Thoughts on rationalism and the rationalist community from a skeptical perspective. The author rejects rationality in the sense that he believes it isn't a logically coherent concept, that the larger rationalism community is insufficiently critical of it's beliefs and that ELIEZER YUDKOWSKY IS NOT THE TRUE CALIF.
Why Roe Skepticism Doesn't Make One A Judicial Extremist
So I think that a right to have an abortion isn’t just a good idea but a vital component of maintaining a modern, egalitarian and free society. It’s important enough to our way of life and makes so much difference in outcomes that it should be enshrined in our constitution with other fundamental principles like free speech or freedom of religion.
Problem is that it wasn’t. Certainly not explicitly. Since I believe that it’s an appropriate function of the US supreme court to expound new legal theories, rights and remedies (as part of the great tradition of common law as the founders intended) in itself this isn’t a problem. The court certainly could have validly developed a theory of personal autonomy which coherently marked the right to receive medical treatment to terminate a pregnancy as protected in much the same way as it has coherently developed the theory of personal autonomy interests in people’s private sexual liaisons (accepting the consequences even when it reaches results like protecting fundamentalist mormon derived polygamy despite the unusual partisan valence).
Unfortunately, the court simply hasn’t done that. If banning medical treatments that would let someone terminate a pregnancy implicates personal autonomy then banning medical treatments that might let save me from dying of cancer must do so to an even greater degree. Yet the court does not recognize a constitutional right to try medication that hasn’t been approved by the FDA even when the approval was denied merely because the FDA judges the harmful side effects too severe or the evidence for efficacy too weak or not yet fully presented. In other words even when the government merely thinks my fully informed (and not mislead into fakery) judgement about what risks to take or harms to endure for a chance at a cure is unwise or ought not to be encouraged this isn’t seen as infringing on my right to personal autonomy. Even though those who want to ban abortive medical services are similarly expressing a value judgement about the relative merits of the consequences of doing so.
Nor is this some narrow exception justified by the compelling governmental need to incentivize efficacy trials or exclude quackery. Even when the government bans use of Marijuana as medicine the court doesn’t require any showing from the government that it’s not denying citizens the personal autonomy to effectively treat their medical condition as it would if it felt that any true constitutional right were implicated. It might not fall on identity based fault lines but surely being forced to lose one’s sight to glaucoma is rather than take an intoxicating medication, if not on par with having carry a child to term1, still an undeniably substantial infringement on personal autonomy. The court isn’t any more sympathetic when individuals seek to assert a constitutional right to drugs like peyote even when, as in Employment Division v. Smith, the individual is seeking access to peyote as part of a deeply felt belief in the religious principles of the Native American Church.
Intuitively, maybe you feel this is all silly. Surely none of this crap is important the way abortion is. How dare I suggest denying some wacky religious use of peyote is comparable to forcing women to carry a child to term. Indeed, I agree with you. These aren’t anywhere near as important and retaining women’s right to choose. But that’s the point. Constitutional protections for abortion don’t flow from any generally applied/developed theory of a right to personal autonomy or anything else. They flow from a value judgement about the importance (and correctness) of protecting a women’s right to choose. Even on a liberal living constitution theory of jurisprudence that’s not kosher. The supreme court is supposed to articulate general theories/conceptions of constitutional rights not weigh in individually on policy judgements simply because they happen to be really important or bad.
Having said all this I still believe that reliance interests favor respecting stare decisis when it comes to Roe. Personally, I actually believe they should respond by actually taking seriously the idea of a right to personal autonomy that is infringed by government restrictions on what medical treatments or drugs one can access. However, there is surely a strong argument that even someone who has a liberal judicial philosophy should react to the strong policy considerations that animated Roe and vote to reverse this outlying opinion.
Now, I don’t expect most people who read this to agree with this last conclusion. However, if you at least found these worries/arguments cogent, serious and requiring a substantive rebuttal you certainly can’t join the howling masses in suggesting that an unwillingness to uphold Roe v. Wade is indicative of a right wing judicial extremists. If you really believe that the Senate should confirm any academically/judicially qualified candidate without disqualifying extremist views then you can’t simply insist that Kavanaugh must be such an extremist because he happens to hold a non-crazy position that you’re convinced is not only really wrong but also really important.
It’s still perfectly reasonable to think that abortion is important enough that the Senate shouldn’t confirm anyone who will vote to overturn Roe. I hold such a position myself. But let’s not confuse that straightforward disagreement with the claim that somehow the conservatives have violated a norm of judicial non-extremism. Just admit that some principles can be important enough to vote against nominees who don’t support them no matter how reasonable or even mainstream (relative to the political landscape) their views are.
Note that even if it turns out no one actually is faced with that choice, e.g., the commercial drugs now manage equal effect, the point is that the court obviously wouldn’t even require the government to demonstrate such a point to uphold the restriction of Marijuana. ↩
The religious liberty challenge is pretty weak (both as a moral and legal matter). Essentially, the owner of Masterpiece Cakeshop is arguing that he shouldn’t have to comply with the same laws that everyone else does just because his religion disagrees. It used to be the case that in some situations the Supreme Court recognized a first amendment right to an exception to generally applicable laws when they conflicted with religious belief. However, in Employment Division v. Smith Scalia got rid of this nonsense. As long as a law is generally applicable and isn’t motivated by religious animus the fact that it requires you violate your religious beliefs is immaterial1. As a result Masterpiece Cakeshop really doesn’t have a leg to stand on as far as the free exercise claim goes.
The free speech arguments are a bit more hefty. There is a long ling of cases that hold the first amendment bars the government from compelling you to express views you disagree with. For instance, in Hurley v. Irish-American Gay, Lesbian, & Bisexual Group of Boston the Supreme Court held that the first amendment protected the right of march organizers to exclude groups from their demonstration (despite contrary anti-discrimination law) when it would compromise their message, e.g., you can’t force a march against homosexuality to allow gay groups to join or a white supremacist march to include blacks. In other cases the court has held that the government can’t force students to pledge allegiance, newspapers to carry political responses for balance or PG&E to include environmental fliers in its bills.
As such, if Masterpiece Cakeshop was about the baker refusing to decorate the cake with a message they disagreed with I’m inclined to think there is a plausible argument to be made. If Masterpiece Cakeshop was willing to sell blank or generic wedding cakes to gay couples getting married there would be a strong case that requiring them to distribute messages on the cakes that they find objectionable is analogous to requiring PG&E to distribute environmental fliers it disagrees with. However, that’s not the fact patter in this case. Masterpiece Cakeshop is refusing to sell any wedding cake for a homosexual wedding.
Now there have been some heroic attempts to argue that merely providing any wedding cake at all conveys a celebratory message. However, this argument just isn’t very plausible. Certainly, wedding cakes are used as part of an event which, as a whole, sends a celebratory message but so too are the plates, silverware and chairs used at such functions. Surely no one thinks that a vendor who rents chairs for events is somehow being compelled to speak (in the way the Supreme Court has deemed unacceptable) when the law requires they deliver chairs to both gay and straight weddings. Indeed, if we accept the argument that merely because a good sold by a business will be used for an expressive purpose the sale of that good is itself expressive and thus protected from compulsion we would have to conclude that a white supremacist who owned an art supply shop had a first amendment right to refuse to sell pens to blacks as they will be used in an expressive manner (and quite likely to disapprove of white supremacy).
More broadly, there is an expressive component to all business transactions. In some sense serving black customers at a dinner expresses approval of their presence in the same dinner as whites. However, this isn’t the kind of incidental compelled expression the supreme court has identified as deserving of special protection nor should it be. When the government mandates that newspapers carry articles they disagree with the newspaper’s ability to express its desired message is seriously burdened. In contrast, when the government requires business owners to serve customers at a dinner regardless of race or sexual orientation there isn’t the same burden place on the ability of the diner owner to clearly convey his bigotry (modulo certain issues about signs2). If these brief remarks haven’t convinced you on this point I urge you to read this piece.
Alright, so Masterpiece Cakeshop deserves to lose (and almost surely will lose) at the Supreme Court. Indeed, if SCOTUS found for Masterpiece Cakeshop it would raise serious issues about the continued practical applicability of anti-discrimination laws more broadly. Many of which still address compelling needs.
However, I’m far less convinced there is any similarly compelling need for protecting homosexuals access to public accomodations like bakeries. Don’t get me wrong, I firmly believe that individuals like the owner of Masterpiece Cakeshop are deeply misguided and probably bigots3. However, such individuals are being overwhelmed by the remarkably rapid march towards greater acceptance of homosexuality.
Certainly, there are still pockets of homophobia in the country but by the time laws barring anti-homosexual discrimination in public accommodations can be enacted and have an effect in less progressive states than Colorado there will be more homosexuals than people who support discrimination against homosexuals. I don’t mean to in any way diminish just how hurtful it can be to be discriminated against but we need to balance that hurt against the burden such laws place on our freedoms. The judgement we’ve made in almost all cases is that just because something is hurtful or offensive isn’t a good enough reason to abridge people’s rights to choose whom to sell to. After all, its also quite hurtful to refuse to sell to someone because they are dumb, support abortion, or because their hipster beard looks stupid (though that may be more understandable). Those may not be quite at the same level but refusing to serve any ex-cons is closer as is any number of personal reasons for discrimination one sees in small towns.
The argument that there is a special need for public accommodation laws (as opposed to other instances of hurtful but appropriately legal behavior) stems, in the case of racial discrimination, from the claim that such discrimination is systematic, pervasive and makes it particularly difficult to dissolve bigoted attitudes. These all were, and perhaps would be again absent such laws, in the case of racial discrimination. It wasn’t just that blacks were excluded from a few venues run by marginalized bigots but systematically barred from whole classes of establishments — particularly high status establishments were power and influence get traded. The systematic exclusion of blacks from these establishments created a particularly formidable barrier to racial understanding and acceptance.
In contrast, homosexuals are only rarely discriminated against in public accommodations (I’m not suggesting that many people don’t remain closeted because of likely bigoted responses from friends and family but this is beyond governmental intervention) and usually have ample alternative venues. Those public accommodations which do discriminate against homosexuals tend to be low status enterprises run by socially marginalized assholes. The penetration of chain stores into virtually all parts of America provides high quality cheap products in a non-discriminatory fashion even in some of the most backwards regions. The opinion poll trend lines prove that even without such laws the cultural shift towards homosexual acceptance is both rapid and unstoppable. In short, virtually all the reasons for thinking that anti-discrimination laws serve a special need whose exceptional importance warrants prioritizing it over the individual freedoms of the business owner don’t seem to apply. Certainly, its awful and morally unacceptable but it doesn’t seem to be different in kind from the other awful morally unacceptable behaviors we don’t outlaw.
I certainly recognize that reasonable people can disagree on the relative value of the freedoms given to business owners as well as the substantial compliance costs, unintended harms and regulatory burdens imposed by anti-discrimination laws. However, the lack of any serious attempt to weigh the costs and benefits of such anti-discrimination laws makes me suspect that people support laws barring discrimination against homosexuals merely to signal their moral disapproval of such discrimination not based on any policy analysis.
Currently, many states as well as the federal government lack laws barring discrimination based on sexual orientation in public accommodation (hiring is a harder question IMO) so given the fact that once an anti-discrimination law is passed it is virtually impossible to ever repeal (for fear of sending the message that discrimination is acceptable) now is the time to sit down and ask whether we really want the kind of laws that lead to Masterpiece Cakeshop. If I could choose to enact such laws for a ten year period I’d probably support them but when I balance 50 or 100 years of reduced freedoms, compliance costs and unintended harms against the rapidly fading benefits I find leaning against such laws.
In short, while Masterpiece Cakeshop is clearly in the wrong from both a moral and legal perspective in the long run I fear that the well-intentioned laws that lead to this case are what we should really fear. If only there was a good way to signal our moral disapproval with sufficient strength without actually creating expensive and invasive new torts and enforcement agencies.
Of course, in some circumstances we do feel that religious groups deserve a special break on a generally applicable law such as when the law is merely a matter of enforcing some uniform standard and the costs of allowing sincere religious objection is small. For instance, the purpose of a law stipulating that city employees are barred from wearing any visible clothing besides their uniform isn’t substantially impeded by allowing Jewish employees to wear a kippah (aka yamaka) and the benefit to religious individuals pretty clearly outweighs the additional hassle of having to make individual determinations of appropriateness. Congress and state legislatures have adopted RFRA laws in a (deeply flawed) attempt to ensure that, in those cases where the societal cost is small and the individual benefit large, we make exceptions. Personally, I would prefer a legal regime that was religiously neutral and simply focused on strongly held views and applied a balancing test but that’s another conversation. ↩
As Eugene Volokh has pointed out there is a serious tension between free speech rights and anti-discrimination laws which bar vendors from expressing bigoted/sexist messages in their workplace. While being forced to serve blacks doesn’t seriously burden the owner’s freedom of expression being barred from decorating the diner with news clippings praising white supremacy, denigrating blacks and arguing for the racial inferiority of minorities does. However, this is an issue for another time. ↩
From afar animus is hard to distinguish from compassionate belief someone is making mistaken life choices combined with a desire not to encourage further mistakes. I honestly believe some very devout catholics who truly treat homosexuality as a mistake just like adultery or premarital sex fall into the second category but such people are rare. Animus is far more common. ↩
As our system of government becomes more complex the importance of independent agencies and the boards that govern them continues to grow. If we define such agencies functionally, rather than legally1, this sweeps in the obviously influential supreme court but in the modern world more and more turns on agencies like the FCC, Federal Reserve, SEC, etc… Indeed, in many ways these independent agencies are more important than congress itself. For a variety of reasons congress simply isn’t equipped to engage in precedent driven rule making requiring substantial expertise and institutional competence, e.g., its hard to imagine congress successfully running the recent broadcast incentive auction or developing a set of rules for whitespace devices much less run the Fed.
However, recent battles over supreme court appointments and the controversial choices of new FCC commissioner Pai to rollback net neutrality rules expose the obvious danger in this system. As the importance of these agencies increases the importance of these appointments to various political interests grows and that turns the appointment and confirmation process into an acrimonious partisan struggle. Now, at first glance one might think that’s fine. After all, if these agencies have so much power over the lives of average Americans isn’t it appropriate for our political disagreements to play out in the appointment process? Unfortunately, especially given limitations imposed by supreme court precedent, this method of choosing the heads of independent agencies is problematic for a number of reasons.
Political interest in such appointments is usually limited to a few hot button issues which means politicians will favor predictable ideologues.
The best policies for these agencies are often counterintuitive and not what plays well for voters who lack the time to learn.
The president is given a disturbing amount of (effectively) legislative power.
Politicians’ self-interest will push them towards the most vanilla least criticizable candidates rather than the best.
All too often political conflict leaves us with unfilled positions exacerbating the other problems, particularly 3.
I think we can do a lot better. We need a way to render such appointments responsive, in a long term sense, to the will of the voters but insulated from their immediate interests and preferences. I propose a kind of US house of lords consisting of former senators and representatives who have retired from office (and are barred from ever holding federal elected office again) as well as perhaps former judges and commission members from these independent agencies. Unlike the UK house of lords I wouldn’t let membership determined by votes but be automatic for all former congressmen who wish to join with their voting power proportional to their number of years of service (thus making the votes proportional to congressional representation modulo age/participation gaps). One might imagine multiple ways this could work from the body directly selecting appointees to being responsible for admitting distinguished academics, lawyers, etc.. into various expert bodies which then nominate board members for independent organizations.
Importantly, in the long run this body still reflects the choices of the American voter but, barred as they are from running for future office, their concerns will tend to be more long term and historical in nature. This would be especially true if we mandated secret voting in this ‘house of lords’. The voters will never again evaluate them for public office so why not let them vote secretly?
Of course this would require a constitutional amendment but I still think it’s a neat idea.
That is an independent agency is a unit of the federal government answerable to a governing body appointed by the president with senatorial consent but whose members can’t be removed without cause. ↩
I generally sympathize with the liberal contingent on the supreme court but I think this [defense](https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/05/26/citizens-united-media-corporations-and-other-corporations/ of Citizen’s United is right) on.
Now I’m open to arguments against Citizens United but if you are going to criticize the opinion the burden is on you to identify a good bright line rule (to prevent gradual erosion of rights) that provides newspapers and other journalism with the kind of protection we think they deserve without handing the government the ability to distinguish responsible journalists from mere non-profits/pacs/etc..
I’ve long supported Citizens United but what this post very helpfully pointed out is the extent to which every justification to restrict Citizens United style corporate speech has applied to restrictions on journalism/editorials. Cities with a single large newspaper surely had as much reason to worry about that newspaper using it’s power in a last minute attempt to sway the election than we have to worry about corporate money in politics.
Now, I agree that responsible journalists have a special role to play in the electoral process. I’m NOT worried about the New York Times doing something dastardly. However, I most certainly do not want Trump’s administration deciding who is a journalist as opposed to an advocate of some corporate interest, Yes, as the Citizens United dissent points out we sometimes adopt balancing tests for constitutional rights and we could adopt one here. But balancing tests tend to follow the political wind and if free speech is to serve as a bulwark against tyranny and patriotic group think that’s not good enough for core political speech.
Moreover, think about what would happen if Citizens United was overturned and one adopted some kind of test to distinguish media companies or genuine journalism from other corporate speech. I think the natural response to such incentives would be to further obscure whether or not you were engaged in journalism. In other words companies would cloak themselves in the trappings of a media company/genuine journalist to avail themselves of the greater free speech rights further worsening the problem of fake news. The courts would then have to either accept the trappings of media/journalism as valid on their face (encouraging such deception) or engage in a dangerous substantive investigation of whether a company counts as a `real’ journalism company.