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Friday, April 20, 2007

"A chill wind from Rome . . ."

. . . is what a number of bloggers and commentators perceive in the partial-birth-abortion decision.  I suppose I should not be surprised by this line, but -- I admit -- I'm disappointed.  And then there's this, from the Philadelphia Inquirer (which characterizes as "activist" a decision that declines to invalidate a measure which has always enjoyed broad and bipartisan support or to read broadly a precedent which invalidated an earlier law which also enjoyed broad and bipartisan support):

Auth

My point here is not to vent about the "last acceptable prejudice" .  What's irritating, to me, as a lawyer, about the cartoon is the claim that it is as Catholics -- i.e., because they are Catholics, and not because they think, as intelligent and engaged lawyers, that the Constitution does not disable legislatures entirely from regulating what most people (not just Catholics, fideists, and sexists) regard as a particularly gruesome abortion procedure  -- that the five Justices who voted to uphold the ban.

Not only that . . .

More striking, and sad, for me, is what the cartoon suggests, and reveals, about the state and future of debate about moral questions.  Look at the faces of the dissenting Justices -- quizzical, sad, bewildered, as if to say, "what are these guys talking about?" -- while the majority are smug and complacent.  And why shouldn't they be?  They didn't have to think or reason; only to put on their mitres!

It is, increasingly, thought to be enough to discredit an argument or position -- any argument or position -- merely to note that the person who makes it is a religious believer, and to write off any moral argument with which one disagrees as "religious."  (This practice, of course, does not run both ways:  arguments against torture, the death penalty, race discrimination, and income inequality are "secular"; arguments against partial-birth abortion or the creation of embryos for research are "religious.")  It appears, increasingly, that arguments whose trajectory is not in line with the standard liberal / autonomy / choice line are not only rejected, but declared not to be permissible arguments

And now, apparently, even words whose use suggests the embrace of certain premises are out of bounds.  In Justice Ginsburg's dissent, she took the time to complain that there was something improper, and threatening, about the majority's use of words like "abortion doctor" and "unborn child"; but, of course, the use of these words represents an argument.  To rule out the words is to rule out, as illegitimate, the argument they reflect.

I have long understood that many (most, probably) of my friends -- decent, intelligent, thoughtful people -- disagree with me about abortion (and constitutional law).  This is true, I understand, of many of my co-bloggers and Prawfsblawg readers.   I don't think, though -- at least, I try hard not to think -- that their disagreement is merely a product of their funny-hat choice.

Posted by Rick Garnett on April 20, 2007 at 10:26 AM in Constitutional thoughts | Permalink

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Rick writes:[A Chill wind from Rome] is what a number of bloggers and commentators perceive in the partial-birth-abortion decision. I suppose I should not be surprised by this line, but -- I admit -- I'm disappointed. And then there's this, [Read More]

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Comments

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I'm sure that some, perhaps many, dismissals of a position as merely 'religious' are illegitimate. That should surely be avoided. But there is something legitimate in many of these cases as well. What those who reject an argument or position as merely 'religious' are trying to get at, I think, is that the position or argument is one that only those who hold certain contentious views about metaphysical or transcendental matters could agree to. But to appeal to such views when deciding what laws will govern other people is to ask them to submit to something that they cannot reasonably be asked to submit to. This objection does not apply just to 'religious' postions, of course. If I made an argument about what the law should be that required accepting the truth of Kant's transcendental metaphysics, or mind-body dualism, or the existence of concrete possible worlds, I would also be doing something unreasonable. To the extend that these positions are 'secular' then it's certainly true that secular reasons can also have the some problem. But to the extent that we want to treat our fellows as equals and with respect we really ought to try to give them reasons that they can share.

(Also, I'd thought that the last acceptable prejudice was againt fat people. Or Mormons. Can you really imagine these days major media outlets and blogs making fun of Catholics, truly ridiculing them, the way that Mormons often are? It seems unlikely to me.)

Posted by: Matt | Apr 20, 2007 10:47:01 AM

Matt, I am certainly familiar with the claim that it is wrong to coerce people through law on the basis of "certain contentious views about metaphysical or transcendental matters" that "they cannot reasonably be asked to submit to." In my view, the claim has little force, even in the abstract. And, in any event, I don't think the foundations of the commitments that drive the partial-birth-abortion ban are any more inaccessible than those that animate all kinds of other laws.

Putting all that aside, it is not clear to me why -- even if I thought the claim *did* have force -- it applies to decisions by a Court about whether or not to invalidate a duly enacted law. (Perhaps the cartoon should have shown Sens. Reid and Leahy -- who seem to have forgotten that they supported the ban -- wearing mitres, instead of Justices Kennedy and Roberts?).

On the anti-Catholic thing, yes I can. Easily. (This is not to endorse Bill Donohue, who finds anti-Catholicism everywhere. But Jenkins is a serious scholar, and the book makes a strong case.)

Posted by: Rick Garnett | Apr 20, 2007 11:10:52 AM

Rick,
I wasn't addressing much of your post, I'm happy to admit. Merely the part about whether it's legitimate to criticize someone for presenting merely religious reasons for a law that coerces others who do not share that view. As to the rest of it I have less certainty, which is why I did not address it. (The cartoon is, at least, in somewhat poor tast, I would agree. I don't deny that Catholics face _some_ prejudice in our society, but the "last accecptable prejudice" claim is nonsense and whining since other groups are still ridiculed at least as much or more, Mormons being a clear example.)

As to what the court did- they may have acted legitimately (even if I think much of the reaoning is pretty terrible.) If they used the set of reasons you give, for example, that courts ought not overturn duly enacted laws when they do not conflict with fundamental rights, and held that this law does not conflict with fundamental rights since, for example, other methods of abortion can be used if needed, then the decision would be legitimate, even if not attractive to me. If the reason for making the decision was that this is what the Catholic (or any) church required, or what Kant would do, or anything like that, then the decision would be illegitimate. Would you agree with that? (Of course I would not expect them to write that they are striking down the law because the Pope said so, even if that was the real reason. I doubt it was the reason. But if that were the reason it would be illegitimate, I'd think.)

Posted by: Matt | Apr 20, 2007 11:34:46 AM

I agree with you that the editorial cartoon is a bit unfair--but on the other hand, do you think it's pure coincidence that the five Justices to vote for reversal are precisely the five Justices who are Catholic? (That wasn't rhetorical--the answer may well be "yes.") It seems to me that it's neither inappropriate nor inaccurate to recognize that one's religious beliefs are likely to have some influence on one's thinking about matters such as abortion where, at bottom, nearly everyone's views depend on metaphysical questions about what is a human life.

As to Justice Ginsburg's complaint about Justice Kennedy's choice of language: I do not think the objection is that certain words are illegitimate, much less that the underlying arguments are illegitimate. Rather, the problem with the use of words such as "unborn child" in this context is that it has the potential to beg the question--if such words are chosen in service of an argument that fetuses are children and therefore should not be aborted, so be it, but if they are used before making that determination, they may prematurely decide the issue. The problem with "abortion doctor" is different and more troubling--the term conveys no useful meaning other than sympathy with or uncritical acceptance of a particular brand of pro-life spin.

Posted by: David Krinsky | Apr 20, 2007 11:43:47 AM

Matt, I would *certainly* agree with you that it would be wrong -- indeed, I think it would be un-Catholic -- for the Catholic judges to uphold the ban because "the Pope [or Kant] said so." (Of course, that's not what happened and, in any event, it is never the case -- anymore, anyway -- that Catholics are to answer moral and policy questions merely by asking what "the Pope says.") As for the majority's reasoning, I'm not happy it either, though probably for reasons different from yours. (In my view, it's hard to see how Stenberg and this case can both really be "right". But that's another question. . . .)

David, I don't think it is "pure coincidence" (though, if WHR were still on the Court, and voting -- as he would have -- to uphold the ban, would the cartoon have added a guy in a Lutheran hat? Do Lutherans have special hats?). It *could* be, for example, that Catholics are (slightly) less likely than others might be to have strongly held policy preferences -- preferences that might push them to find, construct, and endorse arguments in favor of reversing the ban -- in favor of strong abortion rights. (This is not to claim that the dissenting opinion is merely the rationalization of a policy preference.) But, even if this is true, it doesn't mean that their conclusion that the statute is a permissible legislative act is itself a product of their mitre-wearing.

On the word choice, I do not disagree with you that a word like "unborn child" presumes an answer -- an answer that, one who uses the term could easily think, is established by argument, not by "begging the question" -- to a particular question. But, it seems to me, this is true with respect to all kinds of words that we use in law all the time.

Posted by: Rick Garnett | Apr 20, 2007 12:12:18 PM

Matt--your point regarding reasoning for upholding (or striking) a law based on Catholic Church teachings (or any religious teaching) as illegitimate and improper jurisprudence is, of course, legitimate. And, as you point out, no justice would ever say so in an opinion. Therefore, b/c no justice would ever say such, how does your theory practically play out, i.e., when do we know that a justice's legal reasoning is pretextual and not sincere?
In this case, as David points out, do we know that their reasoning is pretextual b/c the five justices in the majority are Catholic? Personally, I dont think that, alone, is enough. Therefore, in my opinion, it is hard to gauge when an opinion is a mere pretext for something else.
Finally, David points out "it's neither inappropriate nor inaccurate to recognize that one's religious beliefs are likely to have some influence on one's thinking about matters such as abortion..." I certainly agree-- SCt justices are afterall merely human. However, the question is can they (or, did they in this case) allow their personal religious beliefs to sway their vote--I dont think so.
Thanks.

Posted by: Tim | Apr 20, 2007 12:14:03 PM

Tim- the postion has practical import in two ways. First, while few, if any, judges write opinions like what I suggested (though some lower court judges do, citing the 10 commandments, 2000 years of moral teaching, etc.) many politicians do stand up and say we should support some position because that's what Jesus wants or whatever. These actions are just as illegitimate. Secondly, judges ought to write their decisions based on their actual reasons for comming to these decisions. These reasons ought to be ones that are accessable, even if not accepted, by people who share different fundamental beliefs. If a judge decides a case for one reason but states the decision for another he or she is being dishonest. I'd agree that in this case we don't know that the decsion was pretextual. We often won't know this. But that won't make it wrong for a judge to write a pretextual decision.

Posted by: Matt | Apr 20, 2007 12:25:19 PM

What exactly is the "argument" inherent in "abortion doctor?" If a judge referred to lawyers as "ambulance chasers" throughout an opinion, what exactly does that add to his reasoning? I'll grant you your points re: religion, but the "abortion doctor" language was childish and unnecessary from a sitting Justice...

Posted by: NotPrawf | Apr 20, 2007 12:44:07 PM

What bothers me about the use of the term "unborn child" here is that it evokes something that the decision doesn't bear out: that a fetus is a "child," a person like you and me, entitled to the same rights. Its use in the context of a ban that, under the Court's own interpretation, does not save a single fetal life, seems especially disingenuous. By using terms like "child," "mother," and "life" throughout the opinion, Justice Kennedy tries to claim a moral high ground that he ultimately isn't legally committed to.

Posted by: Caitlin Borgmann | Apr 20, 2007 2:57:34 PM

I'd like to look at this from even a more fundamental point.

Why is it wrong to, through social disapproval and not through government coercion, to declare religious arguments "out of bounds?"

I don't see the problem in declaring suspect all arguments originating from what I see as epistemologically suspect premises. I don't expect religious people to do any differently if I began an argument with "Because there is no god, we should do the following." Furthermore, other than declaring an argument "out of bounds," how precisely should one address an argument stemming from religious belief?

Imagine two debaters.

Alpha says, "Because of my faith, I believe abortion to be immoral, and wish that it be abolished."
Beta says, "I do not accept your faith as a valid premise for laws which bind the both of us."
Rick Garnett arrives on a white horse, and says, "It iss wrong of you to say that, Beta. You should not declare arguments out of bounds because they are religious. Come up with a different critique."

What does Beta have left?

Posted by: Patrick | Apr 20, 2007 3:12:13 PM

Patrick:

Even for the Catholic intellectual on the cusp of such things (like, say, Prof. Peter Kreeft), religion plays a very, very minor role in the overall view and argument against abortion. In fact, the most believable pro-life positions have their basic foundation not in religion but in a consistent philosophical ethic. At the most, the faith serves only to provide a fundamental foundation: life is sacred.

Thus, Alpha wouldn't exist. Beta certainly exists in modern political discourse, though, and certainly has it all wrong because he's put those words in to Alpha's mouth.

Posted by: Josh Miller | Apr 20, 2007 6:34:35 PM

Patrick--

No one rides in on a horse of any color. Alpha, in your example, could just as easily ask Beta what the justification for his opposition to abortion is, and could just as rightfully reject it. This debate has been rehearesed seemingly ad infinitum by now, but the now stale (but I guess still controversial) point, missed in your comment (I think, but you let me know), is that no one should be in the position to say that an epistemological outlook is excluded from the get go. Why should Alpha be required to argue from Beta's epistemology? Because only Beta's epistemology has been deemed "reasoanable"? What Beta (and Alpha) "has left" is argument on the merits. He's got the burden to persuade, just like anyone else trying to get people to accept a disputed claim. It's probably desirable for people to try to get into the weltanschauung of others in order to persuade them...it shows respect and it may be more effective...but this kind of thing seems to me to be a two-way street. Happy to hear opposing views (of course!).

Posted by: md | Apr 20, 2007 9:35:52 PM

[putting on the funny hat of my choice... ]

On that cartoon. All of the Catholics on the Supreme Court voted to uphold the ban, all of the non-Catholics voted to strike it down. That's not conclusive proof that those five [or even all nine of them] were acting on their religious beliefs, but it is suggestive. Editorial cartoonist are supposed to point out things like this, and in a very pointed manner too.

And how am I supposed to believe that devout Catholics can completely erase all traces of their religion from their legal or political thinking when I read and hear stuff like this? or this?

On moral/religious arguments. I'm your basic agnostic [for lack of a better label], living in a socially conservative, religiously fundamental part of the Deep South. When discussions of morality break out, I get told that because of my avowed lack of religion, I have no standing, no reason to even be talking about morals. I've also been told that even Scientologists are more moral than I am because at least they beleive in something. Things may be different where you are, but these are not isolated incidents down here.

On gruesomeness. Birth is gruesome. Death is gruesome. Surgery is gruesome. A lot of things in life are gruesome. Do you eat meat? Visit a slaughterhouse.

From what I've read on the internet so far, Kennedy is opposed to "partial birth abortions" based on their gruesomeness, but is not opposed to injecting the about-to-aborted fetus with chemicals to kill it and then removing the dead fetus from the woman's body. WTF?! Has he not been reading the graphic and gruesome descriptions of execution by lethal injection? I have. I'd rather somebody stuck a pair scissors into my brainstem. I't a relatively quick and painless death from I hear.

Posted by: hipparchia | Apr 21, 2007 6:24:15 PM

To judge from the comments, one would think that the court not only wrote no opinion explaining its ruling, but that Congress had also passed no law banning the procedure in question (and not, hipparchia, various other abortion procedures). Rather, the court simply issued, out of the blue, a one sentence order banning PBA, and the only conclusion anyone could draw is that the justices did so because they were Catholic.
More seriously, I just don't understand what it means for an opinion to be "pretextual" in the way some commenters seems to be using the word. If the five justices all do agree, morally, with the law, does that mean their legal decision to uphold it is necessarily "pretextual" and thus illegitimate, even if someone who disagreed with them morally would also buy their legal reasoning?
Finally, while I agree that "unborn child" is making an assumption, I don't understand why "abortion doctor" isn't just a statement of fact. I think a post on Stuart Buck's blog earlier pointed out the numerous uses of the phrase by the media and those on both sides of the debate.

Posted by: Jay | Apr 21, 2007 11:41:57 PM

I've just read through the entire thing. I have to say that I find Ginsburg's legal, medical, and moral reasoning all superior to Kennedy's.

Posted by: hipparchia | Apr 22, 2007 3:59:41 PM

[also, you might want to check your link to the cartoon in question]

Posted by: hipparchia | Apr 22, 2007 4:06:29 PM

As shown here, the term "abortion doctor" has been commonly used by journalists, liberal federal judges, and pro-choice activists. Given that history, the newly-invented opposition to that term seems disingenuous.

Posted by: Stuart Buck | Apr 23, 2007 9:49:44 AM

I didn't think much of the cartoon as I agree w/ the view that these types of cartoons are supposed to be provocative. The only thing that bothered me was the fact that the cartoonist had them seated incorrectly; Ginsburg and Souter should switch seats as should Thomas and Kennedy.

Posted by: Hirbod | Apr 23, 2007 12:54:49 PM

Using the "you're imposing your religion" argument is a great tactic: because we do believe in religious freedom, anytime one side can pin (successfully) on the other the "your imposing your religion" label on its opponents, it has won the argument -- without the necessity of actually debating and really winning the argument.

And, quite frankly, it works for a lot of people; you can peruse the liberal sites and find plenty of argument/agreement that the justices in the majority were imposing a religious point of view, without regard to the fact that the justices made no religious arguments. (One of us suspects that most of them haven't read the decision.)

Posted by: Dana Pico | Apr 23, 2007 4:28:26 PM

I do have to wonder why they dislike "abortion doctor," when the alternative is "abortionist."

Posted by: Dana Pico | Apr 23, 2007 4:30:22 PM

The alternative to abortion doctor would of course be OB/GYN. I would think that most people could see how OB/GYN is a bit more value neutral.
It occurs to me now that we could avoid the entire controversy by just saying doctor.

Posted by: Ben | Apr 23, 2007 6:37:55 PM

The alternative to abortion doctor would of course be OB/GYN. I would think that most people could see how OB/GYN is a bit more value neutral.

That would actually be less accurate, at least in this case: Leroy Carhart is a full-time abortion doctor. He doesn't deliver babies, which is what obstetricians do. Moreover, his official biography doesn't reveal any obstetric training, let alone certification by ACOG.

It occurs to me now that we could avoid the entire controversy by just saying doctor.

Why bother? Where's the good faith articulation for this supposed "controversy"? "Abortion doctor" is simply the standard English term used to describe doctors who perform abortions fulltime. Up till this past week, no one ever objected to the term "abortion doctor," and pro-choice websites use it regularly, as have literally thousands of news articles.

Posted by: Stuart Buck | Apr 23, 2007 8:57:26 PM

I'm sure Rick Garnett is just as upset at Rush Limbaugh and Newt Gingrich for saying that the Virgina Tech mass murderer was a liberal.

Posted by: Bart Motes | Apr 23, 2007 9:54:44 PM

Josh Miller- I concern myself less with the opinions of trained theologians than with the actual opinions of the masses of actual fellow citizens, many of whom will happily say exactly the following phrase: "As a christian, I oppose abortion." If on some future date I find myself debating with a jesuit priest, then I will concern myself with it.

md- Though I didn't write it all in, I was presuming a certain amount of value being placed on public reason, John Rawls, etc, etc. The situation is essentially one where a purely private reason has been offered to justify a public law. The nature of the private reason in question is such that appeals to commonly help perceptions about reality will be fruitless. What is the appropriate response? You can't debate with the private reason, nor can you refute it. I see two other options. You could conclude that strictly private reasons are, by nature, not compelling reasons for public policy. This rule has the advantage of being uniform and "fair." My private reasons are just as prescribed as anyone elses. Policies advanced on the grounds of public reasons also usually have the advantage of having at least some basis in shared beliefs about the world. The only other option I can think of is to resolve the issue by force. Not of arms, but of votes. To simply declare, "there are more people who hold my private reason, therefore we win." This has the "advantage" of not relying upon any ethics at all, but probably doesn't help much with creating a shared civil society.

Am I missing any other possible responses to nonfalsifiable private reasons entered into public debate?

Posted by: Patrick | Apr 24, 2007 1:07:15 PM

Reading Matt's comments I can't help but wonder if he objects to consequentialist arguments in public discourse. There are many "comprehensive" consequentialist doctrines, and of course there are those (including Rawls) who reject them, so certainly we should expect to see the same sort of reaction from the Matts of the world.

And yet I don't recall ever seeing such a reaction.

I wonder if there is something else--maybe something decidedly less attractive than the high-minded principle--that motivates the different reactions?

Posted by: Thomas | Apr 24, 2007 4:25:04 PM

Heh. I finally got around to reading the biography that Stuart Buck linked to. Apparently Dr Carhart does abortions and vasectomies.

Posted by: hipparchia | Apr 25, 2007 12:37:52 AM

I can't speak for everyone, of course, Thomas but there is of course much rejection of the idea that consequentialism should be used as a public philosophy for the same reasons that merely religious one should not be. The only conclusion to draw from your opinion here is that you're poorly read.

Posted by: Matt | Apr 25, 2007 8:59:25 AM

Matt, you comment and write often. Please point out an occasion when you've made that argument.

I know that the theory suggests that recourse to any comprehensive view is out of bounds. What I haven't seen, from you or anyone else, is a condemnation of a consequentalist argument in practice. We're all familiar with dismissals of arguments as "merely religious"; do we see arguments dismissed as "merely consequentalist"? If so, I haven't see it, but maybe I've missed it.

Posted by: Thomas | Apr 25, 2007 3:44:59 PM

Patrick:
Am I missing any other possible responses to nonfalsifiable private reasons entered into public debate?

You could realize that your epistemological empiricism which forms the foundational basis of your policy preferences is just as nonfalsifiable as a belief in some invisible god. How do they live with you? Probably by trying to persuade you--usually not well. But then how do you live with them? Obviously you've given up on trying to understand them and persuade them, as it is an impossible feat as you've asserted. Maybe you think you're justified. But then you've already signed off on the fracturing of society and live functionally as if communication with jesus people is impossible.

Do you know and communicate deeply with any jesus people? Probably you're happy with relating to them and their arguments vicariously through media sound bites, so you've already entered my world. Welcome to the Will To Power where the only course is domination by force (votes until I get more control), because there isn't communication.

You see, freedom of speech/expression is after all useless. But go ahead, blame the jesus people and don't realize they look at you and your unfalsifiable empiricism just the same and blame you, too. Blame each other and it will keep you from hoping in a shared life of communication. Do it, as you are a slave to your material nature.

I'll just watch you. It's kind of funny, and I know where it leads eventually. I will be waiting.

Posted by: Nietzsche | Apr 25, 2007 4:53:33 PM

Thomas, if you look at the quite large literature on public reason you'll see what you're looking for quite a lot. In one of my first remarks here I said that appealing to Kant would also be unreasonable in such cases. I picked Kant since I like his vie more than utilitarianism but of course the same applies. I'm not trying to 'make an argument' here since I think the space of a blog comment isn't really fit for making philosophical arguments. But if you look at the literature on public reason you'll find what you're looking for. (Of course it's not the case that consequentialist reasons are never acceptable, just as religious reasons are not never acceptable. The question is when they are acceptable. In deciding issues about fundamental rights they would not be.)

Posted by: Matt | Apr 25, 2007 5:09:36 PM

Thomas- you might in particular look at Charles Larmore's article "Public Reason" in the Cambridge Companion to Rawls. Larmore discusses there quite nicely how the idea that is closely related to public reason in Rawls's earlier work, "Publicity", is used as an argument against utilitarian coceptions of justice. Again, this doesn't mean that utilitarianism is unreasonable (at least not all forms of it) nor that utilitarian reasoning is always wrong (not even Kant thought that!) but just that it's unreasonable at certain times. It's not an uncommon argument or example in the public reason literature.

Posted by: Matt | Apr 25, 2007 6:27:21 PM

Matt, I don't think I communicated my point well. I'm not looking for examples in the literature--I know that they're there. I'm looking for examples in public political discourse--like what we were doing here, and like what the people Rick described in his post are doing. You know, an example where you (or someone similarly situated) said, the Supreme Court got that one wrong, because they appealed to a non-religious comprehensive doctrine, or that politico is out of bounds, because she's appealing to a non-religious comprehensive doctrine. I'm not familiar with any of those, but if you are, please share them.

Posted by: Thomas | Apr 25, 2007 11:52:16 PM

One difficulty in the application of the idea of Public Reason is that it's not always clear if the reasons being appealed to are public in the technical sense or not. That makes such cases harder. (Note that I didn't say that the actual decision was a violation of public reason. It might be in parts [the paternalistic view of women and some other parts might fit] but much of it probably is acceptable w/ public reasons. That doesn't make it right in itself, of course.) Anyway, in his article "Public reason and political justification" (Fordham Law Review April 2004) Samuel Freeman discusses, briefly, the decisions in Lawrence and Casey and says that if the appeals to autonomy in them are meant to be not appeals to autonomy in the sense of political autonomy and control over one's body but rather an apeal to autonomy in the sense favored by Kant or Mill then this is illegitimate as a violation of public reason. I'd guess that if you look at the other papers on public reason by Freeman and probably also Larry Solum and others you'll find other examples. As for me, I think that Posner's approach to law as wealth maximization is a pretty clear example of an illegitimate appeal to a comprehensive but non-religious doctrine. (This isn't the only thing wrong w/ Posner's view, but it's a serious problem.) Of course, even though he says that's what a judge should do he doesn't just, even in hard cases, say, "Favoring X maximizes wealth so X wins", but that's not too far in the background in many cases. (It's too late for me to look up cases now, I'm afraid.)

Posted by: Matt | Apr 26, 2007 12:23:15 AM

Matt, I appreciate the references, but as I see it, they're largely references to the literature. I'm thinking more of the Geoff Stones of the world. Stone, for example, has repeatedly alleged violations of the norm of public reason by religious believers. Yet, despite the fact that he's worked with Posner for a generation and is undoubtedly familiar with his work, he has never made that charge against Posner. What explains the different reaction from Stone?

Posted by: Thomas | Apr 26, 2007 9:59:33 AM

Since I don't know Stone at all and have only read a little of his work I don't suppose I can answer that. Maybe you should email _him_.

Posted by: Matt | Apr 26, 2007 10:27:57 AM

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