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.

Opposition party

The other week I was going to post something about how Obama reads criticism closely and takes it seriously.  This, I think, is a praiseworthy intellectual habit.  Perhaps the following item, however, means that he is taking it too far:

Barack Obama took the next big step in his Republican charm offensive on Tuesday night, when he dined with several of the nation's most prominent conservative pundits.

The president-elect arrived at the Chevy Chase, Md., home of syndicated columnist George Will shortly after 6:30 p.m., according to a press pool report. Greeting him at the residence were other luminaries of the conservative commentariat, including the Weekly Standard's William Kristol, New York Times columnist David Brooks, and Charles Krauthammer of the Washington Post.

The odd-couple gathering led to speculation that Rush Limbaugh, who said that he was in D.C. for a "secret meeting," was also in attendance. "I'm just offering, a personal trip, nobody even has to know about this," the notorious and combative talk show host wrote on his website.

Alas, a source close to the transition confirms, Limbaugh was definitely not in attendance during the dinner affair — likely disappointing some in the conservative blogosphere, knowing full well the fury that would have caused among progressives.

Nevertheless, Obama's choice of dining partners seem likely to cause its fair share of hair-pulling and eye-rolling. As the pool reporter, Ken Bazinet of the New York Daily News, penned in his write up: "This is for real, folks. The bloggers are going to love this one."

Obama has pledged to be a uniter once in office. He's also said he is willing to take policy suggestions from any source, regardless of ideological affiliation, as long as they work. So far, he's living up to his word.

I wonder who did the cooking.

Same sex marriage and begging the question

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


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.

Argumentum ad nit-picking?

Here's an interesting bad argument I think we've maybe touched on a few times before. Seems fallacious in the form described, but I'm not sure how to categorize it. Relevance? Ignoratio Elenchi?

1. Critics of W's policy X were right about the overall undesirability of X (because of hypothetical consequences Y).

2. But, those critics were mistaken in predicting the details of actual consequences Z as Y.

3. Thus, they were no more right about X than W.

You were right to tell me not to drink and drive, but not because I might wreck my car. It turns out I killed someone, so we're both right and we're both wrong about drunk driving. (You were right that I should not drink and drive, and I was right that the danger of wrecking my car was not the real reason to not drink and drive.) This would seem to be a nice ignoratio elenchi.

The difference between hypothetical consequences as reasons and unknown unintended consequences as reasons to do something seems to be an equivocation. Even if it turns out that I did not wreck my car, the danger of doing so is still a reason for not drinking and driving.

But the argument is interesting since forms of it seem to be good.

1. You said I had reason Y to do X.

2. I had reason Z to do X.

3. My not doing X is excusable because I didn't know that I had reason Z to do X though I knew that I did not have reason Y to do X.

Seems like sometimes the argument is really an attempt to conceal one failure in deliberation with another.

1. Your argument Y against policy X was a bad one.

2. And neither of us saw that there was a good argument Z against X.

3. Therefore, I wasn't wrong to do X. 

In its political employment I suspect that it hangs on the falsity of the second premise, or on a different form of culpability if 2 is true. Either 2 is true and therefore you're incompetent (you ought to have known), or 2 is false, and therefore you're foolish. Though the first side of the disjunction is undermined by the claim "even my critics didn't see this" and so I should not be culpable for not seeing it either."

 Anyone recall any good examples of this?

Implied messages

Like so few in our liberal media, Richard Cohen has the balls to stand up to the enemies of Israel (in his print column).  But rather than doing the cowardly thing of engaging with an actually informed person, Cohen takes the bold step of making up an unnamed opponent with a weak argument.  This way Cohen sacrifices himself by making his own argument look weak, and himself like a cowardly jerk, while he is really just courageously distracting his readers from seeing the moral complexity of the current situation in Gaza.  He writes:

I get the impression that Israel is expected to put up with this. The implied message from demonstrators and some opinion columnists is that this is the price Israel is supposed to pay for being, I suppose, Israel. I am informed by a Palestinian journalist in a Post op-ed that Israel is trying to stop "amateur rockets from nagging the residents of some of its southern cities." In Sderot, I saw homes nagged to smithereens.

Yes, of course.  Those who think that Israel should sit back and do nothing while being bombed can raise their hands now.  Anyway, Cohen is such a vicariously belligerent dishonest dumbass that he cuts out the second part of the quote above.  Here it is:

In its efforts to stop amateur rockets from nagging the residents of some of its southern cities, Israel appears to have given new life to the fledging Islamic movement in Palestine. 

Not to be pedantic, but the point is that Israel has strengthened the hands of Hamas by responding in the way that it has.  But Cohen, who "gets the impression" and sees the "implied message," deprives his readers of the pleasure of seeing that "the politics by other means part" of the current war might not have been wisely thought out.  It takes, however, real courage to make up, and then face down, such hollow men.  People, after all, might think Cohen a superficial sort of thinker.

You’re on your own

It wasn't long ago that George Will called Obama's very catchy "you're on your own" line (from his acceptance speech) a straw man of the (discredited) Republican philosophy of government.  So I was struck when I read this encomium to being on one's own (creepy lines in bold).

When Medicare was created in 1965, America's median age was 28.4; now it is 36.6. The elderly are more numerous, and medicine is more broadly competent than was then anticipated. Leavitt says that Medicare's "big three" hospital procedure expenses today are hip and knee replacements and cardiovascular operations with stents, which were not on medicine's menu in 1965.

After being elected to three terms as Utah's governor, but before coming to HHS, Leavitt headed the Environmental Protection Agency. He came to consider it a public health agency because the surge in Americans' longevity in the last third of the 20th century correlated with cleaner air and fewer waterborne diseases. Longevity is, however, expensive, and demography is compounding the problem.

In the 43 years since America decided that health care for the elderly would be paid for by people still working, the ratio of workers to seniors has steadily declined. And the number of seniors living long enough to have five or more chronic conditions — 23 percent of Medicare beneficiaries — has increased. Many of those conditions could be prevented or managed by better decisions about eating, exercising and smoking. The 20 percent of Americans who still smoke are a much larger percentage of the 23 percent who consume 67 percent of Medicare spending. Furthermore, nearly 30 percent of Medicare spending pays for care in the final year of patients' lives.

If only we could find some kind of completely tone-deaf market analogy for how medicare should work:

Suppose, says Leavitt, buying a car were like getting a knee operation. The dealer would say he does not know the final cumulative price, so just select a car and begin using it. Then a blizzard of bills would begin to arrive — from the chassis manufacturer, the steering-wheel manufacturer, the seat and paint manufacturers. The dealership would charge for the time the car spent there, and a separate charge would cover the salesperson's time.

Leavitt says that until health-care recipients of common procedures can get, upfront, prices they can understand and compare, there will be little accountability or discipline in the system: "In the auto industry, if the steering-wheel maker charges an exorbitant price, the car company finds a more competitive supplier. In health care, if the medical equipment supplier charges an exorbitant price, none of the other medical participants care."

The auto industry?  The one with the huge bailout?  Anyway, back to the ice floe:

Rather than ruining the new year by dwelling on Medicare's unfunded liabilities of about $34 trillion (over a 75-year span), ruin it with this fact: In the next 50 years, Medicaid, the program for the poor — broadly, sometimes very broadly defined — could become a bigger threat than Medicare to the nation's prosperity.

This is partly because of the cost of long-term care for the indigent elderly, some of whom shed assets to meet Medicaid's eligibility standard — sometimes as high as income under 200 percent of the federal poverty level. And many states, eager to expand the ranks of the dependent with the help of federal Medicaid money, use "income disregards" to make poverty an elastic concept. For example, they say: A person who gets a raise that eliminates his eligibility can disregard the portion of his income that pays for housing or transportation.

Governments with powerful political incentives to behave this way will play an increasingly large role in health care. As is said, if you think health care is expensive now, just wait until it is free.

Indigent elderly, since you're a threat to our nation's prosperity, "you're on your own."