Mirror of Justice

Thursday, July 27, 2006

A response to Leiter's post

[Thought that some MOJ-readers might want to consider this response to Leiter's post, by Eliot Reed.]

But what about this argument for banning stem cell research, which makes no appeal to the doctrine of any religion? I use "stem cells" as shorthand for "embryonic stem cells" below:

1) Ceteris paribus, it is unethical to experiment on nonconsenting human life.
2) Stem cells are nonconsenting human lives.
3) None of the conditions that would negate the ceteris paribus condition in (1) are present.
4) Therefore, it is unethical to experiment on stem cells.
5) The government should not fund unethical research.
6) Therefore, the government should not fund stem cell research.

Or, alternatively,

7) Defining other members of homo sapiens as not really human, or as subhuman, or unworthy of moral consideration, has been the cause of great moral evils such as genocide.
8) The tendency to degrade or "other" members of homo sapiens and define them as not really human, subhuman, or unworthy of moral consideration, has been present and widespread in a great many societies and cultures, including our own.
9) Therefore, we should be extremely wary of defining other members of homo sapiens as nonhuman or subhuman or not worthy of moral consideration.
10) Stem cells are members of homo sapiens.
11) Therefore, we should be extremely wary of defining stem cells as not really human, subhuman, or unworthy of moral consideration.
12) If we are extremely wary of defining X as not really human, subhuman, or unworthy of moral consideration, the government should not fund research on X's.
13) Therefore, the government should not fund research on stem cells.

I don't see any appeals to God, immortal souls, revealed truth, the teachings of some particular religion, or any such indica of religiousness in these arguments. I see some controversial premises there, including ones I don't buy, but I don't see why any of these premises would be the wrong kinds of reasons, or why the commonly accepted truths of science etc. would render them obviously false.

Posted by: Elliot Reed | Jul 27, 2006 3:00:22 PM
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Any thoughts?
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Speaking for Dwyer . . .

By Rob Vischer

I hesitate to speak for someone else, but let me take up Michael S.'s question to James Dwyer regarding the anthropology underlying Prof. Dwyer's embrace (and aggressive enforcement) of liberal education norms, even as applied to religious schools. My guess is that Prof. Dwyer's first aim would be to educate the child in a way that facilitates her choosing of her own anthropological premises later in life; in this regard, his project does not necessarily ignore the nature of the human person, but recognizes the multitude of divergent anthropological premises to which Americans cling. In a broad sense, he does embrace a type of anthropology, albeit one that is arrived at via the "head count" method employed by Prof. Leiter. Prof. Dwyer writes in the current Journal of Catholic Legal Studies (vol. 44 at 225):

I would suggest that state conclusions about moral rights and duties emerge from perceiving an overlapping consensus among people holding diverse conceptions of the good, a consensus around principles that can be explained in terms of shared values like happiness, autonomy, and respect for personhood that are generally viewed today as not requiring reference to religious texts or divine authority for their legitimacy and force. . . . The more general principle that no person should be made the object of another's rights, a principle that we today apply even to non-autonomous persons who are adults, I have argued, should also be applied to children. At the most basic level, the state and private parties should treat every person as an end in himself or herself, and not as an instrument for the expression or gratification of others, no matter how well intentioned those others are.

Now I may disagree with some of the particular educational practices that Prof. Dwyer would find objectionable under this "thin" anthropology (and the degree of enforcement contemplated), but I must also acknowledge a sense of hesitation and discomfort if the state were to adopt anthropological premises much more specific and contested than the ones Prof. Dwyer lays out. That's why I find his work to be so insightful and challenging.

Rob

Dwyer's Anthropolgy: A question

By Michael Scaperlanda

This from an MOJ reader on my post about James Dwyer's views on the child-state-parent relationship (i.e., parents are merely state licensed care-givers for children):

“I liked your post re Dwyer and the challenge you put out 'So, smart
guy, what's your anthropology?' Love to hear his response. Absent a
thoughtful answer to this question we really can't have a serious
conversation about the rights of children, or anyone else for that
matter.”

Chicago's Minimum Wage Ordinance

By Elizabeth Schiltz

Today's NYT reports

After months of fevered lobbying and bitter debate, the Chicago City Council passed a groundbreaking ordinance yesterday requiring “big box” stores, like Wal-Mart and Home Depot, to pay a minimum wage of $10 an hour by 2010, along with at least $3 an hour worth of benefits.

Regardless of where you stand on the US Conference of Catholic Bishops' support for an increase in the minimum wage, won't this be a fascinating experiment to watch? If this withstands the threat of Mayor Daley's veto and legal challenges by retailers, it might be a municipal "laboratory for reform" that could test the competing arguments. Again from the NYT article:

With this ordinance, Chicago has opened a contentious front in the growing national movement, led by labor and poverty groups, to raise the incomes of bottom-rung workers through local minimum wage and “living wage” legislation. Some economists say such measures will stifle development and deprive consumers of access to cheap goods, but many poverty experts say that local efforts elsewhere to raise wages have not choked off growth and that the expanding, low-paying retail sector can be safely pressed to raise pay.

“We’re very confident that retailers want and need to be in Chicago, and the question for the city is what kinds of jobs they will bring,” said Annette Bernhardt of the Brennan Center for Justice at the New York University Law School, which helped draft the Chicago bill and has done economic studies of its likely impact.

I also think the federalism/subsidarity angle to this debate is interesting. Again from the NYT article:

The drive to raise state and city minimum wages has grown out of frustration with Congress, which has left the federal minimum wage at $5.15 an hour since 1997. At least 22 states have enacted somewhat higher minimum wage laws.

San Francisco; Albuquerque; Santa Fe, N.M.; and Washington have across-the-board minimum wage ordinances for all but the smallest businesses. Those in San Francisco and Santa Fe have set levels near that in the Chicago bill without driving out retailers, Ms. Bernhardt said.

In the area of the law more familiar to me, predatory lending, the municipal and state attempts to impose tighter restrictions on certain predatory lending practices than exist at the federal level are almost invariably preempted by federal banking law. I'm currently trying to work through whether principles of subsidiarity might be helpful in thinking about this issues. It might be interesting to watch what happens to these municiple minimum wage ordinances through that lens as well.

Lisa

leiter on religious reasons

By Richard Myers

I think Rob is correct that Leiter is off on the wrong track in his contribution to this discussion. Leiter certainly has a conception of reasons that he thinks are an appropriate basis for governmental action. He says that only "public reasons" count. That "sectarian, religious beliefs" don't. How do we tell which category we are in. He says, unhelpfuly, that this is on the basis of a "head count." Previously he said that the only reasons that count are "public reasons acceptable to all reasonable people." So, apparently, the only people whose "heads" are being counted are "reasonable" people. As lots of people have discussed, "reasonable" in this context means those who accept a narrow form of secular rationality that is confined to a very tiny segment of the population. Leiter tells us that Bush's view is religious becasue he says that it depends on ensoulment. I don't think that is true. (I don't believe that the Catholic Church has ever taken a position on the precise time that ensoulment occurs and the Church's respect for human life at all stages of development doesn't depend on ensoulment. See Donum Vitae on this point.)

I think one of the best things written on this is a piece published by Michael McConnell entitled "Five Reasons to Reject the Claim that Religious Arguments Should be Excluded from Democratic Deliberation," and published at 1999 Utah L. Rev. 639. There, McConnell concluded: "One false view of separation is the view that religious ideas must not serve as rationales for public policy. This view, called the 'principle of secular rationale,' is put forward as a means of protecting the public sphere from divisive, absolutist, intolerant impulses and from arguments that cannot be supported on the basis of accessible public reasons. But in fact, it rests on inaccurate stereotypes and questionable epistemological premises, and it would disenfranchise religious persons as full participating members of the political community. The United States has never adhered to the principle of secular rationale. Indeed, our political history is rife with religious political activists and religious political arguments....There is no good democratic argument for excluding them. But more than this: to exclude them would be inconsistent with the very ideals of democratic equality that the principle of secular rationale ostensibly seeks to protect. It is time to stop challenging our fellow citizen's right to be part of democratic dialogue, and time to engage their arguments on the merits."

Richard M.

Still More on Estate Taxes

By Elizabeth Schiltz

Tom's question about CST's concern for the potential social effects of large inherited wealth, particularly "effects such as increased inequality in life opportunities and starting points (which differs from inequality in outcomes) and the potential for increased stratification and a less fluid society" seems to me to be key to answering Rob's initial question about the estate tax:

can we agree that the existence of the estate tax -- putting aside questions of rate, when it kicks in, etc. -- is supported by CST, and perhaps more strongly, that its elimination would be condemned by CST?

When Fr. Ken Himes gave his wonderful introduction to CST to those of us gathered at Fordham this past June, he told us that among the foundational principles underlying CST is an understanding of equality not as strict equality, but rather as relative equality. He cited people like Pope Paul VI and John Ryan as developing this notion that there are ceilings to what's acceptable in terms of accumulation of wealth, just as there are floors to what's acceptable in terms of poverty levels. When the inequality between those at the top and those on the bottom becomes too severe, it endangers the bonds of community that hold us together. As I understood this idea, those with too much wealth are in just as much danger of losing the bonds of community, of dropping out of the "human family," as those with too little wealth.

If I am understanding this idea of "relative equality" correctly, and if Himes is right in suggesting that this is foundational for CST, doesn't that provide general support for at least the existence of an estate tax, even if the details of it have to be filtered through all the competing claims of prudential considerations like what the effect will be on family farms, whether we should just let Bill Gates & Warren Buffet funnel things back to the community however they want to do it, and whether Paris Hilton has entirely dropped out of the human family?

Lisa

More on Estate Tax

By Thomas Berg

If huge numbers of family farmers and small business owners are opposed to the estate tax, perhaps it's because some of them have been worked up by ads like the ones discussed -- and strongly refuted -- here by the independent organization factcheck.org. The title of the factcheck.org analysis, "Estate Tax Malarkey," gives you an idea of its attitude toward claims that the estate tax hurts lots of farmers and small businesses. (We can't dismiss Factcheck as a lefty site, because just a month before this paper it had helped refute the claim that abortions had risen during the Bush administration.)

Among the points in the factcheck.org analysis, one seems potentially relevant to Greg's assertion that "[a]pparently at least 15 family farms each year would immediately have to be sold to come up with assets to pay the taxes." Greg appears to infer that from the passage quoted by Rob that says "at the $2 million threshold, only 15 of the farms would have had insufficient liquid assets to pay." But the factcheck.org article suggests that for true small farmers and business owners, immediate payment is not necessarily required:

Worth noting is that family-owned farms and closely held businesses already receive special treatment under current law. Heirs who agree to keep the farm or business assets within the family for 10 years after death can reduce the taxable amount of the estate by 40 percent to 70 percent. And if the farm or business is at least 35 percent of the gross value of the estate, payments can be spread out over 14 years.

Maybe this is another of the reasons why the estimated number of farms that would have to be sold is as low as 15 -- or maybe the number is even lower? I don't know the answer to that question, but the point is that the tax already makes some provision for the concerns of farms and small businesses. At any rate, 15 farms a year is a very small number in a big nation, when balanced against the long-term costs of repeal worsening an already dangerous budget deficit (and does anyone seriously claim that the estate-tax repeal is any kind of supply-side growth-encouraging measure?). This seems a small tail wagging a very big dog of repeal. That's to say nothing of the many proposals that have been made to raise the exemption for farms and small businesses while leaving it unchanged for the heirs of very wealthy families -- a course of action far less regressive than repealing the tax altogether.

Certainly, the estate tax involves questions of prudence and fact that must be determined in order to apply the principles that CST sets forth. But surely that doesn't mean ipso facto we throw up our hands and say "well people just disagree"? A couple of questions and a comment:

1. Of course, one of the "artificial structures or transfers and distributions" that people do to avoid the estate tax is to give to charity. The CBO estimates that repealing the estate tax would reduce charitable contributions (during life and in bequests) by a net 6 to 12 percent (and I've heard larger estimates). While of course some charitable causes receiving contributions are morally neutral or even wrong, does CST nevertheless regard charitable contributions as a category as a good thing (and thus presumably be concerned about a measure reducing the incentives to contribute)? I would think so.

2. Is CST at all concerned about the potential social effects of large inherited wealth (at least beyond what's needed to give people significant incentives to work for their kids' futures) -- effects such as increased inequality in life opportunities and starting points (which differs from inequality in outcomes) and the potential for increased stratification and a less fluid society? (We might add the negative effects on the heirs themselves, although that is subject to the objection that it is purely paternalistic.)

3. Greg's post throws up lots of questions about the estate tax without offering data to counter the data Rob cites about the small numbers affected; instead Greg seems to suggest that there's no way we could balance these considerations and reach any kind of judgment about what CST suggests, or which way it points, on this question. I agree that we have to be careful about making judgments on complex policy questions and have to know all the facts. But I think there is also a danger on the other side of a kind of "prudentialist relativism," in which, outside of a few issues with categorical rules, we throw up our hands and say it's just so complex we can't reach any judgment. There needs to be room for intermediate judgments, in which we say that although there is no categorical rule, nevertheless on balance the major principles of CST point in a certain direction on a given question. (And to answer some of the concerns Rick has raised in the past ... that doesn't the bishops should speak officially on all such things; lay people can take the lead without the implication that therefore the issue in question is up for grabs under CST.)

Tom

Leiter on Garnett on Stone on Bush

By Rob Vischer

Brian Leiter has weighed in on Geoffrey Stone's claim that President Bush's stem cell veto exhibited reckless disregard for the separation of church and state. In addressing Rick's contribution to the debate, Prof. Leiter offers his perspective on "public reasons":

"Public reasons" are, by hypothesis here, reasons that may properly ground legislation and exercises of state power. The argument that religious reasons are not "public reasons" isn't that they lack a certain kind of foundation that genuine "public reasons" have (perhaps this is what Professor Volokh was after with the talk about "provability"); the argument is that they aren't public, i.e., that they aren't the kinds of reasons acceptable to all reasonable people in a pluralistic society. Many "public reasons" in this sense may lack foundations of one kind or another, but that has no bearing on their public status. To put it (a bit too) crudely, reasons are "public" largely in virtue of a head count, not in virtue of their having more robust epistemic foundations. So, contra Professor Garnett, it is not apparent that the the foundations of the beliefs or reasons in question are at issue here.

I have always thought that the distinction between public and non-public reasons centered precisely on epistemic foundations -- i.e. their epistemic accessibility -- partly because of the difficulty in reaching any semblance of consensus in identifying the sort of reasons that would be "acceptable to all reasonable people in a pluralistic society." For those who have thought more deeply about this than I ever will (hello Michael P.?), are public reasons commonly defined via the head count method? And can identifying the reasons acceptable to all reasonable people occur without addressing, at some point, the epistemic foundations of those reasons?

Rob

Religion in Politics: President Bush, Professor Stone, and, Now, Brian Leiter

By Michael Perry

Every MOJ-reader should take the time to familiarize him- or herself with what Brian Leiter has to say about President Bush's recent "stem cell veto". Click here.

Do you find Leiter's comments persuasive? Unpersuasive? If the latter, where, precisely, do Leiter's comments misfire, in your judgment? Leiter replies to something our own Rick Garnett has said. I'm eager to hear Rick's rejoinder. I'm also eager to hear what Robby George has to say about Leiter's post. Robby is surely as well qualified as anyone--better qualified than most--to engage Leiter critically and productively.

As the author of three books about religion in politics (I'm now writing a fourth), I would prefer, for now, to shut up and listen. Imagine that! Must be something in the water ...
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