified constitutions.

It doesn’t seem to me that a written constitution is what matters, what matters is that a constitution is respected.

Insurance, Natural Disasters, and the Relevance of Luck

photograph of black smoke and forest fire approaching apartments

Last year, Hurricane Ida caused around $30 billion in damages. This cost was largely borne by insurers, forcing some companies to declare insolvency. The United States is now on the brink of another active hurricane season, and – as a result – insurers in some of the riskiest parts of the country are cancelling home insurance policies. Around 80,000 homes in Louisiana have already lost their coverage, with an additional 80,000 Floridian policy holders set to be affected by the end of this week.

This is nothing new. The worsening climate crisis has seen a marked increase in the number of uninsurable homes. For example, in Australia – a country blighted by recent wildfires and floodsaround 720,000 homes are set to be completely uninsurable by the end of the century. When these homes are damaged or destroyed, their occupants are left destitute.

What, then, should we be doing to help these people? More generally, what kind of moral obligations do we have to people who lose their homes as the result of a natural disaster?

One way of approaching this issue is through the concept of ‘luck’. We experience luck all the time – some of it good, some of it bad. And bad luck comes in many different forms: We might have our car destroyed by an errant bolt of lightning; or we might lose our entire life savings betting on a bad hand of poker. In both cases, we’re left worse off. But the obligation on others to help us may very well differ. Consider the bolt of lightning. This is, perhaps, the purest example of a case of ‘brute’ bad luck – an “act of God” in every sense of the word. Compare this with that losing hand of poker. Sure, there’s still an element of luck at play: if the random shuffle of the deck had dealt me a better hand, I might’ve won. But I knew what I was signing up for. I made a calculated gamble knowing there was a good chance I might lose all of my money. Unlike the bad luck of being struck by lightning, the losing hand of poker was bad luck I opted in to – “option” luck, if you will.

This distinction between “brute” bad luck and “option” bad luck forms an important part of how Luck Egalitarians see our obligations to help others.

Stated in its simplest form, Luck Egalitarianism says that we have a moral obligation to help those who suffer from bad brute luck, but not those who suffer from bad option luck.

So, how does Luck Egalitarianism help us with disaster-prone homeowners? Well, wildfires and floods are (like bolts of lightning) clear cases of bad brute luck. But this doesn’t necessarily mean we have an automatic obligation to help those who lose their homes to such disasters. Here’s the thing: wildfires and floods aren’t entirely unpredictable. They tend to occur in disaster-prone areas, and such areas are usually well-documented. In fact, those who choose to build their homes in a risky location will usually find themselves paying substantially less for their homes. In this way, these people make a calculated gamble – so when disaster does inevitably strike, it is instead a case of bad option luck, not brute luck.

At least, it used to be this simple. For a long while, disaster-prone areas were largely stable. But the climate crisis has seen a swift end to that. Risky areas are growing, and wildfire and flood seasons are lengthening and worsening. Someone who chose to build in a safe area several decades ago may now find their home regularly in the path of catastrophe.

But what about the fact that these people choose to stay in disaster-prone areas? Sure, there may have initially been no risk in that location, but now that there is, doesn’t their choice to stay make any disaster that befalls them a case of bad option luck?

The Luck Egalitarian would say “yes” – but only if a homeowner actually has a choice in the matter. Sadly, many don’t. Selling a home that’s at risk of imminent destruction is hard. What’s more, selling it for a price that allows the occupants to afford a new home in a safer area is even more difficult. For this reason, many disaster-prone homeowners find themselves stranded – unable to afford to move. So, if someone builds a home in an area that later becomes disaster-prone, and – as a result – cannot afford to move, the Luck Egalitarian will still see the destruction of their home as a case of bad brute luck.

But there’s one final complication – namely, the role played by insurance. According to some Luck Egalitarians, the availability of affordable insurance is sufficient to convert bad brute luck into bad option luck. Why? Consider the lightning example again. Suppose that automotive lightning strikes are frequent in my area, but that full lightning coverage for my car is available for only $1 per month. I, however, opt not to purchase this insurance and instead spend my money on something more frivolous. Suppose, then, that the inevitable happens and my car is destroyed by a random bolt of lightning. While the lightning might be an “act of God,” the loss of my car is not. Why?

Because that loss is a combination of both the lightning and my calculated gamble to not purchase insurance. I, essentially, signed up for the loss of my car.

This is why insurance is so important when considering what we owe to disaster-prone homeowners. If affordable insurance is widely available – and a homeowner refuses to purchase it – any disaster that befalls them will be a case of bad option luck. This will mean that – for the Luck Egalitarian, at least – the rest of us have no specific moral obligations to help those individuals. When such insurance isn’t available, however (as it no longer is for many residents of Louisiana and Florida) the story changes. Those who (1) built their homes in previously safe areas that have now become disaster-prone; (2) subsequently cannot afford to move; and (3) inevitably find themselves the victims of natural disasters are victims of bad brute luck. And this may very well put strong moral obligations on the rest of us to come to their aid – either as individuals, or through our elected government. As the climate crisis worsens – and more and more homes become uninsurable – the need for this kind of assistance will only grow.

Interrogating the Sunk Cost Fallacy

photograph of cruise ship sinking

It’s Saturday afternoon. You are lazing on the couch, thinking about your evening. You had planned to attend a concert, but you’re feeling tired. You realize that you would, on the whole, have a much better evening if you stayed home. So, you decide to skip the concert.

I think we can all agree that this would be reasonable. But let’s add a detail. You already purchased a concert ticket for $400, which you can’t recoup. Should you go to the concert, after all?

Regardless of what you should do, many of us would go to the concert, in full knowledge that staying in would be time better spent, because we have already paid for the ticket.

This is an example of what’s often called the ‘sunk cost fallacy.’

Here’s another example. Your family has booked an expensive vacation to Yosemite with the intention of having a fun, relaxing vacation. Unfortunately, though, Yosemite is on fire. You know that if you take the vacation as planned, you will be forced to stay indoors on account of the smoke and will experience virtually no fun or relaxation. Yet the money you spent on booking can’t be recouped. The only other option is a staycation, which would be low-grade fun and relaxing.

A family that decides to go on vacation simply because they have already invested resources into that vacation honors sunk costs.

Psychologists tell us that humans regularly honor sunk costs. That this tendency is irrational is often considered axiomatic and taught as such. For example, the textbook Psychology in Economics and Business proclaims:

Economic theory implies that historical costs are irrelevant for present decision making and only [present and future] costs and benefits should be taken into account. In everyday life, however, this implication of economic theory is frequently neglected thus forming another instance of irrational behavior.

The underlying idea is something like the following. The rational actor aims to promote the best possible outcome. This requires him to attend to the potential consequences of his actions. But sunk costs are by definition unrecoverable. So, the rational actor shouldn’t take them into account in deciding what to do. Someone who foregoes better outcomes simply because he has incurred costs that are irretrievably lost irrationally leaves goods on the table for nothing in return. He compounds, rather than recoups, his losses.

This seems reasonable enough. But things are not quite as simple as they seem.

First, the claim that “historical costs are irrelevant for present decision making” can easily be misunderstood.

Sometimes actors should attend to sunk costs because those costs constitute evidence bearing on the likelihood of future success.

A firm that has invested extensive resources into a fruitless project would be foolish to ignore those investments when deliberating about whether to continue dedicating resources to the project, since the sunk costs may constitute good evidence that future investments will also be fruitless.

Moreover, sometimes what looks from the outside like honoring sunk costs is really something else. Suppose you know that if you choose not to go to the concert, you will inevitably feel bad about wasting money. In this case, it might be perfectly rational for you to attend the concert in order to avoid this feeling. Or suppose you know that skipping the vacation will cause family conflict to bubble up down the line. Again, it might be all-things-considered best to go to Yosemite despite the smoke. True, the underlying dispositions may be irrational. But individuals can’t always control their emotions, and families can’t always control their dynamics. A rational actor must act within the constraints that apply to him. To those who are unaware of those constraints, a rational action can look irrational.

All this can perhaps be acknowledged by the defender of sunk cost orthodoxy. However, several philosophers have argued that this orthodoxy is mistaken.

One reason for being suspicious is that the tendency to honor sunk costs can be leveraged in useful ways. The philosopher Robert Nozick has argued that it can be utilized to counteract the tendency to act against one’s considered judgment about what one should do. Suppose that on Friday you think that you should go to the concert on Saturday because it will be educational, but you anticipate that once Saturday afternoon rolls around you will have trouble mustering the motivation to get off the couch. If you know that you have a tendency to honor sunk costs, then you can, on Friday, increase the likelihood that on Saturday you will do what you think you should do by purchasing the ticket in advance. Similarly, the tendency to honor sunk costs can be utilized to convince others that you will do something. You might be able to convince an incredulous friend that you will attend the concert by showing them that you have already purchased a ticket; if your friend knows that you tend to honor sunk costs, this will give them good reason to believe that you will attend the concert.

There’s more. The doctrine that present actions can’t touch past events, which is implicit in the sunk cost orthodoxy, is not entirely true.

While it’s true that present actions can’t have a causal impact on past events, present actions can change the meaning of past events in ways that matter to us. And as Thomas Kelly has argued, this can make it reasonable to attend to sunk costs.

Tolstoy’s Anna Karenina provides an illustrative example. Anna leaves her husband and beloved child to start a new life with her sybaritic lover, Vronsky. The new relationship fails terribly. In a famous discussion, British philosopher Bernard Williams points out that this failure seems to retroactively tarnish Anna’s decision by showing it to have been unjustified. In contrast, had her relationship flourished, this would have vindicated the cost she incurred. The intuition that success or failure can retroactively vindicate or tarnish a costly choice is not uncommon in human life. It’s not hard to imagine that Anna would have preferred that the cost she paid to start her new life with Vronsky not turn out to have been fruitless. And if she were to have such a preference, this would give her reason to take the fact that she paid this cost into consideration when deliberating about, say, whether to try to salvage her relationship with Vronsky. Thus, sometimes it seems to make rational sense to honor sunk costs.

Then there is the issue of moral sunk costs. Suppose you are a general in charge of deciding whether to authorize a mission to rescue two hostages. You know that the rescue mission will very probably succeed but also cost the life of one soldier. Let’s assume that you are morally justified in sacrificing up to one life to save the two hostages. You authorize the mission. Unluckily, the mission is unsuccessful, and a soldier dies. Then another opportunity arises. You can authorize a second rescue mission, which you know is guaranteed to succeed but will cost the life of another soldier. The question is this:

Is it morally acceptable to authorize this second mission, given that one soldier has already died and we stipulated that you are only justified in sacrificing up to one life to save the hostages?

In other words, should we honor moral sunk costs?

Ethicists disagree on this issue. Some think that assessments of moral costs and benefits should be prospective, ignoring sunk costs. On this view, you should authorize the second mission. Others argue that there’s an overall limit to the moral costs that can be justifiably incurred to achieve a worthwhile objective, meaning that moral sunk costs should be taken into account. On this view, you shouldn’t authorize the mission. Still others adopt an intermediate approach. The point, for our purposes, is that the answer to this question is non-trivial. To treat one answer as axiomatic is a mistake.

All this is to say that authoritative pronouncements decrying the tendency to honor sunk costs as clearly irrational are misleading at best. It’s not at all obvious that “[a] rational decision maker is interested only in the future consequences of current investments,” as the esteemed economist Daniel Kahneman put it. There are cases, like the original concert example, perhaps, where this is true. And it may always be irrational to choose an outcome merely because one has incurred sunk costs. But in many cases, it seems to make perfect sense to account for sunk costs in deliberation. We just need to be reflective about how and why we do so.

Gorr the God-Butcher and the Problem of Evil

drawing of Thor battling silhouettes in storm

This article contains spoilers for the film Thor: Love and Thunder (also known as Thor 4).

The Marvel Cinematic Universe has long been criticized for its “villain problem” — with a few notable exceptions (like Thor’s Loki, Black Panther’s Killmonger, and Thanos from the Avengers series),

the antagonists of most Marvel films are generally unremarkable “bad guys” whose narratival existence seems to be justified mostly by giving the heroes something to punch.

But the latest movie in the MCU — Taika Waititi’s Thor: Love and Thunder — breaks this pattern by introducing Gorr the God-Butcher, played by Christian Bale.

Because, unlike Ronan’s fanaticism (in Guardians of the Galaxy) or Yon-Rogg’s toxic masculinity (in Captain Marvel), Gorr the God-Butcher’s divine bloodthirstiness might actually be justified.

The film opens by introducing Gorr before he gains his god-killing powers. Destitute and starving, he stumbles through a desert wasteland, carrying his young daughter while praying to his god, Rapu, for help. When the deity fails to appear, Gorr’s daughter dies. As Gorr prepares for his own death, an oasis suddenly appears nearby where Gorr discovers Rapu celebrating the defeat of a would-be assassin. Gorr confronts Rapu, pleading for the answers and assistance long-promised by Gorr’s faith, but Rapu just laughs and ridicules the man, telling him that Gorr’s people are irrelevant and that the gods don’t actually care about anyone — they just expect to be worshiped. Enraged, Gorr picks up the dead assassin’s weapon and murders Rapu, vowing to avenge his daughter by cleansing the universe of the gods.

Although the movie never explains what kind of god Rapu is (as Zeus is the god of lightning and Thor is the god of thunder), Gorr clearly expects him to be both extremely powerful and benevolent to his worshipers.

This means that the opening scene of Love and Thunder portrays Gorr’s painful confrontation with what philosophers and theologians often refer to as the Problem of Evil.

Basically, many theistic traditions hold that God is both omnipotent (or “all-powerful,” able to perform all logically-possible actions) and morally perfect (or “all-good,” maximally loving and kind). But the existence of evil poses a problem for this view of the divine: if God is omnipotent, then God would be able to prevent any evil action or event from occurring; if God is morally perfect, then God would want to prevent that evil — so why, then, does evil exist? As the 18th-century British philosopher David Hume puts it (ostensibly quoting the ancient Greek philosopher Epicurus): “Is God willing to prevent evil, but not able? Then he is not omnipotent. Is he able, but not willing? Then he is malevolent. Is he both able and willing? Then from whence comes evil?”

Responses to this problem generally take two forms:

the defender of a classical theistic picture might offer a nuanced definition of either the divine properties or the concept of “evil” such that God could be properly omnipotent and omnibenevolent while still allowing evil to exist.

For example, it might be the case that God is all-powerful and morally perfect, but that evil exists necessarily, either on its own or as a consequence of something else (“creaturely free will” or “the possibility of genuine growth” are common suggestions) — it would then not be logically possible for God to fully prevent evil (no more so than God could make a triangle have four sides). Sometimes, theodicies — the technical term for purported solutions to the Problem of Evil — suggest that “evil” is a misnomer because what appears evil to individuals in the short-term can only be fully appreciated from a broad perspective over the grand picture of reality (as it is sometimes put, “God has a plan” or “God’s ways are not our ways”).

But such explanations were no comfort to Gorr: he became the God-Butcher precisely because the plans of the gods, at best, required the death of his daughter (at worst, they hadn’t considered her plight at all).

In this way, Gorr’s reaction is akin to (though considerably more violent than) that of Ivan Karamazov from Dostoyevsky’s The Brothers Karamazov: in the famous chapter “Rebellion,” Ivan tells his brother Alyosha that he has lost his faith in God, not because he believes God does not exist, but because he no longer cares to worship someone so numb to the pains of the world. After listing a series of terrible stories about tortured children (and imagining that one day all tears might be wiped away by God’s harmonious plan granting tickets to heaven), Ivan cries, “I renounce the higher harmony altogether. It’s not worth the tears of that one tortured child who beat itself on the breast with its little fist and prayed in its stinking outhouse, with its unexpiated tears to ‘dear, kind God’!…It’s not God that I don’t accept, Alyosha, only I most respectfully return Him the ticket.”

Gorr went one step further, returning his ticket while removing Rapu’s head.

To be fair, the picture of God in classical theism is considerably different from the gods that Gorr kills in the MCU. While beings like Thor and Odin are extremely powerful, they are still limited by space and time, by material needs (like hunger and sleep), and by mortality (just on a much longer scale). St. Anselm of Canterbury described God as “a being than which nothing greater can be conceived” — certainly “Rapu who cannot be beheaded” is conceivable, which means that the actual Rapu we see die in Thor 4 fails Anselm’s definition.

But notice how the most extreme picture of omnipotent (and omnibenevolent) divinity only sharpens the Problem of Evil: maybe Rapu was very powerful, but he was clearly not all-powerful (or else he, by definition, would not have been defeated). If fans think that Gorr’s actions might be justifiable, then it’s worth thinking more about the implications that has for theodicies in the non-fictional world.

Bill Gates and the Ethics of Personal Pledges

black and white image of Bill Gates

A few days ago, Bill Gates, worth $113 billion, made headlines by pledging to donate “virtually all” of his wealth and to “move off the list of the world’s richest people.” You may think that billionaires shouldn’t exist, or that they wouldn’t exist in a just economic system. You may think Gates is simply meeting his moral duty, and not doing anything morally praiseworthy. Or, you may think that, while Gates will never be poor, it is still laudable to pledge almost all of one’s wealth to a philanthropic cause. His wealth will surely save more lives and alleviate more suffering for having been donated. Furthermore, billionaires don’t generally live up to the Gates standard. You may not be able to take it with you, but the fact is that most billionaires die billionaires.

But the moral problem on which I want to focus is not the moral status of Gates’ pledge, whether it is morally required, or “supererogatory” (beyond the call of moral duty), but its moral bindingness.

If Gates, for whatever reason, decided to reverse his decision in ten years, to stop the yearly donations he plans, would he have the moral right to do so, given his earlier pledge?

It might seem obvious that Gates would have the moral right to revoke his pledge, if he had a change of heart. After all, personal pledges are not promises to other people where we would need their consent to let us off the hook and void the promise. Personal pledges are just statements of personal intention or commitment that our future selves will act in a certain way. And we can revoke such commitments as easily as we can make them. I can pledge to wake up at six tomorrow morning, but I can also revoke my pledge when I find myself awake at midnight tonight and realize I wouldn’t get enough sleep.

Things are not always this simple, though. The philosopher Derek Parfit provides a thought experiment in which a Russian nobleman, a young socialist, decides to commit the vast estates he will one day inherit to the peasants. He knows his preferences could change over time, especially after receiving a sizeable fortune. So he writes a legally binding contract that will automatically donate his estates. He also adds a clause stating that his pledge cannot be revoked without his wife’s consent, even if he has new reasons for wishing to revoke the pledge. He then tells his wife not to provide this consent, using her as a mechanism to force his current will onto his future self. If the nobleman does change his mind, he tells his wife, “he” will no longer exist, and the man seeking to revoke the pledge will have no right to do so. I think Bill Gates is doing something similar. He is making this pledge very publicly as a way of creating pressure on his future self to comply with the wishes of his current self.

In Parfit’s thought experiment, later in life, the nobleman does change his mind. His wife is forced to choose to honor the will of her current husband, wishing to revoke the pledge, or the earlier version of her husband. What would be morally right to do?

It seems morally acceptable for the wife to refuse to revoke the document, and honor the wishes of her younger husband. But if the husband is the same person who made the pledge, why shouldn’t he have the right to revoke it? Implicitly, the wife’s decision to uphold the document would suggest that she views the older husband as an imposter of some kind, as someone who lacks the moral authority to revoke a pledge made by another person. Perhaps something like the psychological distance between the younger and older versions of the husband means that the older husband isn’t in a position to revoke the pledge made by the younger husband.

But it also isn’t obvious that the wife has a moral duty to uphold the pledge. The older husband was the younger husband. He knows why he made the pledge earlier in his life, and he presumably knows a lot more besides that his younger self didn’t. And given all this, he wishes to revoke his pledge. It is his wealth, after all, and it isn’t clear who could possibly have the right to force him to give it away, if he now wishes to keep it.

Can the younger self really hold such a moral claim over the behavior of the older self? It is difficult to say.

More broadly, the promises, pledges, and commitments we make at particular points in our lives can bind both ourselves and others, often for a long time and sometimes even beyond death. Most college endowments, for example, are so-called “restricted endowments.” When they are made, requirements are placed on how the assets can be used. As such, endowments often express the (peculiar) wills of people who have long been dead and whose interests and values are often different to those which are common today. The Dudley Professorship of Railroad Engineering at Yale, for example, gifted in 1923 by Plimmon H. Dudley, can only be used for “work in connection with the development and improvement of designs of rails, roadbeds, and crossties.” Yale’s president, Richard C. Levin, admitted to The New York Times that, “I was kind of stumped as to what to do with the chair.” The professorship sat vacant for more than seventy years. My own college, the University of Edinburgh, is not unique in having an endowment-funded Parapsychology Unit, funded by a believer in the parapsychic. (The unit has expanded their research into the “pseudo-psi” – what’s not psychic but looks like it).

Such restrictions on the use of endowments are, for better or worse, legally binding. Whether the personal commitments and pledges made by our past selves are also morally binding on our future selves is a much more difficult question — one that Bill Gates may soon face.

Nationwide Prohibition: The Next Step for the Anti-Abortion Movement?

image of 1919 NYT front page with map of prohibition states

In 1919, on the eve of the passage of the Eighteenth Amendment prohibiting the manufacture and sale of alcohol, twenty-three states had already voted themselves “dry.” Yet for the temperance movement, the piecemeal, state-by-state approach to prohibition was never more than a tactical gambit; the ultimate goal was always national in scope. In the wake of the U.S. Supreme Court’s decision to revoke its recognition of a constitutional abortion right, twenty-six states are likely to severely restrict or outright ban abortion.

But as with the temperance movement, there is every reason to think that the anti-abortion movement will not rest content with the devolution of abortion policy to the states

— at least, not insofar as devolution would allow the decriminalization, legalization, or even constitutional protection of abortion in many states. Indeed, The Washington Post recently reported that anti-abortion activists and Republican legislators have started mobilizing around federal legislation to outlaw abortion after six weeks of pregnancy, and in late June, Mike Pence called on anti-abortion activists to work to ensure that “the sanctity of life is restored to the center of American law in every state in the land.” In this column, I will explain why and how the anti-abortion movement, with help from the GOP, may seek to install a nationwide abortion policy.

Within the context of our constitutional order, the moral logic of the anti-abortion movement militates strongly against allowing the “people of the various States” to “evaluate [the interests of a woman who wants an abortion and the state’s interest in ‘potential life’] differently,” as the majority opinion in Dobbs put it. The anti-abortion movement believes that abortion violates a basic right to life. With respect to fundamental individual rights, our Constitution tends to favor not allowing a majority vote in each state to determine whether or not these rights will be respected in that state — though states may decide to protect these rights more robustly than the federal “floor” requires. Thus, the rights-talk employed by the anti-abortion movement strongly suggests that abortion policy should be national.

On a more pragmatic note, the availability of abortion pills and abortion clinics in neighboring states may undermine the efforts of states hostile to abortion to restrict their citizens’ access to the procedure.

For example, some studies suggest that once Texas banned abortion after around six weeks of pregnancy, abortions among Texas women did not decline as sharply as previously thought because many traveled to clinics in nearby states or ordered abortion pills online. Even with twenty-six states banning abortion, there is no going back to the pre-Roe days — and anti-abortion activists know it.

Thus, a national abortion policy is more consistent with anti-abortion ideology and could overcome the practical limitations of a twenty-six state ban. There are four main avenues for instituting such a policy.

THE FIRST is to pass abortion bans in every state legislature. Pence’s remarks suggest that this is the policy favored by at least some in the anti-abortion movement. But this strategy has at least three drawbacks from the anti-abortion perspective. First, state houses in very liberal states are very unlikely to support anti-abortion legislation, and unlike the U.S. Congress, they are reliably pro-abortion across time. Second, a state-by-state approach is unlikely to issue in a uniform national policy, particularly not one that is as stringent as anti-abortion activists would prefer. Finally, this approach may be unsatisfactory to that portion of the anti-abortion movement that seeks to enshrine the fetal right to life as a constitutional right.

THE SECOND OPTION is to pass an anti-abortion bill in the U.S. Congress. Because Congress can act only under the authority of one of its enumerated powers, it would have to select an appropriate constitutional “hook” that plausibly empowers it to make law respecting abortion. Two possible powers are the Commerce Clause — abortion is a service sold in interstate commerce — and Section Five of the Fourteenth Amendment, which gives Congress the power to enforce Section One of that amendment through appropriate legislation. Ironically, the latter approach would require Congress to stake out the position that the fetal right to life is a fundamental right protected by Section One’s Due Process Clause — the sort of right that the right to abortion was but is no longer following Dobbs. A major advantage of the general congressional approach is that all it requires is a majority vote in the House and sixty Senate votes. That seems like a much easier lift than the other political options discussed in this column. On the other hand, the relative impermanence of this solution may worry some activists: any congressional act is, of course, potentially subject to repeal. Furthermore, the political wrangling necessary to pass a bill may ultimately issue in a watered-down policy.

THE THIRD OPTION is to try to obtain recognition of the fetal right to life as a constitutionally-protected right through the courts. The major problem with this approach is not that the U.S. Supreme Court is unlikely to recognize a fetal right to life as one of the unenumerated rights protected by the Fourteenth Amendment’s Due Process Clause. Based on the majority opinion’s reading of the common law and nineteenth-century state statutes in Dobbs, the conservative justices may welcome such an argument.

Instead, the problem is that recognition of this right probably would not empower the Court to require states to make abortion illegal, or empower Congress to pass legislation requiring the same.

The reason is the so-called “state action” doctrine: the fairly well-established principle that the Fourteenth Amendment protects against state-caused harms, not harms caused by private actors. If the Supreme Court were to recognize a fetal right to life, it could on that basis prevent state institutions from performing abortions, and perhaps even private institutions that receive state or federal funding. But it could not prevent a private clinic from performing abortions.

Ironically, it has always been the more liberal justices who have played fast and loose with the state action doctrine; in United States v. Guest (1966), for example, a majority of the Warren Court concluded that the Fourteenth Amendment empowers Congress to outlaw purely private discrimination in some circumstances. In United States v. Morrison (2000), five conservative justices — including Justice Thomas — disavowed Guest in ruling that Congress did not have the power under the Fourteenth Amendment to enact the Violence Against Women Act, which allowed victims of gender-motivated violence to sue perpetrators in federal court. Such violence by private actors, the Court held, did not fall within the purview of the Fourteenth Amendment’s grant of congressional power. Could today’s conservative Court revive Guest in order to affirmatively require states to prevent private actors from violating fetus’ rights to life? Perhaps the Court will suddenly find itself less impressed with the moral distinction between act and omission, or between the state doing harm rather than allowing harm to occur.

THE FINAL OPTION is to pursue a constitutional amendment enshrining the fetal right to life. The major disadvantage of this approach is political: any constitutional amendment must garner a two-thirds majority vote in the House and Senate, plus ratification by at least thirty-eight states. Even if all twenty-nine states that have demonstrated “hostility” to abortion rights were to ratify such an amendment, that would still be nine states short. But to paraphrase Harold Macmillan, the essence of politics is events; it is not outside the realm of possibility that events could change the political complexion of nine states in a more anti-abortion direction. A major advantage of this approach is that no pre-existing limitation on Congress’s power, such as the state action doctrine, can constrain the reach of a new amendment. In addition, once a constitutional amendment is passed, it can only be repealed by another amendment. Only one amendment — the Eighteenth — has ever been repealed.

Although it seems highly likely that the anti-abortion movement will pursue at least one of these options, advocates might do well to consider the fate of the temperance movement after national prohibition was passed. Where once temperance, true to its name, had denoted to the public mind something like moderation in alcohol consumption, with the nationwide coercive imposition of prohibition it came to be associated with fanaticism and even bigotry. After the Eighteenth Amendment was repealed in 1933, the temperance movement disappeared from the political scene, likely never to return. For better or worse, Americans are, most of them, moderates; they recoil from moral extremism. Moreover, a majority say that abortion should be legal at least in the first trimester. Thus, in seeking a hardline national policy, the anti-abortion movement may very well overplay its hand.

When Is Someone Responsible for Not Acting?

photograph of empty chair with "Lifeguard On Duty" sign displayed

A recent law in Minnesota legalized edible marijuana for those over the age of 21 with support from both Republicans and Democrats. While this new law is perhaps unsurprising to many locals and lawmakers, it came as a surprise to one Republican who voted for the bill. Minnesota State Senator Jim Abeler claims that he was not aware of what he was voting for. In fact, he called for the legislature to repeal the new law, a call that was shot down as quickly as it was raised.

Abeler’s claim, that he was not aware of what he was voting for, might be met with genuine suspicion. It’s presumably a part of Abeler’s job to know what he is voting for, and such a claim might be disingenuous. But, for the sake of argument, I would like to consider Abeler’s claim to be genuine.

If Abeler was not aware that his vote would support the legalization of edible marijuana, is he still responsible for his vote?

Abeler’s claim effectively amounts to a denial of one if not both of the classical conditions of moral responsibility: (i) awareness and (ii) voluntariness. Classically, individuals are responsible for an action only if both of these conditions are met. Abeler’s claim is a denial of awareness concerning the specific content of the bill. And his claim is a denial of voluntariness with respect to support for the specifics about which he was unaware. Indeed, assuming Abeler’s claim is genuine, how could Abeler willfully vote to legalize marijuana edibles if he wasn’t aware of this aspect of the bill?

This particular question is an application of the following general question:

Is an individual responsible for something the same individual fails to do?

In philosophy and law, this problem is known as the problem of negligent omissions (see here for an overview in law, and here for an excellent piece in philosophy).

Pinning down when a lack of action becomes a failure of action is tricky. For example, we generally think that if a child is drowning and there is an individual nearby who does not act, this individual is culpable in some sense. The individual ought to have acted and did not — there is a negligent omission. However, we do not generally think the individual is culpable if he is not able to save the child. For example, if the individual is a couple of miles away and unaware of the child drowning, he does not seem to be culpable for not acting.

So, under what conditions is an individual responsible for a failure to act or a failure to act knowledgeably? Generally, there are three conditions. An individual is responsible for an omission if the same individual:

1. Is able to act;
2. Is obliged to act;
3. Is aware of the relevant events and obligation.

To see how these conditions are important, consider the following example. Sylvia is a lifeguard at the local beach. Her job is to save people from drowning and to alert people about the weather conditions by placing the correctly colored flags on the beach. For example, if there is a riptide and it is dangerous to swim in the ocean, she is to place a red flag on the beach. As it happens, an individual begins to drown. Sylvia jumps to the rescue and successfully saves the individual.

Notice that, among the individuals on the beach, it is Sylvia’s job to save the person drowning. The other swimmers do not have the training. And, even if they do, they are not obligated in the same way that Sylvia is obligated to save the person drowning.

Imagine now that Silvia fails to act and the person drowns. Reasonably, she is responsible in some sense. Moreover, imagine the outrage if Sylvia were to turn to a surfer and exclaim, “Why didn’t you save him?” The surfer can legitimately say that he could not have responded because he does not have the proper training. Even if the surfer were to have the training, he would not be obligated to save the individual in terms of his role or job (of course, the surfer still has the more general obligation to help those in need).

The example shows how Sylvia is responsible for her failure to act. She has the ability (the proper training), the obligation in virtue of her role, and the awareness of the event and obligation.

When she fails to save the drowning individual, her omission is negligent.

Now, Abler’s omission is a bit more subtle. He claims to have not voted knowledgeably. He acted, and yet he failed to act with an awareness and knowledge of the bill for which he voted. To see how Abeler is responsible for this omission, let us revisit the lifeguard. Among Sylvia’s various responsibilities is the task to alert the beachgoers of the swimming conditions. Imagine that she raises a yellow flag to alert the people that there is a medium hazard to swimming. However, Sylvia did not take into consideration that the tide is now becoming high tide. This collection of conditions will cause a riptide — Sylvia should have raised a red flag to alert the beachgoers to not swim. Regardless of whether the beachgoers swim, we have a situation where Sylvia acted and did not act knowledgeably. She is responsible for her failure of knowledge because it is her job to account for the water conditions.

Abeler is likewise obligated to know what he votes for in virtue of his role. So, when he fails to vote and when he fails to vote knowledgeably, he is still responsible. His omission is negligent.

All is well at the intuitive level. It seems intuitively correct to ascribe responsibility to Sylvia and Abeler. The conditions are articulated, work together, and have common examples to back them up. But something worrying has happened.

If we can ascribe responsibility for an omission, and more specifically, omission of knowledgeable action, we seem to lose one of the classical conditions of responsibility: awareness.

One way to keep the awareness condition is to maintain that Abeler is generally aware of his responsibilities as a state senator. When Abeler assumed his position, he was aware of his decision and obligated himself to read certain documents. Thus, when he enters his office on voting day and fails to read the bill thoroughly, he has already fulfilled the awareness condition in an important sense. So too with our lifeguard. When Sylvia signs on the dotted line to become a lifeguard, it obligates her to act and be aware in certain ways.

It may also seem that the voluntariness condition is in peril. However, we can offer the same answer that applies to the awareness condition: Abeler voluntarily took on the role of a lawmaker.

There is more to be said about negligent omissions, and there are more ways to pair the classical conditions of responsibility with negligent omissions. What is clear, however, is that Abeler is still responsible for his vote.

Underexplained Concepts in the Abortion Debate

photograph of pro-life protesters with religious abortion signs

In my previous column, I tried to demonstrate that some concepts in the abortion debate, namely, the concept of moral personhood and potential lives, are often underexplained. When we analyze these concepts, we find that they are ambiguous and our attempts to define them may significantly shape our views about abortion.

The concepts I focused on previously were strictly about debates regarding whether abortion is immoral. Today, I want to change my focus and strictly consider concepts that apply directly to debates about whether or not abortion ought to be legal.

The Purpose of the Law

A common refrain among advocates of reproductive choice is that you cannot eliminate abortions by outlawing them, you merely eliminate safe abortions. Indeed, some data even suggest that banning abortions does not reduce their occurrence.

So advocates of reproductive choice instead claim that, to minimize abortion, we should favor policies that enable things like easy access to contraception and comprehensive sex education.

In other words, we reduce the number of abortions by reducing the number of unwanted pregnancies.

What’s so odd about this argument is that it should be effective. If one’s goal is to eliminate as many abortions as possible, then surely one should implement the policies that reduce it and minimize the harm they produce when one inevitably occurs. Yet this argument seems to have little, if any, purchase with anti-abortion advocates. Why might this be?

To demonstrate what’s going on here, consider a thought experiment. Imagine that we lived in a society where murder was never formally outlawed. Despite this, the murder rate has never been higher than that found in other nations – the fear of social sanction and our general apprehension towards harming others have kept most people in check. Yet our lack of anti-murder statutes has been something of a national embarrassment. You decide to join a campaign to make murder illegal.

Suppose you’re canvassing as part of the campaign. You knock on my door. I open it and listen to your spiel. However, part way through I begin to shake my head and say the following:

“No, no, no. You’ve got it all wrong. We should simply invest in conflict mediation, anger management, and self-defense courses. This is how we prevent murder.”

There’s something head-scratching about my response. You do not want murder to be illegal merely to reduce its occurrence. Rather, you seem to be motivated by a concern for what murder being legal says about our society.

How can we explain this discrepancy? Declaring something as illegal accomplishes (at least) two things. First, it coerces people to avoid doing it. In this regard, the success of a law is determined by the law’s consequences. Prohibition of alcohol in the United States was a failure due to its consequences; it led to organized crime and did not prevent drinking.

Second, declaring something as illegal sends a message. Namely, it sends the message that some particular act is unacceptable. Call this the law’s expressivist content. For instance, in Texas v. Johnson, the Supreme Court considered the constitutionality of a law outlawing the burning of a U.S. flag. Surely, the reason for this law was not to curb the negative consequences of burning the flag. Rather, the law was created to send a message: “desecrating” objects like the flag is unacceptable.

Now we can see why arguments appealing the consequences of outlawing abortion ring hollow to anti-abortion advocates.

Their concern isn’t about the consequences of whether abortion is legal. Instead, their concern seems to be primarily about the expressivist content of allowing abortions.

They view abortion as a grave moral ill and, thus, object to the tacit endorsement of abortion as acceptable that is communicated by the procedure remaining legal.

This last point, however, may come too swiftly. Even here this argument may be collapsing a significant difference together. The argument uses a moral claim and infers a legal claim from it. But this does not necessarily follow.

Morality & Legality

Even though we often justify our laws on the basis of morality, morality and legality often come apart. For instance, few would think you did something seriously wrong if you, after checking carefully, ran through a red-light at 2 AM with no other drivers on the road. However, you would be doing something illegal. One might argue that tobacco companies engage in an immoral practice by selling their products – they knowingly sell goods that are physically addictive and cause serious harm to the customers. Yet, unless a tobacco company is violating regulations, they are not acting illegally.

But why allow for this difference? Why shouldn’t our laws wholly overlap with our morality? First, the law may appeal to factors that morality does not consider. For instance, laws often consider the costs and effects of enforcement. Most think that lying for selfish purposes is immoral. But enforcing a law against this would be disastrous – it would require huge disruptions of our personal lives, it would result in citizens having to report suspected liars to the police, and a very large amount of money spent on investigating these allegations.

Further, the law is (or ought to be) concerned about citizens’ ability to endorse it and justify it to others. The philosopher John Rawls introduces two concepts which are helpful to consider here: what he calls overlapping consensus and public reason.

Overlapping consensus is reached when citizens in a country are able to endorse the same laws for their own personal reasons, even if those personal reasons differ.

Consider again murder being illegal. This is a law that anyone can endorse – Abrahamic religions have commandments against killing, Buddhists think there is a general prohibition on violence, Atheists may think that murder is bad because of the suffering it causes, etc. Despite having different reasons for accepting the law, each endorses it as legitimate. Thus, overlapping consensus has been reached.

While overlapping consensus deals with our private reasons for endorsing the law, the concept of public reason deals with how we persuade others in political debates. According to Rawls, public reason requires, in part, presenting justification for laws and policies using claims that anyone can accept as true. This does not forbid anyone from, say, having a religious reason for wanting a particular law. But rather, the idea is that public discourse should rely on values and reasoning that others view as legitimate values and acceptable ways of reaching conclusions.

This demonstrates two significant problems. First, as my previous column suggested, our views on abortion depend on our views regarding numerous philosophically complicated questions. This is a problem for public discourse itself. Second, even we have worked out our own, individual views on these matters, this does not necessarily imply that we ought to outlaw abortion.

When determining what should and should not be illegal, we need to consider far more than what is moral. We need to consider what the purpose of a particular law actually is, the costs of enforcing it, or what happens if we do not allow the state to intervene.

Further, we must ask ourselves whether the reasons that we publicly present to defend our views are reasons that anyone could accept, or if they rely on some framework that other citizens do not endorse.

In closing, I want to note an under-appreciated line of thought. Judith Jarvis Thomson in “A Defense of Abortion” presents what are perhaps the most influential philosophical arguments about the morality of abortion (helpfully summarized here by Giles Howdle). Near the end of this article, Thomson distinguishes between what she calls Good Samaritans and Minimally Decent Samaritans. Good Samaritans are those who will go out of their way, perhaps at significant cost, to aid others. Minimally Decent Samaritans are those who do something to help others, even if it is not much.

Morality often requires us to be Minimally Decent Samaritans. Morality may sometimes call for us to be Good Samaritans. The law, on the other hand, does not even require us to be Minimally Decent. Indeed, unless we’re characters in the finale of Seinfeld, the law does not compel us to aid others in need even if it would be monstrous for us to remain bystanders. Making abortion illegal would be an extreme exception – it would require the pregnant person to make many significant sacrifices for the sake of saving another’s life.

Underdefined Terms in the Abortion Debate

photograph of pro-life protest signs in front of Supreme Court

With the Supreme Court’s ruling in Dobbs v. Women’s Health, debates about the regulation of abortion will likely become an even more contentious issue in the coming days – a sentence which would have seemed absurd even just a few years ago. State legislatures may now attempt to outright ban abortion, which would likely lead to highly publicized, intense debate on the issue.

My purpose in this and the subsequent article is not to advance a view on abortion or the regulatory limits the state ought to place on it. Instead, my goal is to consider some concepts central to the abortion debate and demonstrate that they are used sloppily in public debates about abortion.

The hope is that, by illuminating these concepts, we may perhaps gain some clarity into why it feels like this debate has made little to no progress in the nearly 50 years since Roe v. Wade.

Indeed, polling suggests that for nearly thirty years a slight majority of Americans have consistently felt abortion ought to be legal in most cases, while those who think abortion ought to usually be illegal make up somewhere in the high thirties to low forties of participants polled.

Before beginning, it may be worthwhile to put my biases on the table. I think that a right to access abortion is implied by a general right to bodily autonomy. However, I am not a legal scholar and cannot discuss in depth what legal rights substantive due process guarantees, or whether we even ought to adopt that standard.

Nonetheless, I find the reasoning in the majority’s opinion deeply troubling. The opinion, authored by Justice Samuel Alito, argues that abortion rights are not explicitly guaranteed by the Constitution. Further, the majority state that a right to abortion it is not “deeply rooted in this Nation’s history and tradition” as the procedure was illegal in most states until the “late 20th century.” However, plenty of other things seem obviously inappropriate for the state to regulate yet fail to pass these criteria; a right to marriage is not named in the Constitution, and interracial marriage was illegal in most states until the mid-20th century, with 16 hold-out states until Loving v. Virginia, a case decided just six years before Roe. Although it is worth noting that the majority opinion attempts to differentiate abortion from other purported rights grounded in the right to privacy, like interracial marriage, same-sex marriage, and access to contraception. (I will discuss more on this point later.)

Through my discussion, I will refer to those who are against the legalization of abortion as “anti-abortion” advocates, while calling those who support the legalization of abortion as arguing for “reproductive choice.” This is to avoid the way in which identifiers like “pro-life” may be normatively loaded.

I begin by focusing directly on some concepts which are the heart of debates about the morality of abortion. My next column focuses more directly on overlooked concepts involved with debates about its legality.

Humans & Persons

Generally speaking, the position of anti-abortion advocates gets its support from a very simple argument:

1. Killing is wrong.
2. Abortion kills a zygote, embryo, or fetus.
Therefore, abortion is wrong.

Line 1, while very intuitive, quickly runs into issues. Namely, not all killings are obviously wrong. For instance, most people see no moral problem with killing an animal to eat it, or exterminating unwanted pests in the home.

So, one might specify line 1 by changing it to 1’) Killing a human is wrong. However, even this may still be questioned. 1’ puts significant pressure on the second premise. A zygote is human in the sense that it has human DNA. But as a bundle of cells, it is no more human than, say, a tumor. Embryos and fetuses begin to resemble humans in their physical shape. So perhaps they might meet the criteria for being human, while a zygote does not.

But being a living being that looks human or has human DNA does not seem to grant “moral status” – having standing such that your interests are given equal moral importance to the interests of others.

Being human seems neither necessary, nor sufficient. Science fiction and fantasy are littered with non-humans who seem to deserve the same moral status as humans; some fans felt aggrieved that Chewbacca did not get a medal at the end of the first Star Wars film.

Further, imagine a hospital in a triage situation. Suppose that a new patient arrives who needs immediate care. Call her patient K. If patient K receives the care she needs, she will make a complete recovery. If not, she will quickly die. However, the only way to free up the resources necessary to treat patient K is to cease treating a different patient. Call her patient M. Patient M has suffered total frontal brain death. Although patient M’s body still performs vital functions like maintaining breath and heartbeat, there is no chance that she will ever regain consciousness or perform higher cognitive functions again.

Should the doctors halt patient M’s treatment to save patient K’s life? Most would think yes.

This is not to say that patient M deserves no consideration. But rather, when patient M’s interests conflict with patient K’s interest, it seems like patient K’s ought to win out. This means that patient K has a higher moral status than patient M.

This example in particular suggests that having full moral status requires more than being a living human being. Namely, it requires having certain psychological capacities – things like the ability to form a self-concept, to think rationally and to develop a plan for your life. This is why beings like Chewbacca deserve the same consideration that we do, despite the fact that they lack human DNA.

While zygotes, embryos, and fetuses are human in the sense that they are members of the human species, they seem to lack these psychological capacities. Thus, they lack what is required for what some call personhood in the moral sense, or moral personhood. Thus, even if their interests deserve some moral consideration, they may not deserve as much consideration as those of a clear moral person – in particular, a pregnant person.

However, it should be noted that some may ground full moral status in things other than possession of certain psychological capacities. For instance, some religiously motivated anti-abortion advocates may claim that a human has full moral status from the moment of conception onward due to the possession of something like a soul. Of course, unless their interlocutors share the belief in a soul, this move may simply bring the discussion to a halt.

“Potential Lives”

So, some anti-abortion advocates might change their rhetoric. They could instead claim that zygotes, embryos, and fetuses have elevated status because of their potential, rather than their current capacities. In criticizing the dissenting opinion, Justice Alito notes that the dissenters do not acknowledge “the States’ interests in protecting fetal life.” Elaborating further on this, he briefly states that comparing the decision in Dobbs to decisions in Griswold, Eisenstadt, Lawrence, and Obergefell relies on a false analogy – abortion “destroys a potential life” but contraception, sodomy, and same-sex marriage do not, claim the majority. (Although it is worth noting that Justice Clarence Thomas, in his concurrence, writes that the court should reconsider its due process precedents, specifically naming Griswold, Lawrence, and Obergefell.)

But this idea of a potential life is quite vague. Eggs in a bird’s nest are potential lives. Unless these are eggs of an endangered species, the state does not seem to have an interest in regulating our conduct towards them. So surely the majority means potential persons – the idea here being that because personhood is of moral significance, then having the potential to be a person must also be morally significant.

However, “potential person” is still too vague. Taken on its face, everything from a fertilized egg onward is a potential person. But it need not stop here. All it takes to begin a process that will eventually result in a person is to have a single sperm cell and a single egg cell. So, these two cells may be potential persons. This would lead to some absurd consequences – if the state has an interest in protecting potential persons, then they would have an interest in banning products like contraceptives or procedures like vasectomies. But surely, at least for now, this is not what the Court suggests.

As a result, we may wish to introduce a more fine-grained distinction about potentiality. Stephen Buckle distinguishes between potentiality in two senses – the potential to produce and the potential to become.

A single sperm and egg cell are potential persons in the sense that they may produce a person; they’re the necessary “raw ingredients” to start a process that eventually can result in a person. However, they themselves do not become a person. Instead, they produce other entities that become a person.

The power to become instead deals with what Buckle calls “distinct individuals which preserve their identity over time.” Thus, even a fertilized egg would not have the power to become a person. According to Buckle, preserving identity over time requires having some kind of unifying structure which makes one a distinct individual.

But the exact nature of this identity preserving unifying structure is an open question. Some might argue that identity is a matter of being the same living organism. Others claim that it is a matter of spatio-temporal continuity; that if we could plot your location over the course of time, the result would be an unbroken 4th dimensional “space-time-worm” where each “slice” is your location at a moment in time. I’ve noted elsewhere that psychological factors play a role in our identity.

Thus, there are multiple candidate answers to the question of what has the power to become a person. If our identity consists in being a human organism, then the power to become a person emerges at the point when the embryo becomes a fetus – after the cells have differentiated, taken on functions, and the overall structure of the organism is set into place. If we are instead space-time-worms, then our identity stabilizes as early as fertilization. But if our identity is a matter of psychology, then we may not develop the power to become persons until much later, perhaps not even until after birth when our experiences start shaping our future attitudes and behaviors.

As a result, the sense in which we call something a “potential life” has great bearing on what policies we should favor. If we mean those things which have the power to produce a person, then what behaviors the state has an interest in regulating would be very far reaching – any time that we are not reproducing as much as possible, we are destroying or at least preventing a potential life. But if we instead mean that a potential life exists only when something has the power to become a person, then we are stuck having to answer the question of what preserves our identity over time before we can answer any questions about whether a fetus has the potential to become a person.

Trans Panic and the Philosophy of Fear

image of storm clouds gathering

As a trans person living in the U.S. right now, how can you both stay apprised of dangers to your health and political rights and not become paralyzed by the overwhelming quantity of anti-trans legislation and sentiment? When is the fear that you feel appropriate? When does it become something that is more hurtful than helpful?

These are difficult questions, because the dangers to trans people are very real, whether that be a lack of affordable access to gender-affirming medical care, an inability to get contraceptives or access to abortion, or an overturning of other rights using the reasoning given in Dobbs that they are not “deeply rooted in our history or traditions.”

There are two traps that it is easy to fall into, either ignoring these threats and failing to do anything to prevent them or becoming obsessed with anti-trans news at the expense of your health.

These responses are understandable given the near constant onslaught of anti-trans legislation and rhetoric, but they may not be the most helpful.

In what follows, I do not intend to identify one perfect way to react in the face of oppression. Instead, I’d like to make several distinctions between different kinds of fear so that we can collectively be more reflective about the emotions we are feeling in this time and have more options in choosing how to respond to them.

First, who are you feeling fear for? Is it just for yourself? Do you only care about things that threaten you? Is it just for you and members of your community? Do you only care about the dangers that face your friends or people who are a part of the same group? Or do you feel fear for yourself and others when they are threatened, whether they are in your group or not?

It makes sense that we would be more fearful for ourselves and for those close to us, but there is a danger in failing to recognize the dangers that are present to other marginalized communities.

Just as Myisha Cherry argues that rage is more productive when it is felt in response to an injustice, it seems that fear is more appropriate when it is felt in solidarity with others.

If, as a white, abled, trans person, you only feel fear in response to threats to trans people and not to people of color or people with disabilities, something has gone wrong.

The purpose of fear seems to be to remind us to attend to certain dangers or risks, so that we can prevent those things from happening. Unlike anger, which is backward-looking and responds to past injustice, fear is forward-looking and responds to potential injustice. If we just attend to what could happen to us, we will miss the perils that threaten others and fail to counteract them before it is too late.

Second, is the fear that you feel constant and unchanging? Or is it responsive to features of the situation? For example, do your fears start to resolve if anti-trans legislation slows down and trans rights are being secured? Or do you remain stuck in high alert even after the danger has passed?

One of the difficulties of the experience of sustained danger to one’s safety is that it often leads to complex trauma that makes it easy to be hyper-aware of any potential danger but hard to gauge which threats can be ignored.

We can see this now in the responses that many people are having in these later stages of the pandemic, where they might find themselves having a panic attack after being in a small, crowded room, even though the collective dangers to health have shifted dramatically as more people have gained access to the vaccine.

These kinds of trauma reactions are certainly understandable, but a fear that does not respond to the situation can lead to actions that do not actually address the problem at hand. Unresponsive fear can also interfere with being able to feel safe, to enjoy relaxing, or to go out and participate in meaningful social activities. As much as it is important to attend to dangers to trans rights, it is equally, if not more, important to preserve trans joy.

Third, is the fear helping us to act in ways that address the danger? Though fear can prompt action that is targeted and useful, it can also make us paralyzed, more suspicious and paranoid, and less calm and deliberate in our thinking. When we are collectively afraid, we can easily begin to fight among ourselves because emotions are high. This can lead to a cycle in which effective action seems less and less possible, which can further reinforce a collective paralysis.

To avoid this outcome, it seems important to recognize the ways that fear operates and give space to individuals to express those fears, work through them collectively, and ensure that the most pressing danger is being targeted. Likewise, we must remember to be in solidarity with others and the particular threats that are pertinent to them. If we can band together to protect each other from the threats that we face, we will have a better chance of mounting an effective response.

Fear has a bad reputation as a negative emotion that must be overcome or avoided.

See, for instance, Master Yoda’s words that “Fear leads to anger. Anger leads to hate. Hate leads to suffering.” Or the famous Dune quote: “I must not fear. Fear is the mind-killer. Fear is the little death that brings total obliteration.” I am unconvinced, however, that fear is always something to be avoided. Since fear draws our attention to dangers that often need to be attended to, it seems helpful and even good in certain circumstances.

But why not just say that the feeling of fear itself is something bad that needs to be overcome? Perhaps it points us in the right direction at first, but surely the feeling of fear is something to be overcome. There are two things to say in response. First, courage is often taken to involve acting despite fear; without fear, an action doesn’t seem nearly as courageous. So, at the very least, fear can give meaning to certain kinds of actions.

Second, fear can often prompt us to act and take measures to ensure our safety in the future. For example, if I am afraid of leaving the stove on when I go on a trip, I might check it again before I leave to ensure that it is off. Or, if I am afraid that a law will pass, I might organize my friends and family to contact their legislators to prevent it from passing. What needs to be overcome is not necessarily fear, but paralysis.

So long as our fear moves us to act in ways that are appropriate and doesn’t get in the way of being able to flourish, it seems straightforwardly helpful. Of course, living under oppression isn’t so easy, and the constant terrorism can interfere with feeling safe and happy. The answer, however, isn’t to get rid of fear; it’s to contextualize it.

Constitutional Deadlock Over Privacy: A Third Way?

photograph of protest sign in fron of Supreme Court

Following the overturning of Roe v. Wade, a great deal of media attention has been focused on what comes next. The right to an abortion, granted by the original landmark case, was founded on the basis of a constitutional right to privacy. But it has already been made clear that similar rulings regarding a constitutional right to privacy, such as Griswold v. Connecticut could be at risk of being overturned as well. In addition, the Supreme Court has attracted controversy for several other controversial decisions as well, prompting proposals for how to reform the Court or how to reverse these decisions. But with confidence in the courts falling to historic lows, many such proposals would likely only make the situation worse and undermine confidence in the courts even more.

Perhaps it is time to stop worrying about what policies we want courts to protect and to start thinking about finding broad support for changes in process in the form of constitutional amendments.

The recent decision from the Supreme Court regarding abortion combined with rulings on school prayer, concealed guns, voting rights, and worries about future rulings once again reignite debates about whether and how the Supreme Court should be reformed. The impeachment of justices who some feel misled Congress has been floated, and the topic of court-packing has resurfaced again. The constitution does not specify the number of judges on the Court, so Congress could simply pass legislation creating more positions and then have those positions be filled by left-leaning justices to re-balance the Court. Term limits for Supreme Court justices would mean that there would be more turn over, preventing the Court from becoming too ideologically lopsided.

In addition to proposing reforms to the Courts’ makeup, some have proposed reforms to the powers of the Court. Some now propose that Congress strip the Supreme Court of its jurisdiction for hearing certain kinds of cases, or that legislation could be passed requiring a supermajority of justices to strike down federal laws. It has even been suggested that if a particularly controversial ruling comes from the Court that Congress or the President simply ignore it, under the constitutional theory known as departmentalism which holds that each branch of government may decide on its own how to interpret the Constitution. In addition, there are several proposals to create mechanisms for Congress to override the Court if it wanted to, not unlike Canada’s notwithstanding clause.

While many of these proposals might appease in some areas, they all have problems when it comes to putting them into practice.

After all, abortion rights proponents now find themselves in the same position as anti-abortion advocates did in the 1970s, and it took almost 50 years for them to get what they wanted. Proposals like court-packing simply do not have enough support.

It is important to note that much of the Supreme Court’s power is based on the confidence the public has in it. The Constitution does not prescribe many powers to the Supreme Court, and even its power of judicial review is based on the precedent Marbury v. Madison, and as it has become all too clear that precedents are not set in legal stone. If people do not feel like the Court is impartial, they will be less inclined to heed its pronouncements. While some would like to see justices impeached or the court packed, this would only serve to undermine the confidence in the Court from those on the right, likely prompting retaliatory measures. This would weaken perceptions of impartiality of the Court even more, effectively transforming the Supreme Court into a very exclusive legislature.

Meanwhile, having Congress override the Courts’ decisions risks undermining the commitment to minority rights.

Fundamental protections would become a flimsy thing, being reversed whenever the opposing party comes to power. Limiting the High Court’s jurisdiction risks similar problems, simply offloading the same basic problem to an alternative body that the parties will shape so as to achieve their preferred policy objectives. All these efforts to manipulate the judicial system in order to secure specific political outcomes will only undermine overall public confidence in the Court.

Perhaps an alternative to such a standoff is to stop thinking about desired result we wish courts to deliver and start thinking about broader legal principles to embed in the constitution that could appeal to people on all sides of the spectrum. The legal issue underlying so many contentious issues like Roe v. Wade is the issue of privacy. Abortion opponents charge that because privacy isn’t explicitly established in the Constitution, it isn’t protected. Rather than dealing with legal debates about implied rights, why not amend the Constitution to explicitly include privacy rights? Polls show that a vast majority of Americans are concerned about privacy issues. And with the rise of surveillance capitalism, and of AI accessing vast datasets, there may be room for broad support for proposals to embed some kind of privacy protections in the constitution.

While getting the support needed for constitutional amendments is difficult (the last amendment was ratified in 1992), the increasing importance of privacy to broad segments of American society may create room for bargaining and compromise on these issues by both the left and the right. Recently, constitutional-law David French opined that the Court’s overturning of Roe v. Wade may actually help de-polarize America. Because the pro-life vs. pro-choice debate largely centered around Roe v. Wade, sides had to defend a precedent, not a specific policy. But as French observes,

Is there a hope that you would have something along the lines of a democratic settlement to the issue that makes abortion so much less polarizing in other countries around the world? Europe, for example has long had more restrictive abortion laws than the United States, but the United States couldn’t move to a European settlement because Roe and Casey prohibited that.

Indeed, polls show that Americans have fairly nuanced views when it comes to abortion. Few people would favor an outright ban on the procedure, so it may not be so difficult to imagine a compromise proposal for adding privacy to the Constitution that would not only protect abortion rights, but other rights like access to contraception, gay marriage, and protections from online surveillance. Such a move would not only allow Americans to address newly emerging privacy issues but also settle old disputes. Abortion rights passed through constitutional amendment would also have a legitimacy that Roe never did amongst abortion opponents, preventing back-and-forth sniping at the Court for not upholding preferred policies.

While a constitutional amendment would take time and a lot of negotiation, it may yield a far more stable and broadly satisfying solution to the abortion debate compared to the previous alternatives while not undermining confidence in the Court system itself. So instead of looking to courts to reach specific policy outcomes, perhaps the attention should be focused on building coalitions of support for broad legal principles that people can agree on.

Does Single-Issue Pro-Life Voting Make Sense?

photograph of abandoned pro-life signs in front of Supreme Court Building

In the U.S., twenty-seven percent of people who oppose legal abortion say they would never vote for a pro-choice candidate. (Only eighteen percent of pro-choice voters say the same about pro-life candidates.) This ensures that a large block of voters will virtually never vote for Democrats, no matter what Republicans do. I personally know a number of people who voted for Donald Trump, citing his stance on abortion as outweighing his many negative qualities.

Given the pro-life position of these people, does their stance make sense? They think that abortion is murder.

But there are many life-and-death political issues: war, the death penalty, police shootings, gun control, healthcare, climate change, pollution… Why prioritize abortion over these other issues?

A common pro-life response invokes what I call Body Count Reasoning. Body Count Reasoning suggests that, given the pro-life view, abortion should be prioritized because it affects so many more individuals. If a building is burning down and many people are trapped in one part while only one person is trapped in another part, and the fire department can only save the people in one part, it generally makes sense to do what saves the most people. In a similar way, a pro-life person might note that there are more than 800,000 abortions each year in the U.S. By contrast, there are, for instance, around 45,000 gun deaths, and perhaps as many as 68,000 deaths due to inadequate healthcare. If all, or nearly all, of these abortions really are unjustified killings of persons with a right to life, then according to Body Count Reasoning, prioritizing abortion makes sense for the same reason as prioritizing the part of the building with many people trapped. The pro-life author Jimmy Akin endorses Body Count Reasoning when he writes:

No other issue involves numbers that high. Nothing short of a full-scale nuclear or biological war between well-armed nation states would kill that many people, and we aren’t in imminent danger of having one of those.

Not even terrorists with weapons of mass destruction could kill that many people…Jobs? The economy? Taxes? Education? The environment? Immigration? Forget it… Abortion is the preeminent moral issue of our time. It is the black hole that out-masses every other issue.

Of course, one way to reject the conclusion of Body Count Reasoning is to reject the pro-life view. But in “Is Abortion the Only Issue?,” a paper forthcoming in the journal Ergo, I argue that Body Count Reasoning fails, even if we grant the pro-life view. Here is why. Consider a thought experiment sometimes discussed by philosophers, the Embryo Rescue Case:

A fertility clinic is burning down. In one part of the building is a tray with very many fertilized eggs. In the other is a five-year-old child. The fire department can only save one.

In this case, virtually everyone thinks the fire department should save the five-year-old. But on the pro-life view that personhood begins at conception, the fertilized eggs are people with the same moral status as the born child. And we saw above that it generally seems that the fire department should save more people from a fire, rather than fewer. What gives?

Some pro-choice philosophers think this shows that personhood does not begin at conception after all. But pro-life philosophers usually grant that we should save the five-year-old, but argue that this is compatible with the pro-life position.

To see how their response works, note that there are things besides a difference in basic moral status which can explain why my reasons to save one individual might be stronger than my reasons to save another.

Suppose you could save me or another person from a fire, but you also know that I have a terminal illness and will die tomorrow anyway. Or suppose you know the other person is a scientist on the brink of curing cancer. In both of these cases, you should save the other person, even though we are both people with the right to life. You have stronger reasons to save the other person, not because we differ in fundamental moral status, but because their death is worse in some other way – worse for them, or for other people. Most pro-life philosophers attempt to explain why you should save the born child in the Embryo Rescue Case in a similar way. They note that the born child has a developed personality, hopes and dreams about their future, relationships with others, the capacity to experience terror and pain while burning to death, etc., and that this makes their death much worse than the death of even very many recently fertilized eggs.

But this response undermines Body Count Reasoning. Body Count Reasoning claimed you should prioritize abortion over, say, healthcare, because abortion kills about ten times as many people. But in response to the Embryo Rescue Case, these pro-life philosophers deny that you should prioritize saving very many embryos over a single born child. And if your reasons to save a born person are much stronger than your reasons to save ten embryos, even if the embryos are people being unjustly killed, then perhaps you should prioritize healthcare over abortion, even if the embryos are people being unjustly killed.

There may be further disanalogies between the Embryo Rescue Case and abortion to which a Body Count Reasoner might appeal. I try to deal with those in the complete version of my paper. And there may be other arguments for single-issue pro-life voting besides Body Count Reasoning, but if so, I do not know of any that seem plausible, even if we grant the pro-life view. So I conclude that if you are pro-life, you should not be a single-issue pro-life voter. You should instead think that abortion is an important issue, but one important issue among many others.

Corporate Responsibilities after Roe v. Wade

photograph of "Abortion Is Healthcare" protest sign

The Supreme Court’s decision to overturn Roe v. Wade has raised numerous legal and moral questions. Making access to abortion an issue to be decided by individual states has already become a complicated legal matter, as some state courts have challenged so-called “trigger laws” – laws meant to make abortion illegal the second the Supreme Court decision came into effect. Many states had already made their intentions clear with regard to access to abortions when the draft Supreme Court memo was initially leaked back in May, and many other groups and corporations have weighed in on where they stand on the issue.

There is ample evidence that the Supreme Court’s decision harms American women (e.g., see from this thread alone: [1], [2], [3], [4], [5], [6], [7], [8]). Overturning Roe has been derided as massively regressive by many, and is opposed by a significant majority of the American people.

In light of all the immensely important issues at play, the question, “what is the role of corporations in all this?” might seem trivial. Perhaps somewhat surprisingly, however, numerous companies have announced recently that they would fully or partially reimburse the expenses of their employees should they require out-of-state travel in order to undergo an abortion. These decisions raise a lot of interesting questions, but I’ll pose just two here.

First, we can ask whether corporations have any moral obligation to provide so-called “abortion travel coverage” for their employees. Second, we can ask what it says about the functioning of a democracy when corporations step-in to help rectify a harmful and unpopular mistake made by the Supreme Court.

Let’s start with the first question first. There are, of course, evergreen questions about whether corporations have moral obligations at all, and if so, to whom and to what extent. Even assuming that they do, one might still think that corporations don’t have any specific obligation to help their employees avoid what they perceive to be unjust state laws, while also recognizing how such actions could result in the prevention of significant harm. In this way, providing abortion travel coverage may be seen as supererogatory – actions that are good but not strictly-speaking required, in that they go above and beyond the call of duty.

Some companies, however, see the provision of abortion travel coverage as being part of their agreement to provide access to health care to their employees. For example, a statement from Gap Inc. notes that part of their “mental health and family planning benefits…include coverage of adoptions, surrogacy, fertility treatments, paid parental leave, contraception, and abortion.” Similarly, a statement from Disney notes that abortion travel coverage is part of coverage that the company provides for other types of medical procedure:

In fact, we have processes in place so that an employee who may be unable to access care in one location has affordable coverage for receiving similar levels of care in another location. This travel benefit covers medical situations related to cancer treatments, transplants, rare disease treatment and family planning (including pregnancy-related decisions).

In these cases, companies may see the obligation to provide abortion travel coverage as nothing beyond the fulfilling of a contract to provide medical coverage that it has made to its employees.

Other companies have taken a different stance. For instance, Yelp CEO Jeremy Stoppelman wrote in a recent statement that “[r]emaining silent on the issue of reproductive rights flies in the face of any public pledges professing a desire to create more diverse and inclusive companies” and that what is needed are “more business leaders to use their platform and influence to help ensure that reproductive rights are codified into law, and that the wave of abortion bans and restrictive policies across the country are not allowed to stand.” Stoppelman’s argument thus points toward a moral obligation on the part of companies: as major corporations have power, influence, and the potential to impact policy, they have a responsibility to act in the face of unjust decisions.

We are then led to the second question: what does it mean for the state of a democracy that corporations can (and potentially ought) to take actions that can help citizens side-step unjust laws?

Of course, it is not as if corporations haven’t influenced laws and policy decisions in the past. But this influence is typically lamented as being bad for a well-functioning democracy – i.e., corporate money financing and influencing political policies in ways that are beneficial to shareholders and detrimental to everyone else – not as a potential force for good.

We’ve seen already that the Supreme Court’s decision is not reflective of the view of the majority of Americans, by a large margin. Providing employees with the ability to travel out of state for an abortion can thus help restore a right that has unjustly been taken away, even if such a right is only restored in a practical sense. If the Supreme Court decision represents a failure of democracy, as some critics have argued, perhaps the actions of corporations can help counteract it.

I put forth that consideration while fully admitting that I don’t know what to do with it. It represents an oddly-shaped band-aid to a structural problem of U.S. democracy. But it’s one that might have to do for now, until real change can occur.

When Courts Change Their Minds

photograph of law books in a library

In late June the Supreme Court of the United States released a bevy of opinions. Most prominent perhaps is the 5-4 decision in Dobbs v. Jackson Women’s Health in which the court overturned the famous 1973 Roe v. Wade decision. The court also, in Kennedy v. Bremerton, has done away with the long used “Lemon test” concerning the separation of church and state.

Beyond questions of whether the decisions are ethically correct, these rulings are notable because they go against established precedent. In legal systems like the United States, courts generally adhere to the doctrine of stare decisis or “to stand by things decided.” The Supreme Court has previously ruled – in both Roe v. Wade and Planned Parenthood v. Casey – that there exists an implicit constitutional right to abortion. Changing its mind is then unusual, although hardly unique to the current court. The 1954 Brown v. Board of Education is famously seen to have overturned the “separate but equal” doctrine the court had previously held in Plessy v. Ferguson. (Although, technically, the Brown ruling is more narrow, only contending that separate but equal does not apply in public schools.) Evan Butts has previously discussed some of the practicalities of overturning precedent for The Prindle Post.

Recent additions to the Supreme Court, such as Justices Brett Kavanaugh and Neil Gorsuch, are being criticized for implying (misleadingly) they would stick with precedent on rulings like Roe v. Wade.

But why should the Court be bound by past opinion at all? Imagine a scientist claiming that we should stick with Newtonian physics and not jump ship to general relativity because Newtonian physics is an established precedent – even though they agree Newtonianism is incorrect.

This would be preposterous. And yet stare decisis is often understood to imply such a burden, that, as Justice Brandeis wrote in 1932 “in most matters it is more important that the applicable rule of law be settled than it be settled right.”

Following precedent in cases where the rightness of the initial ruling is not in question is straightforward – this is nothing more than a demand for courts to interpret the law correctly. Precedent as such is superfluous here, as consistency is being ensured purely by the court deciding correctly in each case. The doctrine of stare decisis only achieves importance when it comes to ambiguous or even wrongly decided cases, and whether they should nonetheless maintain some hold over future judicial decisions.

As Justice Brandeis suggested, defenders of stare decisis justify it by pointing to its role in settling matters of law – that is, making law fair, consistent, and predictable, as opposed to mercurial.

The claim is that absent this general principle of stability, the law could change drastically with the simple turnover of judges. More practically, precedent also provides courts the legal tools to decide cases efficiently.

The value of having settled law is especially clear in cases like Obergefell v. Hodges (2015) which enshrined a constitutional right to the recognition of same-sex marriages. Agree or disagree ethically, it is clear same-sex couples can and have built their lives differently knowing that they have a right to marriage recognition. Likewise, agree or disagree ethically with abortion, confidence they have control of whether to go through with a pregnancy affects how women live their lives. These are referred to as reliance interests.

Notably, these defenses of precedent contain the seeds of their own limitation as ultimately the doctrine of stare decisis is justified on the basis of being a social good. Cases of pernicious and dubiously-decided law are weighed against the value of the law being settled. Justice Brandeis made a further point, distinguishing the weight of precedent in statutory law (made by the legislature) which can easily be overturned by later legislation, from precedent in matters of constitutional interpretation. According to Brandeis, precedent matters less when there are fewer forms of redress.

Overall, few if any defend an imperative to follow precedent for all cases – at least when it comes to rulings being made by a court of equal or lesser authority. Precedents can and do get overturned. That lower courts should follow upper courts can provide an alternative defense of following precedent even in wrongly decided cases (sometimes called vertical as opposed to horizontal precedent).

In the 2018 5-4 decision Janus v. AFSCME, the majority opinion authored by Justice Samuel Alito indicated that the current Supreme Court is especially open to revisiting previously decided matters when it believes they were wrongly decided. Justice Clarence Thomas has claimed, most recently in his concurring opinion in Dobbs v. Jackson Women’s Health Organization, that the Court should correct “demonstrably erroneous” rulings.

Expanding Thomas’s point, one could argue that the Supreme Court should have no special obligation to consider the social value of precedent and settled law at all, and simply always make the legally correct decision.

The chief challenge with this line of argument is on what basis should a case be considered “demonstrably erroneous”? Certainly, the current Supreme Court does not have consensus that the legal reasoning of Roe v. Wade and Planned Parenthood v. Casey was wrong. (Brown v. Board of Education incidentally was a unanimous decision.) Absent strong evidence, e.g., a unified court, that a decision was made wrongly on legal grounds, the “demonstrably erroneous” standard of overturning precedent can collapse into “I think this decision was decided wrongly, and therefore I am justified in overruling it.” This reintroduces the dependence on the idiosyncrasies of specific justices that a principle like stare decisis is supposed to help limit.

Law is complex and so is legal interpretation – we should expect obviously incorrect decisions to be the exception rather than the rule. In light of this, one approach to stare decisis would be to acknowledge precedent should not be binding, but that the force of its motivating reasons such as consistency and stability of law apply especially strongly in cases where legal correctness or the proper interpretive framework is under dispute. Nonetheless, the current Supreme Court has indicated a more revisionary stance. It will become clear over the next few years how this plays out with the broader legal understanding of stare decisis in the United States.

On the Morality of Rewriting History

aerial satellite 3d rendering of Hong Kong separated by water

China is pushing for the use of new textbooks, textbooks which will deny that Hong Kong was ever a British colony. The textbooks, which are in the process of being reviewed for approval by teachers, principles, and others affiliated with Hong Kong Bureau of education, would be implemented as curriculum this fall if approved.

These books contain a new narrative about British occupation of Hong Kong, a narrative that will rewrite the previous story that Hong Kong was “lawfully” occupied as a British colony until 1997. The new narrative maintains that Hong Kong was never a British colony and was instead always a part of China. The New York Times, which reviewed teachers’ editions of the new textbooks, quotes the following excerpt: “The British aggression violated the principles of international law so its occupation of Hong Kong region should not have been recognized as lawful.”

These revisions have been in the making for some time and have been roundly criticized by the Professional Teachers’ Union in Hong Kong as “political censorship.” The Bureau, however, rejoined that the changes will “help students develop positive values.”

This push for a new narrative generates a crucial moment for pro-democracy advocates inside and out of China.

One desired effect of this new narrative is that Hong Kong has never been apart from China, so there is no historical basis on which to claim that Hong Kong should continue to be independently and democratically run.

This isn’t the case, however, and would renege on an historic obligation. As Tiffany May writes for The New York Times, “Under the terms of the 1997 handover negotiated with Britain, China had agreed that the social and economic systems of the territory would remain unchanged for 50 years after resuming sovereignty.” Another desired effect of the narrative is that the future generation will be raised patriotic, loyal to China. Indeed, to enforce such “positive values,” students (potentially as young as kindergarteners) will be taught of a new law that permits authorities to deliver prison sentences to those who oppose Beijing.

There are several issues at stake with the question of whether China (that is, Beijing) should rewrite Hong Kong’s history.

In general, to discuss whether something morally should or ought to happen, there is a first question of whether something is morally permissible. If some action isn’t morally permissible, then we ought not to do it; however, even though an action is morally permissible, it does not follow that we ought to do the action. For example, if we conclude that limiting free speech is morally permissible in a certain circumstance, it doesn’t necessarily follow that we ought to limit free speech in that circumstance. Of course, if something ought to happen, this presupposes and requires that whatever ought to happen is morally permissible.

In asking particularly whether Beijing should re-write Hong Kong’s history, one relevant question is whether there are any permissible limitations of freedom of speech, and if so, whether this case is justified.

Part of the new laws permit severe punishment for criticism of or dissent from Beijing. Some in favor of the new laws and textbooks have argued that freedom comes with certain obligations and responsibilities, such as the primary obligation to one’s country. Those in opposition might argue that, while there are certain obligations to one country, these obligations are not relevant in this case. For the obligation to support one’s country is not exclusive of criticizing its present political/societal/economic structure. In fact, criticism might be a sign of an individual’s loyalty in that the individual may desire to change the present situation for the better. In terms of permissibility, then, a special obligation to a nation does not make it impermissible to critique that nation. Indeed, the opposite seems to be the case.

Closely related to the topic of free speech is the question of whether limiting freedom of thought is ever permissible. The issues of freedom of speech and thought certainly overlap: the latter necessarily affects the ability to speak on certain topics, and the former would inevitably affect the ability to think on certain topics. And the revision of textbooks, including the elimination of information and not solely the addition of a perspective, seems to classify at least as a limitation on thought.

As George Orwell’s novel 1984 has instructed us, the revision of history practically inhibits the future generations (and perhaps present generations) from discussing and knowing history. It is unclear whether this is ever permissible, though it clearly is impermissible in the case that it is factually inaccurate. In the case of Beijing denying Hong Kong’s former status as a colony, this certainly seems to be the case. Of course, it is another matter whether it was morally correct for Britain to have occupied Hong Kong.

While I only suggested some provisional answers to the above questions, it is imperative to answer these questions to understand some of the relevant moral landscape in rewriting history.