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Affirmative Action for Whom?

cutout of white man on corporate ladder elevated above peers

Wednesday, Laura Siscoe challenged affirmative action advocates to reflect on their apparent tunnel vision: if what we seek are diverse campuses and workplaces – environments that attract and support students and colleagues who possess a diverse set of skills and approach problems from unique vantage points – then why confine our focus simply to race and gender categories? Surely realizing the intellectual diversity we claim to crave would require looking at characteristics that aren’t simply skin-deep – factors like socio-economic background or country of origin, just to name a few. If diversity in thought really is our goal, it seems there are better ways of getting there.

Laura is no doubt right that much more could be done to diversify campuses and workplaces. But, at minimum, it seems prudent to protect the gains that historically marginalized groups have secured. Time and time again, formal legal equality – that each enjoys identical treatment under the law – has failed to secure equality of opportunity – that each enjoys a level playing field on which to compete. And when policies like race-conscious admissions go away, we revert back to the status quo all too quickly. (The NFL’s lack of diversity at the head coach position and the impotence of the Rooney Rule offers a compelling example.)

Critics of affirmative action, however, are quick to characterize such policies as special treatment for the undeserving. But it’s important to separate the myth from the reality. As Jerusalem Demsas writes in The Atlantic, “No one deserves to go to Harvard.” There is no obvious answer to who the best 1200 applicants are in any given year. At some level, there is no meaningful distinction between the different portraits of accomplishment and promise that candidates present – their “combined qualifications.” No magic formula can separate the wheat from the unworthy; there is no chaff. There are grades; there are scores; there are awards; there are trophies; there are essays; there are statements; there are kind words and character references. But there is no mechanical process for impartially weighing these various pieces of evidence and disinterestedly ranking applicants’ relative merit. Nor is there an algorithm that can predict all that a seventeen-year-old will become. (This is perhaps why we should consider employing a lottery system: the infinitesimal differences between candidates coupled with the boundless opportunities for bias suggests it is the height of hubris to insist that the final decision remain with us.)

Contrary to critics, then, affirmative action is not a program for elevating the unqualified – a practice geared to inevitably deliver, in Ilya Shapiro’s unfortunate choice of words, a “lesser black woman.” Ultimately, affirmative action is a policy designed to address disparate impact – the statistical underrepresentation of the historically marginalized in positions of privilege and power. It’s aimed at addressing both real and apparent racial exclusion on the campus and in the workplace.

Those skewed results, however, need not be the product of a deliberate intention to discriminate – a conscious, malicious desire to keep others down. “Institutional networks,” Tom Beauchamp reminds us, “can unintentionally hold back or exclude persons. Hiring by personal friendships and word of mouth are common instances, as are seniority systems.” We gravitate to the familiar, and that inclination produces a familiar result. Affirmative action, then, intervenes to attempt to break that pattern, by – in Charles J. Ogletree Jr.’s words – “affirmatively including the formerly excluded.”

But just how far should these considerations extend? Some, for instance, complain of the inordinate attention paid to something as limited as college admissions. Fransisco Toro writing in Persuasion has argued that we should stop wringing our hands over which segments of the 1% gain entry. There are far greater inequalities to concern ourselves with than the uber-privileged makeup of next year’s incoming Harvard class. We should be worried about the social mobility of all and not just the lucky few. Let affirmative action in admissions go.

But one of the Court’s fears, from Justice Jackson to Justice O’Connor, concerns colleges’ ability to play kingmaker – to decide who inherits power and all the opportunities and advantages that come with it. They have also worried about where that power goes – that is, which communities benefit when different candidates are crowned. This is most easily witnessed in the life-and-death field of medicine, where there is, according to Georgetown University School of Medicine,

an incredibly well documented body of literature that shows that the best, and indeed perhaps the only way, to give outstanding care to our marginalized communities is to have physicians that look like them, and come from their backgrounds and understand exactly what is going on with them.

Similarly, the Association of American Medical Colleges emphasizes that “diversity literally saves lives by ensuring that the Nation’s increasingly diverse population will be served by healthcare professionals competent to meet its needs.” Minority representation matters, and not simply for the individual applicants themselves. Even the selection process in something as seemingly narrow as college admissions promises larger repercussions downstream.

Given the importance of representation, the gatekeeping function of colleges and employers, and the way discrimination works, some form of intervention seems necessary. And we don’t seem to have a comparable remedy on hand. “Affirmative action is not a perfect social tool,” Beauchamp admits, “but is the best tool yet created as a way of preventing a recurrence of the far worse imperfections of our past policies of segregation and exclusion.” That tool could no doubt stand to be sharpened: gender is a woefully crude measure of disadvantage and race is a poor proxy for deprivation. Still, the tool’s imprecision needn’t mean abandoning the task.

There’s reason why integration remains an indispensable, if demanding, goal. As Elizabeth Anderson claims, “Americans live in a profoundly segregated society, a condition inconsistent with a fully democratic society and with equal opportunity. To achieve the latter goals, we need to desegregate — to integrate, that is — to live together as one body of equal citizens.” We must ensure that everyone can see themselves reflected in our shared social world.

In the end, affirmative action is simply one means by which to accelerate desegregation – to encourage diversification in the positions of power that were formerly restricted. And it was never designed to last forever, as Wes Siscoe recently explored. Affirmative action is merely a stopgap measure – a bridge to carry us where we want to be: a colorblind world where superficial differences no longer act as impediments to advancement. Unfortunately, the equality of opportunity we seek is not yet a reality for all – we have not arrived.

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Anti-Trans Laws and the Thin Guise of Care

With the recent spate of laws concerning gender-affirming medical care for trans people in the United States — both enacted and under consideration — the rights of trans people to receive gender-affirming care are being severely restricted. Take for example an emergency rule set in place by Missouri’s Attorney General this month.

The Missouri rule places a number of restrictions on trans-affirming medical treatments and interventions — including puberty blockers, hormone replacement therapy, and surgery — for both adults and minors. The rule prohibits many people from receiving these interventions, including anyone with unresolved depression, adolescents who have exhibited signs of social media addiction in the prior six months, anyone “exhibiting social contagion” with respect to their gender identity, and anyone without three years of medically documented dysphoria. The rule also requires 15 separate hourly therapy sessions over a minimum of 18 months prior to treatment. The result is that almost no youth will be able to access these interventions.

The emergency rule claims that these measures are “necessary to protect… public health, safety, and welfare.” Some might think, Isn’t caution here a good thing? If these interventions are experimental, shouldn’t we take a little more time for the science to catch up? We’re talking, in some cases, about children! But I will argue that the content of the Missouri rule does not show neutral, much less virtuous, concern for the well-being of the people who might access these medical interventions. Rather, its structure makes internal sense only as an expression of transphobia.

Rationality demands that we treat like cases alike, and fairness demands the same. The Missouri rule targets trans people in a way that violates both.

Here are three examples.

First, the rule objects that the use of puberty blockers to delay puberty for a trans adolescent is not approved by the FDA. It’s what’s known as off-label use. But, as the Department of Health and Human services notes, off-label medication prescription is not only common (accounting for one in five of all prescriptions), but furthermore, legal. In this case, the off-label use is still for the purpose for which the drug was developed. Puberty blockers are designed and approved by the FDA as puberty blockers, originally for what’s known as “precocious puberty”: puberty that comes earlier than typical. Off-label use isn’t objectionable in general, so why is it objectionable in this case? The only relevant difference seems to be that the restricted case concerns trans-affirming use.

A second way this rule unequally targets trans people is this: cis people use many of these treatments to affirm their gender, but the rule is explicit that such use is not prohibited. Breast augmentation, for example, is most often used by cis people to affirm their genders. A 2019 study regarding breast augmentation surgery showed 79% of such surgeries were performed on cis women vs. 21% on trans women among the database entries eligible for the study. Here, again, we have unequal treatment in allowing the one while restricting the other.

Finally, the rule does not restrict the use of these treatments for patients with certain chromosomal or physiological conditions that can lead to atypical sexual development, for whom interventions can be used to achieve a more typical-appearing body. The emergency rule does not state that the interventions are to be used in treatment of these conditions only when they are life-saving (such as surgeries to protect against kidney disease). In other words, the interventions may be used in the service of conforming to cisgender expectations, but not in the service of departing from them.

This difference in who is and isn’t included in the emergency rule is not an incidental oversight. The statement of which medical interventions are restricted by the law specifically qualifies that it applies to cases in which such interventions are used “for the purpose of transitioning gender, decreasing gender incongruence, or treating gender dysphoria.” This qualification suggests not that these interventions are unhealthy or bad in themselves, but that it is somehow unhealthy, unsafe, or contrary to welfare to receive them for the purpose of affirming oneself as trans.

To deny a trans person access to these interventions without making the same restrictions for cisgender people is straightforwardly to discriminate on the basis of sex (specifically, sex assigned at birth).

These aspects of the Missouri rule, echoed elsewhere in new legislation, seem to show a kind of irrational inconsistency. The stated concern for “public health, safety, and welfare” extends only to trans people. But irrationality may not be the most plausible explanation. Consider the analysis of philosopher Talia Mae Bettcher: “Transphobia occurs in a broader social context that systematically disadvantages trans people and promotes and rewards antitrans sentiment. It therefore has a kind of rationality to it, grounded in a larger cisgenderist social context.” What seems irrational — or you might think, hypocritical — in these laws is instead indicative of underlying commitments against trans people. I’m not speaking here as to the individual motives of the people who enact these laws (except to suggest that doing so requires little imagination), but rather to the mechanisms at work in the enactment of these laws. The laws themselves do not exhibit care, caution, or due hesitance; they exhibit transphobia. And they use the language of care, often for children, as a thin guise for their bigotry.

As to whether we should take more time before allowing youth access to gender-affirming care: trans youth, more likely than cis youth to attempt suicide, may not have more time. Consider the testimony of trans teen Eve Devitt, responding to Idaho’s total ban of transgender treatment for minors: “You can’t wait until you’re an adult. For the vast majority of trans kids, they won’t be adults without this treatment. I wouldn’t have made it past fourteen.”

That access to this care is a matter of life and death adds urgency; but, to be clear, access to gender-affirming care should not need to be a matter of life and death in order for people’s need for it to be taken seriously. Real care for trans people involves, at minimum, respecting the reasons for which people seek gender-affirming care — reasons that are deeply bound up with one’s sense of self.  As transfeminine scholar Florence Ashley notes (speaking here of hormonal interventions, but applicable to gender-affirming healthcare more generally), these medical interventions are “ethically atypical: they are not a cure for an illness… but a tool of self-actualisation.” Without a chance for meaningful self-determination and the recognition of oneself by society, a person cannot flourish. Severe restrictions on access to trans healthcare undercut the possibility of this flourishing.

Far from showing care for the public’s safety and well-being, the Missouri rule and laws like it show a targeted disregard for trans people. Care for people involves trusting them; and, for those still in the process of coming to understand and actualize their own gender identity, it precludes making meaningful access to that process all but unattainable.

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Trump’s Indictment and Equality Before the Law

close-up photograph of Lady Justice statue's blindfolded face

The response to Donald Trump’s indictment has followed an unsurprising formula. Republicans, predictably, have called the indictment an outrage, the weaponization of politics, and (to add some gratuitous antisemitism) the vindictiveness of a Soros-backed District Attorney. Democrats, equally predictably, have pointed to the indictment as proof that “no one is above the law.” Left and center-left pundits have followed suit: here is evidence, they tell us, that our justice system works, and that even the wealthy and powerful cannot escape judgment. And yet, no matter how many times this cliché is repeated, it is hard to shake the reality that repetition conceals. A lingering doubt remains: if no one is above the law, why does it take so much effort to prove it? Maybe the opposite is true, and this indictment is merely the exception that proves the rule.

Writing for The Atlantic, David A. Graham has spelled out the thought succinctly: “An indictment of the former president, followed by orderly due process, would show that no one is immune to following the law simply because he is famous, wealthy, politically powerful, willing to threaten the justice system, or possessed of intemperate and powerful followers.” Clearly, this is the lesson many liberals want us to learn, and if they weren’t busy trying to pretend Trump is just another law-abiding citizen, no doubt Republicans would be happily jumping on this bandwagon as well. After all, “Law and Order” is a mantra they usually like, and it’s a mantra that would hardly have much electoral appeal if it were clear that while no one is entirely above the law, some people are very much more above it than others.

But the sequence of events seems to suggest a very different lesson. During the four years of Trump’s term as president, we routinely witnessed potentially criminal behavior. The first government investigation of one small piece of this behavior — the Muller report — presented stark realities that were largely buried only thanks to an Attorney General openly lying about its findings. Trump was the first president in American history to be impeached twice, once for blackmailing a foreign leader for his own political benefit, and once for attempting a coup. But the impeachments were quashed by Senators cringing in terror of their constituents.

And yet this isn’t the really damning part; this is politics, we might think, which shows us nothing about our justice system. Yet those four years — as well as the run-up to the 2016 election — were also filled with investigative journalists sending us a constant stream of reports of Trump’s past financial crimes; indeed, the Trump Organization has recently faced legal attacks and the threat of dissolution stemming from those past misdeeds. But all this naturally raises a question: if Trump’s presidential ambitions merely capped a lifetime of criminal activity, where was justice then?

The Republican refrain is that this indictment, like the ongoing investigation into Trump’s handling of classified documents, the investigations of his multiple efforts to stage a coup, and the investigations and convictions of the Trump Organization, is politically motivated. That certainly seems right, if what it means is that Trump’s actions have generated intense pressure on public officials from their constituents to take enforcement action instead of looking the other way despite repeated and brazen violations. But if that’s damning, it isn’t damning of the indictment or the investigations, but of the vast legal silence that preceded them. What was justice doing before Trump grew bored of real estate, steaks, and reality television and decided to play politician?

Look at the extraordinary lengths Trump has had to go to for indictment to even become a serious possibility. These lengths are literally historically unprecedented: he had to run for president, win, engage in years of corruption leading, among other things, to the two aforementioned impeachments; he had to attempt a coup, both by trying to intimidate election officials and by sending an armed mob to hang his vice president. He not only removed top secret documents from the White House, but repeatedly refused official requests to return them and, to all appearances, returned some and lied by insisting all had been returned. And yet, after all this, we still faced a steady stream of headlines about the perils of any indictment rather than its necessity, and about resistance to criminal investigations rather than reflections on how overdue they were. As Adam Serwer notes, far from the bizarre picture in some circles of the FBI as overrun by woke Trump-hating communists, in reality many agents in the Bureau were highly resistant to the prospect of raiding Trump’s residence to search for documents. Again, Trump didn’t just have to break the law to face real criminal investigations; he had to break it over and over, in the open, in blatant and unconcealable ways, from what may well be the most visible position of power in the world.

The barriers to Trump’s indictment, then, are obviously great; he had to work hard to overcome them. This is not true of most Americans, who lack protection from investigation, prosecution, and occasionally arbitrary arrest and state violence. And so the picture we walk away with falls far from the cliché that no one is above the law. The system of justice, it may seem, exists to police most of us and keep us in line, but some are above it, perhaps sacrificed on very rare occasions to make the point that justice is fair, but otherwise almost entirely untouched unless their crimes become so absurd and so visible that law enforcement agencies cannot avoid taking action.

When someone uses Trump’s indictment to tell you that no one is above the law, we should ask why they’re using this particular case to make that point. Are there so few cases that anyone wanting to shore up the credibility of our justice system must rely on egregious examples? Or, more charitably, is it an attempt to reinforce failing norms? If the latter, then the lesson is surely that we require a large-scale reform of our justice system: if we genuinely want people to believe not just that Trump’s indictment is well warranted, but also that our justice system is impartial, then we should focus on making it fair and transparent. This may involve closer scrutiny of prosecutors’ decisions not to pursue cases against wealthy criminals carried out by a federal agency (rather than simply investigative journalists, whose reports largely have an effect only if enough voters read them) in order to form a clearer picture of how such decisions are made and look for fixes. At the very least, a focus on ways to remove roadblocks to district attorneys’ will and ability to undertake enforcement actions, even in the absence of political pressure, may help prevent future Trumps from coming our way.

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​​You’re So Privileged, I Bet You Think This Article Is About You

photograph of high school students taking exam

Back in 2014, I remember coming across the Buzzfeed quiz “How Privileged are You?” and answering each question, line by line, to see what my privilege score would be. I remember feeling uncomfortable about the quiz then, but only now do I have the tools to articulate why.

It wasn’t that I was relatively privileged with a well-to-do upbringing and white skin. It wasn’t even necessarily the oppression Olympics, though I did at the time wonder how I compared to others.

The problem was that a numerical score that adds up different experiences doesn’t actually track how privilege and oppression work.

Unfortunately, these kinds of numerical privilege tests have stuck around and periodically re-circulate when conversations about privilege re-enter mainstream discussion. You may have also encountered or participated in a privilege walk, which asks participants to stand in a line and take a step forward or backward in response to each statement instead of tallying a numerical score – those who move to the back are less privileged; those who move forward are more privileged.

What kinds of statements are included on these tests?

  •     “I am white.”
  •     “A stranger has never asked to touch my hair, or asked if it is real.”
  •     “I never had to ‘come out.’”
  •     “I have never been denied an opportunity because of my gender.”
  •     “I don’t have any student loans.”
  •     “My parents are still married.”
  •     “I have never been shamed for my body type.”

There are a number of other statements that target different identities and experiences. Most fall into broad categories like white experiences, class-relative experiences, Black experiences, trans experiences, non-Christian experiences, etc. These are all good experiences to be aware of.

But privilege doesn’t function in this piecemeal, additive way. Kimberlé Crenshaw’s term intersectionality points out that, for example, Black women’s oppression isn’t the combination of the oppression of Black men and the oppression of white women. Black women are a distinct social class with distinct experiences.

The combination of different axes of oppression is not reducible to the sum of its parts.

Our social categories that shape how we view and treat ourselves and others tend to be more specific than we sometimes think. We respond very differently to an attractive white trans woman than to a fat brown Hispanic trans man. Both are trans; both have very different experiences.

A second issue is that some of the items on these tests seem to relate to how well your life has gone rather than how much your life has been impacted by structural inequalities. Take the statement “my parents are still married.” While divorce is more common in some social groups than others due to structural features, it is not uncommon for highly privileged people to have divorced parents.

If we want to preserve the political function of privilege, it needs to remain a concept that tracks experiences with various structural advantages or disadvantages. The immensely privileged can still have terrible lives through bad luck. Those who lack privilege can live quite good lives as well.

Structural inequalities and interpersonal bigotry can and do make life harder in specific ways for marginalized people, and privilege (or lack thereof) does influence how your life goes for you. But lacking privilege is not the same as having a life full of hardship.

A third issue is that it’s unclear what to do with your score. People often compare themselves with others along axes of privilege in ways that are unhelpful. Sometimes this is done in self-aggrandizing and misleading ways to gain clout on social media (though most often, privileged users will bandy about the one marginalized person that agrees with them just to win a debate). Perhaps more often, people who score as more privileged might feel as if their problems don’t matter or don’t matter as much as those who score as less privileged. Sometimes this is right – when the problems are relatively trivial – but other times this isn’t true.

While we will need to make triage decisions at the level of which political projects to take up and which features of structural oppression are most pressing, comparison at the level of individuals can cause a number of problems. Trauma is still valid even if someone else has it worse.

An aggregate number also does not provide any actionable political guidance.

Scoring individualizes privilege instead of looking at the underlying social structures.

It can promote a kind of navel-gazing about our own experiences instead of group conversations about the problems that specifically affect us and what we can do about them. The way out of oppressive structures is not by finding the most marginalized person and placing the burden of liberation on them; it’s by working together.

Fourth, when we have conversations about privilege, there are a number of reactions that the privileged have when their relative structural advantage is pointed out: “Why are you trying to make me feel guilty?” “My life hasn’t been easy.” “I’ve experienced [insert unrelated hardship], so I know what oppression is like.” “But we’ve overcome [insert kind of oppression].” “I’ve never heard of that, so it can’t be real.” “The real problem is [insert unrelated issue].” “Well, [other marginalized group] also oppresses [marginalized group under discussion], so any oppression I participate in shouldn’t be called out.”

These various kinds of denial, outrage, and misdirection are often used by the privileged to recenter themselves in conversations. That tendency will not be affected by the kind of icebreaker you use to talk about privilege, whether it be the Buzzfeed quiz or a privilege walk.

However, some of these responses are (willful or otherwise) misunderstandings of what privilege is. It’s not personal virtue. It’s not how your life has gone on the whole. It’s a particular set of experiences that arise when people in well-specified social groups interact with social and structural advantages or disadvantages.

Privilege tests can sometimes feed into these misconceptions about privilege by obscuring intersectionality, making it sound as if privilege = how well your life has gone, and encouraging unhelpful comparisons. For these and other reasons, some people have already moved away from the privilege quiz/privilege walk model.

I don’t think that getting rid of privilege tests will solve the problems we have in discussing oppression. But we don’t need to aggravate these problems with a teaching resource that could be easily replaced with better materials. Conversations about privilege will always be hard, because people who are privileged do not directly experience what it’s like to live under structural oppression, and people who are oppressed often internalize oppressive narratives.

I hope that we can all replace these petty blame games and denials of privilege with solidarity and community. The fight isn’t between the privileged and the marginalized; it’s between the people who support systems of oppression and the people who want to dismantle them.

If you’re privileged, use that privilege to help.

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The Meaning of Monarchy

photograph of Queen Victoria statue at Kensington Palace

A prominent figure for nearly a century, the death of Queen Elizabeth II leaves a tremendous void behind. Many are deeply affected by this loss. For some, however, the death of the Queen also breaks a spell. As perhaps the most famous representation of monarchy, her image seems to have put some questions about the nature of monarchy on hold for some time. Almost immediately after her death, however, questions about the future of monarchy – generally, or in the U.K. specifically – began to swirl. While some have started to map out the succession line, others voiced criticism of their historical (colonial) ties to the monarchy. Now, there is a strong call to take a moral stance regarding monarchy, in general. Questions concerning the role of monarchy coupled with the financial, diplomatic, and moral burden of the royal families are coming to the fore.

The problem with taking a moral stance, however, is that the monarchy today is quite different from the monarchy in the past: Not many “Royalists” in the traditional sense remain standing in the Western world. These domesticated and tranquilized monarchies hold almost no political power; they are merely symbolic.

But what’s not clear is what exactly these “Symbolic Monarchies” symbolize, and whether one is morally obligated to support or oppose what they represent. Do they pose some threat of oppression like in the past or are they now somehow “redeemed”?

From my regional point of view, the idea of monarchy is still a very dangerous one. The Middle East, in general, is quite accustomed to a very strong central figure, and developing democracy or civil society is always under threat by an autocratic one-man regime. As the West of “The East” or the East of “the West,” Turkiye is an interesting boundary case where the idea of monarchy is both very weak and yet still somehow scary at the same time. From time to time, the possibility of a symbolic Ottoman Emperor is jokingly suggested. Most react radically to even the mere mention, whereas some think a powerless monarchy has some kind of emotional and historical nostalgic value – mainly in a more cultural, diplomatic, and touristic sense. One year after the establishment of the Turkish Republic, the Osmanoglu Family were sent into exile in 1924 since it was thought they would pose a threat to the newly found republic. In the first half of the 70s, this exile was lifted for all members as any dream to resurrect the Ottoman Empire seemed unrealistic. (I believe it is still unrealistic.)

However, some events involving members of the Osmanoglu Family are worrying. Some, claiming to be the rightful inheritors of the Ottoman Sultan, Abdulhamid II, demand lands on the ground that these were the personal property of the Sultan. Meanwhile, Abdulhamid Kayıhan Osmanoglu, claiming to be a royal family member, has entered into politics in “New Welfare Party” – a revamp of a radically conservative party – and usually goes around in Sehzade/Prince clothes. Additionally, the 21st century has brought a “Neo-Ottoman” political and cultural wave in Turkiye. From the very beginning, some have pointed out a relation between governing “Justice and Development Party (AKP)” and this “Ottomania” or “Neo-Ottomanism.”

In one sense, no one – including AKP – appears to be seriously considering abolishing democracy and bringing the monarchy back. However, in another sense, interest in monarchy appears to be very much revived.

This situation is enough to make any citizen of a country with a similar history uneasy.

From a North American or European point of view, these events may not seem relevant since the threat – especially in the Middle Eastern region – is not about Symbolic Monarchy, but the possibility of reinstating Traditional Monarchy. The general belief that a Symbolic Monarchy is safe, harmless, or powerless is generally accepted unquestioningly in the West. Its assumed lack of political power is so overemphasized that its message – what a monarchy represents – is generally overlooked.

Some treat Symbolic Monarchy like they do fictional entities like Santa Claus. Having great cultural importance, this take on monarchy assumes that Symbolic Monarchy is not really a “monarchy” as much as a glamorous imitation for show. These declawed figureheads are like Santa Claus giving out gifts in malls and ringing a bell on the corner of the streets. Perhaps the Queen was not a “Queen” after all. Maybe she represented the fantasy of an ideal benevolent ruler that we know doesn’t exist. It was simply an unforgettable role played by the actor Elizabeth Alexandra Mary Windsor, whose fans now feel they’ve lost their heroine.

But for those more familiar with the monarchies of old, this preoccupation with pageantry is naïve.

Even if it is merely a role to be played, we must still ask: What does this role represent? Even though we may appreciate the actors who play them, the public performance of roles like “Queen,” “Tzar,” and “Sultan” evoke real historical associations.

This is where these roles get their power, and contrary to the nostalgic reception, some of these associations are negative. Reminiscing often comes with memories of colonization, abuse, and torture. Many people are reminded of how they or their ancestors were oppressed. The very existence of Symbolic Monarchy and its global glorification seems capable of hurting many or being used as a tool to numb people to historical harms. Even in its lightest form – where we assume the characters are benevolent and we acknowledge and condemn past transgressions – monarchy represents inequality, as Nicholas Kreuder has recently argued; it contradicts the natural or essential equality of all human beings.

Is this necessarily true? I’m sympathetic to Benjamin Rossi’s critique that suggests that as long as people can in some way voluntarily embrace it, monarchy can be morally legitimate. But, from another point of view, it’s difficult to judge whether the adoption is voluntary or not.

In historically oppressed cultures, it is common to observe the adoption of their oppressors’ values, language, and religion, which were forced on them in the past. For such people, an idea like “Queen” can be very damaging and, controversially, soothing at the same time.

Ultimately, Symbolic Monarchy is thought to exercise some influence on the public but a low political influence: They seem to play only a support role to major events with no decision-making power. But what is “real” power these days? Members of a royal family have many powerful symbols at their disposal that wield great influence, including casting a shadow over politics. Though they are generally not allowed to endorse an ideology, party, or politician, the line between supporting a moral cause and supporting a policy is incredibly blurry. As “influencers,” their discretion in addressing particular issues rather than others, their preferences on charity and patronage, or the moral positions they adopt in royal dramas are not easily separable from political issues. While royal families’ political influence is difficult to quantify, there is no doubt – from their fashion sense to their diplomatic missions – that they possess “power.”

Today, monarchy is under increasing scrutiny following the Queen’s death. Some admire these royal families. Some remember the yoke of oppression. Some fear past monsters may rise again. What power the idea has left – be it Traditional Monarchy or Symbolic – remains an open question.

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Monarchy and Moral Equality

photograph of Queen's Guard in formation at Buckingham Palace

In a recent column, Nicholas Kreuder argues that the very idea of monarchy is incompatible with the moral equality of persons. His argument is straightforward. He claims that to be compatible with moral equality, a hierarchy of esteem must meet two conditions. First, the person esteemed must be estimable — in other words, esteem for her must be earned, or at least deserved. Second, deferential conduct toward the esteemed person must not be coerced or otherwise involuntary. But the deference demanded by a monarch is neither warranted, nor voluntarily given: monarchs are esteemed only for their royal pedigree, and their subjects are expected to show esteem even though they are not, at least in the typical case, subjects by choice. Therefore, the hierarchy of esteem between monarch and subject is fundamentally incompatible with moral equality.

This argument is compelling, and as a confirmed republican, I confess bewilderment at the practice of paying a woman to live in fabulous wealth for a century so that she can christen the nation’s boats.

Nevertheless, for the sake of argument, I would like to critically examine Kreuder’s premises to see whether they really establish his sweeping conclusion.

The first question to consider is a simple one: what is a monarch? The argument against monarchy from moral equality appears to assume that monarchies are by definition hereditary, and that they are never elective. In fact, elective or non-hereditary monarchies are not unusual in human history. In Ancient Greece, the kings of Macedon and Epirus were elected by the army. Alexander Hamilton argued for an elective monarchy in a speech before the Constitutional Convention of 1787; he thought the American monarch should have life tenure and extensive powers.

In truth, authoritative sources seem confused about just what a monarchy is. For instance, the Encyclopedia Britannica defines “monarchy” as “a political system based upon the undivided sovereignty or rule of a single person.” Yet the accompanying article acknowledges that in constitutional monarchies, the monarch has “transfer[red] [her] authority to various societal groups . . . political authority is exercised by elected politicians.” That does not sound like undivided sovereignty to me.

My conclusion is that “monarch” is a label promiscuously affixed to wildly different kinds of regimes, leaving the concept monarch without much determinate content. A monarchy can be limited or absolute, elective or hereditary.

It’s difficult to argue that a concept with little determinate content is incompatible with moral equality. However, if we limit the argument to hereditary monarchies, then the argument against monarchy from moral equality appears to get back on track. If the monarch is not elected, then the deference she demands is not voluntary. And if her claim to esteem is inherited, then it is certainly not deserved.

Yet even when restricted to hereditary monarchies, the argument does not seem entirely plausible. The problem is that in some cases, the hierarchy of esteem between a particular hereditary monarch and her subjects seems voluntary. Consider the United Kingdom’s hereditary but constitutional monarchy. The citizens of that country appear to have widely divergent views about both their monarchs and their monarchy. Some people detest the newly-crowned King Charles III, yet have no qualms with the monarchical institution. Some liked Queen Elizabeth on a personal level but are staunch republicans. Moreover, Britons do not keep their opinions on this score a secret, and they are not generally thrown in jail for publicly criticizing the monarch in the harshest terms. (Although in saying this, reports of anti-royal protestors being arrested on bogus charges of breaching the peace make me pause.)

No one is forced to sing “God Save the Queen” who doesn’t wish to do so. In short, in the U.K., deference to the monarch may be encouraged, but it is certainly not required. A Briton can thrive in her society without ever showing the slightest deference to her monarch.

With respect to the hierarchy of esteem between the U.K.’s monarch and her subjects — as opposed to her constitutional functions or public prominence — the situation seems somewhat akin to the relationship between Catholic priests and the rest of society in the United States. Even non-Catholics regularly refer to priests as “father,” a gesture of deference that is less required than customary. (That said, I refrain from this practice if at all possible; it mildly affronts my democratic temperament. This did not go over particularly well at Notre Dame.)

It might also be doubted whether every hereditary monarch does not deserve esteem. Many Britons seem to think that with her stoicism and quiet dignity, Queen Elizabeth provided stability over the course of a turbulent twentieth century. I take no stance on that proposition, but it certainly seems conceivable that a monarch could come to earn esteem through her exemplary conduct either before she ascends to the throne or while she serves as monarch.

Thus, the extent to which monarchy cuts against moral equality really depends on the conditions of the society in which a particular monarchical institution exists.

The concept of a hereditary monarchy might seem incompatible with moral equality at a very high level of abstraction, but some of its instantiations may be perfectly consonant with it.

This does, however, lead me to a more philosophical point. In the argument against monarchy from moral equality, the test for whether a hierarchy of esteem is morally legitimate requires it to meet both the conditions of deservedness and voluntariness. But it appears that voluntariness alone is sufficient to make such a hierarchy compatible with moral equality. If I routinely genuflect before my girlfriend because I believe her gorgeous auburn hair possesses mystical powers, that does not seem particularly demeaning to my dignity so long as my delusional belief cannot be said to undermine the voluntariness of my deferential act — even though the deference is wholly undeserved. Likewise, so long as a Briton is not forced to pay obeisance to King Charles III, her acts of deference seem to be compatible with her dignity even if the king doesn’t deserve them.

Indeed, voluntariness seems not only sufficient to legitimize a hierarchy of esteem, but also necessary. Martin Luther King, Jr. and Malcolm X are both, in my view, figures richly deserving of esteem. Yet if I were forced to regularly kiss their feet, that hierarchy of esteem would be an insult to my dignity as a moral equal.

Philosophers love abstractions, and I am no exception. Sometimes, however, what appears to be a strong argument at a high level of abstraction loses some of its luster once the messy reality of human existence is brought into view. Such is the case, I think, with the claim that monarchy is per se incompatible with human equality.

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Should Monarchies Be Abolished?

photograph of British monarchy crown

On September 8th, 2022, Queen Elizabeth II of England died at the age of 96. She held the crown for 70 years, making her the longest reigning monarch in the history of Britain. Her son, now King Charles III, will likely be coronated in mid-2023.

The death of the British monarch has drawn a number of reactions. Most public officials and organizations have expressed respect for the former monarchies and sympathy towards her family. However, others have offered criticism of both the Queen and the monarchy itself. Multiple people have been arrested in the U.K. for anti-royal protests. Negative sentiment has been particularly strong in nations that were previously British colonies – many have taken to social media to critique the Crown’s role in colonialism: the Economic Freedom Fighters, a minority party in South Africa’s parliament released a statement saying they will “not mourn the death of Elizabeth,” and Irish soccer fans chanted that “Lizzy’s in a box.” Professor Maya Jasanoff bridged the two positions, writing that, while Queen Elizabeth II was committed to her duties and ought to be mourned as a person, she “helped obscure a bloody history of decolonization whose proportions and legacies have yet to be adequately acknowledged.”

My goal in this article is to reflect on monarchies, and their role in contemporary societies. I will not focus on any specific monarch. So, my claims here will be compatible with “good” and “bad” monarchs. Further, I will not consider any particular nation’s monarchy. Rather, I want to focus on the idea of monarchy. Thus, my analysis does not rely on historical events. I argue that monarchies, even in concept, are incompatible with the moral tenets of democratic societies and ought to be abolished as a result.

Democratic societies accept as fundamentally true that all people are moral equals. It is this equality that grounds the right to equal participation in government.

Equal relations stand in contrast to hierarchical relationships. Hierarchies occur when one individual is considered “above” some other(s) in at least one respect. In Private Government, Elizabeth Anderson distinguishes between multiple varieties of hierarchy. Particularly relevant here are hierarchies of esteem. A hierarchy of esteem occurs when some individuals are required to show deference to (an) other(s). This deference may take various forms, such as referring to others through titles or engaging in gestures like bowing or prostration that show inferiority.

Generally, hierarchies of esteem are not automatically impermissible. One might opt into some. For instance, you might have to call your boss “Mrs. Last-Name,” athletes may have to use the title “coach” rather than a first name, etc. Yet, provided that one freely enters into these relationships, such hierarchies need not be troubling. Further, hierarchies of esteem may be part of some relationships that one does not voluntarily enter but are nonetheless morally justifiable – children, generally, are required to show some level of deference to their parents (provided that the parents are caring, have their child’s best interests in mind, etc.), for instance.

The problem with the monarchy is not that it establishes a hierarchy of esteem, but rather that it establishes a mandatory, unearned hierarchy between otherwise equal citizens.

To live in a country with a monarch is to have an individual person and family deemed your social superiors, a group to whom you are expected to show deference, despite your moral equality. This is not a relationship you choose, but rather, one that is thrust upon you. Further, the deference we are said to owe to, and the higher status of, monarchs is not earned. Rather, it is something that they are claimed to deserve simply by virtue of who their parents are, who in turn owe their elevated status to their lineage. Finally, beyond merely commanding deference, monarchs are born into a life of luxury; they live in castles, they travel the world meeting foreign dignitaries, and their deaths may grind a country to a halt as part of a period of mourning.

So, in sum, monarchies undermine the moral foundation of our democracies. We value democratic regimes (in part) because they recognize our equivalent  moral standing. By picking out some, labeling them as the superiors in a hierarchy of deference due to nothing but their ancestry, monarchies are incompatible with the idea that all people are equal.

However, there are some obvious ways one might try to respond. One could object on economic grounds. There is room to argue that monarchies could potentially produce economic benefits. Royals may serve as a tourist attraction or, if internationally popular, might raise the profile and favorability of the nation, thus increasing the desirability of its products and culture. So perhaps monarchies are justified because they are on the whole beneficial.

The problem with this argument is that it compares the incommensurable. It responds to a moral concern by pointing out economic benefits.

My claim is not that monarchy is bad in every respect. Indeed, we can take it for granted that having a monarchy produces economic benefits. However, my claim is that it undermines the moral justification of democracy.

Without a larger argument, it does not follow that economic benefits are sufficient to outweigh moral concerns. This would be like arguing that we should legalize vote-selling due to its economic benefits – it seems to miss the moral reason why we structure public institutions the ways that we do.

Another objection may be grounded in culture. Perhaps monarchies are woven into the cultural fabric of the societies in which they exist; they are part of proud traditions that extend back hundreds or even thousands of years. To abolish a monarchy would be to erase part of a people’s culture.

While it’s true that monarchies are long traditions in many nations, this argument only gets one so far. A practice being part of a people’s culture does not make it immune to critique. Had the Roman practice of gladiatorial combat to the death for the sake of entertainment survived to this day, we would (hopefully) think it ought to be eliminated, despite thousands of years of cultural history.

When a practice violates our society’s foundational moral principles, it ought to be abolished no matter how attached to it we have become.

Finally, one might argue that abolition is unnecessary. Compared to their status throughout history, monarchies have fallen out of grace in the 20th and 21st centuries. Of the nations with monarchies, few have a monarch which wields anything but symbolic power (although some exceptions are notable). This argument relies on a distinction between what we might call monarchs-as-sovereigns and monarchs-as-figureheads. Monarchs-as-sovereign violate the fundamental tenets of democracy by denying citizens the right to participate in government, while monarchs-as-figureheads, wielding only symbolic power, do not, or so the argument goes.

The issue with this argument is that it underappreciates the full extent of what democracy demands. It does get things right by recognizing that the commitment to democracy arises from the belief that people deserve a say in a government that rules over them. However, it is just not that all citizens deserve some say, but rather, that all citizens deserve an equal say. One person, one vote.

Part of the justification for democracy is that individuals ought to be able to shape their lives, and thus deserve a say in the institutions that affect us all.

Although individuals may vary in their knowledge or other capabilities, to give some greater say in our decision making is to give them disproportionate power to shape the lives of others. No one individual should automatically be someone to whom we all must defer. We might collectively agree to, say, regard someone as an expert in a particular matter relevant to the public good and thus defer to her. However, this only occurs after we collectively agree to it in a process where we all have equal say, either by voting directly for her, or voting for the person who appoints her. Unless we have a parity of power in this process, then we diminish the ability of some to shape their own lives.

On these grounds, perhaps a monarchy could be justified if the citizens of a nation voted the monarch into power. This would simply be another means of collective deferment. But since electorates are constantly changing, there would need to be regular votes on this to ensure the voters still want to defer to this monarch. Yet current monarchies, by elevating the monarch (and family) above others while leaving this outside the realm of collective decision-making, violate the moral justification of democracy – some are made superior by default in the hierarchy of esteem. The establishment of democracy and abolition of all monarchy are proverbial branches that stem from the same tree. Our recognition of human equality should lead us to reject monarchy in even innocuous, purely symbolic forms.

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Rethinking “Rethinking the Moral Status Debate”

photograph of boy and girl watching elephant at zoo

To have moral status is to be morally important for your own sake. Dogs, for instance, matter morally in a way that rocks don’t. Dogs have moral status. To have full moral status is to matter morally for your own sake as much as people do. Most people think dogs have moral status, but not full moral status. They think dogs matter morally, but not as much as people. Some philosophers agree with this, while others think this belief is a mere prejudice (“speciesism”), and that all conscious beings have full moral status. I have written about this here before.

Much of the abortion debate centers around the question of whether and when fetuses possess moral status, and/or full moral status. Is, say, an eight-week embryo morally important for its own sake? Is an eight-week embryo as morally important for its own sake as an eight-year old child? These questions may not automatically settle the abortion debate, but they are clearly important to it.

The relevance of moral status to abortion spurred an interesting recent piece in which Ben Rossi suggests that many of us are thinking about moral status incorrectly. Most of us think moral status is an intrinsic property, but Rossi thinks it is an extrinsic property. An intrinsic property depends on how you are in yourself, while an extrinsic property depends on how other things are. That I have a lap is an intrinsic property. That my cat, Apollo, is currently sitting in my lap is an extrinsic property: if he moved, I would lose the property “having a cat sitting in my lap,” even if nothing about me in and of myself changed. Or, in science, mass is an intrinsic property, while weight is an extrinsic property. If you put me on the moon, I would weigh a lot less, even if I was the same in and of myself.

Most of us think moral status depends on intrinsic properties. We think it depends, say, on whether you are capable of consciousness, or of reasoning, or whether you are a human, etc. Rossi thinks it depends on an extrinsic property: “the moral costs and benefits — principally understood in terms of aggregate welfare, autonomy, and equality — of adopting as a general rule that such-and-such a class of beings possesses strong moral subject-hood” determine whether you have full moral status. I take it we are supposed to accord full moral status to a being if doing so would have the best consequences.

We can see that this makes moral status extrinsic by noting that it means I could gain or lose moral status without changing anything about how I am in and of myself. If hostile aliens threatened to destroy the world unless we ceased treating Prindle Post writers as having full moral status, then I suppose it would be best not to treat Prindle Post writers as having full moral status. In that way, I could lose my moral status without changing how I am in and of myself. Or, to take things back to abortion, suppose we developed cheap artifical wombs, and could safely transplant embryos from pregnant people into these wombs. I suppose that on Rossi’s view, since this means the burden of treating embryos as having full moral status would no longer impose as great a burden on pregnant people, the invention of this device would strengthen the case for embryos having full moral status, without changing anything about embryos themselves.

Rossi notes that his account makes moral status extrinsic, and notes this is odd: it does not seem that the aliens issuing this threat could cause me to become less morally important. But since he has already discussed this, I will focus on a different worry for his view. I worry that his view involves a troublesome circularity. In order to know how good or bad an outcome is, we need to know the moral status of the individuals involved. But if the moral status of the individuals involved determines how good or bad the outcome is, then how good or bad the outcome is cannot then determine the moral status of the individuals involved. That’s a circle.

Consider, for instance, Rossi’s concern for equality. If people were allowed to kill eight year-olds, our society would not be one that respects equality. On the other hand, if people are allowed to kill hydrangeas, our society might still be one that respects equality. Why is that? Eight-year olds have full moral status, but we are not giving them the protections given to others who have full moral status. In this way, we fail to respect their equal moral standing. On the other hand, hydrangeas do not have full moral status. Perhaps they have no moral status at all. Accordingly, it is not an offense against equality to deny them the protections given to individuals with full moral status.

In our current society, people (at least in most states) can kill eight-week old embryos. Is this an offense against equality? To know this, we may need to know whether eight-week old embryos possess full moral status. If they do, perhaps we are failing to respect their equal moral status by failing to give them the protections we have. If not, then not. But if we need to know their moral status in order to know whether we are satisfying the demands of equality, and if satisfying the demands of equality is one of the things that determines how good or bad it is to treat them as having full moral status, then how good or bad it is to treat them as having full moral status cannot be what determines what moral status they actually have. That would be a circle.

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Rethinking the Moral Status Debate

photograph of silhouetted woman on cliff

The impending death of constitutionally-protected abortion rights in the United States highlights the fact that one of the major political controversies of our era implicates a deeply philosophical puzzle. In everyday life, there are certain entities with respect to which serious questions about how we ought to treat them frequently arise. Some clear examples include human children and adults, and perhaps some other animals. Call such entities moral subjects, defined minimally as beings that, in our reasoning about how to act, are entitled to a quantum of consideration concerning how our actions affect them. An important group within this category consists of beings that are entitled to the degree of consideration we are typically obliged to give to human adults and children. I will call these beings strong moral subjects. Possessing an entitlement to such strong consideration is often referred to as having a “moral right.” Thus, if human adults generally possess a moral right to life, this means at a minimum that for other moral agents, certain actions — paradigmatically, and with narrow exceptions, deliberately killing them — are out-of-bounds. Yet there are many other entities that do not ordinarily seem to demand any degree of consideration — for example, chairs and stones. Call these entities things. At least a large part of the abortion debate — though not all of it, as Giles Howdle reminds us — seems to revolve around the question whether the unborn fall within the category of things or that of strong moral subjects. This is the so-called “moral status” question.

Yet, as I will argue, the popular and significant portions of the philosophical discourses about moral status are deeply mistaken.

To begin with the popular discourse, consider the language used in an introduction to a recent episode of Ezra Klein’s podcast featuring a discussion about the ethics of abortion with the moral philosopher Kate Greasley. “We discuss . . . why the status of fetal life is the central question at the heart of abortion ethics, [and] whether life begins at conception or emerges later in fetal development.” This focus on the question of when fetal life begins, which is characteristic of how many ordinary people tend to talk about the abortion issue, is liable to cause immense confusion. To start with, “life” is a highly ambiguous term: Merriam-Webster enumerates no less than twenty distinct meanings that we attach to it in common parlance. In many contexts, it refers to a biological characteristic — namely, the characteristic that distinguishes animals and plants from inorganic matter.

Now in one way, whether the fetus is alive in this biological sense is clearly relevant to the question whether the fetus is a strong moral subject possessing a right to life, since inorganic things cannot have a right to biological life. At the same time, however, it is intuitively not sufficient to clinch the question. After all, virtually no one thinks that merely in virtue of being alive, an entity is a strong moral subject. This view would put amoeba, algae, and bacteria on a moral level with adult human beings. So, it’s hard to see how the question of when the fetus becomes a living organism is the central question of abortion ethics. Another common meaning of “life” is biographical — something like the series of events that make up a living thing’s existence. Of course, when a being’s life begins in this biographical sense is parasitic on when the being becomes alive in the biological sense. Moreover, all living things have a life in this sense. Hence, the biographical sense of “life” does not take us beyond the biological sense in answering the moral status question.

It is also common in the popular discourse to see the question whether the fetus is a “human being” treated as central. But the terms “human” or “human being” are ambiguous in ways similar to “life.”

In one sense or cluster of senses, “human being” is a biological term denoting (a) possession of a characteristic human morphology; (b) membership in the species homo sapiens; or (c) possession of a certain genome. But quick reflection suggests that these characteristics are intuitively neither necessary nor sufficient for strong moral subject-hood. Any given episode of Star Trek suggests that non-human aliens may be strong moral subjects; and isolated human skin cells don’t seem to have a strong claim to consideration.

So much for the popular discourse. The philosopher Mary Anne Warren’s classic paper “On the Moral and Legal Status of Abortion,” still a staple of ethics courses across the country, serves as a paradigm for a common philosophical approach to the moral status question. Warren argues that the key issue is not whether the fetus is, say, alive or human, but whether it is a person. There are two crucial parts to her account of personhood. First, she says that all and only persons have full moral rights. (By “full” moral rights, she means something like the moral rights typically afforded to adult human beings as such). In other words, personhood is the decisive criterion for strong moral subject-hood, and it operates like an on/off switch: if you are a person, you are a strong moral subject, and if you are not a person, you aren’t. Second, Warren says that personhood itself can be defined as the possession of at least some of five capacities: consciousness, reasoning, self-motivated activity, the capacity to communicate an indefinite number of messages, and the presence of self-concepts.

Taken together, Warren’s account implies that the possession of some combination of these capacities is a necessary and sufficient condition for strong moral subject-hood. Warren goes on to argue that fetuses are not persons, and therefore do not have moral rights.

There are, in my view, two serious problems with this approach. The first is that it may involve a worrying circularity. In developing her account of the characteristics that constitute personhood, she asks us to consult our intuitions about which capacities we would count as relevant to determining whether newly-discovered alien life possessed a moral right to life. She plausibly claims that we would consider the five capacities listed in the last paragraph as relevant to that determination. But she does not ask us to consider whether, if we discovered that the aliens possessed those capacities and reproduced in a similar fashion as human beings, we would consider their fetuses as possessing the moral right to life and accordingly change our account of the characteristics necessary for strong moral subject-hood.

That question seems highly pertinent to the inquiry, but it introduces a dilemma for Warren. On the one hand, many people might conclude that they would consider the alien fetuses as possessing a right to life, and on this basis develop an account of personhood that counts human fetuses as persons, which would be an unwelcome result from Warren’s point of view. On the other hand, many others might conclude that they would not count the alien fetuses as rights-bearers. But if they went on to develop an account of personhood that excludes human fetuses partly on the basis of this intuition, they might be vulnerable to a circularity objection. The ultimate basis for the conclusion that human fetuses lack the right to life would be an intuition about the moral rights of alien fetuses. But since ex hypothesi the human and alien fetuses are so similar, that intuition would in all probability be itself based on the person’s views about the moral rights of human fetuses. Thus, the conclusion would be ultimately based on a premise that is identical to it.

This is sort of like holding that God exists because the Bible says so — based on the claim that what the Bible says is trustworthy because it is divinely inspired.

(Indeed, the same circularity problem would arise in the case of the person who would count the alien fetus as possessing the right to life.)

An even more serious problem with Warren’s approach is that it assumes a criterial account of moral status, according to which strong moral subject-hood is conceptually structured in terms of some set of necessary and sufficient characteristics. Again, on this approach, if you have capacities X, Y, and Z, then you are a strong moral subject; if you don’t, then you aren’t. One result of this way of thinking that students often encounter is that it turns out to be quite difficult to develop a criterial account that can accommodate all of our intuitions about strong moral subject-hood. For example, we seem to treat some non-conscious, non-reasoning, non-communicative, and non-self-aware human beings very differently from others. But why think moral status is conceptually structured like this? Instead of arguing further against the criterial approach, let me sketch out another approach that I think may be more fruitful.

The approach I favor is one that focuses on the question, what are the moral costs and benefits — principally understood in terms of aggregate welfare, autonomy, and equality — of adopting as a general rule that such-and-such a class of beings possesses strong moral subject-hood?

On this view, recognizing that fetuses do or not have a right to life is itself a moral choice, not one conceptually compelled by their possession of capacities like consciousness, rationality, and so on. Of course, whether fetuses do or do not possess these capacities may be highly relevant to our moral calculus. But this approach does not treat the possession of these capacities as a criterion of strong moral subject-hood. Rather, these capacities are probably relevant because they bear on the welfare, autonomy, and equality of all affected by the decision to treat fetuses as strong moral subjects.

A few surprising consequences may follow from my approach. First, it may follow that two classes of human beings with exactly the same intrinsic characteristics have fundamentally different moral statuses. This might sound strange, but that is because our thinking about this question is so deeply in thrall to the criterial approach. Second, it may follow that the same class of human beings might have one moral status under some circumstances and another moral status under other circumstances. Again, this seems strange, given that we’ve been taught that strong moral subject-hood wholly rests on the possession of certain intrinsic capacities. But if my view is correct, then it turns out to be not quite right to aver that, as the saying goes, you have rights simply because you are human. If by “human” we mean “possessing capacities X, Y, and Z,” on my view you don’t have rights simply because you are human; and you have rights because you are human only insofar as having X, Y, and Z is relevant to the overall moral costs and benefits of treating the class of human beings to which you belong as a rights-bearing class. Moreover, having these capacities does not guarantee that you have rights.

A full defense of my account of moral status goes well beyond the scope of this column; and without this defense, it may seem like the cure is worse than the disease.

Nevertheless, the main attractions of my account, I think, are that it avoids the potential circularity of Warren’s approach, as well as the tendency of that approach to devolve into a kind of desultory parlor game in which one tweaks one’s account of personhood ad nauseam to better accommodate intuitions about who has rights. It can also better account for some of those intuitions, although I will not argue that point here.

Even if the reader ultimately prefers the more orthodox philosophical approach to the moral status question, I think there is little doubt that popular discussions of the question are often couched in terms that serve to obscure rather than elucidate. This is one area where philosophy can perhaps be of greatest use — even if it may not be able to resolve the debate, it can help clarify its terms in ways that may facilitate moral and political progress.

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What Toilet Paper Can Teach Us About Climate Change

photograph of empty toilet paper rolls stacked

One of the stranger parts of the COVID-19 pandemic has been people’s sudden obsession with bathroom sanitation. While there was never any pandemic-related disruption to the supply chain, nor the risk of even the strongest lockdown measures in place preventing people from buying essential groceries, many found themselves overcome by a desperate need to panic-buy vast quantities of toilet paper. Ultimately, this created a self-fulfilling prophecy in which paranoid hoarding led to the very shortage that had been feared. A similar scenario played out earlier this year when a cyberattack on Colonial Pipeline led to gasoline shortages throughout the East Coast. Panic-buying ensued once again, with individuals stockpiling vast quantities of fuel and further exacerbating an already struggling supply line.

Many of us might have the intuition that hoarding of this kind is wrong. But why? There are many ways we might try to determine the moral rightness or wrongness of an action. One of the simplest is to see whether it causes harm to others. But that’s not hugely helpful here. Suppose I hold a one-hour exam information session for my class of sixty students. In order to be fair, each student is given one minute in which to ask any questions they might have. Suppose, then, that one student ignores this guideline, and instead monopolizes a total of two minutes for her queries. It seems wrong of her to do this. But why? It’s not clear that her actions harm her fellow classmates. The extra minute she takes only subtracts slightly more than a second from each of their times – hardly enough to make an appreciable difference.

One way of explaining the wrongness of this student’s action is instead to claim that she is taking more than her fair share. We often find ourselves having to divide a finite resource amongst some group of individuals: time in a meeting, pizza amongst friends, holidays between family members. And in each of these scenarios there is, presumably, a fair way of making that division – one that gives full consideration to the interests of all individuals concerned. Once that allocation has been made, exceeding your fair share is wrong, regardless of whether it results in actual harm to others. This is precisely the kind of approach we might take toward food in a famine and water in a drought – and it explains what’s wrong about taking more than your fair share of toilet paper during a pandemic, too.

For many, the fair share approach may be so obvious as to appear trivial. But it can help inform our approach to far more complicated problems – like climate change. In 2011, nearly all countries agreed to limit the global average temperature rise to no more than 2°C compared to preindustrial levels – the maximum global temperature rise we can tolerate while avoiding the most catastrophic effect of climate changes. According to the Intergovernmental Panel on Climate Change, achieving this with a probability of >66% would require us to keep our global carbon expenditure below 2900GtCO2. As at the time of writing, only 605GtCO2 remains. Divided equally amongst the 7.9 billion population of earth, this comes out at a lifetime carbon allowance of 76.6 tonnes of CO2 per person — or around 0.9 tonnes per year over an 85-year lifespan.

Of course, it might be the case that a fair share isn’t necessarily an equal share. Another way of dividing up the carbon budget might be to instead require a proportional reduction in carbon emissions by all emitters. Put another way, this requires that everyone’s emissions peak around 2020, drop 50% by 2045, and fall below zero by 2075. The problematic side of this approach is that it allows historically high emitters to continue to emit at a much greater rate than many others around the world. As such, it provides a far more generous carbon budget for those living in a country like the U.S. According to Carbon Brief, a child born in the U.S. in 2017 will – on this approach – have a lifetime carbon budget of 450 tonnes of CO2, or 5.3 tonnes per year over an 85-year lifespan. By contrast, a child born in the same year in Bangladesh will receive only 4 tonnes of CO2, or 0.05 tonnes per year.

Of course, other factors may come into play in determining what a ‘fair share’ of carbon emissions is for each individual. One such factor is need. Suppose, for example, that I live in a part of the country where the only electricity production I have access to is derived from a coal-fired power plant. In such a case, I might necessitate a higher budget than someone who lives in a location with renewable energy options.

But the precise method by which we determine a fair share of carbon emissions is largely academic. This is because – even on the most generous allocation – we are all still horribly over-budget. In 2019 (the most recent year for which data is available), the per capita carbon emissions of a U.S. citizen was around 16 tonnes of CO2. Ultimately, this means that there is a moral imperative on each of us to do all we can to reduce our future emissions in any way possible. Some actions – like recycling and patronizing public transport – may be easy, but other changes (like the one I suggested in a previous article) may require much greater sacrifice. But without these changes, we – like those who hoarded toilet paper and gasoline – will continue to take far more than our fair share, and subsequently treat others unfairly in the process.

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The Ethics of Pardoning

photograph of Trump pardoning Thanksgiving turkey

Back in October, I read the single greatest news article that I have ever read. It had everything you could want in a story: courage, a murderer turned hero, a thwarted terrorist attack, the London Bridge, a narwhal tusk, and a royal pardon. If you have not already read the article, you absolutely should; each paragraph is better than the one before.

But the story is not only a thrilling and satisfying narrative, it also provides us an excuse to talk about the ethics of pardons. This is a good thing, because I expect that, as happened in previous presidential administrations, we will see a flurry of presidential pardons before president-elect Biden is sworn in. It is always a good idea to think carefully through your principles before there is some controversy where you need to apply them. Otherwise it is far too easy to shift into principles that end up siding with your political tribe after a controversy arises.

Black’s Law Dictionary defines a pardon as “the act or an instance of officially nullifying punishment or other legal consequences of a crime.” In the United States, the power to pardon is possessed by the executive. The president can pardon federal crimes, while governors can pardon state crimes.

When we look at the ethics of pardoning, there are two types of questions we might ask. We might wonder about how extensive the power to pardon should be. These are questions framers ask when structuring a constitutional system. An example question is whether the president should be empowered to pardon him or herself? We might also wonder whether any given pardon is a good idea. These are questions that the executive branch asks before issuing a pardon. An example question is whether President Ford should have pardoned President Nixon. Note that these two questions come apart. Just as I can simultaneously think it is a really bad idea to own a gun and also think people have extensive rights to own guns if they choose to, so I can think that most pardons are a bad idea and yet also think the president should have broad power to pardon.

There are fascinating questions about how extensive the presidential power to pardon should be. But here I want to look at the second set of questions. Suppose that the president is empowered to pardon someone, when is it appropriate to exercise that power?

One context where pardoning might make sense is when the president believes a criminal trial was unjust, either in process or outcome. A recent example of this is President Trump’s posthumous pardoning of the Boxer Jack Johnson. While there are many checks internal to the judiciary, the presidential pardon is probably the largest external check on incorrect judicial decisions.

Another context where pardoning seems justified is where the judicial branch properly applies the law, but where peculiar circumstances make the application of the law unjust. This is the justification for the presidential pardon given by Alexander Hamilton in the Federalist Paper No. 74. Alexander Hamilton explains the power to pardon is important because criminal codes have a “necessary severity” and so “without an easy access to exceptions in favor of unfortunate guilt” justice would often end up too “cruel.”

Of course, neither of those two justifications are operative in this narwhal story. According to the NYTimes, in the U.K. “pardons for early release are generally recommended by officials in exceptional situations, such as if a prisoner risks his safety to prevent death or serious injury to another.” Here, the idea is that pardons might be a way to recognize something particularly remarkable about an individual.

And indeed, many pardons do seem to track something about the individual. For example, it is not uncommon that famous people are much more likely to receive pardons for crimes. This may in part be in recognition of their accomplishments, but it is also simply a consequence of being much more likely to be brought to executive attention.

This brings us to one of the biggest worries about the use of pardons, namely that they are idiosyncratic and thus seem in tension with a commitment to equal treatment under the law. Suppose I am also in jail in the U.K. for murder. It could be that I, like Steven Gallant, turned my life around, am close with my child, and act as a role model and mentor. However, none of that will be enough to secure a pardon, I also need to have the opportunity to do something heroic. Opportunities for heroism, however, are not evenly distributed throughout society. And thus some people will have access to pardons that others do not, merely as a matter of luck.

Indeed, this worry about the idiosyncratic nature of pardons applies even to pardons designed to act as a check on the judiciary. This issue is examined in detail in The West Wing episode “Take This Sabbath Day.” President Bartlet faces the question of whether to commute the sentence of a man soon to be executed. President Bartlet, who is Catholic, believes the use of the death penalty is unjust. However, he also worries about punishment for a crime changing based on the beliefs of whoever happens to be president. Toward the end of the episode he expresses his frustration:

“I commute this guy, for no particular reason other than I don’t like the death penalty . . . And the next president sees it in a different way. . . .  We cannot execute some people and not execute others depending on the mood of the Oval Office. It’s cruel and unusual.”

So what should we think about this worry concerning equal justice?

It is actually a tricky legal principle. Is it unjust to give a good thing to one person, if you cannot also give the same good thing to others who are equally deserving? Obviously, certain motivations for giving the good thing only to some people are unjust. For example, if you pardon one person and not the other because the one person is famous, then you are doing something wrong. But what if you would be willing to pardon anyone in that situation, you just know you will only hear about famous people. Then is it still unjust to pardon the famous? This question has important parallels. It would be unjust if I chose to only give money to white beggars and not to black beggars. But would it be unjust if I gave money to every beggar I see, I just also happen to live in a part of town where almost all the beggars I see are white?

It seems plausible that in the interpersonal case, one does not need to be too concerned about the unequal application of personal charity. However, it also seems plausible that in cases of criminal law, we have special reason to maintain not just justice before the law, but also the equality of all persons. It matters, if for no other reason that it not look as though the rich and famous get access to extra opportunities to avoid punishment.

If you think that it is important that everyone have an equal chance before the law, then the use of the power to pardon should be extraordinarily rare. If, instead, giving a good thing to someone is still good, even if you can’t also give it to another, then probably the presidential pardon is an underutilized tool.

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The Ethics of the Masterpiece Cake Shop Decision

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On June 4, The Supreme Court announced its 7-2 ruling in favor of a baker who refused to bake a cake for the wedding of a same-sex couple.  The public response was intense on both sides. People took to the streets and to social media to express their attitudes about the decision.  One common misconception in the popular commentary on this topic appears to be that the Court ruled that places of business have the right to discriminate against patrons for religious reasons.  The Court’s decision was actually much narrower. It did not create a religious exemption from anti-discrimination laws.

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For Testosterone Testing in Sports

Image of numbers on the lanes of a running track.

In my last post, I explained that the IAAF has a new policy on testosterone testing for female athletes. See that post for the details. I presented an argument against testosterone testing in sport and now I’ll present an argument for it. Which is the better argument? You decide. (Full disclosure: I don’t know.)

The first thing we need to consider is why sports are gender-segregated. It’s not because there’s a need to segregate people with different gender identities (why would we do that?). Sports are gender-segregated for reasons having entirely to do with bodies. The crux of the matter is that people with female bodies would be at a tremendous disadvantage if they competed against people with male bodies. Averaging over different sports and different individual people, male bodies have a 10 percent advantage. With gender mixing, the female-bodied wouldn’t as often qualify for and win events. To enjoy all the goods associated with sport, people with female bodies have to compete amongst themselves.

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In the Boy Scouts, Making Room for More than Just Boys

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In October of last year, the Boy Scouts of America announced that the organization would begin admitting girls.  Cub Scouts, the organization for youths 7-10 years old, will begin welcoming girls this summer.  The program for youth 11-17—The Boy Scouts—will change its name to Scouts BSA and will begin accepting girls, providing a pathway for young women to become Eagle Scouts.

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When Men Dominate the Film Industry, What’s the Problem?

Watching the Oscars recently, I was struck by the fact that, for all the emphasis on women over the last year because of the #metoo movement, the winners were still mostly a parade of men. Greta Gerwig did not win for her wonderful movie Lady Bird; Guillermo Del Toro won for the overly contrived movie The Shape of Water. Yes, there were female winners in the acting categories, but there have to be: those categories are gender-segregated.

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Tax Reform and the Value of Economic Equality: Part Three

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Egalitarianism is the assumption behind the criticisms of the recent Republican tax reform legislation (“The Tax Cuts and Jobs Act”) that were presented in the first two parts of this series. Egalitarians of all stripes believe that all persons deserve equal moral consideration. Unequal treatment is the exception and needs justification. Egalitarians disagree on what is required by equal moral consideration. Most egalitarians would criticize the Republican tax legislation for disproportionately benefiting the rich and exacerbating economic inequality in the United States.

The argument in Part One held that economic equality was itself desirable, while the argument in Part Two held that a more economically equal society is desirable because it would promote a society where everyone was treated as equal citizens. Both arguments presume that all persons deserve equal consideration in policy decisions; they just disagree what that consideration would entail regarding the distribution to tax benefits and burdens.

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Let Them Eat Cake: Public Accommodations and Religious Liberty in Colorado

A photo of a man waving an LGBTQ+ rainbow flag outside the Supreme Court

On December 5, the US Supreme court heard arguments in the case of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.  This case gives the newly minted Trump majority an opening to rethink public accommodations law. Currently, 45 states have laws that prohibit discrimination by businesses offering public accommodations: loosely, those offering goods or services to the general public. (The federal government claims some scope for jurisdiction under the interstate commerce clause.) These laws have always been controversial.  Most recently, evangelical Christians have been arguing that these laws are too broad. The court has a chance to narrow the scope of public accommodation laws: prohibiting discrimination only in more narrowly defined range of essential accommodations.

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Gender Segregation: Empowering or Exclusive?

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This article has a set of discussion questions tailored for classroom use. Click here to download them. To see a full list of articles with discussion questions and other resources, visit our “Educational Resources” page.

With over $400 million dollars in North American profits, Wonder Woman has set the record for the biggest U.S. film opening with a female director. Even before setting this record, the 2017 comic book adaptation was heralded by many as a feminist film, including actress and former Wonder Woman Lynda Carter. Despite its success, the film was not without criticism, with some women claiming that they did not find the film empowering, and even that it ignores non-white women. Perhaps the biggest controversy surrounding the film has to do with a Texas movie theatre, which offered “women-only” screenings of the film back in June. This decision was met with a wave of retaliation, accusations of discrimination, and even a lawsuit. Is it sexist to provide a women-only screening of the film? Is it fair to call the movie theatre’s actions as feminist? And most importantly, how does this reaction reflect American society’s tolerance, or lack thereof, of gender segregation?

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Do Harvard’s Final Clubs Undermine Equality and Inclusion?

A recently released report from a Harvard panel of faculty members recommended that Harvard adopt an outright ban on student participation in unrecognized social clubs such as “Final Clubs,” fraternities, and sororities. These organizations have not had official recognition from Harvard since 1984, when such formal recognition was rescinded because these social clubs refused to end membership policies discriminating on the basis of gender. In May 2016, Harvard decided to penalize anyone who joins these single-gender social clubs by banning student members from “holding athletic team captaincies and leadership positions in all recognized student groups. They will also be ineligible for College endorsement for top fellowships like the Rhodes and Marshall scholarships.” The report from the faculty panel takes the May 2016 policy to its natural conclusion: an outright ban.

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A Controversy around the Cheerleading Industry

It is not uncommon to see cheerleaders at every professional sports game. They usually comprise young, mostly white women who have a profession outside their cheerleading careers. A game pamphlet typically has information about the team’s cheerleaders – not only their names and pictures, but also their occupation and age are made public.

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Social Issues as Product Promotion: Exploitation or Artistic License?

On April 4, Pepsi recalled an ad less than 24 hours after its release on account of ridicule for its insensitivity towards social justice movements. In the ad, Kendall Jenner is in a photoshoot when she notices a protest occurring outside. Prompted by a head nod from one of the protesters, she joins the crowd and eventually hands the police officers on duty a Pepsi; outbursts of applause and cheering come from the crowd when the officer accepts the Pepsi.

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