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The Melodrama of the United States Postal Service

photograph of rusty mail boxes in rural New Mexico

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.

“Neither snow nor rain nor heat nor gloom of night stays these couriers from the swift completion of their appointed rounds,” reads the motto of the United States Postal Service (USPS). But what neither acts of god nor nature can impede, politics can grind to a halt. The USPS has become another among many points of contention between Democratic politicians and the administration of President Donald Trump. But for an institution that predates the United States itself, political struggle is old hat.

The current issue facing the USPS is alleged by the Trump administration to be simply financial. It’s a poorly run business hemorrhaging money, according to new Postmaster-General  Louis DeJoy. Appointed in June 2020, DeJoy previously worked in the private sector as a management consultant for supply chain logistics. His appointment was criticized by Democratic lawmakers as blatantly partisan, as DeJoy is a significant political contributor to the the Republican Party and has never previously worked in the USPS. (New Breed Logistics, of which DeJoy was the CEO at the time of its sale to XPO Logistics, did work extensively with the USPS during DeJoy’s tenure.) Moreover, the restructuring measures DeJoy has executed are being decried as a deliberate effort to suppress voting by sabotaging the viability of mail-in ballots ahead of the November 2020 presidential election. Limits on overtime pay, and a policy of holding until the next day mail that cannot be delivered within scheduled working hours, have led to massive delays to mail service in Philadelphia. Some residents have gone up to three weeks without receiving scheduled deliveries.

USPS financial troubles are not a fiction, and they have been exacerbated by the COVID-19 pandemic. However, the postal woes are due largely to external factors rather than bad management. In fact, bipartisan legislation burdened the USPS with tremendous financial obligations. The Postal Accountability and Enhancement Act (PAEA) of 2006, Section 803, requires of the USPS something required of no other institution in the US. The USPS must fully fund the projected future healthcare expenses of retired postal workers each fiscal year. Even this extraordinary requirement wouldn’t have led to such deep financial problems for the USPS, but for the Great Recession of 2007 and the COVID-19 pandemic. Both circumstances depressed the already shrinking volume of letters and first-class mail from which the USPS used to derive much of its revenue.

But the existence of financial problems, whatever their provenance, is a red-herring according to Philip Rubio, historian and author of Undelivered: From the Great Postal Strike of 1970 to the Manufactured Crisis of the U.S. Postal Service. The USPS remains tremendously popular and effective. It delivers many times more items than FedEx and UPS combined, and delivers to many more places than any other service in the US. Rather than thinking of the USPS as a business, Rubio urges that it should be thought of as a public service. It is not meant to be profitable, competitive, or even self-sufficient, but to provide a necessary service and to serve as a tool of federal power. The monopoly the USPS has over the delivery of letters was given to it by Congress between 1845-1850, when they effectively legislated competing courier services out of existence. Without legislative intervention, the USPS would likely have been displaced long ago. But with the support of Congress, the postal service has largely grown and thrived.

This is the crux of the postal melodrama. It is another theater of the conflict between the self-styled champions of free markets and their sworn enemy — government services. The billionaire conservative political donor, Charles Koch, spent years fomenting political action against the USPS. The politically libertarian Cato Institute routinely publishes paeans of postal privatization, calling for the invisible hand to unmake what the US Constitution wrought. As always the argument is that stifling competition is bad: bad for the consumers who might see better service and lower prices; bad for entrepreneurs who might make their fortunes but for being stifled by legislative meddling; and bad for the companies that “benefit” from regulation because they stagnate. Proponents of privatization look at the example of several European nations that have (partly) privatized their post: the Netherlands, Germany, and England for example. Germany’s DeutschePost DHL Group has become a diversified, global company that continues to run a profit, even during the COVID-19 pandemic. Privatization has allowed cost-cutting steps for the postal service in the Netherlands, which stopped Monday delivery due to an overall decline in postal volume — though such changes still have to be approved by Dutch parliament. Why do such changes still have to be ratified by the legislature if the post is private? Because they are still mandated by law to provide universal letter courier services.

Stressing the universal service mandate is the counterargument made by opponents of privatization when they claim the USPS is a public service rather than a business. Without mail delivery many people wouldn’t get their paychecks, medicine, tax forms, family newsletters, etc. While a private company could provide these services, to those willing to pay fair market rate, the question is whether the market should be allowed to dictate the price and availability of such services. Others argue that replacing the trusty old post office with a soulless corporate delivery and logistics firm would eliminate the community binding role that local post offices play in small and rural communities.

But even necessary services, like utilities, are often private companies — both in the United States and abroad. Private companies that provide gas, electricity, and telecommunications services are subject to governmental oversight but still run in order to turn a profit for their owners or shareholders. Both private and public models can work — so the issue is ultimately one of principle. The question to ask is what services do we as a society want to allow to be governed by a principle of profit; and are there any services that it is immoral, or just unwise, to allow to be so governed? Libertarian-minded people will argue, as they are want to do, that any restriction on people entering freely into contracts with each other is morally and politically destructive. Others will counter that this is a nice, abstract fantasy that doesn’t capture the real relations of political and economic power among individuals enmeshed in historic systems of oppression.

Even before the COVID-19 pandemic and the political tug-of-war in the US over mail-in-voting, the USPS has been a political target for free-market advocates. The timing of the restructuring of the USPS and subsequent delivery slowdowns strikes many seeking President Trump’s ouster as suspicious. It coincides with his unfounded, but frequently stated, concerns about voter fraud and suggestion that the November 2020 election be delayed. We should all watch intently the continuing saga of the USPS.

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The BARD Standard and Justified Execution

photograph of symbol of law and justice in the empty courtroom

On June 15, 2020, the United States Department of Justice announced that it will resume executing criminals after a 17-year hiatus. Two weeks later, the Supreme Court declined to hear a challenge to the federal death penalty method, allowing the executions of four convicted child-murderers to go forward in July and August. On July 14, the first of those executions was carried out. Only three federal executions have taken place since the federal death penalty was reinstated in 1988.

Many critics of capital punishment argue that the death penalty is unjust given the glaring procedural problems with all modern justice systems, such as the disproportionate application of the penalty to minorities. This is a worthy argument, but it leaves open the possibility that capital punishment could be just within the context of some justice system. However, I would like to advance an argument that capital punishment is wrong not just in practice, but in principle: that is to say, even if the various elements of the justice system functioned perfectly, capital punishment would almost certainly lead to unacceptably unjust outcomes.

A cornerstone of the criminal justice system is the evidential standard used to determine legal guilt by a jury or judge; that standard is known as proof beyond a reasonable doubt (BARD). There is considerable debate about how to interpret this standard, but all agree that it does not mean proof beyond all doubt: jurors need not be objectively certain that the defendant is factually guilty given the evidence presented by the prosecution in order to find her legally guilty. As a result, a defendant can be found guilty BARD and yet be factually innocent. Thus, the “false positive,” in which juries find a factually innocent defendant legally guilty, is a possible outcome of any justice system that uses the proof BARD standard (or any standard short of certainty), no matter how well-designed or -executed.

How likely is a false positive when juries perfectly apply the proof BARD standard? There is no single accepted definition of proof BARD, but we can use the Eighth Circuit Court of Appeals’ model jury instruction as a representative example. The Court says that “proof beyond reasonable doubt…must be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it.” In scientific fields that use statistics to study interactions among characteristics of populations, such as economics, social psychology, and sociology, researchers take themselves to have sufficient warrant to accept a hypothesis if, given the data, the probability of rejecting the null hypothesis even though it is true is 5% or less. The scientific method is often taken to be the gold standard of empirical inquiry, so ought we conclude that proof BARD is proof such that conditional on it, there is a probability of at most 5% that the defendant is innocent? Adopting this interpretation would entail that when applied perfectly, as many as 1 out of every 20 defendants found legally guilty will be factually innocent. Suppose we decrease the required significance level to 1%. On this standard, and again even assuming that everything goes perfectly, as many as 1 out of every 100 defendants found legally guilty will be factually innocent. To put these fractions into perspective, there have been 1518 executions in the United States since 1976.

An opponent of capital punishment can plausibly argue that the false positive rate of either interpretation of proof BARD makes the death penalty morally impermissible. The fundamental premise of the argument is, as a first pass, that it is wrong for the state to kill an innocent person because it harms her in the worst possible way, and can also seriously undermine confidence in the justice system. As we will see, this premise will require some qualification in response to objections, but the unqualified version will suffice as a start. If it is wrong for the state to kill an innocent person, and the justice system will produce false positives even if it functions perfectly, then in order to avoid wrongdoing the state must not use the death penalty.

An advocate of capital punishment might point out that we tolerate the same false positive risk when the possible punishment is less severe than death, such as life imprisonment without parole. However, one key difference is that any punishment other than death can be appealed and at least partly prevented, while death’s permanence is unique. Once an innocent person is executed, the harm done to them is complete and irremediable. By contrast, when an innocent person is wrongfully imprisoned, the harm done to them before they can successfully appeal may be only partial and can be compensated.

Another objection targets the argument’s fundamental premise, pointing out that it is inconsistent with our practice of empowering police officers to use lethal force against those who pose an imminent threat to others. Giving police this power obviously involves the risk that officers will kill or injure innocent people, mistakenly believing them to be threats. However, one plausible reply is that the imminent lethal harm that can be prevented through the police’s use of force on balance justifies the risk that police will kill or injure innocent people. By contrast, the harms of judicial killings of innocents are not counterbalanced in this way, since factually guilty defendants do not pose a lethal threat after they are apprehended and jailed.

It is important to be clear that this reply does not say that all police killings are justified. Rather, it says that if giving the police the right to use lethal force is justified under some circumstances, such as when the police reasonably believe that someone poses an imminent threat of lethal force against others, then some police killings of innocents are justifiable. Just as the BARD standard inevitably allows false positives, any standard for justified police force other than absolute prohibition could be satisfied by the police when they mistakenly use lethal force against innocents.

If we are to allow that the killing of innocents by police is sometimes justified, then the fundamental premise of the argument against capital punishment has to be qualified. The precise nature of the qualification will depend upon the standard for the use of lethal force by police that we choose to adopt, but it will be something like that it is wrong for state actors to kill innocent persons if those actors do not reasonably believe that they pose an imminent risk to others. With this qualified premise, the argument against the death penalty is as follows. Assuming that juries apply the BARD standard perfectly, there will almost certainly be cases in which innocent people are found guilty of capital crimes and executed. The state cannot reasonably believe that death row inmates pose an imminent risk to others. It is wrong for state actors to kill innocent persons if those actors do not reasonably believe that they pose an imminent risk to others. Therefore, it is wrong for the state to use the death penalty.

Finally, the advocate of capital punishment might suggest that in order to reduce the likelihood of error, death penalty cases ought to be tried by a special commission of highly qualified people instead of ordinary jurors. But this suggestion mistakes the nature of the argument advanced in this column. The argument is not that the death penalty is impermissible because ordinary jurors are likely to make mistakes in applying the BARD standard—although this might well be true—but that even if the BARD standard is applied perfectly, it still entails false positives. Given this, it is irrelevant whether death penalty cases are tried by judges, jurors, or other experts; as long as the BARD standard is used, false positives are almost certain to occur.

The U.S. justice system is riddled with procedural problems that may be sufficient to make the death penalty immoral. What I hope to have shown is that even if all of these problems were fixed, the death penalty would still be immoral. If that’s true, then efforts to reform the death penalty system will inevitably fail, and abolition is the only morally defensible course.

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Dungeons, Dragons, and Du Bois’ Race Problem

photograph of D&D figurines and dice

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.

On June 17th, Wizards of the Coast — the company that owns and manages the role-playing game Dungeons and Dragons — released a statement about its plans to update the official rule sets and materials describing the fictional worlds of D&D. In addition to hiring new staff (including sensitivity readers) and altering the canonical depictions of some fictional people groups that “echoed some stereotypes” of real-world cultures, Wizards of the Coast is intentionally working to eliminate the role of racial attributes and cultural essentialism within the fantasy game. Specifically, this will mean shifting character-creation techniques to center individualized player choices about a character’s background (rather than making certain features dependent on the character’s race) and, most notably, recasting the two “evil” races within D&D as people groups that are “just as morally and culturally complex as other peoples.”

If you’re not already familiar with Dungeons and Dragons, much of that last paragraph probably sounds pretty odd. First published in the 1970s, D&D is a tabletop role-playing game (RPG) that offers a basic set of rules for players to follow as they collectively tell a make-believe story about heroes and villains in a fantasy world. Perhaps most famously, these sorts of RPGs use dice rolls to randomize the outcomes of various in-game events, allowing players opportunities to cooperatively and creatively react to unexpected elements of the imaginary scene. Often, those dice rolls are modified by various attributes of your player-character and, to date, at least some of those modifications have been pre-set based on which of the several fictional races (like elves, tieflings, and dragonborn) your character represents. And, while the story of each game of D&D is unique to the group of people (or “party”) playing, Wizards of the Coast regularly publishes a wealth of materials to help parties create the worlds of their stories.

The announced changes to D&D amount to a shift away from an essentialistic approach to race or culture within the game — an approach long-criticized in both Dungeons and Dragons and the fantasy genre writ large. Such a story-telling technique treats a character’s biology or social origin as necessarily constraining their personality, worldview, or moral compass, such as when Rowling’s giants or Tolkien’s trolls are treated as hopelessly evil enemies for the heroes to simply eliminate. According to the most recent Dungeons and Dragons Player’s Handbook, the drow (or “dark elves”) are a “depraved” race of people who are “universally reviled” after their ancestors followed a path “to evil and corruption;” players who choose to role-play as a drow are encouraged to treat their characters as unusual individuals who have “develop[ed] a conscience.” Similarly, D&D presents the orc race as a monstrous, violent culture bent on waging “an endless war against humans, elves, dwarves, and other folk.” If players choose to create a half-orc character to role-play (full orcs are not officially valid options), the Handbook advises that evil impulses and desires will necessarily “lurk within them, whether they embrace it or rebel against it.” Although it remains to be seen how Wizards of the Coast exactly plans on presenting the orcs and drow “in a new light” going forward, the way they have presented these races to this point is plain.

While the response to Wizards of the Coast’s announcement seems to have been largely positive, it has not escaped criticism. Most detractors argue that these rule shifts are unnecessary, either because they will do little to prevent actual racism in the real world or because the classic presentation of orcs in D&D isn’t racist in the first place. Some have suggested that the publishers of D&D have actually been fooled by supposedly-disingenuous protestors interested more in social control than social justice. One need only look to the responses on Wizards of the Coast’s Twitter thread or the comments on, for example, Breitbart’s coverage of the story to see such attitudes.

But these critiques fall flat. Even if used simply to promote seemingly-innocent story-telling tropes or to simplify morality narratives for easier digestion, any reliance on cultural or racial essentialism — even just narratively — is ethically perilous (and, incidentally, aesthetically lazy). The point is not that “racists portrayal of these fictional peoples will promote racist treatment of non-fictional peoples,” but rather that employing racial essentialism of any stripe legitimates — even unconsciously — an unavoidably immoral way of viewing the world (regardless of whether that world is Abeir-Toril, Arda, or Earth).

It is a way of viewing the world which W.E.B. Du Bois describes as “a vast veil” that shuts people out from the worlds in which they belong. Speaking from his own experience as a Black man at the turn of the 20th century, Du Bois traces how his personal experiences of racism in post-Reconstruction America mirrored wider social policies designed to maintain the cultural homogeneity of the United States in the wake of Emancipation. Time and again, Du Bois recounts stories of how relatively mundane — and, perhaps, unintentional, in some cases — choices led to him being routinely set apart from the people around him. Consider this anecdote from when Du Bois was a college student looking for work as a teacher in Tennessee:

“I remember the day I rode horseback out to the commissioner’s house with a pleasant young white fellow who wanted the white school. The road ran down the bed of a stream; the sun laughed and the water jingled, and we rode on. ‘Come in,’ said the commissioner,—’come in. Have a seat. Yes, that certificate will do. Stay to dinner. What do you want a month?’ ‘Oh,’ thought I, ‘this is lucky’; but even then fell the awful shadow of the Veil, for they ate first, then I—alone.” (The Souls of Black Folk, ch. IV)

The Veil comes from the often-unspoken set of assumptions about what counts as “normal” in matters of race and culture against which everything, including even relatively small and otherwise-unimportant actions, is tacitly judged. The Veil is also a manifestation of one form of racial essentialism that judges (even implicitly) individuals in virtue of their biology, rather than their unique personalities and histories.

Now, don’t misunderstand me: my point is not that a fictional orc is necessarily wronged by a Dungeons and Dragons player treating it like a monster (nor is it that a player who doesn’t care about orcs will also not care about flesh-and-blood humans). Instead, my point is that carefully considering both the intentional and unintentional messages of our cultural artifacts (like D&D) is an important part of being responsible people who care about our fellow citizens; this is precisely what Wizards of the Coast has started to do. Suggesting that the kinds of racial and cultural essentialism long-incorporated into Dungeons and Dragons is valid somewhere, even just in a fictional context, requires us to say (or at least operate on the assumption) that it is not inherently unethical — that is a morally indefensible position.

Echoing Fredrick Douglas before him, Du Bois famously wrote that “the problem of the twentieth century is the problem of the color-line — the relation of the darker to the lighter races of men in Asia and Africa, in America and the islands of the sea.” In this regard, the twenty-first century is no different: what Du Bois called the “race problem” remains, both in explicit, intentional acts of racist oppression and, far more frequently, in the unthinking assumptions that lead many to uphold the Veil, however accidentally. Defenses of racial essentialism, wherever they may appear, contribute to this in their own way by tacitly legitimating a fundamental component of the Veil’s operation.

(It’s also worth pointing out that the stereotypical depiction of orcs and “dark elves” likewise demonstrates Du Bois’ separate point about a curiously European theory of human culture wherein “Everything great, good, efficient, fair, and honorable is ‘white’; everything mean, bad, blundering, cheating, and dishonorable is ‘yellow’; a bad taste is ‘brown’; and the devil is ‘black.’” Considering the potential contributions of such imagery to the contemporary real-world Veil is an exercise left to the reader.)

Given both the inherent customizability of the game and its five-decade-long history, it is not possible for Wizards of the Coast to simply change by fiat how all parties will play D&D, but the company is taking visible steps to improve how racial diversity will be officially represented going forward. Given that the popularity of Dungeons and Dragons has skyrocketed in recent years (including being prominently featured in Netflix’s hit series Stranger Things) and the lockdowns resulting from the COVID-19 pandemic have only spurred greater interest, it is good to see Wizards of the Coast clearly demonstrate that it wants “everyone to feel at home around the game table and to see positive reflections of themselves within our products.” Analyzing how the Veil might nevertheless affect both the worlds and the players of Dungeons and Dragons, even unintentionally, is an important part of engaging with this sliver of our culture’s much larger race problem.

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Removing Monuments, Grappling with History

Statue of confederate general Robert E Lee with spray painted writing on plinth

In the wake of nationwide protests against racial discrimination by the police, politicians and activists in a number of American cities have called for the removal of monuments to Confederate leaders from public spaces. The U.S. military even expressed its willingness to rename military bases named after Confederate generals. Some activists took matters into their own hands, toppling statues or defacing them with red-painted slogans and symbols.

Supporters of removal argue that Confederate monuments harm people of color by conveying messages of support for white supremacy. Critics allege that there is a slippery slope from Confederate figures to the Founding Fathers or Abraham Lincoln. They also claim that removing monuments is tantamount to an Orwellian erasure of history, the sort of practice one would expect in totalitarian regimes, not democracies. So, what should we do with the statues? 

Let’s examine the arguments in greater detail. The argument that Confederate monuments harm people of color is based on a claim about what the monuments mean, or what messages they convey. The intentions of their creators are a particularly important source of their meaning, since they determine such basic facts as what and whom they represent, as well as the values they express. Most monuments to the Confederacy were erected either in the wake of Reconstruction or during the Civil Rights movement, when African-Americans in the South were agitating for greater political power and social equality, and they were intended to express opposition to these developments. Even apart from this history, monumental, idealized depictions of leaders of a state dedicated to the perpetuation of racial slavery are reasonably interpreted as endorsements of the values the Confederacy embodied. And when these monuments are sited on public land, as most are, this can be reasonably interpreted as conveying the endorsements of the public and the state.

Why does this matter? As the philosopher Jeremy Waldron points out, public art and architecture are important means by which society and government can provide assurances to members of vulnerable groups that their rights and constitutional entitlements will be respected. Such assurances are an important part of people’s sense of safety and belonging. But when the public art of a society instead conveys endorsements of subordination and discrimination, this robs members of vulnerable groups of these assurances, transforming the public world into a hostile space and encouraging withdrawal into the private sphere. Thus, vulnerable groups that are intimidated by monuments that express approval for their subordination may be less able to advance their political, social, and economic interests. Importantly, none of these baneful consequences turn on anyone’s being merely offended by racist monuments.

What about the claim that tearing down Confederate monuments will inevitably lead to the removal of monuments to the Founders and other beloved figures? There is a kernel of truth to this argument: questioning the appropriateness of honoring Confederates likely will lead to questioning society’s attitudes towards other historical figures. But it is not clear that this should not happen. At the same time, there are morally relevant differences between some historical figures and others. For this reason, reducing the harms caused by monumental depictions of some historical figures need not always require removing them from public space. What government needs to do with respect to those monuments it wishes to keep on public display is (1) forthrightly acknowledge the problematic aspects of a historical figure’s legacy; (2) endeavor to reduce the harms that might be caused by the monument; and (3) provide an adequate justification for not removing the monument from the public space. For example, while Abraham Lincoln’s actions towards Native Americans were reprehensible on the whole, there is a good case for honoring those aspects of his legacy that continue to inspire citizens of all backgrounds. Yet the less honorable episodes of his presidency ought to be acknowledged alongside celebrations of his achievements. 

Some claim that removing monuments constitutes an erasure of history, comparing it to burning books. If “erasing history” simply means “destroying something that existed in the past,” tearing down a monument erases history in precisely the same way as tearing down an old house. But as this example suggests, there are many cases of erasing history that seem morally unobjectionable, and the mere fact that something from the past will cease to exist is not in itself a reason to preserve it. Opponents of taking down the monuments sometimes argue that they teach us important lessons about our shared history. This argument at least offers a reason why it might be desirable to preserve this particular class of objects. The trouble is that the story they tell is often distorted and misleading precisely because they were intended not to educate, but to intimidate one group of citizens and cultivate admiration for the Confederacy in another. Monuments are more like billboards than books. Museums can educate the public more effectively than monuments, and without the negative consequences described above. Indeed, in some cases, monuments have found new homes in museums, where they can be properly contextualized for public consumption. 

 As Americans continue to grapple with their history, it seems likely that monuments to the Confederacy will not be the last lapidary victims of our historical reappraisals. But at least with respect to Confederate monuments, public opinion is coming around to the fact that this is a necessary and justified concomitant of the effort to make our society more equal and more just. 

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Freedom of Religion Is Not Absolute

photograph of empty church pews

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.

On April 7, 2020, prior to the Easter Holiday on Sunday April 12, 2020, Kansas Governor Laura Kelly issued an executive order which, among other things, had the effect of limiting the size of religious gatherings to fewer than ten people. Gov. Kelly’s order differed from similar stay-at-home orders issued by the governors of other states during the COVID-19 pandemic, like Florida’s Gov. Rick DeSantis, in that it did not include an exception for religious services. Subsequently the Legislative Coordinating Council of the Kansas State Legislature voted to revoke nearly all of Gov. Kelly’s emergency powers asserted in her executive order. Gov. Kelly then sued the Legislative Coordinating Council (LCC) for attempting to impede her constitutional powers as the executive of Kansas. Subsequently the Kansas Supreme Court upheld Gov. Kelly’s order, thus overturning the vote of the LCC.

The reporting on this case frames it as a decision between public health and religious liberty. This was, in fact, one of the stated concerns of the Kansas State Legislature’s LCC. However, the Kansas Supreme Court’s decision did not directly touch on issues of religious liberty. Instead the court reached its decision on procedural grounds, arguing that the Kansas State Legislature in general could not be a party to this lawsuit and that further the LCC did not have the authority in this instance to revoke Gov. Kelly’s executive order. That is, the LCC’s vote was null and void, as if it had never occurred.

Let us suppose, however, that the court had deigned to examine the constitutionality of Gov. Kelly’s order with respect to freedom of religion. Would they inevitably have found that the freedom of religion of the citizens of Kansas has been impaired? After all, the First Amendment in the US Bill of Rights says that Congress shall make no law restricting the free exercise of religion. Further the Kansas Constitution’s Bill of Rights says something similar in its seventh section, stating that its citizens will never have their right to worship God according to their conscience infringed. Despite this uncompromising rhetoric, it is not a forgone conclusion that the court would have found in favor of the LCC.

No person’s rights exist in a vacuum. Each right that one person bears creates corresponding obligations on the part of other people, groups, or institutions. Your right to the free exercise of religion creates an obligation on the part of various levels of government, at the very least, to refrain from interfering in how you choose to worship. However, that doesn’t allow you to do anything you please to me under the auspices of your religion. My own right to religious freedom, among the others I bear, must also be safeguarded by the government. Should your freedom of religion come into conflict with some right of mine, some form of adjudication would be needed. In other words, which have been attributed to numerous writers, “Your rights end where my nose begins.”

Here we can make sense of an important concept in arguments about constitutional law—the idea of a strict scrutiny. A case in which it is alleged that a fundamental right has been infringed, or in which a law is alleged to be enacted or enforced selectively against a “suspect classification” (e.g., religion or nationality) compels the court to review that case under standards of strict scrutiny. Among other things the government must demonstrate that its actions, where they infringe upon a fundamental right or disproportionately affect a protected group, do so for a compelling interest. What might such an interest be? For example, protecting another group’s fundamental rights. Hence the government may restrict your freedom of religion, to the minimum extent possible, if doing so is an effective and direct way to protect other citizens’ right to life. (That is, in judicial jargon, the government’s actions are “narrowly tailored” to achieve its compelling interest.)

Do orders like Gov. Kelly’s satisfy a strict scrutiny test? They clearly do. The state has a compelling interest to protect the lives of its citizens. Moreover, the restrictions laid out by stay-at-home orders are narrowly tailored; they prohibit physical gatherings of more than ten people, except for essential activities. This is narrow tailoring because it limits the breadth of the restrictions as much as possible. The restrictions would fail to be narrow if they, for example, forbade any people from coming within ten feet of each other for any purpose whatsoever. Nor are virtual gatherings forbidden. (Many worshipers are taking advantage of various teleconferencing technologies to observe their religious holidays responsibly.) Further, any gatherings that do occur should involve significant physical distance between each participant. These requirements are in line with epidemiological guidelines for minimizing the likelihood of viral spread by bodily contact and aerial exchange. Hence the restrictions are also directly linked to the achievement of the compelling interest to protect the lives of citizens.

Is all of the grand rhetoric about inviolable and inalienable rights just so much hot air, then? What can it mean that Congress shall make no law limiting the free expression of religion if it is acceptable that people should sometime be limited in the expression of their religion? It means simply that the government—or at least parts of it, occasionally—realizes that rights are things held in common by all citizens at once. The adjudication of conflicting rights claims ought not be interpreted as a decision that some kind of right, or some particular person’s right, has mysteriously evaporated for a time. Rather it ought to be interpreted as courts figuring out exactly how all citizens can bear all fundamental rights at all times. Only a narrow and selfish view of your rights can lead you to insist that you can indulge yourself at the cost of other citizens’ life and liberty.

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On the Question of Strategic Voting

photograph of "voting" sign on a wall

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.

On October 21st Canada elected a new parliament. In this election the issue of strategic voting became prominent. There were six political parties considered to be capable of electing members to parliament. Three of those parties are commonly grouped as “progressive,” including the Liberal Party who won a plurality of seats in the election, the center-left New Democratic Party (NDP), and the environmentally focussed Green Party. Because of this competition voters had to weigh the option of voting for the party that is their first choice or strategically voting for a party that is less favored but more likely to win in order to avoid victory for a party that is more strongly opposed. This tactic has been discussed and debated amongst those in the media and in the academy. Strategic voting is an ethical issue because it can affect the quality of democracy, however even the language used to discuss the issue reveals something about how we make value judgments.

In Canada certain electoral ridings tend to be traded back and forth between the Liberal Party and the Conservative Party. If a voter prefers the NDP, for example, they are confronted with a choice: They can vote according to preference, even though it may be very unlikely those candidates will win, or they might decide to vote tactically. While they may not prefer the Liberal candidate to win, they may want the Conservative candidate to win even less; the voter may then strategically switch their vote for the Liberal Party in order to avoid a Conservative victory. The effect is that the vote share that would normally go to the NDP or the Green Party is suppressed.

This phenomenon is not foreign to American voters. Political scientist Gar Culbart has analyzed data from four presidential elections and found evidence that primary voters tend to select candidates more likely to win the Presidential election, rather than their first-choice preference. But strategic voting can apply past the nomination stage as well. In the last Presidential election left-leaning voters (particularly Sanders supporters) had to face a difficult decision between not voting at all, voting for a third-party candidate like Jill Stein, or, despite not liking her candidacy, voting for Hilary Clinton in order to prevent a Trump victory.

The issue of strategic voting has become a controversial topic. One the one hand, if a voter wishes to prevent a certain candidate from winning, and this is more important to them than voting for their first-choice candidate, it seems like a sincere preference and for some voicing it may be considered to be a moral obligation. Pundits like Bill Maher have been fiercely critical of those who do not vote strategically. Drawing attention to issues like climate change and the Supreme Court, Maher has criticized voters who opted for Jill Stein or even not voting at all instead of voting for Clinton because she was “the lesser of two evils.” Similar criticism followed the 2000 election where 537 votes separated George W. Bush from Al Gore in the state of Florida. Had left-leaning Nader supporters voted strategically, Gore would have won the state and the presidency. In other words, failure to vote strategically can lead to negative consequences.

On the other hand, arguments have been made that strategic voting is wrong. In 2006 in response to pressure placed on voters by the Liberal Party for NDP supporters to vote Liberal to stop a Conservative victory, Jack Layton noted that it is “frankly offensive” for Liberals “to tell Canadians they are limited to two choices, that they are limited to a choice between corruption and conservatives.” Indeed, it can lead to complacency amongst the political class if they can use the specter of the other side winning in order to secure votes, knowing that because voters lack a better option they don’t need to be as responsive to what voters want. This can lead to disengagement and frustration with the democratic process.

While the choice to vote strategically is an ethical issue, the way strategic voting is characterized can also raise ethical concerns. Strategic voting involves value judgments, and as a value judgment the language and rhetoric surrounding the issue is problematic and misleading, even amongst academic writers. In the wider public discussion, voting strategically has been described as “voting against” something rather than voting for something. To avoid a strategic vote, some politicians will suggest that voters “vote their conscience” rather than engaging in prudential reasoning. Academics studying the matter will compare strategic voting to “sincere” voting or will describe a strategic vote as a voter not choosing their “preferred candidate.”

But such language is misleading. As Philosopher John Dewey notes, value judgments are always specific. He argues that “A decision not to act is a decision to act in a certain way; it is never a judgment not to act, unqualifiedly.” Thus, if one does not wish to elect a politician, they are never merely voting against something. Instead. they are deciding that an election is worth boycotting, or that another politician is worth supporting (if they weren’t, one would have no reason to be strategic). Thus, it is never merely the case that we vote against things.

Dewey further argues that in forming a value judgment there is a difference between what we like and what we would prefer. Indeed, I may like the idea only eating donuts for the rest of my life. However, I consider both the means required to do this and the effects it would produce problematic and so I reject the idea. As Dewey sees it, “reflection is a process of finding what we want, what, as we say; we really want, and this means the formation of a new desire, and a new direction for action.” Does it make any sense then to claim that if my diet includes things other than donuts, I am not eating sincerely? Am I not, after careful reflection, eating my preferred diet?

The debate regarding strategic voting is complicated enough without including connotative language which suggests that a strategic vote is not “sincere,” not a vote “for something,” or that it means one is not following their preferences; all of these have the potential to illegitimately question the legitimacy of a vote and drag the debate in an unhelpful direction. By the same token, calling a vote that is not made for strategic reasons a “wasted” vote is not helpful either since the vote may be intended to avoid the long-term problem of an unresponsive political class. Perhaps the best way to examine the ethics of strategic voting is to clarify our language and to examine the issue carefully in terms of what voters are trying to achieve by making such value judgments and whether their judgments deliver the results they expect and are comfortable with.

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Disagreements in Ethical Reasoning: Opinion and Inquiry

photograph of graffiti image on building with two arms pointing in opposite directions

With the school year about to begin there are going to be plenty of students entering colleges and universities who have never taken an ethics course before. When I teach introductory philosophy courses the common response that I get when I ask students about ethical issues is “it’s all a matter of opinion.” This is part of a general attitude that when it comes to ethics there is no judgment that is better than any other. This habit of thinking can be so hard to break that even after an entire semester of talking about moral problems and debating the merits of different moral theories, students will still report that it is all just a matter of opinion. Why is this a problem? The habit of thinking that ethics is just a matter of opinion ultimately serves as a roadblock to ethical thinking and moral inquiry.

Moral relativism can be a complicated topic in philosophy, but for our purposes we can define it as the view that moral judgments are not true or false in the same way as factual judgments. Instead, morality is dependent on groups or cultures, each with their own incompatible ways of understanding the world. J. David Velleman has argued that based on data collected from various communities, different communities understand moral actions differently. Jesse Prinz argues that emotional sentiment plays a strong role in moral judgments; an action is wrong if it stirs a negative sentiment. Moral relativism is also often connected to tolerance; if there are no universal moral principles, the moral principles of one culture are not objectively superior to others so we should be tolerant of other cultural practices.

Relativism would seem to offer support for the idea that ethics is all a matter of opinion. Being tolerant of other moral worldviews is generally considered a good thing. Often moral issues can strike different emotional chords with people and it can seem disrespectful to tell people that they are wrong. If ethics is about how we feel about moral problems, then it seems hard to claim that it can rise above mere opinion. However, the view that ethics is all just a matter of opinion and relativism are not necessarily the same. If one believes that morality is dependent on culture, it would not warrant the claim that morality is all a matter of opinion, especially if we are only talking about a single person. Littering is considered a cultural faux-pas in North America so an individual would not be able to claim they are morally okay littering merely because it is their personal opinion that it is morally okay.

Indeed, while the justification for the view that ethics is just a matter of opinion and the moral relativist view can overlap, the position that ethics is just a mere matter of opinion (especially personal opinion) is especially problematic. For starters, one can be tolerant of other cultures and their moral views without having to believe that ethics is merely opinionated. For instance, a moral pluralist may claim that there are objectively correct and incorrect ways to react to moral problems and that moral answers can vary depending on local concerns. Second, while ethics does contain an emotional component, we are not therefore obligated to accept that ethics is merely emotional. Just because you or many others feel something about a moral issue does not mean that that feeling justifies any possible response.

The biggest problem, however, with the view that ethics is merely a matter of opinion is that more often it becomes an excuse to not think too deeply about moral problems. Consider this example: You have a strong desire to help others and are trying to determine what charities you wish to donate to and how much. You could investigate how effective each charity is, who may need it the most, and how much money you wish to give relative to other financial needs and desires you may have. But instead, you decide to take your cash and shred it.

Certainly, we can debate what might be the right thing to do in this situation, but it would require a fairly idiosyncratic person to decide that shredding money was the moral thing to do in that situation. We may not all agree on what the right thing to do in that situation is, but we can establish a fairly broad consensus on what is the wrong thing to do in that situation. Someone who is genuinely interested in helping others and is genuinely conflicted how to do it is not justified in shredding their money. Objectively, this is because it doesn’t solve their own moral problem. In other words, mere opinion is insufficient to justify any possible answer.

Now let’s say that in the same situation I decide that the most moral thing to do is to give money to an animal charity. You may disagree and opt instead for a charity that alleviates hunger. Should we conclude that our disagreement is a mere matter of opinion? Two moral people can come to different conclusions, with each trying to secure different goods and avoid certain problems. Each can also recognize the moral reasoning of the other as being legitimate without having to conclude that the other was morally wrong for doing what they did. This is not merely because the two have a difference of opinion. It is because each appreciates the moral reasoning of the other; they are capable of recognizing the legitimacy of other courses of action. However, they may not recognize the morality of a mere opinion that hasn’t been thought through. Both could agree that shredding your money is morally wrong action and both could recognize the importance of moral reasoning as a means of revising and refining a proposed course of action.

American philosopher Charles S. Peirce believed in the importance of inquiry for settling disagreements and disputes of opinion, not only between each other but with ourselves. If we could only inquire long enough, he argued, we could test our ideas in practice. Because of this, he claimed that part of the bedrock of reasoning is that we do not take steps to block the path of inquiry. The instinct to look at any moral problem and claim that it is all a matter of opinion does exactly this. The immediate response that the answer to any moral problem is a matter of opinion cuts off inquiry before it begins. If we accepted that there is no better answer, we will not seek it. It is an excuse to not look for a better answer, to not rely on our reasoning, to not discuss our proposed solutions with others, and to not seek consensus by refining our ideas.

The notion that the answer to any moral problem is a matter of opinion and that is all there is to say about it is intellectual laziness. If you are a new student who is taking their first ethics class, I urge you to look beyond such an attitude and to inquire further. We may end up concluding that our answers are only opinionated, but we have no justification for starting with that answer. Instead, we may find that we have missed several better responses that can only come from a willingness to inquire further.

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The Amazon Fires: Responsibility, Obligation, and the Limitations of the State

satellite image of amazon fires

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.

President Jair Bolsonaro of Brazil refused to accept proposed aid from members of the G7 for the Amazon fires, in part because of a personal feud with President Emmanuel Macron of France about the respective leaders’ wives. Yet the Amazon rainforest continues to burn. Another concern of the Brazilian government is the implication that accepting foreign aid has for the country’s sovereignty. President Bolsonaro alleged that the French president “disguises his intentions behind the idea of an ‘alliance’ of the G7 countries to ‘save’ the Amazon, as if we were a colony or a no-man’s land.” But should President Bolsonaro’s refusal for aid continue and the burning of the Amazon continue, what is the next step? Who, if anyone, has an obligation to put out the fires? When is it justified to defy national sovereignty?

To violate a country’s sovereignty is a dramatic move; the cause would have to be of great importance. In 1999, the then-UN Secretary-General Kofi Annan defined the modern state as “instruments at the service of their people.” Failure of the state to deliver services to its people would warrant external aid. The UN Charter states that member states should refrain from “the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” 

But the definition of the modern state and Purposes of the UN speak only to human concerns; nowhere is there an acknowledgement of environmental concerns. Even though conventions have been devised, the impasse regarding aid for the fires reveals a hole in the recommendations of international organizations. Even the recommendations about natural disasters do not apply given that the fires were apparently ignited by farmers clearing land for agriculture.

While the United Nations is not an authority on ethics in international relations, its charter is a useful touchstone given that its prescriptions often advise the international community’s response to global events. The burning of the Amazon, however, presents a non-standard case. Violating national sovereignty is often justified by protecting the lives of humans. But how should the international community respond to threats to non-human life?

Celebrities, NGOs, and political leaders alike have called the Amazon “the lungs of the world” given the amount of oxygen it produces. For that reason alone, it would appear that this fire is directly affecting the livelihood of humanity; thus, falling under the umbrella of justifications of acceptable international intervention. But some individuals have cast doubt on the claims about the rainforest’s contribution to the planet’s oxygen. 

“The Amazon produces about 6 percent of the oxygen currently being made by photosynthetic organisms alive on the planet today,” writes Peter Brannen. “[F]rom a broader Earth-system perspective, in which the biosphere not only creates but also consumes free oxygen, the Amazon’s contribution to our planet’s unusual abundance of the stuff is more or less zero.” Speaking to Forbes, Dr. Dan Nepstad of the Earth Innovation Institute called the popular descriptor of lungs “bullshit”, saying that the Amazon uses as much oxygen as it produces through respiration. The significance of the photosynthetic production of air and the Amazon’s instrumental value may be exaggerated. 

Even so, the Amazon basin contains incredible biodiversity, housing a staggering 10% of the known species on Earth despite occupying only 1% of the planet’s surface area. The rainforest is the largest of its kind in the world. The river that slices through the rainforest is the longest in the world. By any measure, the Amazon is a natural wonder, irrespective of its relationship with humans. And some argue that it possesses its own intrinsic value. 

Writing on one view of the intrinsic value of nature, Professor Ronald Sandler states: “[N]atural entities, including species and some ecosystems, have intrinsic value in virtue of their independence from human design and control and their connection to human-independent evolutionary processes.” Proponents of this view would argue that the Amazon ought to be protected not because of its value to us–be that in the form of oxygen or bewonderment–but because it has value without us.

Suppose then that the Amazon has intrinsic value and is, thus, worthy of protecting: is anyone obligated to protect it when the government in which it is in is failing to do so? Some may reference the dictum that those with the means to help are obligated to help. But the ethical expectations for individuals may not seamlessly apply to the ethical obligations of organizations. The discussion becomes more complex when considering non-state actors, such as NGOs, which do not operate under the same responsibilities.

NGOs whose cause it is to protect and encourage the biodiversity of different natural environments may see the perceived inaction of the Brazilian government as moral permission to intervene and provide aid. In some cases, non-governmental intervention occurs without any controversy, such as when an NGO delivers assistance to a developing country that is unable to provide clean water to its people. These organizations are likely in a better position to avoid the claims of sovereignty violation that have hampered the acceptance of foreign state aid simply because they are not pursuing a national state agenda. 

Yet while NGOs are able to help, there are some disadvantages to having them do so. They lack the democratic accountability of a state actor; they are not responsible for anything but pursuing their cause. Because of that they could feasibly maintain a presence in the country past the point that it is necessary and undermine the government’s ability to act. 

States, however, do not suffer from the same disadvantages and are constrained by international norms.  But if they are indeed “instruments at the service of their people,” states would appear to be obligated only to serving their people. It is not clear that states have the obligation to intervene in the destruction of a natural environment in another country. Furthermore, it is not clear if it would even be permissible to do so. International agreement on the notion that nature has intrinsic value may prove elusive, leaving the question of who should put out the fires unanswered, even if everyone agrees the fires should be put out. Perhaps the burning of the Amazon illustrates the growing obsolescence of our modern definition of the state.

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To Keep or Not to Keep? The US Electoral College and Presidential Representativeness

image of US map of electoral votes by state

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.

“One person, one vote” and “Not my President!” These mantras underlie calls for election reform in the United States. They are pressed urgently now regarding the Electoral College and its role in selecting the President of the United States (POTUS) as the 2020 election approaches. Solutions posed by critics range from reformation, to circumvention, to abolition. To many the Electoral College is patently undemocratic because it does incorrectly represent the choice of the national constituency. This view is officially championed by numerous candidates for the 2020 Democratic Primary: Cory Booker, Elizabeth Warren, Jay Inslee, Julian Castro, Kirsten Gillibrand, Marianne Williamson, Pete Buttigieg, and Robert “Beto” O’Rourke.

During 2019 several states passed and signed legislation to join the National Popular Vote Interstate Compact: Colorado, Delaware, New Mexico, and Oregon. (Additionally, the measure passed both chambers of Nevada’s state house but was vetoed by Gov. Steve Sisolak.) These states join 11 others, and the District of Columbia, in pledging to assign their electoral votes to whichever candidate wins the national popular vote. This would effectively circumvent the Electoral College while leaving it in place. However, the compact only takes effect once enough states have signed up: i.e., enough states to contribute the 270 out of 538 electoral votes needed to win election.

How does the Electoral College work? Each state in the US is allotted a certain number of electoral votes, based on their representation in Congress (House seats plus Senate seats). Electoral votes are cast by individuals nominated to the College of Electors, whose votes directly determine which candidate becomes president. Most states give all their electoral votes to whichever candidate secures a simple majority (51%) of their popular vote. Maine and Nebraska are the exceptions, assigning electoral votes on the basis of results in each of their US House districts: a candidate receives one vote for each district they win, and the candidate who wins the statewide popular vote receives 2 votes.

Advocates for each position regarding the Electoral College claim their stance best represents the choice of voters, and that their opponents’ views over- or underrepresent some group or another. Supporters of the Electoral College argue it prevents urban areas from dominating elections, or that it accurately represents the federal structure of the US government. Critics of the Electoral College consider it unacceptable that a candidate can win election who does not have the support of a majority of the national constituency. They also argue the Electoral College inflates the voting power for citizens of certain states, and deflates the power of other states’ citizens, going against the “one person, one vote” principle.

Disagreements about the Electoral College are about who the POTUS represents. That is, it’s about what representation is and who the represented constituency is. Hanna Pitkin’s 1967 The Concept of Representation provides an important touchstone for a thoughtful discussion of representation. She elaborates four facets of representation: Formalistic, Symbolic, Descriptive, and Substantive. (See the Stanford Encyclopedia of Philosophy article on Political Representation.)

Superficially, the disagreement between detractors and supporters of the Electoral College solely concerns Pitkin’s formalistic aspect; the debate hinges on questions pertaining to the political process and its ability to confer legitimacy. We ask whether the election was conducted according to existing rules and the spirit of the law. Setting aside concerns about election tampering/interference, some claim President Trump’s 2016 election was “illegitimate” because he received significantly less of the national popular vote than Hillary Clinton. However the formalistic aspect of representation doesn’t fully capture the sense of illegitimacy pressed here: President Trump was elected according to the established protocol of the Electoral College system.

An alternative explanation is available in Pitkin’s symbolic and descriptive aspects of representation. When people denounce President Trump as “not their president”, they often mean to say that they object to what he stands for, or claim that he fails to resemble the voting public physically or ideologically. Such people would presumably accept, and feel represented by, a candidate who won the popular vote. Hence when critics of the Electoral College argue that the outcomes of US presidential elections are undemocratic, and don’t represent the will of US citizens, they mean it in the symbolic and descriptive senses. (This article will not discuss Pitkin’s substantive aspect. It involves an officeholder’s performance of their duties, which can only be evaluated after elections.)

While advocates for a national popular vote see US citizens at-large as the represented constituency, advocates for the Electoral College see US states as the represented constituency. This isn’t an irrelevant distinction. Consider a hypothetical situation in which the NPV is in effect. If the citizens of Oregon, which is in the NPV, vote unanimously in favor of one candidate but that candidate loses the national popular vote then all of that state’s electoral votes go to a candidate for whom not a single person in Oregon voted. The NPV, and any national popular vote scheme, recognizes no difference between Oregon voters and the voters of any other state—everyone is just a US voter. However the Electoral College system does distinguish between voters on the basis of their state of residence. 

Opponents of the Electoral College understand this, and argue that these distinctions diminish the voting power of some citizens relative to others. This effect is not a necessary consequence of the Electoral College—or at least not the effect’s magnitude. Rather it’s a direct effect of the cap on the number of voting representatives in the US House at 435 (Apportionment Act of 1911). This also caps the number of electors and has led to the average number of citizens represented by a House member (and hence the number of individual votes subsumed by an electoral vote) to increase over time, though differently for different states. The inflation/deflation of voting power Electoral College critics highlight is a direct consequence of the fixed number of House representatives. 

Increasing the number of Representatives would ameliorate the symbolic and descriptive representativeness problems of the Electoral College, while also increasing the representativeness of the House. Further it can be done by legislation in Congress rather than a Constitutional amendment as would be required to abolish or reform the Electoral College. Finally it preserves the distinction between voters of different states, respecting the federal structure of the US government. This consideration will not appeal to many opponents of the Electoral College. However, short of full abolition, increasing the total number of electoral votes by increasing the size of the House addresses representativeness problems, and does so without leaving open possibilities of bizarre, and objectionable, situations such as the hypothetical Oregon case above. The current Electoral College is malfunctioning, and the best ways to deal with it are complete abolition or substantive reform. The NPV does neither, merely walking around a broken machine without fixing it or removing it—leaving it to belch an occasional cloud of toxic smoke.

Ethics Education with Thomas Wartenberg and Chris Robichaud

Is it possible to teach children about about ethics and morality in the classroom? We hear from two professors committed to bringing moral philosophy to young learners: Chris Robichaud is a professor at Harvard’s Kennedy School with an interest in creating moral simulations for education, and Thomas Wartenberg is the creator of the Teaching Children Philosophy program and website. Both share their ideas on learning philosophy and ethics, fiction, and more.

For the episode transcript, download a copy or read it below.

Contact us at examiningethics@gmail.com

Links to people and ideas mentioned in the show

  1. Thomas Wartenberg
  2. Chris Robichaud

Credits

Thanks to Evelyn Brosius for our logo. Music featured in the show:

“Lahaina” by Blue Dot Sessions

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Press Freedom in Australia: Democracy, Transparency, and Trust

photograph of two security cameras on side of building

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.

This past week on Wednesday morning June 5, the Australian Federal Police raided the headquarters of the ABC, Australia’s national broadcaster and the most trusted media organisation in the country. Files were seized relating to a story from 2017 known as The Afghan Files sourced from leaked documents some of which detailed disturbing allegations of misconduct and criminal activity by Australian Special Forces serving in Afghanistan between 2009 and 2014.

The previous day, Tuesday June 4, the AFP had raided the home of News Corp Journalist Annika Smethurst in connection with a story she published over 12 months ago about the government secretly canvassing a plan to allow the National Signals Directorate to spy on Australians without their knowledge by hacking into critical infrastructure.

These raids have provoked outrage in Australia and beyond. It must be noted that the timing of consecutive raids is extraordinary, given that both reports concerned are well over 12 months old, and are in no way related to one another. The searches have raised concern about press freedom in Australia, with the media union denouncing them as a disturbing attempt to “intimidate” journalism.

Overseas media organisations like the BBC and The New York Times have weighed in on the raids. In a statement on Twitter the BBC said “this police raid against our partners the ABC is an attack on press freedom which we at the BBC find deeply troubling.” And The New York Times reported that Australia May Well be the World’s Most Secretive Democracy. Indeed, the Australian government has become increasingly tenacious in its pursuit of secrecy on a range of fronts, under the ever-broadening umbrella of ‘national security.’

These raids suggest that knowledge, which is merely inconvenient or embarrassing to the Australian government, is being guarded under the cloak of national security. Many observers dispute the characterization of either of these stories as genuine security issues. It is clear, also, that the release of both stories are overwhelmingly in the public interest. As such, it appears the government’s sweeping national security powers are being used to silence and intimidate journalists and their sources.

At the center of the debate is the question of what kind of security matters count as genuine reasons to keep knowledge from the public, and what constitutes an overwhelming public interest. At issue is balancing the principle of the public’s right to know with government’s need for confidentiality to protect other important things like security.

In the era since September 11, in response to the heightened threat of domestic terrorism, Australia has zealously pursued anti-terror, security legislation that has significantly advanced government agency powers. One such law, passed in 2015, requires internet providers and mobile phone networks to store customers’ metadata – the sender, recipient and time of emails and calls. The government argued that the bill was necessary to help Australia’s security services fight domestic terrorism. Those laws were further expanded once again at the end of 2018. There are limited defense provisions for journalists on the basis of public interest, but very weak protections for whistle-blowers who might be sources for investigative journalists.

If ‘national security’ is being used, as many civil liberties advocates worried it would be, to shut down debate and to silence public conversation, this has grave implications for Australia’s democratic integrity. There are deep issues at stake, in terms of the citizens’ ability to trust in the institutions of government, and to be protected against capricious acts by institutions, agencies, and governments. While security and confidentiality are important values, they must not be used by governments to hide things about which we ought to know, and we have to be able to trust that they are not.

It is ostensibly a conflict between the public’s right to know and the government’s right or need to protect confidential information, but that may be a false dichotomy. The interest of the people ought to be the only thing that determines the interest of a properly liberal democratic government –that is its raison d’être and its sole source of legitimacy. That is the ideal of a free democratic society – it is not however true in practice, and the distance between this ideal and reality is the measure of the extent of corruption of the modern democratic state. Corruption thrives on secrets.

Transparency and accountability are two of the most important principles for the functioning of an open, free society. They are both necessary conditions, without which a free, democratic society is not possible. We must be able to trust that, when knowledge which may have profound implications for our society is withheld on security grounds there is a genuine security risk associated with its disclosure. Yet that expectation of trustworthiness appears to have been breached, as the Australian government seeks to enforce its culture of secrecy by employing tactics of intimidation.

Australians have been asked to accept the erosion of many freedoms for the protection of national security. If these raids are not shown to be precipitated by genuine security concerns, the government’s ability to prosecute a case for genuine security needs in the future is compromised.

In a democracy the citizens legitimize the power of the state, and a democratic government has to be accountable to the citizens. A free press is what makes that accountability possible. In general, truth is fundamentally important for the function of an open, healthy democratic society, and we should lean heavily on the side of the public’s right to know and err on the side of transparency.

While some civil liberties advocates have long expressed scepticism about the wisdom of sweeping security laws, especially since Australia, lacking a bill or charter of rights, does not have strong legal protections for freedom of speech protecting the press, more broadly there has been a failure of community and political opposition to critically examine new security laws for how they could be misused; a failure which political commentator Waleed Aly described as a failure of civil reasoning. That failure has occurred in the context of a political culture dominated in Australia by ‘national security’ over other civic freedoms and rights.

The national conversation Australia is now having is about press freedom and its importance for democracy. Those participating need to remain cognizant that at stake is the abstract political and philosophical question of the legitimacy and the limit of state power.

Morality Scaled Up with Joshua Greene

We often discuss individual morality and ethics on the show–how people should or should not behave on a personal level. But what about groups of people? How should they make sense of their competing value systems? On this month’s episode, we’re talking to Joshua Greene, who has an idea about how groups–what he calls modern tribes–should get along. He thinks people should develop something he calls a metamorality. And for him, the best contender for this metamorality is utilitarianism. He also describes how our brains make moral decisions–and why this matters when we’re thinking about morality amongst groups of people.

For the episode transcript, download a copy or read it below.

Contact us at examiningethics@gmail.com

Links to people and ideas mentioned in the show

  1. Joshua Greene
  2. The Trolley Problem
    • Christiane thinks that if you are not squeamish, you should watch The Good Place’s take on the trolley problem. But we’re not going to link it because it’s gory.
  3. Garrett Hardin’s Tragedy of the Commons
  4. John Stuart Mill, Jeremy Bentham and Utilitarianism
  5. Care ethics

Credits

Thanks to Evelyn Brosius for our logo. Music featured in the show:

“Thannoid” (1 minute variation) by Blue Dot Sessions

Inamorata” by Blue Dot Sessions

Podcast: Play in new window | Download

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Is the Filibuster Democratic?

bird's eye photograph of Maryland state senate chamber

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.

A wide range of policy debates has already dominated the front lines of the 2020 Democratic Primary over proposals including Medicare for all, raising the national minimum wage, and mandating an increase on teachers’ salaries. However, another emerging policy proposal that has gained some attention in recent months is abolishing the use of the filibuster to block legislation in the senate.

Filibustering is a tactic frequently used by senators in which they can prolong debate over a bill almost indefinitely simply by holding the debate floor for as long as they can, thus effectively blocking the bill. A filibuster may be sustained even if the senator is discussing a topic other than the legislation at hand. For instance, in 2013 Sen. Ted Cruz held a filibuster against a version of the Affordable Care Act for 21 hours and 19 minutes by doing things such as reading bedtime stories to his two young daughters and announcing messages that had been sent to his Twitter account. The only formal way to stop a filibuster is for the senate to vote in favor of “cloture,” which requires a three-fifths supermajority vote (or 60 votes out of 100). A filibuster may also be stopped by more informal means if a senator must stop debating to use the bathroom or to sit down.

As a function of the senate, the filibuster is very well-established, making it a tradition that is rarely evaluated. However, new Democratic candidates are beginning to question whether or not the filibuster truly helps senators represent their constituents. Answering this question may require consideration of historical context.

The first effective filibuster was “discovered” in 1841 by Alabama Senator William R. King when he threatened an indefinite debate against Kentucky Senator Henry Clay over the creation of a Second Bank of the United States. Other senators realized there was no rule mandating a time limit for debate and sided with Senator King. Although it had been discovered, this did not make filibustering a common practice in the senate. Indeed, the cloture rule was not established until 1917 when a group of just 11 senators managed to kill a bill that would have allowed President Woodrow Wilson to arm merchant vessels in the face of unrestricted German aggression at the dawn of U.S. involvement in World War I. Even so, filibustering still did not establish itself until 1970 when the “two-track system” was implemented in the senate. The two-track system allows for two or more pieces of legislation to be on the senate floor simultaneously, with debate divided up throughout the day. This made filibustering much easier for senators to maintain, as they could filibuster one bill without halting Senate activity altogether. From this point forward, filibustering became increasingly more common in the U.S. Senate. However, from its history, it is clear that the filibuster is not a long-time tradition of the senate, but rather a loophole in senate rules that gained popularity as a strategy for obstruction of bills. Yet, many believe it to be an indispensable function of senate rules.

Many senators would argue that filibustering is necessary to adequately representing their states’ policy needs. Its primary purpose is to balance tyranny by the majority and preserve minority rights in the senate. Take the gun control debate as an example. Senate Democrats have long pursued reforms on gun laws through the senate but have had little to no success due to Republicans holding the senate majority and not allowing gun reform legislation to even reach the floor for a vote. Therefore, Democratic Senator Chris Murphy of Connecticut filibustered for 14 hours and 50 minutes in the wake of a mass shooting at Pulse nightclub in Orlando, Florida. The filibuster swayed Senate Majority Leader Mitch McConnell to hold two votes on gun reform: one proposal to expand background checks for potential gun owners, and another proposal to block suspected terrorists from purchasing guns. In this case, the senate minority was able to come together and prevent cloture on an issue that they could otherwise not have pursued due to senate rules. It is instances like these that lead many to call the filibuster the “Soul of the Senate” and praise the filibuster’s ability to encourage more in-depth debate on highly-contested issues. However, others take issue with the the way the filibuster is used.

While the filibuster balances the power of the senate majority, this function can also be limited. This is because the Senate Majority Leader must approve bills before they are brought to the floor, meaning that senators in the minority must beg the Senate Majority Leader to introduce a piece of legislation to the floor before they can even initiate a filibuster. In a highly polarized senate, where current Majority Leader McConnell controls the floor ruthlessly, even getting a filibuster started is extremely difficult. Despite this, there are still some who argue that the ability to filibuster gives the senate minority too much power. The primary reasoning behind this argument is that cloture and its 60-vote requirement are difficult to acquire, especially through rampant hyperpartisanship that currently exists in the senate. The possibility of a filibuster essentially sets a supermajority requirement on all major pieces of legislation, thus hindering congress’s productivity. The senate minority’s ability to filibuster also gives unpopular policy proposals more time over senate proceedings than they should have. A prime example of this was in 1964 when a small coalition of Southern Democrats filibustered the Civil Rights Act for 75 hours.

Beyond giving the senate minority too little or too much power, it is also alleged that the filibuster is applied unevenly between political parties. While filibustering does alternately inconvenience one side or the other depending on which party holds the senate, fundamental parts of Democrats’ and Republicans’ platforms allow the filibuster to disadvantage Democrats more in the long run. The modern Democratic party tends to push policy that introduces new or enhances existing government programs, while the Republican party leans on a platform of blocking these programs and cutting taxes. Republican policies of blocking social welfare and cutting taxes are more compatible with the budget reconciliation process than are Democratic policies. Because filibustering is not allowed in the budget reconciliation process under senate rules, Republicans can easily push their agenda through reconciliation, while Democrats are left to struggle for a 60-vote supermajority to advance most of their legislation.

Whether it should be retained or scrapped, what is most important is that the filibuster is under public scrutiny by high-profile politicians. As injustices in America’s legislative mechanisms become more apparent, public criticism of these mechanisms has also become more popular. Along with debating over the pros and cons of the filibuster and its implications for democracy, presidential candidates for 2020 are also entertaining drastic structural reforms such as doing away with the Electoral College, increasing the size of the Supreme Court, and offering statehood to Washington, D.C. and Puerto Rico. Whether people believe these reforms are operational or not, the public discussion around taking fundamental action to make the U.S. legislative process more democratic and representative is one that is well worth the nation’s effort.

A Story about Telling a Story (about Telling a Story) with Beth Benedix

Stories captivate humans’ imaginations. Stories draw people in–they take raw facts and infuse them with meaning and significance. But is it okay to take the facts of someone’s life and turn them into an entertaining story? Are we, on the other hand, supposed to make stories of human suffering interesting? And what does that actually mean in practice? When is it okay for someone to tell a story that isn’t their own? On today’s podcast, Beth Benedix, a writer and educator, discusses her book Ghost Writer (A Story about Telling a Story) and the ethics of narrative. In this episode, we introduce the man at the center of her story, Joe Koenig. He’s a Holocaust survivor with an amazing testimony of survival. Beth discusses what it meant to take on telling his story, and the importance of sharing stories of suffering.

For the episode transcript, download a copy or read it below.

Contact us at examiningethics@gmail.com

Links to people and ideas mentioned in the show

 

  1. Beth Benedix, Ghost Writer: A Story about Telling a Holocaust Story
  2. More information about the ghetto Joseph Koenig (Koenigheit) lived in with his father Theodore in Częstochowa, Poland
  3. “The Psychological Comforts of Storytelling” by Cody Delistraty
  4. Meyer Bronicki’s testimony

Credits

Thanks to Evelyn Brosius for our logo. Music featured in the show:

“Drone Pine (Simple Treescape variation)” by Blue Dot Sessions

“Gathering Stasis” by Blue Dot Sessions

“Partly Sage (Atmo with Marimba variation)” by Blue Dot Sessions

“Shade Ways (1 Min variation)” by Blue Dot Sessions

“Lakeside Path” by Blue Dot Sessions

Podcast: Play in new window | Download

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What’s Wrong with State Media?

Graffiti image of three happy individuals under communist flag with Vietnam skyline behind

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.

In a statement to the Washington Post earlier this month, Democratic National Committee Chairman Tom Perez announced that Fox News will not be allowed to host a debate for the 2020 Democratic Party primary election cycle. The DNC’s decision was based in part on Jane Mayer’s New Yorker article accusing Fox News of acting as a propaganda machine for President Trump’s administration. Mayer’s article points to frequent cross-hiring between network management and Trump’s campaign and White House administration, as well as the president’s consistent attention to shows like “Fox and Friends” to demonstrate the close relationship between the administration and the media outlet. The article even includes a quote from professor Nicole Hemmer, who calls Fox News “the closest we’ve come to having state TV.” Implicit in Hemmer’s statement and Mayer’s article is the premise that a state-run media network would be a bad thing for the United States. Leaving aside the debate over whether Fox News or any other news organization is disseminating propaganda, it is worth delving into why (or perhaps even whether) we should be worried about a state-run media in the first place.

A state-run news organization would seem to run counter to the values which inspired the First Amendment of the United States Constitution. The American Civil Liberties Union specifically highlights the role of the press as a critic and watchdog of the government in service of the people. Investigative journalism is a necessary component of democratic society. The research undertaken by reporters into not only the government, but also businesses and wider societal trends helps the general public understand the world and current events. It seems likely that an organization funded, overseen, or otherwise closely involved with the government would experience a conflict of interest precluding the total fulfillment of this watchdog duty. Certainly, a country with only state-run media would be missing the opposition viewpoint critical to the democratic process. Without the full breadth of information, the general public would be unable to make informed decisions about the government, therefore depriving the people of the agency of self-governance that defines democracy.

The United States can look to other countries for models of what state-run media might look like. Russia, for instance, is widely regarded as operating state-controlled media: two of the biggest television channels, Channel One Russia and Russia-1, are controlled by the federal government, and the English-language network RT is also funded by the government. These media outlets tend to support the policies of the government, and some have accused these organizations of acting as propaganda machines for the Kremlin. In particular, RT has garnered attention because it is directed to a more global audience; while critics say it is designed to generate international sympathy for misguided or dangerous policies of Vladimir Putin’s administration, the network claims it is simply providing an alternative viewpoint to the largely anti-Russia opinions of other international news networks.

Many regard Russia’s control of media and restriction of free press as problematic. What is it about the media situation in Russia that constitutes a breach of ethics? Is it the presence of state-run media, or is it the absence of prominent independent media outlets? Perhaps the more pressing concern is the active legal restrictions on journalists who attempt to look too closely at issues like corruption. Journalists have been banned from Russia, sentenced to time in prison, and even attacked and killed, often under suspicious circumstances. These are obviously more severe threats to press freedom than state-run media, and one could argue that in the absence of such dire conditions, a state-run news outlet would not be an ethical violation in itself.

Being government-sponsored does not guarantee that a news network will collaborate closely with the government. One of the most well-regarded news organizations in the world is the British Broadcasting Corporation. While the BBC was founded by a royal charter and remains under the auspices of the government of the United Kingdom, its charter explicitly calls for the corporation to be “independent in all matters” and a provider of “impartial” services. One could argue that true independence is impossible while the future of the organization is determined by the government, but the presence of other, non-state news outlets in the United Kingdom suggests a much wider latitude of press freedom than in Russia.

Our fear of state-run media seems to stem from a fear of an Orwellian dystopia in which objective truth is hard to come by and public narratives are constantly malleable. The tendency towards a “post-truth” world seem ripe for sinister developments like manufactured consent, wherein public opinion is gradually and subliminally bent to suit the aims of policy makers and other power players. These fears seem even more troubling in the era of “fake news.” President Trump’s use of the phrase to discredit news outlets like CNN, as well as his suggestion for a state-run cable TV network, could be construed as part of a drive towards more extensive state control of the media.

But is there an upside to state-controlled (or at least state-funded) media? For several years, observers have been bemoaning the rise of clickbait — stories and headlines designed to grab immediate attention, often at the expense of in-depth reporting and thoughtful investigation. The primary motivation for this trend is to ensure a profit in the digital era. Free from the need to turn a profit, a state-funded media outlet would theoretically be better equipped to cover substantial, potentially unpopular stories. This is the mission of America’s Corporation for Public Broadcasting, a government-financed organization that provides some of the funding for public radio stations and other services.

All of this does not absolve Fox News from its duty to provide impartial coverage of government policy. Fox News is not openly an arm of the state: any connection or cooperation between the network and the Trump administration is covert. When it is perceived as an impartial, private corporation, any criticism or praise delivered by the organization to the government is taken as objective assessment, rather than propaganda. But precisely because it is perceived as a free agent, the network also has a duty to fulfill this expectation and act impartially; anything else would be misrepresentation, unethical not only to the extent that lying is unethical, but more so because of the special duty of the press in maintaining the democratic system. At the same time, it is difficult to ascertain true impartiality. The determining factor is intent, rather than outcome. An impartial organization coincidentally supporting the administration on every issue and a partial organization actively colluding with the administration would look practically identical to an outside observer.

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Unpacking the Tactic of Shutting Down the Government

A woman holding a sign that says "stop the shutdown"

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.

800,000 federal employees furloughed, $5.7 billion demanded, and $11 billion of the American economy wasted over 35 days. These numbers dominated headlines in January as President Donald Trump entered a stalemate with Congress that launched the U.S. into its longest ever government shutdown. The stalemate occurred when Trump demanded that funding for a border wall between the U.S. and Mexico (one of Trump’s campaign promises) be included in an end-of-the-year Congressional appropriations bill. The Democrat-controlled House of Representatives swiftly shut down this demand, to which Trump responded by partially shutting down the federal government, putting 800,000 federal employees out of work: that is, 380,000 employees could not go to work, and another 420,000 were considered “essential” employees and had to work without pay. Vital government services were disrupted including the TSA, National Park Service, and Coast Guard. This shutdown lasted 35 days, costing the American economy about $11 billion and 0.2% of the nation’s GDP during the first fiscal quarter of 2019.

While Trump remains adamant about acquiring funding for his border wall, the American people seem uncomfortable with using a government shutdown to do so. In a CBS News poll, 70% of Americans did not believe the U.S.-Mexico border wall to be an issue worth shutting down the government for, and in a different poll, 53% of Americans blamed Trump for the shutdown. From these numbers, it is clear that the American people are not supportive of shutting down the government for a border wall, but how can government shutdowns be assessed as a political tactic in general? Is it ever ethical to shut down the government in order to reach certain political means, despite widespread public disapproval? To more accurately weigh this question, it is imperative to step away from partisan language, which can be done by comparing Trump’s shutdown to another shutdown that occurred under a Democratic administration: the government shutdown of 2013.

From October 1 to October 17 of 2013, the federal government was shut down under President Barack Obama over disagreements about the federal budget for the 2014 fiscal year. The Republican-controlled House of Representatives refused to adopt a budget that included funding for the implementation of one of Obama’s benchmark policy achievements, the Affordable Care Act (also known as Obamacare). While the 2018-19 shutdown was almost twice as long, this shutdown occurred before funding for many more federal services could be secured in the year, meaning the shutdown cost a lot more for the American economy. In fact, it cost over twice as much at $24 billion. The government opened back up after 16 days when Congress compromised on a bill that included Obamacare funding, but ensured stricter income verification rules for those trying to access health insurance exchanges.

To wade through heavy partisanship, these two shutdowns must be compared by their objective facts. Firstly, both of these shutdowns put about the same number of people out of work: 800,000. Additionally, while the 2013 shutdown cost significantly more than the one in 2018-19, it’s difficult to dispute that both shutdowns were incredibly costly to the American economy. By these facts, and the history of American government shutdowns in general, government shutdowns can be accurately described as wasteful, expensive, and harmful to many American workers, and the American public realizes this. As stated earlier, 70% of Americans disapprove of the most recent shutdown, and even more (81%) disapproved of the shutdown in 2013. What is more concerning is the fact that these shutdowns have become longer-lasting in recent decades. In the past 10 years, the government has been shut down for a total 55 days, as opposed to 29 days in the 1990s, and 14 days in the 1980s. Not to mention, government shutdowns almost never achieve their intended purpose. The 2013 shutdown failed to block Obamacare funding, and Trump had to use executive action to acquire funding for his border wall rather than successfully working with Congress to pass a bill into law. The American public sees the failures of government shutdowns, with seven in every ten Americans saying that shutting down the government is not an effective strategy for reaching policy solutions. With such low popularity and chances for success, why do politicians continue to utilize shutdowns? Is it ever permissible to shut down the government? Under what circumstances might a government shutdown be an effective tool?

While the causes of shutting down the government are variable, the effects seem to be the same: great cost to the U.S. economy, hundreds of thousands of federal workers furloughed, and an American public that is even more distrustful of government. Therefore, because the duty of the government is to help provide for the welfare of its people, it must be weighed what will bring more welfare to more people, or rather, what will bring less harm to fewer people. In the case of 2013, it was argued by congressional Republicans that Obamacare would limit individual freedom and collapse the American economy. So, they temporarily sacrificed the welfare of some for what, in their eyes, would be the prolonged welfare of many. Similar logic followed with the shutdown of 2018-19. Trump holds that there is a national security crisis at the U.S.-Mexico border, claiming that many of the illegal drugs in the U.S. come from Mexico over the border, and that thousands of violent criminals enter the U.S. via illegal border crossings. Subsequently, he ordered a government shutdown because he is convinced that the temporary setbacks caused by a shutdown are worth preventing what he perceives as a national security crisis at the border.

However, whether or not an issue is worthy of a shutdown is dependent upon how one prioritizes national concerns. For instance, while Trump believes there is a security threat at the border, congressional Democrats see this threat as minimal, if there is even a threat at all, and do not see a border wall as an effective way to alleviate this threat. More central to the issue of government shutdowns in general, however, is how one defines “welfare of the people” as the government is supposed to provide. Trump and other border hawks may define welfare as security and protection of a nation’s citizens and adopt policies in line with what they believe will fulfill that definition. Alternately, Obama and Democrats may define welfare as a right to health under any circumstances, which would justify their push for the Affordable Care Act. Regardless of partisan alliances, shutting down the government is a drastic measure that should be reserved for drastic issues. The core of the debate lies in what one defines as a “drastic” issue.

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In Colorado, The Right to Comprehensive Sex Education

A photograph of the Colorado Capitol Building in Denver, with green grass and blue sky

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.

On January 30th, 12-year old Moira Lees testified at the Colorado Capitol in favor of HB19-1032, the new bill centered around sex education for public schools in Colorado. Moira was one of at least six other students who testified in support of the new bill. She bravely talked about how she wished that they taught what consensual relationships are at her own middle school. Consent was just one of the topics presenting in the new sex-education bill for Colorado which was an updated version of a sex education bill from 2013.  

In 2013, the General Assembly of Colorado revised a 2007 law on comprehensive sex education in public schools. This new law said that students had the right to a curriculum that was age appropriate, medically accurate, culturally sensitive to LGBT and disabled individuals, and must include information about safe relationships and sexual violence. However, schools were able to find loopholes in the bill. Schools that wanted to offer an abstinence-only curriculum could contract with non-profit groups and would provide the abstinence only education on school grounds on the weekends. Another loophole allowed charter schools to teach their own versions of human sexuality that often didn’t meet state standards. These loopholes were motivation behind the new bill, HB19-1032 that was testified for on January 30th.

The new bill proposes to get rid of abstinence-only education but most paramount, it teaches consent in sexual relationships. Susan Lontine (D-Denver), the bill’s proposer, says that the bill describes “how to communicate consent, recognize communication of consent, and recognize withdrawal of consent.”  This was one of the least discussed topics during the 10-hour long testimony, mostly because it was one of the unanimously agreed upon topics. Centennial Institute Director Jeff Hunt is a critic of the bill but agrees with the consent portion and believes that people of faith also support it. Hunt states that the lengthy testimony was centered more around debate of topics that should be openers for family discussion about values as opposed to public school curriculum.

Another important part of the bill is that the curriculum will have open lessons about human sexuality. The bill opens with a survey form 2017 Healthy Kids Colorado Survey that states 9.6% of females and 18.5% of LGBT-identifying kids have felt physically forced into sexual relationships against their will. “These statistics reflect a dire need for all Colorado youth to have access to comprehensive human sexuality education that teaches consent, hallmarks of safe and healthy relationships, self-acceptance, and respect for others,” according to HB19-1032. Lessons about human sexuality cannot be “explicitly or implicitly” endorsing religious ideology and shame-based language should not be used.

Those opposed to HB19-1032 worry that parents would not have full knowledge of the information that their children are receiving, according to Jeff Hays, GOP Chairman. The bill states that parents would be notified about human sexuality classes and given the option to remove their children but would not be notified about the specific lesson plans. Colorado Catholic Conference worries that the teachings will stigmatize Catholic beliefs and will teach children that the church’s values regarding sex, relationships, and gender are wrong. Also under review is that currently HB-19-1032 does not require schools to tell students about “safe haven laws” which allows a parent to turn over a newborn less than 72 hours to any fire station or hospital with no questions asked, in order to protect the lives of newborns. If HB19-1032 is passed, schools would have to choose between teaching this new curriculum or teaching nothing at all on the matter.

At the heart of the debate regarding HB19-1032 is a question about the purpose of childhood education and how sex education supports those goals. According to philosopher Joel Feinberg, education is a part of the “right to an open future” and enables children to gain the knowledge, skills and tools, to shape their own individual life plans. The goal of sex education is for students to learn about sex and sexuality to gain skills for healthy relationships and manage one’s own sexual health. However, the question of the matter resides in if schools owe it to children to teach sex education in a comprehensive manner.  

Not teaching children on comprehensive sex education to the extent that bill HB19-1032 does could cripple youth’s ability to exercise their current and future sexual rights. Having sexual rights is to have one’s control over their own body and sexuality without violence, coercion, and intimidation. Without education on the subject, students could be exposed to additional harm including assault, sexually transmitted infections, and unwanted pregnancies. This bill is unique in that it addresses many aspects of “traditional” sex education like the biological aspects of sex but it also dives deeper into the social aspects.

The need for sex education corresponds to our developmental stages, according to Sigmund Freud and other developmental psychologists. During adolescence (twelve to eighteen years old) a major task is the creation of a stable identity and becoming a productive adult. Dramatic changes occur that lead to increased opportunities to engage in risky behaviors like sexual promiscuity. Adolescents are novices in reflective cognitive thinking which is why education on risky behavior, like sex education, is important at this stage of development.

But a government-mandated sexual education program feels, to some parents, like a violation of their autonomy. Some parents want to be a part of the discussions revolving around these topics, in order to talk about family values and have open discussions. There is the fear that when the state regulates this curriculum, it takes away from the parent’s say in the matter. At the same time, without this regulation, teachers could have full freedom to teach as they please on the course matter. Without regulation, teachers would have the opportunity to teach their own code of sexual ethics.

Kids are under more influence than ever about what is deemed as “acceptable” sexual behavior in society, from mass media to their friends, family, and religious expectations. With these added pressures, it is more important than ever for legislation like bill HB19-1032 to define to what extent teachers, schools, and the government have responsibility in teachings students about sex education.

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The US, the UN, and Human Rights Investigations

Photo of the UN flag flying against a blue sky with white clouds

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.

The United States has stopped cooperating with United Nations human rights investigations in the US. There are at least 13 requests for inquiry that have gone unanswered since May 7, 2018, and the only UN investigators that have operated in the US in Trump’s administration were invited by the previous administration under President Obama.

Human rights are norms that apply to all members of the community and attempt to protect our basic human dignity from abuse in the political, legal, and social spheres. These rights include freedom of expression/religion, the right to a fair trial if charged with a crime, and the right to participate in political activity.

The UN investigators organized by President Obama were looking into extreme poverty in the US. Extreme poverty violates human rights because of the suffering experienced at the time, and the purported human right to autonomously guide one’s own life. When you live in extreme poverty, often this affects your health, which limits your options in life, and also the poverty creates a situation of need that shapes the choices you make. Because you will enter choice-making scenarios, such as where to live, what jobs to pursue and accept, what food to purchase, etc., from his position of need, these choices are not autonomous but coercive. Your continued survival and baseline well-being are the deciding factor; in a real way you are not free to choose your life’s direction.

The Trump administration has implemented a number of controversial policies that have received outrage by the national population, let alone the international community. The administration has reintroduced mandatory minimum sentencing (contra right to a fair trial), has moved to rescind DACA (contra right to education and right to arbitrary detention), selectively banned immigration from Muslim-majority nations (contra freedom of religion and non-discrimination), invited an anti-LGBT+ hate group to the UN commission on the Status of Women (contra non-discrimination, equal protection under the law, and undermining the rights of LGBT+ people and women), just to name a few.

The UN has reached out regarding incidents in the US under the Trump administration only to be met with silence: “Among the formal approaches that have failed to receive a response from the US over the past several months are queries about family separation of Central Americans at the US border with Mexico, death threats against a transgender activist in Seattle and allegations of anti-gay bias in the sentencing to death of a prisoner in South Dakota.” When events like the family separations at the southern border of the US occur at the administration’s injunction, there is no further authority to regulate the practices; they are legally permissible unless some court can declare them illegal in some way. The huge bureaucratic force of the executive branch was (and is) behind a system that separated families and housed many in cages, all performed according to policy.

A major role of the United Nations is to monitor and report on the condition of respect for human rights in countries around the world. This is a crucial function because there are multiple ways that the living conditions for people can violate their human rights, even in manners systematically supported or allowed by governing systems. The UN human rights investigators serve as an external check on the effects of the policies that sovereign nations can enact.

Countries sometimes enact policies that directly violate human rights, such as the border policies in the US recently, but systemic conditions in a country can also create or reinforce conditions that violate human rights, such as the poverty being investigated by the UN before the Trump administration ceased to cooperate. Both of these routes to human rights violations are concerning, of course, but what is perhaps most troubling is that direct rights violations are being blocked from UN and international scrutiny.

For the UN to be effective in holding sovereign nations accountable, nations need to cooperate and take its authority seriously. For the US to cease to interact and respect the UN’s human rights investigations is a blow to their international authority and may have long-term effects on the effectiveness of extra-national checks on the living conditions of citizens. One advantage of having a body like the UN perform such checks is that it reduces the pressure on individual nations to perform the checks or feel individual burden to perform humanitarian interventions.  Cooperating with the UN thus has the benefit of highlighting and hopefully cooperating with international standards of human rights within one’s own country, and maintaining an international body that can serve as such a check on nations in the future as well.

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Aging and Blaming in the Criminal Justice System

Photograph of a long hall of cells with light and a dome at the end

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.

A recent study in the medical journal The Lancet suggests that, if trends hold, 50% of babies born today will live to be over 100 years old.  Though long life is typically thought of as a good thing, some of our ordinary practices may need to change to track philosophical and practical challenges posed by longer life spans.  In particular, we need to reflect on whether our attitudes about blame and punishment need to be adjusted. For example, last year, John “Sonny” Franzese was released from an American prison at the age of 100.  Franzese was sentenced to fifty years for a bank robbery. The unique challenges and philosophical questions posed by extreme old age cast the moral permissibility of incarcerating the elderly into question.

Arguably, we need to think critically about duration of punishment. The criminal justice system in The United States relies heavily on retributivism as a justification for sentencing.  The concept of blame is central to a philosophy of retributivist justice. As an act of retribution, criminals are often given multiple life sentences or are sentenced to a number of years in prison that far exceeds the amount of time that criminal could reasonably expect to be alive. There is room for debate concerning the usefulness of blame as a moral concept.  Supposing, however, that blame is an important evaluative attitude in our moral lives, there is good reason for reflection on whether and under what conditions other moral considerations are more important than whether an agent is morally blameworthy. As lifespans increase, a life sentence becomes a still more serious proposition. At what point, if any, does respect for human dignity outweigh our retributivist concerns to ensure that a blameworthy agent is held responsible for their actions?

Intuitively, regardless of the nature of the crime, there are some upper limits to how long it is appropriate to punish someone.  For example, in his paper Divine Evil, David Lewis points out that it could never be just to punish a person infinitely for a finite crime.  Of course, in the context of the paper, Lewis is arguing that an omnibenevolent God couldn’t sentence a person to an eternity of torment in hell for a finite sin, but the main point here holds.  If human beings were immortal, it would be unjust to hold them in prison forever with no chance of release as punishment for a single crime or series of crimes.  That suggests that there is a time at which continuing to punish a blameworthy person is no longer morally justified. Some countries, like Portugal, Norway, and Spain, don’t sentence convicted criminals to life in prison at all.  In many other European nations, a life sentence always includes the possibility of parole. The understanding seems to be that a life sentence without the possibility of parole is a human rights violation. Even if the United States does not come around to thinking about the issue in this way, as human lifespans continue to get longer, it’s important to identify the point at which punishment is no longer morally permissible.

For retributivism to be justified, our assessments of blame must be apt.  For our judgments of blameworthiness to be apt, it must be the case that we are blaming one and the same person who engaged in the wrongdoing for which they are being blamed.  Increased lifespans muddy the waters of identity judgment. An extremely elderly person may have little to no psychological continuity with the being they were when they engaged in wrongdoing.  In his paper The Makropulos Case: Reflections on the Tedium of Immortality, Bernard Williams argues that if a being were immortal, or even if that being were to live an exceptionally long life, that being would either become extremely bored or would change so much that they would no longer be justified in judging future experiences as their own experiences.  Living a flourishing human life is a matter of setting goals and completing projects.  The kinds of goals we set goes a long way to establishing who we are as people. If we continue to set goals of the same type, Williams argues, we will inevitably get bored.  If we set different goals, we will eventually become totally different people, unrecognizable to our former selves.

Aging criminals aren’t immortal, but as human lifespans continue to increase, it may well be the case that they resemble their former selves in very few respects.  If this is the case, it is far from clear that our identity judgments are justified or that our assessments of blameworthiness are apt. This recognition should also cause us to reevaluate our goals when it comes to punishment.  As prisoners age, should our philosophy of punishment still be retributivism?

If blame is a useful moral concept, it is, at least in part, because a moral community that makes use of blame has a mechanism for encouraging bad actors to change their behavior in the future.  To successfully bring about this change in behavior, it is important that the behavior in question is a salient thread in the life narrative of the wrongdoer. Once enough time has past such that this is no longer true, it’s possible that continuing to blame a wrongdoer no longer serves this important social function in our moral community.

Roles and Responsibilities with Robin Zheng

We’re facing some pretty big problems these days. And whether they’re things like climate change, racism or poverty, these problems are all bigger than we are as individuals. So big, in fact, it can be tempting to give up responsibility for social change altogether. Today’s guest, the philosopher Robin Zheng, says that’s a mistake. She’s come up with a way of thinking about social responsibility called the Role Ideal Model. It’s a fascinating theory about the relationship between individual responsibility and structural injustice.

For the episode transcript, download a copy or read it below.

Contact us at examiningethics@gmail.com

Links to people and ideas mentioned in the show

    1. Robin Zheng, “What Is My Role in Changing the System? A New Model of Responsibility for Structural Injustice”
    2. Robin Zheng was also on an early episode of the podcast. We’ve made some improvements to the podcast since those early days, but her interview is still great!
    3. Sally Haslanger’s example of structural injustice
    4. Iris Marion Young, Responsibility for Justice
    5. Social roles
    6. Responsibility
    7. Identity Matters: Standpoint Epistemology with Briana Toole

Chapters

(00:00:01) Introductions
(00:01:14) Structural injustice explained
(00:05:08) Are individuals responsible for injustice that happens in social structures and systems?
(00:06:33) Role Ideal Model of social responsibility
(00:07:03) Social roles and expectations in society
(00:09:03) Social roles and social structures
(00:10:15) How we can use our social roles to fight against structural injustice
(00:12:15) Striving for a role ideal
(00:15:20) How not to be paralyzed by the responsibility of using social roles to fight injustice
(00:17:50) Quick summary of the discussion
(00:19:10) Why Robin Zheng defends this idea
(00:21:15) Listener response to Standpoint Epistemology with Briana Toole
(00:23:41) Response from Briana Toole to Linda’s comment

Credits

Thanks to Evelyn Brosius for our logo. Music featured in the show:

“Zeppelin” by Blue Dot Sessions

“Hickory Interlude” by Blue Dot Sessions

“Thannoid” by Blue Dot Sessions

“Floating Whist” by Blue Dot Sessions

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Uighur Re-Education and Freedom of Conscience

"Tiananmen Square & Forbidden city entrance, Beijing, China" by Joe Hunt licensed under CC BY 2.0 (via Flickr)..jpg

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.

In August, UN’s human rights committees received credible information about abuses in the Xinjiang region of China. In this large, supposedly autonomous region in the west of China, there are about 11 million Uighur Muslims who speak a language similar to Turkish. The concerns raised to the UN committee included biometric testing, surveillance, and re-education programs against this significant minority population. Human Rights Watch reported that citizens that had family members living in any of 26 “sensitive” countries were being detained. The surveillance is said to include tracking people using coded entry to buildings and facial recognition technology, and the use of WhatsApp is being tracked. Credible reports to the UN claim that an estimated 1 million Uighurs are in camps undergoing torture and forced to praise the president while renouncing their religion.

Xinjiang, the largest region in China, is being compared to a large internment camp. The BBC reports, “Former prisoners told us of physical as well as psychological torture in the camps. Entire families had disappeared, and we were told detainees were tortured physically and mentally.” In August, China denied actions being taken in the region.

In the second week of October, Beijing legalized re-education camps and programs in order to tackle so-called Uighur extremism through “thought transformation.” The indoctrination includes forced Mandarin teaching and renunciation of the detainees’ Muslim faith in the name of “vocational training.” While China defends the new legalization of interventions in Xinjiang, Sophie Richardson from Human Rights Watch said the “words on paper outlining grotesque, vast human rights abuses don’t deserve the term ‘law.'” (The extremist behavior China cites as justifying this extreme intervention includes not watching state tv, avoiding state-run schools, and producing halal products.)

The extreme surveillance and lack of due process before detaining individuals in the camps is problematic from a human rights perspective, of course. Here I will focus on the conversion efforts and why they are uniquely problematic.

The Chinese government is coercing a group of people away from sincerely held ethical or religious beliefs and thereby violating a right to freedom of conscience. Why might we think this is a human right, or perhaps less stringent, a value that ought to be prima facie respected?

Historically there have been a few different angles to defend the freedom of conscience. Typically, they center on a descriptive fact of human nature: people have a plurality of ethical and religious perspectives.

A defense based on (lack of) effectiveness suggests that when you coerce ethical or religious conversion, at most you will alter external practices while the individual’s internal commitments will remain unchanged. Political coercion, in other words, is not effective in altering ethical and religious outlooks. You are, in effect, creating a group of hypocrites who have a comprehensive moral view that conflicts with their outward behavior.

There have, of course, been faiths that have at particular times doubted this ineffectiveness. The Catholic Church in Europe considered violence at times to open heretic’s eyes to the “truth,” and thus coercion was justified (Augustine argues this case in the fifth century, and others take up this tack centuries later during the Reformation). To justify this conversion, the coercive group has been committed to a notion that they have the truth, or the correct ethical view, to the point that making people believe the truth outweighs respecting their personal convictions.

Another defense of freedom of conscience originates from what could be seen as the opposite temperament – an epistemic humility about one’s own ethical or religious perspective. When we recognize that our commitments are just one set among many different sets of ethical and religious outlooks on the world, one response might be that there isn’t sufficient justification to move someone from what they believe to one’s own perspective. We can see this defense of freedom of conscience again in the Protestant Reformation (for instance, by Pierre Bayle), when some philosophers and religious scholars saw insufficient reason to adopt a Protestant or Catholic framework aside from conviction.

Both of these defenses of the freedom of conscience take it that people adopt different ethical orientations that differ substantively. In the first, the freedom is defended out of practical considerations doubting this purported fact can be altered. In the second, the freedom is defended on the grounds that the presences of a plurality undermines strong enough justification in any particular perspective to coerce conversion. John Rawls, a political philosopher in the 20th century in the US, was committed to what he called a “reasonable pluralism,” which can be seen as a mix of these defenses.

Rawls developed a theory for a just government that would have legitimate authority over its citizens and thereby be structured to promote the primary goods of the people. On Rawls’ view, there are a number of ethical and religious perspectives that one could “reasonably” adopt; people reasoning in good faith will inevitably come to different conclusions about deep, philosophical questions because of their own unique set of experiences and values. While not all determinations will be morally defensible, there will be a range of convictions that might be deemed justifiable epistemically and sufficiently tolerant of others’ views. Given this range of reasonable ethical and religious worldviews, it would be presumptuous and intolerant for a practitioner of one comprehensive moral system (say, Buddhism) to expect a practitioner of another (say, Islam) to conform to his or her own (Buddhism).  So, at the level of government it would be unreasonable to include mandatory commitment to a particular comprehensive ethical or religious perspective (tenets of Buddhism, Islam, atheism, or any system that one would reject if didn’t share the ethical or religious perspective). The members of other ethical systems could reasonably reject such a government, which would undermine its legitimacy.

It is again worth noting that there are substantive commitments underlying the pluralist commitments of Rawls’ view. There have been political philosophies that do not take pluralism to be a necessary tenet of a legitimate government while accepting the descriptive fact that people may adopt many different ethical views.

Mozi, a philosopher from the Warring States Period of Chinese history, was concerned about pluralism. He agreed with the descriptive commitment that where there are many people there are many ethical and religious commitments. However, he saw this is as something to tackle rather than to accept because of the discord that foments as a result. In a “state of nature” argument that justifies the legitimacy of a very different government structure than Rawls’, Mozi argues that an authoritarian government that speaks with one ethical voice and is free of corruption will inspire ethical monism and prosperity among the people. He thus disagrees with the first defense of the freedom of conscience and considers it possible to influence the population’s ethical perspective; roughly, he recommends having those in positions of power reward and honor individuals in line with the ethos of the government and suggests that an ethical monism in the nation will follow.

In political philosophy, the problem of descriptive pluralism is a complicated one as it involves empirical questions regarding what it takes to alter someone’s deepest ethical conviction as well as normative ones concerning which ethical convictions are justified and when influencing the convictions of others is justified. Today, the government crackdown in Xinjiang involves such an intersection of rights abuses that it is clear that many injustices are being committed. In the US, members of Congress has pressed for Trump to intervene in China to discourage their treatment but as of the second week of October, the Trump administration has not responded.

Identity Matters: Standpoint Epistemology with Briana Toole

How do we obtain knowledge? Does who we are, and where we sit on the social spectrum matter when it comes to how we form beliefs? On today’s podcast, we’re talking to Briana Toole, a philosopher who defends an idea known as standpoint epistemology. It’s the view that your identity has the power to help influence the kinds of knowledge you have access to.

For the episode transcript, download a copy or read it below.

Contact us at examiningethics@gmail.com

Links to people and ideas mentioned in the show

  1. Briana Toole’s research on epistemology and some of her other work
  2. Epistemology
  3. Clip of Rachael Denhollander’s testimony taken from this video of her complete statement before the court during Larry Nassar’s sentencing
  4. USA Gymnastics scandal and story
  5. Testimonial injustice
  6. More on epistemic oppression from Kristie Dotson
  7. Ideal versus non-ideal theory
  8. More on situated knowers
  9. More on epistemic peerhood and disagreement
  10. Police brutality in the United States of America
  11. W.E.B. DuBois’ concept of “double-consciousness“
  12. Objectivity

Credits

Thanks to Evelyn Brosius for our logo. Music featured in the show:

“Cases to Rest” by Blue Dot Sessions

“A Certain Lightness” by Blue Dot Sessions

Podcast: Play in new window | Download

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