Corporal Downsizing & Other Moral Matters

Not a lot to add to Radley Balko's takedown of Frum - mostly just, 'toldja so.' (Yes, another link back to my perennial epic Dead Right post; here's part II.) But this can be an occasion for general ponderations.

Balko's point, before he counts calories: "What's most troubling about Frum's position is not only that he assumes a top-down government tax remedy to a perceived social problem will work, but that it's okay in principle. Desirable even." If this be heresy, Frum's been a heretic for years. He's not alone. From Dead Right (see post - link above - for context):

For most conservatives [including, by implication, Frum], shrinking government has always been a political means rather than an end in itself. The end was the preservation of the American heritage, and beyond that, the heritage of the classical and Judeo-Christian (or Christian toute court) West. If that heritage could be preserved without fighting an ugly and probably doomed battle to shrink government, most conservatives would drop the size-of-government issue with hardly a pang.

I simply cannot restrain myself from pointing out this not the first time that Frum has seemed preoccupied with downsizing. Frum wants us thin.

Contemporary conservatives still value that old American character. William Bennett in his lectures reads admiringly from an account of the Donner party written by a survivor that tells the story in spare, stoic style. He puts the letter down and asks incredulously, “Where did those people go?”

Way back when, I caught criticism for my Dead Right post for the sheer implausibility of my broad hint that Frum's development of Bennett's point commits him to the view that it may be the business of government to deprive people of food, for their moral good, even if (as Balko points out) that actually entails some inefficiency (i.e. tightening of the economic belt).

I maintain that Frum likes folks on the stringy side. I deem his latest proposal a data point in support of my original thesis.

No, seriously, I do think Frum's latest proposal is telling in that the oddness of it (as per Balko) sits comfortably only with the oddness of Frum's book. He thinks things to make any libertarian's hair stand on end. And Frum is, I fear, not the only one shedding his sheepskin of small-government-mindedness.

Innocently unaware he may be odd man out in advocating 'burn the heretic', Balko forges on. (I know he's aware. I kid, I kid.)

If it's okay to invite the federal government onto our dinner plates, our kitchens, and into our mouths, what sphere of life is still safe from politicians and bureaucrats?

None. I would assume. Obviously conservatives should remain free to think and do as they please, without even having to submit to harsh criticism. Over to professor Bainbridge, who expresses himself very emphatically to the effect that it is very objectionable for liberals to express the view that liberals are morally right and others are wrong. How dare they!

You can feel the condescension dripping from every comment. In the background you can also hear the doors of re-education camps opening. You get the sense that people like Alterman, Pierce, and Joseph would love to disenfranchise Middle America and ship us off to camps where we can learn to be loyal and servile peons while they run the country.

I don't deny that Bainbridge's TIVO may be moist with condensed condescension. But a fair reading of Alterman will not produce the sense that he wants re-education camps, which sound like terrible places for an argument. He is frustrated because he thinks he knows he's morally in the right but not enough people agree with him, or are even willing to argue with him. (We could argue about it. I'm sure Alterman would be willing.) Bainbridge:

I don't want to ship Alterman et al. off to a re-education camp. I believe in personal liberty and free speech. I don't even want to disenfranchise them. But I do want to change the culture so that I can watch TV or go to the movies without subsidizing people like Alterman who hate people like me. I'd be content if Alterman could no longer make a living sneering at Middle Americans, but rather had to work a real job (if he knows how).

(Harsh words, directed by one academic at another. As to who is bringing home the bacon, as opposed to pork, see Yglesias.)

The solution to this bad situation in which liberals think they are morally superior, and say so, is for conservatives to assert their actually superior knowledge of morality as a platform for criticizing liberals, and deploy it as a firm blueprint for legally enforcing conservative morals.

See Bainbridge's new TCS column (which David Bernstein finds rather dismaying.) First, odd math. 22% (wasn't it?) of voters cited 'moral values', 79% of those voted for Bush. Very well ... (back of envelope) Bainbridge has at least 17% of the electorate standing shoulder to shoulder with him, plausibly. Can professor Bainbridge think of any reason why 17% of the electorate shouldn't be able to coercively impose its moral will (however sincere) on the rest of the citizenry, in a federal democracy, conceived in liberty and dedicated to the proposition that all men are created equal? (Crickets chirping.)

Well, then, a flagrant change of subject. Bainbridge:

The American people want their laws to reflect their morals and values. Conservatives get that; libertarians don't.

Law consists in the first instance of a set of doctrinal propositions; i.e, the legal rules derived from statutes, judicial precedents, and opinio juris. Legal reasoning is more than the mere identification and manipulation of doctrinal propositions, however, because doctrine itself is inextricably linked with morality and policy. The doctrinal propositions of which law consists thus rest on a tripod whose legs are: moral norms, which characterize conduct as right or wrong; policy, which characterizes states of affairs as good or bad in light of the general welfare of society; and experience, which teaches us the way the world works.  Although all three are important, conservatives understand that moral norms have special relevance to evaluating asserted rights, because it is morality itself that shapes our perceptions of what constitutes an injury for which one has a right to redress.

Conservatives thus agree with Edmund Burke's argument that "Man's rights exist only when man obeys God's law," towards which we admittedly grope feebly and imperfectly. Hence, conservatives believe our laws should reflect the moral norms embodied in the natural law.

Suppose someday Bainbridge finds himself living in a world in which 17% of his fellow citizens, believing themselves his ordained, Hollywood moral superiors - oh, never mind. This is baby stuff. Can't Bainbridge see it? (How would you like it if they did that to you?) To judge from his post, Bainbridge does not enjoy being told he is morally in the wrong. How much worse to be legislated against, as opposed to just hearing it from his TV? To judge from his column, he has no principled grounds for objection should liberals - should they regain power - pass any laws they like, so long as they think they are absolutely morally right. I mean: no reason part from Bainbridge's independent conviction that it is he, not they, who is absolutely morally right.

What to do? What to do?

There's a political philosophy to help you deal with this sort of situation. Starts with an 'L'.

The thing that is badly, BADLY wrong with Bainbridge's position comes out clearly in his conclusion. He knocks Randy Barnett for mildly noting the liberal moral logic of defaulting to toleration, if possible, in cases of unresolvable moral conflict.

Hence, Barnett argues, any attempt to codify morality is unconstitutional.

As long as large-L Libertarians refuse to contemplate the prospect that law may reflect any moral norms other than a radical individual autonomy, they will remain a fringe element in American politics. As long as small-l libertarians insist on using the courts to achieve what they cannot obtain through the vote, they will be on the other side of the culture wars from conservatives.

This is absurd misreading. For one thing, it's absurd. 'Radical individual autonomy' is a needlessly jawbreaking way of pronouncing 'liberty'; unless Bainbridge can explain the semantic distinction. (These ivory tower academics. Always clogging their work with jargon to conceal things from the common man.) Anyway, if 'liberty is good' (cram syllables back in if you must) is a moral norm; and if Barnett regards the Constitution as codifying it; then he understands, and must be credited with understanding, that the law reflects morals and values.

So what's the problem? The problem is that Barnett's values - e.g. liberty (but not just that) - are not Bainbridge's - e.g. no gay cooties (but not just that). This is a good point to note how 'moral issues', in the context of exit polls to the late election, doesn't denote moral issues. It denotes: gay marital cooties plus abortion, for or against. Yet there are more moral issues under heaven and earth than are found in that philosophy. So the 79% statistic is, in addition to being only 17%, totally meaningless. It is a fallacious device enabling Bainbridge to imply, absurdly, that anyone who isn't worried about gay cooties, etc., isn't worried about right and wrong, good and bad.

Let me quote Barnett's post, to which Bainbridge objects. I often disagree with Barnett, but this is eloquent stuff. It is in fact a devastatingly precise preemptive strike against Bainbridge's critique. (Barnett deserves to have someone besides himself point out.)

Let me reassure my friend that I was not in any way questioning the objectivity of morality. Rather, I was contending that, because there was no way to legally contest the claim by a majority of the legislature that particular conduct was immoral, allowing a claim of immorality, standing alone, to justify legislation would be to give the legislature carte blanche - an unlimited unreviewable power inconsistent with limited government and the Privileges or Immunities Clause of the Fourteenth Amendment. All you would need to outlaw any conduct is a majority of the legislature to vote that an action is immoral. Assuming morality is an objective matter, majority opinion does not make something immoral.

The Volokh Conspiracy speaks truth to power!

Next: address Russell Arben Fox's post, which is partly about how - even if it is permissible to think oneself morally superior, and say so - it isn't necessarily such a good idea. "The left doesn't have to flirt with theocracy ... it just needs to show some respect." This is sound diplomatic advice. But respect is a two-way street, which leads to a liiiiittle problem. More to follow.

Comments

[Rich Puchalsky]

This is a very good post, and I particularly enjoyed the confirmation that Frum literally wants to make us thin. But ... we're in a country in which the Presidential election has just been stolen for the second time in a row. I realize that moral reasoning is your job, and you're good at it, but it's sadly irrelevant at this point.

[kent]

I have a proposal on my blog that is a way for liberals to hit back at conservatives on the gay marriage issue. It's a very strange idea, but I would love to get some feedback on it. Since nobody ever reads MY blog (and I post to it very rarely anyway), I'm posting this as a blatant advertisement to hope that someone will now.

I agree completely, of course, that it's insane to legislate based on private feelings about morality. My proposal tries to make clear even to conservatives and Christians why it's a bad idea.

Please check it out, anybody who reads this.

ethicist.blogspot.com

Read the second post first, then the first post second. (Both were posted today, 11/5/04).

Thanks!

[joe o]

Statements that liberals should "watch what they say" aren't convincing to me. For one thing, we're not the liberal puppetmasters. There is always somebody who will say something stupid. It's like the scene in "Ghostbusters" where they try to keep their minds blank; somebody is going to think of the Stay Puft marshmellow man.

Remember that Kerrey was always careful and respectful in what he said. He is a pretty morally serious person. The reason he was selected as the leader of the "vietnam vets against the war" was his appeal to middle america. He was a clean cut, articulate, respectful war hero. It drove Nixon nuts.

The "respect" that religious conservatives want is not really a matter of speech. They want people to "respect" marriage by outlawing gay marriage; "respect" life by outlawing abortion; and "respect" god by having prayer in schools. Being polite doesn't cut it.

[Matt]

Another thing that's funny about Bainbridge's post is that, traditionally at least, and in its purest forms, libertarianism is an _essentially_ moral position. "Individuals have rights, and there are things no person or group may do to them" to quote Nozick. What seperates pure libertarianism from even classical liberalism is that libertarianism is, at its core, a natural law view, just as Bainbridge's position is. They just deeply disagree as to what the rights are that people have. This is not that hard to see. It surprises me that people miss it so often. To say it one more time, libertarianism is, in Rawls's terminology, a comprehensive moral view. It's also an unreasonable one, to my mind, but it's certainly a moral position nonetheless. If it's able to become part of an overlapping concensus- welcome aboard! But if Bainbridge thinks folks ought to be able to legislate their moral views, he should not be so shocked when others legislate their sincere moral view.

[Julian Elson]

Fafblog put it best:

"The world is pitted against us, Alan Keyes, but we do not give up, because we are not just fighting for ourselves and our bizarre pet issues. We are fighting for lofty and obscure universal principles that mysteriously justify ourselves and our bizarre pet issues! Your struggle to abolish the estate tax and my struggle to crush humanity in my mighty fist are both part of one great struggle for the rights of the common man. We truly are warriors for the working-day."

[Julian Elson]

Fafblog put it best:

"The world is pitted against us, Alan Keyes, but we do not give up, because we are not just fighting for ourselves and our bizarre pet issues. We are fighting for lofty and obscure universal principles that mysteriously justify ourselves and our bizarre pet issues! Your struggle to abolish the estate tax and my struggle to crush humanity in my mighty fist are both part of one great struggle for the rights of the common man. We truly are warriors for the working-day."