Monday, May 02, 2016

Sentience and Honorary Membership in the Club of the Morally Entitled

By Sherry F. Colb

Michael and I recently appeared on the Our Hen House podcast to talk about our new book, Beating Hearts: Abortion and Animal Rights. In the course of the interview, Michael mentioned a challenge that we regularly encounter in proposing our claim that sentience alone is a sufficient condition for moral consideration. The challenge is that sentience is not enough, that a being ought to have capacities beyond just sentience before she can make moral demands of moral agents (those capable of understanding and conforming their behavior to such moral demands). This challenge takes different forms, but one way of putting it is to say that if a being is incapable of reasoning and rationality and is herself unable to understand and adhere to moral demands by others, then she is not part of the moral community and cannot make moral demands of others. Because humans are (at least one some accounts) the only ones who possess the relevant moral capacities, it follows that only humans are owed moral consideration.

One response to this challenge is to suggest that the capacity for moral agency truly has nothing to do with whether one is entitled to be free from slaughter, torture, and other harm. As Professor Mylan Engel explained in his presentation at our book celebration at Cornell, what makes it wrong to cause suffering to someone is the fact that the someone is capable of experiencing suffering, not the someone's intelligence, moral agency, or other unrelated capacity. I agree with Mylan's point, and I want to suggest here that most of us--perhaps without fully realizing it--also agree with this point.

To illustrate the general consensus that I believe exists about what entitles a being to be free from violence, I would point to what is sometimes called the argument from marginal cases. Marginal cases refer to the members of the human species who do not possess the abililtes that supposedly distinguish between those who hold moral rights against violence and those who do not.  That is, many human beings, including infants (not to mention sentient fetuses), severely intellectually disabled adults, and elderly sufferers of advanced dementia, lack the capacity for moral agency and are incapable of moral reasoning. (Indeed, many humans are less capable of moral reasoning than members of many of the nonhuman animal species who are relegated to the status of non-holders of rights). Yet few in our current moral discourse would deny that such human beings are fully entitled to be free from violent exploitation, torture, and slaughter. In fact, while we might medically experiment upon rational humans who can give their consent for such experimentation, we would categorically bar medical experimentation on non-rational humans (absent consent on their behalf by a guardian representing the interests of the compromised human).

How, then, to explain why infants and severely intellectually disabled or demented individuals have rights to be free from violence, notwithstanding their lack of moral agency or rationality (or whatever other similar criterion one identifies as an essential prerequisite to the rights that most would deny to nonhuman animals)? For those who truly believe that rationality is a necessary condition for rights, the answer typically goes something like this: the compromised human beings may not themselves possess the attributes that would ordinarily entitle them to moral status, but their membership in the group of humans, a group generally characterized by possession of these important attributes, gives them access to the rights that the more paradigmatic or typical members of the group possess. That is, a newborn infant or an elderly person with advanced dementia would not, on his or her own, be entitled to moral consideration, but in virtue of his or her species membership, we extend moral rights to him or her.

I have a few thoughts in response to this claim. First, it seems to me counterintuitive to suggest that the large number of humans who lack "human rationality" (whether for reasons of youth or illness or disability) are not truly entitled to moral status but simply gain that status derivatively through their membership in the group of entitled human beings. For many people, the very vulnerability and incapacities associated with "marginal" members of the human race give rise to moral entitlements that may indeed be greater than what is owed to "normal" humans. My intuition is that when someone deliberately inflicts pain, torture, or other harm on an infant, the behavior at issue is even worse than what occurs when someone does the same harm to a competent adult (though both are evil). I certainly reject the notion that the baby has no inherent right against being tortured apart from being a member of an intelligent species (and thus an honorary member of a group entitled to moral consideration). My intuition--and I suspect that of many people considering the question--is that we owe direct moral duties to all sentient humans not to inflict torture or slaughter on them and that our debt is no greater in the case of a rational potential victim than it would be in the case of an infant or other "marginal" human being. It is, as Mylan argued, the capacity of a victim to suffer harm at the hands of a torturer or slaughterer--and not any other intelligence-linked capacity--that makes it wrong to inflict torture and slaughter on a victim. It is, in other words, a being's sentience that triggers our moral obligations toward that being.

In addition to consulting our intuitions about the morality of harming infants and other beings lacking in rationality, I would observe that when we deal with our fellow humans, we do not see fit to treat one individual in a particular way simply because other individuals of the same species have some specified set of traits, when the individual in question lacks those traits.

Consider our death penalty jurisprudence. In Atkins v. Virginia, the Supreme Court held that executing an intellectually disabled person violates the Eighth Amendment prohibition against cruel and unusual punishments. The reason is that an intellectually disabled person is incapable of the level of culpability that gives rise to eligibility for the death penalty. In virtue of his intellectual disability, then, a person who kills another person is insufficiently "evil" to merit the ultimate punishment.

What does Atkins tell us about membership in a group of beings who have a given set of capacities? It tells us that such membership is not enough to justify punishing a member with the most severe punishment that our law allows. Even though many humans have a level of moral agency that would render them capable of the sort of culpability that would justify their execution, were they to commit an aggravated murder, that fact is not enough to justify executing a particular murderer who happens to lack the capacity for such culpability.

In deciding moral entitlements, then, we look not only to the behavior but also to the rational capacities of the person whose eligibility for execution is at issue. If one truly believed that what matters is what humans generally are capable of doing, then one could say "let's execute this person, because he committed a terrible murder, and people who commit terrible murders are generally full moral agents with the capacity for culpability that corresponds to eligibility for the death penalty." Yet that is not what our law does. Our law looks at the individual and says, in the case of the intellectually disabled and in the case of the juvenile offender, that such individuals, despite their membership in the human species, do not have what it takes to be deserving of the death penalty.

And we accordingly spare them, because we are keenly aware of the moral relevance of the ways in which they differ from the "normal human" in terms of their capacities.  In the context of humans, then, making life and death decisions about what a being deserves involves examining the capacities of the individual human rather than simply placing him under the umbrella of "homo sapiens" and acting accordingly.

This brings us back to the underlying charge of "speciesism" that posits that when we inflict torture and slaughter on animals for reasons of pleasure and convenience (choice of food, clothing, etc.), in ways that everyone would rightly regard as an atrocity if committed against humans, we "justify" the difference in treatment simply by saying "we are humans and they are not." It is not because we are rational, since many of us are not--and those who are not are rightfully understood to enjoy the same rights against torture and slaughter as those who are, and their enjoyment of those rights does not arise from "honorary" membership in a club to which they lack a direct entitlement. We can learn, from examining how we believe we ought to treat humans of all different kinds, that the governing principle for moral entitlements is in fact sentience, nothing more than that.

If it is wrong to inflict torture on an irrational human infant, and it certainly is wrong, then it is also wrong--and for the very same reason--to inflict torture on a cow, a chicken, a fish, or a pig. As Jeremy Bentham said, "the question is not, Can they reason? nor, Can they talk? but, Can they suffer? Why should the law refuse its protection to any sensitive being?... The time will come when humanity will extend its mantle over everything which breathes."

Saturday, April 30, 2016

You're Fired, Mr. Chief Justice!

By Eric Segall


The scene is the Oval Office. The date is January 21, 2017. President Trump is swinging a golf club when his intercom goes off. A soft female voice says:

“The Chief Justice is here to see you Mr. President, Sir.”

Trump responds, “Okay, let him sweat for a few minutes.”

Trump continues to swing the club and on his fourth effort takes a chunk out of the wall. He shakes his head and goes back to the intercom.

“Sarah, make an appointment with my golf pro for 2:00, and send the Chief in.”

Roberts walks in, looks around the room, sees the dented wall.

Trump returns to his desk and with great indifference says, “Good morning, Chief, sit down. How are you?”

Roberts sits in a very small chair in front of the huge desk.

“Fine, Mr. President.”

“Good, you're fired. I am displeased with your work as Chief Justice. You have no managerial skills or experience. I wouldn't hire you to clean a courthouse in Poughkeepsie!"

Roberts pauses, then calmly responds, “With due respect sir, you can't do that.”

Trump stands up behind the desk and puts his palms on the wood. “Of course I can. I am great, the Presidency is great, and I'm going to make the Supreme Court great again."


Trump raises his voice: "I’ve fired everybody who’s ever worked for me, except my children . . . yet. I am the President. Every federal employee works for me, including you. So I can fire you, and I have fired you."

Roberts says sheepishly: “You don't think the Supreme Court is great?”

“No, you're terrible, you passed Obama Care, twice!!”

“Actually, sir, Congress passed it.”

Trump shakes his head. “They're worse than you. Who cares what Congress does? The members of Congress are my employees also, and I intend to fire them, maybe along with your seven colleagues, who are just talkative nothings, except for Justice Thomas of course. And I will personally make health care great again."

“Well, sir, I do wish you the best of luck of luck with all that. But, I am afraid you can't fire me.”

“Why not?”

Roberts looks Trump right in the eye. “There are many reasons, Sir, but for one, we Supreme Court Justices serve during “good behavior.”

“What? Your behavior has been terrible! Anyway people who work for me have to have great behavior! Where does it say “good behavior?”

Roberts sighs. “Article III of the Constitution. I can’t be fired, only impeached. I serve for life unless I commit a high crime or misdemeanor.”

“That’s ridiculous. I'll hire the greatest constitutional law experts ever to change that. Besides, I am great at English and good behavior doesn’t mean a job for life.”

“It’s more of an historical thing.”

Trump looks confused. “What is?”

“That good behavior means life tenure.”

“You’re not a f*cking teacher! You don’t have any tenure. That is stupid. You’re stupid. This is exactly why you're fired! Besides, in my business no one has a job for life.”

“Well, this is a government, not a business of course, and we have the separation of powers. It makes this country great.”

“I know, I know. I believe in separation of powers, the greatest separation of powers, and I am about to separate you from your powers.”

Roberts gets up to leave. “Well sir, I guess we will have to see."

See what?

Whether you can actually fire me.”

Trump comes around from behind the desk and puts his arm around Roberts, who awkwardly tries to slide away.

“We could make a deal. I make the best deals.”

Roberts shakes his head. “I don’t think so, sir. I hold all the cards.”

“We’re not playing cards, we 're playing government, and no you don’t.”

“Don’t what?”

“Hold all the cards. "I'm the boss, the big boss, the biggest boss. you'll see. Start packing."

Roberts shakes his head and walks towards where he came in. “I do have the Constitution on my side and I’ll take my leave on that note.”

Trump yells at him, “Fine, I won’t fire you or the other judicial nothings. I will instruct the D.C. government to supply no electricity, telephone service, water, or food to the Supreme Court (there goes your crappy cafeteria). I will order that the Justices’ chairs and spittoons be removed and sold. I will convert the Court’s garage into a hangar for my helicopters and limos. You'll see!
Roberts exits. Trump goes back to his desk and picks up his golf club. He presses the intercom. "Sarah, get Sotomakagan over here pronto. We're cleaning house!"

Friday, April 29, 2016

Trump Confuses Tactical and Strategic Unpredictability

by Michael Dorf

So much of what Donald Trump says is nonsense that taking his pronouncements seriously feels like a sucker's game. But as the likelihood that he will secure the GOP nomination has recently increased, simply ignoring him is untenable for anyone interested in public policy. One approach would be to point out the nonsense, vapidity, and internal contradictions in what Trump says. That is a full-time job by itself.

Consider Trump's speech on foreign policy on Wednesday. The biggest piece of nonsense was the following statement: "I was totally against the war in Iraq, very proudly, saying for many years that it would destabilize the Middle East." Politifact rightly rates this statement "false." At best, Trump's pre-war stance could be called ambivalent. That's better than having been an enthusiastic supporter, but it doesn't draw the contrast he apparently intends to draw with Hillary Clinton, who, as a Senator, voted to authorize the Iraq war in the hope, she said, that doing so would give President Bush leverage with the UN and the Saddam Hussein regime. This HuffPo story is, in my view, too forgiving of Clinton and the other Democratic Senators who voted to authorize Bush to use force against Iraq, but the basic outline is correct. Trump's claim that he is a strategic genius who, unlike Clinton, foresaw and warned of the dangers of going to war in 2002/2003, is a lie.

The vapidity of the Trump foreign policy address speaks for itself.  For example, ISIS "will be gone quickly," but there is no explanation of how.

As for internal contradictions, I confess to nearly falling out of my chair laughing upon reading this observation by two writers for the NY Times: "There were paradoxes throughout Mr. Trump’s speech." No there weren't. Affirming two or more statements that cannot all be true gives rise to a paradox if one cannot figure out how any of the statements is false. A paradox implies a puzzle of some sort. In Trump's case there is no puzzle. He is simply a foreign policy dunce who is unaware that one does not reassure our friends that they can count on us by threatening to leave them unprotected unless they pay more for their defense. Etc.

Pointing out the inanity of a Trump speech is a game of whack-a-mole. I surely will be tempted to play the game again between now and November 8, but for now I want to take seriously an idea that Trump has repeatedly floated and that he repeated on Wednesday: that U.S. foreign policy should be less predictable. Here's the way he put it:
we must as a nation be more unpredictable. We are totally predictable. We tell everything. We’re sending troops. We tell them. We’re sending something else. We have a news conference. We have to be unpredictable. And we have to be unpredictable starting now.
The claim that tactical unpredictability is valuable strikes me as true in various contexts. Consider three:

1) You are a prospective home buyer negotiating a price for a house. You can spend up to $X but you would like to pay less so that you will have more money left over for other purposes. It would be advantageous to offer less than $X rather than immediately disclosing your full finances and accurately telling the seller that you can go as high as $X but no higher.

2) You are a soccer player taking a penalty kick. You kick with the most speed and accuracy when you aim for the lower left corner of the net. Nonetheless, you should not always try to kick the ball there, because if you do, the goaltender will know where to dive to block your kick. The optimal approach randomly selects a target based on probabilities correlated with your own strengths and the goaltender's weaknesses.

3) You are a general deciding whether to attack the enemy position from the front, from one of the flanks, or in combination. You would be wise to disguise your intentions.

Scenario 1 relates to Trump's criticism of the Iran nuclear deal. Trump considers himself a great deal-maker. He isn't, but let's put that aside. He thinks that a better negotiator would have gotten a better deal with Iran. That's probably false, and in any event, Trump has not offered any particulars about how this supposed better deal could have been reached. Indeed, I would be very surprised to learn that Trump even understands how the Iran agreement works. But the general point is true. A president negotiating an international agreement would do well with some unpredictability. Insofar as various aspects of the agreement are zero-sum, a country--like a home purchaser--stands to get a better agreement if the counter-party is uncertain about the country's squeal point. There's no evidence that the Obama Administration has acted in disregard of this principle, but it is a valid principle.

Scenario 2 is simply a stylized version of Scenario 3, so I'll treat them together. Trump appears to have military matters especially in mind when he touts unpredictability. Here too the general point is correct, and here too Trump is knocking on an open door. To see why, we need to distinguish between tactical and strategic unpredictability.

Tactical unpredictability undoubtedly has value in the conduct of war. Is there any evidence that President Obama is unaware of this fact? The signature military success of the Obama Administration was the mission that killed Osama bin Laden in Abbottabad, Pakistan. Although it was generally known that the United States was attempting to hunt down bin Laden, the Administration kept the operational details secret, especially from the Pakistani intelligence and military, which were deemed potentially unreliable. More generally, the Obama Administration has not in any way abandoned the principle of tactical unpredictability.

Nonetheless, the U.S. does typically announce when it is deploying troops on foreign soil. Trump thinks even this kind of strategic transparency is problematic, but he does not elaborate on how. Deploying large numbers of troops surreptitiously is impossible or at least a war crime--as when Russian troops in unmarked uniforms invaded Crimea. Special forces can be deployed secretly in small numbers, and the U.S. does just that. When the government announces a general policy of using special forces it never broadcasts exactly where they are going in a way that would jeopardize operations.

So what exactly is the complaint? President Obama and, before him, President Bush, have sometimes been criticized for announcing withdrawal dates far in advance. Some of the criticism is based on the (reasonable) objection that withdrawal decisions should be made based on military and political conditions at the time of withdrawal, not based on a pre-set timetable. But another criticism is that by announcing in advance that we plan to leave by a date certain, we embolden our enemies to hold on until that date. Could this be an example of foolish predictability?

Not really. Our enemies will be emboldened to hold on regardless of what we announce. There are really only two alternatives to announcing a date certain for withdrawal. One possibility is to announce that the U.S. will remain an occupying force forever. This is politically and morally unacceptable. It is also not credible.

The other alternative is to announce that the U.S. will keep troops in a country "until the job is done" or something like that. In what world would such resoluteness lead the Taliban or their equivalent elsewhere to lay down their arms? Actual battlefield success by U.S. and allied forces could lead to a political resolution. So could other measures. But the idea that a commitment to keeping troops in country on an open-ended timetable would lead insurgents to give up is naive. They know we will leave eventually. They will hold on as long as they can or think it is advantageous to do so in any event.

Bottom Line: Trump's proposal that U.S. foreign policy should be somewhat unpredictable is as empty as all of his other statements. Where unpredictability is valuable, we already practice it. Greater unpredictability would be unhelpful.

Thursday, April 28, 2016

Meanwhile, Back in the People's House, the Pandering Continues

by Neil H. Buchanan

In the midst of the ongoing drama of the presidential campaign, it is easy to forget that there already are people who have been sworn in as elected officeholders, and that those people are doing their jobs almost completely without public scrutiny.  Because the House of Representatives has been rigged to have a nearly permanent Republican majority, the House has essentially become like an incurable rash: annoying and sometimes even dangerous, but not worth thinking about very often.  Even without the presidential primaries to distract us, focusing on the House might not seem like a high priority.

In fact, unless Paul Ryan agrees to leave the Speaker's chair to run for president after an open Republican convention this summer, the chances are that we will not hear about the House again for the rest of the year.  Even before Ryan oh-so-reluctantly took the gavel from John Boehner, however, the regular activity of the House had become more than a bit of a farce.  Most of the activity seemed to involve refusing to pass budgetary measures while repeatedly voting to repeal the Affordable Care Act.

To be clear, I certainly do understand that there are good reasons for politicians to propose bills that do not currently stand a chance of passing.  Bernie Sanders's entire presidential campaign is predicated on the idea that we should be trying to advance proposals that are almost surely impossible to pass under current circumstances, and he has similarly sponsored bills in the Senate that were dead in the water.  Similarly, Elizabeth Warren's "Tax Filing Simplification Act of 2016," which I endorsed recently, has no chance of going anywhere, especially given the anti-tax and anti-IRS fever that has gripped the Republican Party for the last generation or so.

Of course, Sanders and Warren are in the minority.  If minority party members were not allowed to propose long-shot policy suggestions, their job would boil down to voting against whatever the majority proposes.  In the extreme, once it was clear which party had the majority, the other party would not even need to show up at all.  (Committee hearings can be a different matter, of course.)  Being an effective minority party, however, involves not only looking for compromises with the majority, but also being politically aggressive by highlighting one's priorities in contrast to the majority party's agenda.

I suppose that one could say that the House Republicans (as well as Senators like Ted Cruz and Mike Lee) still think of themselves as the minority party, because they see so much impurity among their ranks.  Leading government shutdowns is one way to respond to that sense of grievance, but that did not work out very well.

And in any event, we should at least be able to evaluate the certain-never-to-become-law proposals from the standpoint of whether they are coherent on their own terms.  For example, I have argued that Warren's tax filing act is good policy, but even if one were to disagree with that assessment, her bill describes something specific that would change how the tax system works, which allows legal and policy analysts to assess the likely impact of that proposed law.

By contrast, the 60-plus votes to repeal the ACA are essentially a temper tantrum that has been going on for more than five years.  The rap on the Republicans, after all this time, is that they still have not said how they want the health care system to work.  They are not even willing to simply say, "Let's go back to where we were before," because they actually support the more popular aspects of the ACA (young adults on their parents' plans, no termination of coverage for pre-existing conditions, and so on).

Even the never-ending series of ACA repeal votes, however, is better than Republicans' nonsensical approach to tax policy.  Consider "HR 27 — Tax Code Termination Act," sponsored by Robert Goodlatte (R-Va.) (with dozens of Republican co-sponsors) and carrying the official title:"A bill to terminate the Internal Revenue Code of 1986."  It is a very short bill, which readers can access here.  What does it say?  Just what its title suggests: terminate the Internal Revenue Code (with exceptions for taxes paid mostly by working people, especially FICA payroll taxes), effective January 1, 2020.

Then what?  As I said, it is a very short bill, but Section 3 of the bill offers this helpful list:
The Congress hereby declares that any new Federal tax system should be a simple and fair system that—
(1) applies a low rate to all Americans;

(2) provides tax relief for working Americans;

(3) protects the rights of taxpayers and reduces tax collection abuses;

(4) eliminates the bias against savings and investment;

(5) promotes economic growth and job creation; and

(6) does not penalize marriage or families.
Thank goodness for that!  What about puppies and kittens for everyone?

The most that can be said, I suppose, is that the bill is designed to be a time bomb, putting a date certain on the time when Congress must pass a real bill that would actually achieve all of those wonderful things.  Without a drop-dead date, after all, it is all to easy to procrastinate, right?

But given Republican-led Congresses' recent history with deadlines, that is hard to take seriously.  This is the group, after all, that created the so-called Super Committee in 2011 to force a new budget deal, with a built-in disciplinary mechanism called "the sequester," which would create deep automatic cuts to both military and domestic discretionary spending if the Super Committee failed.

What happened?  The Super Committee failed, but these same Republicans ultimately decided that they would rather allow the supposedly unthinkable cuts to go into effect -- with, of course, subsequent efforts to undo the military-related sequestration cuts -- rather than actually respond to the disciplinary device as planned.

It is quite easy to imagine the same thing happening with the Tax Code Termination Act.  Rather than proceed in good faith in trying to craft a new tax system, the looming implosion of the tax system would simply become a bargaining chip for the most extreme demands that the Republicans could imagine.  A caucus that is willing to play debt-ceiling roulette over and over again, after all, has certainly shown its ability to court absolute economic disaster in the pursuit of their extreme policy agenda.

Such anti-tax pandering, moreover, is not a sideline of the current Republican majority in Congress.  It is their obsession.  The House recently advanced bills that are clearly aimed at stoking anti-tax sentiment among the Republican base.  (Note, unlike Goodlatte's nonsensical bill, which merely sits on the docket, these bills are currently being acted upon by Republicans in the House.)  H.R. 4890 would end bonus payments for IRS employees until a new customer service strategy gets implemented, which amounts to punishing the current employees of the IRS for the supposed sins of their leaders and predecessors. H.R. 1206 would "prohibit the hiring of additional Internal Revenue Service employees until the Secretary of the Treasury certifies that no employee of the Internal Revenue Service has a seriously delinquent tax debt."  That will help improve customer service at the IRS!  (Obviously, being delinquent on tax debt is a serious matter, but it is absurd to tie that issue to the IRS's ability to hire new workers.)

Is this merely a maneuver by back-benchers to show that they are as anti-tax as their supporters back home want them to be?  Speaker Ryan apparently does not think so: "We know that the IRS cannot be trusted to police itself.  That has been proven. Each time we uncover more problems, the IRS comes up with more excuses."  You know, like explaining reduced customer service by pointing to Republican-led budget cuts that make it impossible to staff taxpayer help lines -- cuts that even Ryan's staff accidentally conceded made the IRS's job impossible..  Excuses like that.

Moreover, if Ryan's claim that "the IRS cannot be trusted to police itself" has supposedly "been proven" by the IRS non-scandal scandal, then he is wrong even on his own terms.  The initial inspector general's report that started this whole Republican talking point, after all, showed that the IRS had in fact policed itself exactly as one should hope it would.  Higher-level IRS managers discovered that low-level employees were doing something wrong, and they put a stop to it.  They did not make excuses, and they did not defend the employees' misguided (but apparently well-motivated) decisions.  None of that matters to Ryan, of course, because even the top Republican in the House thinks that it is more important to score political points off the IRS than to deal with real problems.

The people's representatives are at work.

Wednesday, April 27, 2016

Animals, Altruism, and the Act/Omission Distinction

by Michael Dorf

A little less than two weeks ago, Cornell Law School hosted a "book celebration" for Professor Colb and me, in recognition of the publication of our book Beating Hearts: Abortion and Animal Rights. I have used scare quotes to reflect the fact that, as one of the speakers explained, in the academy scholars celebrate a book by engaging--and in some ways disagreeing--with the claims made in the book. That was certainly the case here. Each of the panelists, including moderator Brad Wendel, mixed (overly generous) praise for our book with substantive challenges. We are very grateful for that engagement by Prof. Wendel and by the two main commentators: philosopher Mylan Engel and law professor Deborah Tuerkheimer. Readers interested in the panel can watch it below or by clicking this link.



The format of the event had Professors Wendel, Engel, and Tuerkheimer speaking first, followed by responses from Prof. Colb and me. (There was also audience Q&A but it did not make it into the YouTube video.) Because we did not know in advance what the speakers would say, our responses were in the nature of counterpunching, and because the presentations by the speakers were so rich, our responses were necessarily incomplete. Accordingly, here I want to expand a little bit on one line of inquiry opened up by Prof. Engel. It chiefly concerns the act/omission distinction.

Prof. Engel read our defense of an abortion right, even with respect to sentient fetuses, as resting on the proposition that a woman who has an abortion is best characterized as engaged in an omission--a failure to gestate--rather than an act--affirmatively killing. I don't think that's quite what we say because, among other things, we say that abortions of sentient fetuses are presumptively immoral, absent a good reason for the abortion, whereas we wouldn't say that a failure to rescue is presumptively immoral. We also think that abortion differs from almost all circumstances in which one can either cause harm, prevent aid, or do nothing as a bystander, because a woman must either provide affirmative aid or harm her fetus/baby. There is no option of being a bystander. (Yes, I know that's too terse to explain the argument fully. You can read the book for more details!).

Nevertheless, Prof. Engel is correct in observing that in various places in the book we do rely on the act/omission distinction. For example, in explaining why we think there is an obligation to refrain from deliberately harming animals (absent a very good reason for doing so), we say that this obligation of non-harm does not entail affirmative duties to animals that are comparable to our affirmative duties to humans. E.g., the collective decision to subsidize health insurance for poor humans in our country does not entail an obligation to provide health care to wild animals in our country, just as it does not entail an obligation to provide health care to people in other countries. We distinguish between the things we do to others and the things we do for others. In drawing that distinction, we draw on our legal tradition and conventional morality.

Prof. Engel pushed back on this conventional view using an example proposed by Peter Singer that is a variant of a longstanding critique of the act/omission distinction. Suppose you see a person drowning. You could easily rescue her at no risk to yourself but it would mildly inconvenience you. Wouldn't we say that you should rescue her? The common intuition is that yes, you should, and that someone who fails to do so because he prioritizes avoiding a ten-minute delay in getting to work or avoiding having to change his clothes is not merely failing to engage in a laudable supererogatory act, but is an immoral monster. Thus, the argument goes, there is something more generally wrong with the act/omission distinction.

In my remarks in response during the book celebration I responded that if the act/omission distinction is generally wrong, then just about everybody who lives in a developed country is a moral monster. As between spending a couple hundred dollars on a smartphone and sending that money to a developing country to buy mosquito nets, clearly the latter would do more good. And without the act/omission distinction, there is no difference between failing to prevent human deaths from malaria and murdering people. Perhaps the act/omission distinction is just a rationalization, but if so, it is a rationalization without which we cannot even begin to pretend that we ever do the right thing.

Having said that, I should add that I am not fully comfortable with the proposition that the person who fails to rescue the drowning woman has only failed to engage in a supererogatory act. Partly that is because of the immediacy of the situation. The woman can be saved now by you, and if you fail to act, no one else will happen by in time to effect the rescue. But this immediacy is probably illusory. In theory other people could provide those mosquito nets, but  right now each marginal dollar that you spend on something for yourself other than subsistence could do a lot more good rescuing people in the developing world.

One possible way out is to point to the evidence that much aid from nations, individuals, and NGOs in the developed world to the developing world is wasted or worse, counterproductive. But this argument points to reforms in the way aid is given by countries or to studies in effective altruism, not to selfishness. Only an a priori radical libertarian would think that there is never any way to do anything helpful for others. If simply throwing money at problems is unhelpful, it does not follow that spending on one's own consumption of luxury goods will magically maximize the wellbeing of others.

Moreover, I share Professor Engel's sense that some acts for others are more than mere charity. I do not want to say that societies that provide public education and health care for people who cannot otherwise afford education and health care in the private market are acting above and beyond the call of duty. I share the sense that we have affirmative duties to others.

We might be able to justify the idea that we owe affirmative duties (like education and health care) to our fellow citizens as agent-relative duties. In the same way that I owe special duties to my children that I don't owe to my neighbor's children, so living in a community--whether a village, a state, or a nation--may impose affirmative duties to the other inhabitants of that community. To be sure, this calls for some difficult line drawing. For example, are undocumented immigrants within the relevant community? And why isn't the relevant community the community of all humans on Earth?

I don't have a comprehensive answer to this set of puzzles, but, to return to one of the ways in which the issue arises in our book, I don't think it's controversial to say that we can owe special duties of aid to humans that we don't owe to animals. Put differently, taking the interests of animals seriously with respect to our negative duties does not swamp us with affirmative duties to animals that crowd out the possibility of greater aid to humans.

Tuesday, April 26, 2016

Skepticism About Hillary Clinton From An Unexpected Source

by Neil H. Buchanan

Last week, I explained why I am supporting Hillary Clinton for president, rather than Bernie Sanders.  Although I did not state the argument in this way, I was ultimately saying that too many Americans do not understand adjectives, specifically the modifier "democratic" in front of the word "socialist."  Sanders's quite accurate self-description as a Democratic Socialist should not scare people, but it does.  And that could cost Democrats both the White House and the Senate, in a year when Republicans are doing everything possible to lose on an epic scale.

Therefore, when Newsweek titled my piece, "Nation Isn't Ready for What Bernie Sanders Supports," that was accurate partly as a matter of substance but mostly of form.  As much as I would like people to be in favor of single-payer health care and the rest of Sanders's agenda, and as much as it appears that majorities or pluralities of people do favor the progressive agenda when presented on an item-by-item basis, it seems unlikely that Sanders's political revolution could win the battles that it would need to win, largely because conservatives could so easily demagogue against "socialism."

Even so, I understand the disappointment of Sanders's supporters that this is not their year.  I offered the somewhat bleak solace that life under a Hillary Clinton presidency would be the ultimate in diminished expectations: when you imagine that not much good will happen, every good thing that does happen will be a pleasant surprise.  That is not as good as watching a progressive revolution while it is happening, but it is better than life under President Name-a-Republican.

Nonetheless, I also understand that some people feel viscerally negative about Clinton -- not just by contrast to a more progressive alternative, but as a matter of having negative feelings about Clinton herself.  Here, I want to look at three anti-Clinton statements that I recently came across:
-- "I cannot trust her. ...  I feel like she can be bought on anything."

-- "Even if she has good intentions, her mind is not really geared toward people like me.  It’s geared toward people who are going to help her out."

-- "I do not believe anything that Hillary Clinton says. ...  I have come to believe that Clinton ... has no fundamental beliefs other than that she should be President."
The first two statements above were from Sanders supporters in Pennsylvania, as quoted in a New York Times article from the campaign trail.  The third quotation is from a person whose opinion I generally respect: me!  I wrote those (and even harsher) words eight years ago, when I was explaining why I supported Barack Obama over Hillary Clinton for president.

How do I respond to those three comments today?  Actually, the first two are relatively easy, and even 2008 Neil Buchanan would have agreed with my response below.  My own change of mind is, however, perhaps a bit more interesting to explore.

The first two statements are ultimately about the trust issue, which polls consistently show to be a big problem for Clinton.  In the end, I agree with Times reporter Jill Abramson, who was quoted in Nicholas Kristof's recent op-ed saying that "Hillary Clinton is fundamentally honest and trustworthy."  Kristof correctly pointed out that, although Clinton can be her own worst enemy, the narrative that she is untrustworthy makes no sense.  It is, if anything, proof that the Republican attack machine has succeeded in throwing enough dust in everyone's eyes to make Clinton appear to be something that she is not.

And the claims that Clinton "can be bought on anything" and that her mind is "geared toward people who are going to help her out" are, I think, simply wrong.  Taking large campaign donations from corporations (which I think she should not have done), and accepting big speaking fees from Wall Street banks (which reflected, at the very least, an unexpectedly poor ability to sense political danger) are not proof that she is being "bought," much less that she could change her views to fit the agenda of the people who pay her money.

Instead, Clinton is simply the candidate of choice for certain people who have liberal-ish views on various issues, and who have a lot of money.  Those people do worry me, and I hope that their influence in a Clinton White House will not be as strong as it was during her husband's or Obama's presidencies.  But that is not a matter of being a bought-and-sold politician.  For better and worse, Clinton is fundamentally what in other countries would be called a neoliberal, a person who starts from the assumption that a narrow, technocratic notion of "economic efficiency" is the proper goal of public policy, even when the goal of that policy is supposed to be liberal.

Both Clintons, after all, were movers and shakers in creating the Democratic Leadership Council (DLC), which spawned the anti-labor "New Democrats" who turned the party sharply to the right in the 1980's and 1990's, and who still exert influence on the policy debate through well-funded groups like Third Way, which continue to claim that Democrats need to be essentially Republican-lite.

When I said in 2008 that I could not trust Hillary Clinton, I was saying that I did not take her seriously when she mouthed progressive-sounding policy positions, because I thought that she was saying whatever was necessary to win the nomination while still harboring the DLC's sellout agenda that had led the Democrats so far to the right (only to find the Republicans running even faster and farther to the right).  So the worry in my mind has never been that Clinton was for sale, but rather that her commitment to progressive policy goals seemed to be opportunistic.  What is different now?

I am a strong supporter of organized labor, and in particular of school teachers.  The Obama Administration has continued the disappointing DLC-inspired treatment of unions as useful sources of election support that can be taken for granted when governing, and the Obama Department of Education has been especially disappointing on teachers' issues.

That recent history should, and did, make me especially skittish about Clinton on these important issues.  One thing that I think has become clear, however, is that Clinton is actually willing to take a stand against the teacher-bashing agenda that has become not only de rigueur on the right but popular among some big Democratic donors as well.  When Randi Weingarten, one of the most important teachers' union leaders in the country, both endorsed and defended Clinton, that meant a lot.

Hillary Clinton has spent her life surrounded by two types of people, those who genuinely think that the Democrats should be a center-right pro-business party, and those who disagree but think that that is the best that we can hope for.  I was never sure where Clinton fit in, but the past eight years have offered sufficient evidence that she is a liberal/progressive who has been conditioned to be incredibly timid.

This is one of the reasons that I am glad that Bernie Sanders has been so successful on the campaign trail this year.  Although it is surely true that Clinton will do some things in the next six months (and, I hope, the next eight years) that will have me grinding my teeth, she is a politician who knows how to read what the public can support.  And Sanders has shown that there is a much wider political audience for left-leaning policies than Clinton (and many other Democratic leaders) ever thought possible.

What I would say to the 2008 version of me, then, is that Clinton's political instincts have turned out not to be careerist, although there is clearly a lot of that at work with any politician.  She has, instead, shown over the last eight years that she is willing to respond to calls for policies that do not fit into the neoliberal mold.

What has impressed me the most, however, is the growing awareness of just how fearless Clinton can be.  Last Fall, when yet another Republican-led committee was trying to continue to exploit the Benghazi tragedy (specifically with the goal of harming Clinton's electoral chances), Hillary Clinton responded with an eleven-hour-long Iron Woman performance that still takes my breath away.

A President Sanders or a President Clinton will face a continuing onslaught of exactly those kinds of attacks.  Even though Clinton's embrace of a more left-leaning policy agenda has been somewhat hesitant, therefore, it is easy to imagine a Clinton presidency in which some good things happen, and in which the new president deals as well as possible with the Republicans' ceaseless attacks and obstructionism.

Clinton's track record is long and uneven, but I now believe that her heart is in the right place, and she will not wilt under the inevitable onslaught.  I am still hoping for the political revolution to take place, but in the meantime, Clinton's personal strength and political skills will allow her to help the Republicans continue to destroy themselves, leading the country toward the next stage in our political development.

Monday, April 25, 2016

Doubling Down on the Benefits of an Equally Divided Supreme Court

By Eric Segall

Last week, I published a piece in Salon arguing that our current even-numbered, equally divided (as a matter of political party affiliation) Supreme Court is not only not a bad thing for the country but in fact a very good thing. With eight Justices divided along party lines, I argued, the Justices on both sides would be far less capable of carrying out a partisan agenda, would need to compromise much more with each other to get things done, and, in the long run, would likely issue more moderate decisions less infused with personal politics and values. I pointed to the current RFRA litigation, and the Court’s supplemental order desperately trying to achieve a compromise to avoid a four-to-four tie as an example of that kind of behavior.

I knew I was arguing against the conventional wisdom. Interestingly, I received generally positive feedback from folks of quite different political persuasions, such as Sandy Levinson and Ed Whelan, who both thought it was worthwhile to think about ways to reduce the ability of the Justices to affect our politics.

They were a minority, however, as most people whom I heard from thought that we need an odd number of Justices to resolve circuit splits in the lower courts (a tie vote in the Supreme Court has no legal effect), and, in any event, although Congress could constitutionally fix the number of Justices at eight, there would be no realistic way to make sure going forward the Court was equally divided among Republicans and Democrats, liberals and conservatives.

As to the first objection, the Justices only take 75 cases a year now, which means that circuit courts have the effective final say in 99% of federal cases and, even in those rare cases involving circuit splits, the Court will relatively rarely divide four-to-four.

But what about those few cases a year like abortion, affirmation action, and voting rights where the Justices will divide equally? I agree there may be some pain but, like with the contraception case, if the Justices know that 4-4 ties are the way of the future, they will likely work hard to find a compromise. In any event, circuit court judges are no slouches, they are much more pluralistic than the Justices, and perhaps having different rules in different parts of the country will serve to shed light on the pros and cons of the various policy debates.

The second objection is much harder to overcome. An even number of Justices on a Court with a majority of Republicans or Democrats would not further the purposes of my proposal, so the Senate would need a way to ensure a four-to-four balance. In my first draft of the Salon piece, I advocated that Congress abolish Justice Scalia’s seat, which it could clearly do, and then enact an internal Senate rule that, absent a three-quarters vote of all Senators, a retiring or deceased Justice cannot be replaced by a nominee from the retirees’ or deceased’s political party. That rule would not formally prevent the President from nominating whomever she wants but the Senate could refuse advice and consent for any and all reasons, including the requirements of its own internal rules.

Friends who read that draft thought that the proposal could be gamed by nominees not identifying their political party or even affirmatively mischaracterizing their party affiliation. Readers also thought that the proposal would require nominees to identify themselves as members of one party or another, which would eliminate independents and be unfair to the nominees. And, of course, the current Senate cannot bind future Senates, even by internal rule.

There are responses to these objections. What are the odds really of an independent being nominated and confirmed anytime in the near future anyway? And a nominee trying to game the system by hiding or changing his political party affiliation would be easily identified. Moreover, no proposal is perfect, the Senate has age-old rules it does follow over time, and there could be a political price to pay to change course after years of success with a non-partisan Court.

But, mostly, I want to say that thinking about the benefits of an even numbered, equally divided Supreme Court tells us something important about the institution separate from the question of how to implement the idea. For most of the last thirty years, the constitutional results in politically charged cases (the ones most likely to divide along partisan lines), depended on two people, Justices O’Connor and Kennedy. And, for the last ten years, Justice Kennedy has dictated the rules in most of those cases. Is that truly a better system of government than dispersing that decision making authority among twelve different circuit courts of appeals made up of far more diverse judges than the nine sitting on our highest Court (turns out many appellate judges did not go to Harvard or Yale and are from the middle part of the country). Moreover, why is it so important that there be an even number of Justices if law, not personal preference, plays an important role in generating decisions? Finally, if there are eight Justices divided along party lines who can’t agree on a particular result, might that show that we don’t need this particular political/legal institution to say “what the law is” for all fifty states? Are we so sure we want to all live in Justice Kennedy’s (or the next swing Justice's) America?