Category Archives: Begging the Question

Begging the Question, George Will

Inalienable

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Whatever one's view of gay marriage, one has to admit that many arguments in favor of it rest on some notion of basic rights.  Whether that claim is true is not my concern now.  However, in the interest of full disclosure, I think that it is.  Whatever one's conception of basic rights, in a constitutional democracy such as our own, such rights are guaranteed by the constitution's bill of rights at the federal level, and by state's constitutions at the state level.  The structure our constitutions guarantees that constitutional rights do not depend in the first instance on the whim of the people.  We cannot vote that some minority group be stripped of its constitutional rights.  Constitutional rights are guarantees, aren't they?  

Let's set the stage.  Here's aspiring legal scholar, George Will:

In November, 13,402,566 California voters expressed themselves for or against Proposition 8, which said that their state's Constitution should be amended to define marriage as a relationship between a man and a woman. The voters, confident that they had a right to decide this question by referendum, endorsed Proposition 8 by a margin of 52.3 to 47.7 percent

Well, that's the question isn't it–whether the voters were acting constitutionally (thinking you are, by the way, does not mean you are).  Do the voters get to decide which rights people have according to the constitution by constitutional referendum?  On the one hand, the constitution is malleable by referendum.  And good thing too.  But Will argues that this right has no boundaries.  But this power of referendum certainly cannot be infinite.  I mean, for instance, you can't have explicitly contradictory provisions.  That would mean legal chaos.  You cannot, in other words, answer every constitutional question by referendum.  This way we cannot have an election stripping Mormons of the right to vote, or women of the right to be physicists.  So, in other words, which rights are of this type is the question.  Does civil marriage constitute one such right?  Here's Jerry Brown (in the words of George Will):

Now comes California's attorney general, Jerry Brown — always a fountain of novel arguments — with a 111-page brief asking the state Supreme Court to declare the constitutional amendment unconstitutional. He favors same-sex marriages and says the amendment violates Article 1, Section 1, of California's Constitution, which enumerates "inalienable rights" to, among other things, liberty, happiness and privacy. 

And that's an interesting argument, I think.  If certain rights are inalienable, then it's constitutionally prohibited that they be alienable by referendum, even if that referendum was believed to be constitutional by the voters.  The proper place to answer such questions–that is, about the constitutionality of the questions–is also provided in our constitutions–the courts, whose job it is to interpret the law.  One needs generally to interpret documents whose meaning and provisions are sometimes unclear.  And this seems like an instance of that.  But not to George Will:

Brown's audacious argument is a viscous soup of natural-law and natural-rights philosophizing, utterly untethered from case law. It is designed to effect a constitutional revolution by establishing an unchallengeable judicial hegemony. He argues that:

The not-really-sovereign people cannot use the constitutionally provided amendment process to define the scope of rights enumerated in the Constitution; California's judiciary, although established by the state's Constitution, has the extra-constitutional right to supplement that enumeration by brooding about natural law, natural justice and natural rights, all arising from some authority somewhere outside the Constitution; the judiciary has the unchallengeable right to say what social policies are entailed by or proscribed by the state Constitution's declaration of rights and other rights discovered by judges.

What is natural justice? Learned and honorable people disagree. Which is why such consensus as can be reached is codified in a constitution. But Brown's reasoning would make California's Constitution subordinate to judges' flights of fancy regarding natural justice. Judges could declare unconstitutional any act of Constitution-revising by the people.

That's the constitutional role of the judiciary (as established by case law).  Their having this role does not mean the people of California are not "sovereign."  That misses the point of Brown's objection.  And it misses the point of our constitutional structure.  It's the constitutional job of the judiciary to interpret the law.  How do they do that?  You can't ask the law you're interpreting, because you have to interpret it.  What to do?  Antonin Scalia, for instance, uses a dictionary.  Clarence Thomas, get this, natural law–whatever that is.

Appeal to the People, Argument Analysis, Begging the Question, General discussion

Same sex marriage and begging the question

39 Comments

This is a bit of a departure from our usual analysis of particular arguments in the media, but because these arguments are fairly common and because we've been hashing these issues out in the comments to the earlier post "5,000 Years," I thought I'd try to synthesize the analysis of the argument as I see it.

Is there a non-question begging (secular) argument for the following claim?

C: Same-sex relationships cannot be considered "marriage."

Setting aside certain circular arguments about tradition (like Rick Warren's which was originally being commented on), the best argument seems to rest on the premise:

P: A necessary condition of marriage is the biological possibility of procreation.

Here biological possibility has to be understood as satisfying the counter-factual condition:

BP: If the functional organs of procreation are working in a species typical way, procreation would be biologically possible.

This condition is meant to include infertile and older couples within the scope of the condition, while still excluding same sex couples. I am not, of course, endorsing this exclusion: the question is whether a good argument can be constructed for C, as a matter of logic, that could justify arguments against same-sex marriage. I am tempted to claim that there cannot be any such argument after considering the various arguments.

Because the argument is trading in essences and definitions it would seem to be deductive: That is, it argues for the impossibility of same-sex marriage by appeal to a definition/essence. It has the form of:

1. X is a necessary condition of Y.

2. Necessarily, Z does not have X.

3. Therefore, necessarily, Z is not Y.

Triangles must have straight sides. Necessarily, Circles do not have straight sides. Therefore, necessarily, circles are not Triangles. Or, Nougaty filling is a necessary condition of being a Three Musketeers bar. Necessarily, Toffee does not have a nougaty filling. Therefore, necessarily, toffee is not a Three Musketeer's bar.

As such this looks like a valid deductive argument. But, a critic might wonder whether P understood in the light of BP really says anything more the following implicit premise.

IP: Only heterosexual couples can be married.

If this is so, then the argument might reasonably be accused of begging the question. But determining when the question is begged needs to be handled carefully, since a begged question can always be resolved by appealing to some further argument that independently justifies the problematic premise.

So, the question then becomes, what independent reason can be provided for P/BP? What sort of "warrant" can be given to claim that marriage has an essential link to the biological possibility of procreation?

In the comments, we identified two distinct strategies:

a) Appeal to tradition/Generalization from past practices–this can range from some sort of descriptive anthropological claim, to some sort of generalization to a normative claim, or a most often a simple stipulation on the basis of past stipulation.

b) Appeal to social function of marriage as defining its essence (coupled with an argument that marriage is the best means for attaining the relevant goals).

It seems to me that (a) either begs the question if it appeals to tradition, or, fails to attain the universality that seems to be needed to underwrite P/BP (at most the generalization can show is that marriage has been understood to have an essential connection to the possibility of procreation, not that this is essential for it. And counter-examples are too many to make the universalization possible (old people getting married, infertile couples etc. And it's no good saying that marriage has just been socially constructed this way, since we are aiming for an essential connection.)

The appeal to tradition seems to me to beg the question insofar as it takes the following form: 

1.  Marriage has been understood (in the past) to require P/BP.

2. Therefore, P/BP

[I probably don't have the logic right here. I'm realizing as I write that I'm not quite clear on how "appeals to tradition" really work, though I think that they are typically bad arguments. I guess they're a sort of temporally dispersed ad populum.]

Even if we can avoid begging the question here, the problem with this argument is that insofar as it appeals to people's opinions about marriage, it relies on a convention, which doesn't seem to be able to underwrite a claim about essence. At most it underwrites a sort of stipulation which isn't adequate to the purposes of this argument.

The strategy of (b) fails for slightly different reasons. The argument seems to run something like this:

1. Marriages provide for stable procreative units.

2. Society has an interest in stable procreative units.

3. Therefore, Society has an interest in recognizing marriages that are means to stable procreative unit

and,

4. Therefore, Society does not have an interest in recognizing relationships as marriages that are not means to stable procreative units.

This is a fine argument as it stands, but it doesn't get close to showing that there is some sort of essential incoherence in the notion of a marriage for some other purpose (adoptive child-rearing for example). It needs to conclude something much stronger than this, something that would suggest that recognizing same-sex marriages is incoherent, since it aims at establishing P/BP. At most it has shown that from the perspective of society, whether there are same-sex marriages or not is a matter of ambivalence. I think typically the argument seems to succeed because it trades the elision of biological function and social function. A little dose of evolution seems to suggest that this necessity is somehow a species necessity, but I think those arguments are pretty empty. (That is, I don't think we can deduce the "right" social institutions from biology, though I certainly grant that there are lots of ways in which biological truths affect which institutions are desirable and which not). 

I'm not at all sure about much of this, and I'm sure there are strategies that I've missed. And certainly it is always open to the arguer to appeal to the Bible or personal communications with God to justify P/BP. But, as far as I can see, I cannot find a viable strategy to make the argument non-question begging. The problem is that the opponent of same-sex marriage must offer a very very strong argument that concludes impossibility if they want to trade on an putative "essence" of marriage. But, the arguments that would establish this putative "essence" of marriage seem to be either too weak to do so, or end up begging the question. The problem is that the "tradition" of heterosexual marriage might have arisen because it was socially useful (and perhaps still is) for managing procreation and the family, but that does not enail the necessary link between marriage and procreation. If this is so, then the whole strategy needs to be rethought, as it is doomed to failure. But, maybe I'm missing something obvious.

Begging the Question, Jonah Goldberg

Patriotismo

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As we head toward the Fourth of July, perhaps some might enjoy the following definition of patriotism from Jonah Goldberg (via Whiskey Fire):

Definitions of patriotism proliferate, but in the American context patriotism must involve not only devotion to American texts (something that distinguishes our patriotism from European nationalism) but also an abiding belief in the inherent and enduring goodness of the American nation. We might need to change this or that policy or law, fix this or that problem, but at the end of the day the patriotic American believes that America is fundamentally good as it is.

It's the "good as it is" part that has vexed many on the left since at least the Progressive era. Marxists and other revolutionaries obviously don't believe entrepreneurial and religious America is good as it is. But even more mainstream figures have a problem distinguishing patriotic reform from reformation. Many progressives in the 1920s considered the American hinterlands a vast sea of yokels and boobs, incapable of grasping how much they needed what the activists were selling.

Why "must" it involve such echoes of state religion (i.e., fascism)?  No one knows.  Goldberg doesn't bother to say.

 

Begging the Question, General discussion, Michael Gerson, specious comparisons

You’re no MLK

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Guess who this is:

Like other American heroes . . . . [NAME] was not a simple figure. He inclined toward democratic socialism as the answer to poverty. In his opposition to the Vietnam War, he called America "the greatest purveyor of violence in the world today" and thundered that God might "break the backbone" of American power. Toward the end of his short life — after years of fire hoses and attack dogs, wiretaps and bomb threats — [NAME] became increasingly isolated and depressed.

Sounds like the Reverend Jeremiah Wright–or someone equally "angry."  But no, it's Martin Luther King.  One might be tempted from such a description to rethink the universal condemnation of Reverend Wright.  In his own context, Martin Luther King said some pretty astounding things about God's judgment of American arrogance.  But where one might draw lessons from history, Michael Gerson sees only differences.  People other than King, you know, the people like the Reverend Wright (Gerson oddly doesn't use any of Wright's words in this piece on why he's no MLK), are unamerican.

Under King's leadership, the civil rights movement affirmed several principles: a belief that Providence favors justice and forbids despair; a belief that even the most bigoted whites have a core of humanity that might be touched and redeemed; a belief that American ideals were the ultimate answer to America's sins.

These beliefs were often criticized by King's contemporaries such as Malcolm X (who dismissed the 1963 March on Washington as the "Farce on Washington") and Stokely Carmichael (who argued that voting rights were "irrelevant to the lives of black people"). And these beliefs remain controversial with leaders such as Wright and professor James Cone, the father of black liberation theology. "Black theology," wrote Cone, "will accept only the love of God which participates in the destruction of the white enemy."

The problem with this approach is not that it is political, or even liberal — the African American church has generally been both. The problem is that it leads to a dead end of anger, conspiracy theories and futility. And it ignores the deeper radicalism of the American experiment — the radicalism of full citizenship and justice for every American — that inspired King, and that will inspire others.

The problem with Wright, you see, is that he seems to claim that the American experiment (when will people stop saying that?  The experiment is over by now) hasn't produced "full citizenship and justice for every American."  How dare he.

Begging the Question, George Will, Suppressed Evidence

On the merits

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We’re back from Spring Break.  Opening up today’s Washington Post, we noticed that George Will holding forth on the judiciary.  For those who don’t know, George Will has one thing to say about the judiciary: it shouldn’t be in the business of making social policy.  Of course that’s a silly view, because it purposely ignores the questions the courts must resolve: what is the law?  What does it mean to "bear arms"?  What does "free speech" mean?  What is "equal protection"?  These are unavoidable social policy questions.

Today he animates his usual complaint with the following statistic:

The denial of annual increases, Roberts wrote, "has left federal trial
judges — the backbone of our system of justice — earning about the
same as (and in some cases less than) first-year lawyers
at firms in major cities, where many of the judges are located." The
cost of rectifying this would be less than .004 percent of the federal
budget. The cost of not doing so will be a decrease in the quality of
an increasingly important judiciary — and a change in its perspective.
Fifty years ago, about 65 percent of the federal judiciary came from
the private sector — from the practicing bar — and 35 percent from
the public sector. Today 60 percent come from government jobs, less
than 40 percent from private practice. This tends to produce a
judiciary that is not only more important than ever but also is more of
an extension of the bureaucracy than a check on it.

I wonder what "government job" means in this instance.  Could it mean they were judges?  That’s a government job.  And I’d hardly call that particular government job "an extension of the bureaucracy" (since, after all, the judiciary is a branch of the government).  

But what silly conclusion does Will draw from this?

Upon what meat hath our judiciary fed in growing so great? The meat of
modern liberalism, the animating doctrine of the regulatory and
redistributionist state. Courts have been pulled where politics,
emancipated from constitutional constraints, has taken the law — into
every facet of life.

Even though the "government job" set-up is silly, this is even sillier.  But it’s the typical Will complaint about the courts.  Courts, Will complains, have been pulled around by politics, etc. etc.  That’s a silly objection.  Here’s why: the courts decide political issues.   They have to.  It’s their job.  When they decide these questions, they give arguments, called "opinions."  These contain what they consider the legal rationale for the position they take.  If Will doesn’t like this legal rationale, then he owes the courts an argument, as they say in legal circles, "on the merits."  To ignore this obvious fact, as Will does, is what one might call "begging the question." 

For the one or maybe two conservatives who may stumble upon this, I’m not arguing that the opposite of Will’s view (whatever that might be) is correct.  I’m merely suggesting that his complaint about the judiciary is hollow.  There probably are some pretty good conservative positions on the judiciary.  It’s a shame that shallow whining of the Will variety has achieved such prominence. 

Begging the Question

The Banality of Fallacy

We may not write about it much, but we like books. We hope you do to. Do you know who else likes books? Fred Siegel, that's who; and he talks about it. A lot. In fact, he's read a lot of books and come to the conclusion the "Politics of Hope" is a hopeless junket. In fact, this pie-in-sky "utopianism" cashes out to little more than fascism, communism or and totalitarianism. I really hope he's got an argument for this. Oh, joy:

Emerson wrote during a time of numerous experiments in utopian living. Obama—whose candidacy rests upon a standard utopian dichotomy between the earthly evils of poverty, injustice, war, and partisanship, and the promise of the world to come if we allow him to rescue us—appeals to the same Elysian strain in American and Western political life, largely in remission since 1980, when the 1960s truly ended.

… 

In the wake of bloody utopian experiments in 1930s Europe, a slew of erudite authors launched compelling attacks on them. Jacob Talmon, Karl Popper, Raymond Aaron, Czeslaw Milosz, and Hannah Arendt laid waste to the historical, philosophical, sociological, and literary assumptions that supported communism and fascism. But their arguments didn’t endure, despite their power. By the mid-1960s, utopianism had again taken hold, and its lure was such that even Arendt, once a vocal opponent, found herself drawn to the religion of politics. Propelled by her disdain for America in general and the Vietnam War in particular, as well as the promise, as she saw it, of worker-control experiments in Europe, she effectively reversed much of her earlier writings.

…

 Obama’s utopian vision of transcending the interests that make up the fabric of our democracy is unlikely to fare any better than the “politics of hope” did in Emerson’s time. The key question at hand is whether Obama’s Edenic bubble bursts before or after the election.

Nice. Emerson wrote when utopian projects were the latest fad. Those failed, ergo Emerson failed. If Obama's populism appeals to the same strain of American thought as Emerson's, who wrote around the time of utopian projects, Obama must be a utopian thinker. And, as we all know, utopianism is just warmed over communism and fascism.  Since Obama is a utopian, and thereby a communist/fascist, Obama is doomed to fail, just like communism and fascism have failed, thus, the Politics of Hope is a sham. Got it. Solid reasoning.

No Bear 

Besides the obvious factual objections that might be made to Siegel's claims, note the subtle shift from speaking about communism and fascism to speaking about utopianism as if they were the same thing. And it's not that Siegel simply doesn't argue for this position, its that he assumes it as evidently true in the course of his argument.

Begging the Question

Middle of the road

I find this sort of attitude baffling.  In a review of Richard Thompson Ford's The Race Card: How Bluffing About Bias Makes Race Relations Worse, William Grimes, the New York Times reviewer writes:

When he bears down, however, Mr. Ford is bracing. He clears away a lot of clutter, nonsense and bad faith. Best of all, he argues his humane, centrist position without apology or hesitation. Sticking to the middle of the road, after all, can be the fastest way to get where you’re going.

Mr. Ford wants to move beyond name calling and emotional point scoring. Let’s reserve the word racist, he suggests, for clear-cut instances of bigotry, and address more subtle problems of racial prejudice as we do air pollution, instead of rape or murder.

Two things.  One, I would hardly call the "middle of the road" remark axiomatic.  Whether it really is the fastest way to get where you're going depends on whether the road runs by George Allen's house.

This leads to a second point.  I can't think of anyone who would say: "I don't want to move beyond name calling and point scoring.  I'm happy with that."  That's about as empty a pronouncement as "let's move beyond false beliefs." And reserving the word "racist" for "clear-cut" instances of racism just begs the questions against those who level the accusation.  They, after all, think they have reasons.  What constitutes a clear-cut instance of racism, indeed, is just the issue.  What are those clear-cut instances?  I can't really say for sure, because, as is the case with false beliefs, they never seem to be racist to those involved.

Academics, Begging the Question, General discussion

The original

Many people invoke the “plain text” (or some close variant) of the constitution in order to resolve questions about its meaning. Those people, insofar as they insist on that principle, are originalists. For a more edifying discussion of that topic than one can find here, see Brian Leiter’s law blog. Here’s an excerpt of his argument:

>. . . [O]nce we acknowledge (as Barnett rightly does) that a theory of constitutional interpretation must answer to a theory of constitutional legitimacy, then the constitution (as a written document, or as a document about which framers had some original intention, or as a document which had an original “public” meaning, and so on) drops almost entirely out of the picture: the theory of constitutional legitimacy tells judges how they should decide cases, and the written constitution is, at best, a proxy for what is constitutionally legitimate or is relevant because of its effect on the reasonable expectations of citizens (the latter being a factor bearing on constitutional legitimacy). In other words, Barnett’s theory of constitutional interpretation, because it (unlike most theories–Ackerman’s, Amar’s, etc.) has the correct moral structure is not really a defense of originalism, but a defense of whatever method of interpretation produces “legitimate” (i.e., morally authoritative) outcomes. The writtenness of the constitution, and its original meaing, might, indeed, figure at this point, but only in the way that Raz (who, in an odd way, echoes Posner) suggests: namely, because some moral value (some moral value that bears on authority) attaches to the fact that some understanding of the constitution (original or otherwise) has been stable, relied upon, figures in the public understanding of the society in which people plan their lives, etc.

Aside from the fact that nothing about the Constitution says it should be interpreted one way rather than another, once one adopts an interpretative theory, as Leiter suggests, one has left the text behind. All of this makes the following response mystifying:

>Notice that, while “justice” is the ultimate normative justification for originalism, the intermediate steps are crucial. If a written constitution is valuable for the reasons identified–to define and police the principal-agent relationship–then one cannot simply dispense with it in pursuit of greater justice. More precisely, agent-judges cannot on their own authorize agent-legislatures to exceed their proper powers as defined by the written Constitution in pursuit of greater “justice” than that document provides.

“Simply dispense” and “on their own” beg the question against Leiter, at least it seems so to me. The argument concerns how one ought to read the Constitution, part of that argument involves denying “an original” meaning in isolation from a more basic legal theory. Asserting that one ought to read the Constitution literally just ignores that point.

It turns out that point was made here by Larry Solum:

>Once we have the distinction between semantic and normative originalism in place, it is easy to see that semantic claims are at the heart of the New Originalism or original-meaning originalism. If the semantic claim were false, and the conventional semantic meaning of the text in context at the time of framing and ratification were not the “meaning” of the constitution, then it would be difficult for New Originalists to argue that there are good normative reasons to give this meaning authority. The difficulty is obvious: why should we have a normative commitment to something the Constitution doesn’t mean? If the original meaning is not the actual semantic content of the constitution, but is instead a construction or invention of originalist judges, then many of the normative arguments produced by originalists could be turned against originalism itself.

Begging the Question, Michael Gerson

Principle limitation

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This claim strikes me as a fairly disingenuous interpretation of “Catholic Social Thought”:

>The difference between these visions is considerable. Various forms of libertarianism and anti-government conservatism share a belief that justice is defined by the imposition of impartial rules — free markets and the rule of law. If everyone is treated fairly and equally, the state has done its job. But Catholic social thought takes a large step beyond that view. While it affirms the principle of limited government — asserting the existence of a world of families, congregations and community institutions where government should rarely tread — it also asserts that the justice of society is measured by its treatment of the helpless and poor. And this creates a positive obligation to order society in a way that protects and benefits the powerless and suffering.

It will all depend, of course, on what one means by “limited” or even perhaps, “principle.” Both liberals and conservatives want “limited” government “in principle”. Pointing out that principle in defense of this or that merely demonstrates the degree to which one fails to understand that reference to ambiguous principles resolves nothing.

Appeal to the People, Begging the Question, Equivocation, Ignoratio Elenchi, Plain Bad Arguments, Red Herring, Straw Man

Friday afternoon fun

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Slashdot linked to this article by the President of the Czech Republic (corrected 6-16). It’s a treat for the connoisseur of bad argument. First a nice straw man argument.

We are living in strange times. One exceptionally warm winter is enough – irrespective of the fact that in the course of the 20th century the global temperature increased only by 0.6 per cent – for the environmentalists and their followers to suggest radical measures to do something about the weather, and to do it right now.

Not sure what to make of this paragraph. The last sentence seems to hang on a sort of ambiguity–in one sense environmentalists want a sort of “central planning.” But not, it seems, to me in the same sense as communism. Whatever it is, it’s a pretty cheap trick, I think.

As someone who lived under communism for most of his life, I feel obliged to say that I see the biggest threat to freedom, democracy, the market economy and prosperity now in ambitious environmentalism, not in communism. This ideology wants to replace the free and spontaneous evolution of mankind by a sort of central (now global) planning.

This paragraph is interesting.

The environmentalists ask for immediate political action because they do not believe in the long-term positive impact of economic growth and ignore both the technological progress that future generations will undoubtedly enjoy, and the proven fact that the higher the wealth of society, the higher is the quality of the environment. They are Malthusian pessimists.

Not sure I see the relevance of the “proven fact,” which, nonetheless, seems plausible to me as a simple generalization, for the problem of global warming. Does this imply that we can simply assume that global warming is not a threat, if it is caused by higher standard of living?

How about this? Perhaps an ignoratio elenchi?

The scientists should help us and take into consideration the political effects of their scientific opinions. They have an obligation to declare their political and value assumptions and how much they have affected their selection and interpretation of scientific evidence.

Should scientists qua scientists really take into consideration the political effects of their scientific opinions (qua scientific opinions)? Even if that’s so, the last sentence is just nutty. But since it has no obvious logical connection to the first sentence (does it follow from the previous one? explain? is it a case of “loosely connected statements?”), we have either, if we take it as an argument, a sort of ignoratio elenchi or red herring, perhaps.

He closes with a series of suggestions that. . .well, my description can’t do them justice. (My favorites are 4 and 5).

  • Small climate changes do not demand far-reaching restrictive measures
  • Any suppression of freedom and democracy should be avoidedc
  • Instead of organising people from above, let us allow everyone to live as he wants
  • Let us resist the politicisation of science and oppose the term “scientific consensus”, which is always achieved only by a loud minority, never by a silent majority
  • Instead of speaking about “the environment”, let us be attentive to it in our personal behaviour
  • Let us be humble but confident in the spontaneous evolution of human society. Let us trust its rationality and not try to slow it down or divert it in any direction
  • Let us not scare ourselves with catastrophic forecasts, or use them to defend and promote irrational interventions
    in human lives.