E.G.

I’ve been thinking about Mark Miller’s paintings (discussed in the previous post).  I think I might have been a little unfair to Miller in that post.  However, I think a case like that of Miller’s paintings can be constructed for the purpose of mounting an objection against consequentialism.  Here’s the kind of case I have in mind:

Clark Schmiller, a painter, steals a roll of photographs and uses them as a source for a painting.  Schmiller’s painting, entitled "Stolen Photo," becomes a huge hit in the art world; collectors are willing to pay thousands of dollars for the painting.  Collectors find it interesting to contemplate a beautiful painting whose production required the commission of an immoral act.  In other words: Collectors value "Stolen Photo" because it is (1) beautiful, and (2) produced in an immoral way.  Collectors say that if "Stolen Photo" were either not beautiful or not produced in an immoral way, then the painting would have very little value.  In fact, they say that if the painting were either not beautiful or not produced in an immoral way, then it would be disgusting.

Suppose that stealing the photographs produces very little harm; they were stolen from someone who didn’t really value his privacy, and wasn’t much bothered by being deprived of his photos.  Suppose also that producing the painting produces a huge amount of good; contemplating the painting produces a nearly ecstatic experience in many people.

Versions of consequentialism may have a difficult time explaining what is going on here.  Let’s define "consequentialism" as the view that one ought always to maximize the amount of value in the world.  According to consequentialism, should Schmiller have stolen the photos in order to produce his painting, or not?  Since stealing the photos did very little harm, and producing the painting did an awful lot of good, it appears that according to consequentialism, Schmiller ought to have done what he did.  But in that case, (2) above is false — the painting was not produced in an immoral way.  This means the painting does not have great value after all; in fact, the painting is disgusting.  In that case, Schmiller ought not have stolen the photos, since doing so caused some (small) harm to the owner of the photos.  But this means the painting is produced in an immoral way; therefore, on a consequentialist view, Schmiller was right to do what he did.  Etc.  It appears that, unless this circle can be interrupted, the consequentialist cannot say whether Schmiller ought to have done what he did or not. 

There are probably several ways in which consequentialists can interrupt this circle.  For one thing, consequentialists could simply deny the value-assignments in the example; they could say either that stealing the photos does great harm, or that the painting itself does not have great value.  If this strategy doesn’t work, then consequentialists can say that the painting’s great value does not, strictly speaking, derive from its having been produced in an immoral way.  Rather, it has value because people think it was produced in an immoral way.  The consequentialist can say that people will probably go on thinking that it was produced in an immoral way no matter what the truth of the matter turns out to be.  In that case, the value of the painting ceases to be "unstable"; it becomes fixed by people’s perceptions, and by fixing the value of the painting, the circle is interrupted.  It becomes the case that Schmiller was right to produce the paintings.

I don’t know if this response is adequate; its adequacy depends on questions about the nature of value.  People do seem to sometimes value facts and states of affairs themselves, apart from their perceptions of them.  It is possible that this is the case for the collectors.  The collectors might value the immorality of Schiller’s act, wholly separately from their perception that the act is immoral.  That is, it is possible that, for the collectors, the painting has great value if and only if it really is both (1) beautiful and (2) produced in an immoral way.  If this turns out to be the case, then its value again becomes "unstable": If it really is produced in an immoral way, then (assuming that it also really is beautiful), it has high value.  But in that case, Schmiller can be excused for stealing the photos, so it is not produced in an immoral way.  Thus it now has low value.  But in that case…etc.

I am not sure that the case of Schmiller and "Stolen Photo" is the best one to illustrate the sort of "value-instability" I have in mind here.  Maybe the case from the Confessions, in which a young St. Augustine who steals pears is pleased by the act of stealing "all the more because it was forbidden," would work better.  I believe, though, that with some work, a case adequate for the present purpose could be constructed.

[For Weatherson readers: You may also be interested in my follow-up post here, which is the one at which Richard’s objection is aimed.  And by the way, while you’re here: If one of you happens to provide a way to solve this problem, I will be much obliged.]

Via CSOTD, I came across the website of Mark Takamichi Miller, a painter.  Miller has produced a series of paintings which have an interesting origin.  Costco, a retail store, offers film-developing services.  Apparently, at one time, you could claim a set of developed prints without having to provide any proof that they were yours.  So Miller just walked into a Costco store and claimed a set of prints at random.  Miller paid for the prints, but they weren’t his; he stole them.  Then he took the prints home and used them as a source for his paintings.

It is wrong to steal photographs.  Miller acknowledges this.  But Miller seems to think that, in this case, he was justified in stealing them because he needed to do so in order to produce his paintings.  The idea, I take it, is that stealing the photos didn’t do much harm, whereas producing the paintings did a lot of good.  So, when you tally everything up, you’re supposed to think Miller can be excused for his actions.

A problem arises, however, when we consider that the wrongfulness of stealing the photographs seems to be part of the value the paintings are supposed to have.  Consider this passage from Miller’s website: 

These are private photos not intended for public viewing. I looked at them very carefully as I reproduced them as paintings for public viewing. This was an invasive and hostile act and is inherent to the work. They are intentional. They expose as an unwilling documentary the private lives of the subjects and the social rituals they engage in. But they also invade someone’s privacy. There is no excuse for it except to say that the abrasive hostile act has always been one of the primary attractions to doing and viewing art. … But this does not excuse the action. After doing this project, even I am afraid someone will have done something with my photos I leave for development. However, within the hostility, the paintings marry the engaged to the mundane, and in doing so make something beautiful where it was not.

There’s a lot in this passage that seems unintelligible to me; I don’t know what it means to "marry the engaged to the mundane," for instance.  But I get the impression that Miller thinks that the paintings are interesting precisely because they represent a wrongful invasion of some random person’s privacy.  In other words: The paintings are good precisely because the way in which they were produced was wrong.

Here’s the problem.  If the value of the paintings really does excuse the way in which they were produced, then the way in which they were produced is not wrong.  This makes the paintings valueless, or at least quite a bit less valuable, since the wrongful "abrasive hostility" of the act is supposed to be one of the "primary attractions" of his art.  But since the paintings are now much less valuable, their value probably no longer excuses the way in which they were produced.  So now the way in which they were produced is wrong.  This wrongfulness gives the paintings back their value.  But now we are where we started.

I don’t know how or whether this circularity can be interrupted.  In any case, I think Miller is just wrong if he thinks that the invasiveness of his paintings makes them valuable.  I think their deliberate invasiveness makes them sort of depraved.  The fact that stealing people’s photographs is nearly harmless adds a pettiness to the act which somehow makes it seem worse.  I am reminded of this passage from Augustine’s Confessions:

There was a pear tree close to our own vineyard, heavily laden with fruit, which was not tempting either for its color or for its flavor. Late one night — having prolonged our games in the streets until then, as our bad habit was — a group of young scoundrels, and I among them, went to shake and rob this tree. We carried off a huge load of pears, not to eat ourselves, but to dump out to the hogs, after barely tasting some of them ourselves. Doing this pleased us all the more because it was forbidden. Such was my heart, O God, such was my heart — which thou didst pity even in that bottomless pit. Behold, now let my heart confess to thee what it was seeking there, when I was being gratuitously wanton, having no inducement to evil but the evil itself. It was foul, and I loved it. I loved my own undoing. I loved my error — not that for which I erred but the error itself. A depraved soul, falling away from security in thee to destruction in itself, seeking nothing from the shameful deed but shame itself.  (Book 2, chapter 4)

I came across this site maybe a year ago, when it was circulating around the internet.  It disappeared; I think it was an Angelfire page and was overloaded by the number of visitors.  But it’s back now.  Also, it seems that the same person has two other sites: The Serpent’s Wall and Stolen Election.

I don’t know the answer to this question.  I suspect the answer is no, but I hope the answer is yes.

If a condition is "luminous," then if one is in that condition, one is in a position to know one is in that condition.  For instance: If "feeling cold" is a luminous condition, then whenever one feels cold, one is in a position to know that one is cold.

A condition would be "trivially luminous" if it were luminous by definition.  For instance, "feeling cold" would be trivially luminous if it were part of the definition of "feeling cold" that one who feels cold is in a position to know one feels cold. 

It seems that there must be trivially luminous conditions.  In fact, "feeling cold" seems like it might well be one of them; I suspect that many people would say that if one is not in a position to know that one feels cold, then clearly, one does not and could not feel cold.  Nevertheless, even if "feeling cold" is not trivially luminous, it seems surely possible to invent a trivially luminous condition.  For instance: Suppose "feeling cold" is not luminous.  In that case, it is not contradictory to say that one feels cold but does not know one feels cold.  But it seems that one could easily invent another condition — call it "schmold" — and say that one is schmold if and only if one feels cold and knows it.  In that case, it appears that "schmold" would be trivially luminous.

Here’s the problem.  If we define

Schmold1: The condition of feeling cold and knowing that one feels cold

then "schmold1" is not trivially luminous.  For one could conceivably feel cold and know that one feels cold (and therefore be "schmold1"), yet without being in a position to know that one is schmold1.  But if "schmold1" were trivially luminous, then it would be a contradiction to say that one were schmold1 without being in a position to know that one were schmold1.

So, we can try again:

Schmold2: The condition of feeling cold and knowing that one is schmold

"Schmold2" appears to be trivially luminous.  The problem now, though, is that "schmold2" is problematically self-reflexive; it includes itself in its own definition.  To see why this is a problem, notice that the above definition of "schmold2" can be expanded out, as follows:

Schmold2: The condition of feeling and knowing that [one is in the condition of feeling cold and knowing that [one is in the condition of feeling cold and knowing that […

Since we never get a chance to close off the brackets, "schmold2" appears not to specify a real condition.

These are the only two attempts I’ve made at defining a trivially luminous condition.  I’m having trouble thinking of a third way to try.  It seems like it should be possible to specify a trivially luminous condition; as I indicated above, there initially seems to be a chance that "feeling cold" is one.  But in light of these two failures, I’m not so sure.  Anyone have any ideas?

[See also Richard’s response to this post at Philosophy, et cetera, Jonathan’s original post on this topic at Fake Barn Country, and my previous post on this topic.]

The following post is deeply flawed.  Comments and criticisms are welcome.

Some kinds of fictions (such as novels) come in the form of sentences, which (normally) represent propositions; other kinds of fictions (such as movies) come in other forms (e.g., series of moving images).  This is only one of several significant differences between different kinds of fictions.  Until the consequences of such differences are worked out, it seems to me that we cannot say that a theory of truth which is correct for (say) novels won’t turn out to be incorrect for movies.  So I think it’s possible (perhaps even probable) that there is not just one correct theory of fictional truth. 

However, in this post, I will pretend to know that there is just one correct theory of fictional truth, and will argue that on that one correct theory, all propositions are either true or false in any fictional world.  That is, I’ll argue that fictional worlds are "complete."  For this purpose, I will restrict myself to consideration of fictional worlds which attain a minimal level of coherence, self-consistency, and "sanity."  For instance, my discussion here won’t necessarily apply to truth in the world of Atlanta Nights.

To begin, consider these propositions:

(a) In Harry Potter’s world, there are wizards in England.
(b) In Harry Potter’s world, Harry put his shoes on before flying away.
(c) In HP’s world, Harry put on either his left shoe or his right shoe before flying away.
(d) In HP’s world, Harry put on his left shoe before flying away.
(e) In HP’s world, there are an even number of stars.

I hope the following claims are uncontroversial:

1. In Harry Potter’s world, (a) and (b) are true, and we have a way to know that they are true. 

2. We do not have any obvious way to know whether (d) or (e) are true or false (in HP’s world), and it is highly probable that we will never have a way to know whether (d) or (e) are true or false. 

In this post, I want to show that

3. (c) is true in HP’s world, and we have a way to know whether it is true; and

4. (d) and (e) are either true or false (i.e. not neither true nor false) in HP’s world, even though we have no obvious way to know which. 

Jonathan appears to agree with me about 3 (given his Feb15/12:15 comment in the previous post); the main point of contention seems to be about 4.

It is easy (for me) to become confused when thinking about whether completeness is part of a fictional world.  Certainly, there is a sense in which Harry Potter must live in a complete world.  After all, it might be interesting to write a story in which some propositions are neither true nor false, but JK Rowling has not done this.  JK Rowling has written a series of stories about a boy in a world which is logically predictable and regular (despite the fact that it contains wizards and magic).  Rowling has never given us any reason to think that there are propositions which are neither true or false in her invented world, so it’s fair to assume that they all are either true or false in that world.

But it does not follow from this, at least not immediately, that there is not another sense in which, in Rowling’s invented world, some propositions are not either true or false.  We sometimes think that propositions are true or false in fictional worlds because the author said they were true or false.  For instance: If Rowling were to find my blog, and leave a comment which says that, yes, there are an even number of stars in Harry’s world, then it would be the case that there are an even number of stars in Harry’s world.  But Rowling (I assume) has never said or written anything about this question, and probably never will.  Since Rowling has never said or written anything about whether (e) above is true or false, there appears to be nothing that makes (e) true or makes (e) false.  In that case, it seems that (e) must be neither true nor false.

But what does make a proposition true in a fictional world?  Consider two more claims:

(f) In HP’s world, HP put his shoes on before flying away because he did not want his feet to get dirty when he came down to land.
(g) In HP’s world, HP put his shoes on before flying away because JK Rowling said he did.

Both (f) and (g) are true, I think, but they are true from different perspectives.  (f) (or anyway, something like (f)) is true because the people in Rowling’s invented world do things for reasons, and (f) describes Harry’s reason for doing what he did do.  (g) is true because everything that happens in fictional worlds is fictional, i.e. invented by someone, and normally something which is invented is explicable in terms of the inventor.  As we switch perspectives, either (f) or (g) becomes more useful, but it seems to me that there is a sense in which both (f) and (g) are always true, no matter which perspective we adopt.  Let’s give names to the two perspectives.  Let’s say that from the internal perspective, (f) is the most useful truth, while from the external perspective, (g) is the most useful truth.

From the internal perspective, (e) is true (or false).  It wouldn’t surprise me, in fact, if some wizard in Harry’s world knew that (e) is true (or false); wizards seem often to know those sorts of things.  From the external perspective, however, (e) is neither true nor false.  After all, as we’ve seen, (we’re assuming that) Rowling has never said anything about whether (e) is true or false; and Rowling saying whether (e) is true or false appears to be the only thing which could make (e) true or false from the external perspective.

I want to show two things.  First, I want to show that the external perspective is abnormal; when people think about fictional worlds, they normally do so from the internal perspective.  Second, I want to show that, given this, the internal perspective ought to be our "default position"; when we want to understand truth in fictional worlds, we ought to do so primarily from the internal perspective.

Suppose Rowling decides to write a murder mystery.  In her story, the identity of the murderer is left for the audience to figure out, but clues are dropped here and there, so that an attentive reader would be able to determine that the maid must have committed the murder.  In that case, most of us will say that, in the mystery’s fictional world, it is true that the maid is the murderer, even though the author does not make explicit whether it is true or false that the maid is the murderer. 

In that case, clearly, "the maid is the murderer" is true from the internal perspective.  It’s not obvious, however, that "the maid is the murderer" is either true or false from the external perspective.  If the author has to have explicitly indicated that a proposition is true (or false) in her fictional world in order for that proposition to be true (or false) from the external perspective, then "the maid is the murderer" is neither true nor false from the external perspective.  But perhaps you think that the author has to have merely believed that some proposition is true (or false) in order for it to be true (or false) from the external perspective.  In that case (assuming Rowling does believe that the maid is the murderer), "the maid is the murderer" is true from the external perspective, even though such has never been explicitly indicated. 

However: Suppose now that Rowling doesn’t believe the maid is the murderer — she believes that the clues are indecisive — but she is simply wrong about this.  For instance: Suppose that several events in the story, taken in conjunction, imply that nobody but the maid could have committed the murder — but Rowling has not noticed the implication, and mistakenly believes that she has left the identity of the murderer as an open question.  Then what would be the case from the external perspective?  I am not sure.

I think the case just examined illustrates two things.  First, it illustrates that it is not clear what the external perspective is.  That is, it is not clear exactly how we are looking at a fictional world when we look at it from the external perspective.  Second, it illustrates that when we think about fictional worlds, we normally do so from the internal perspective.  Most people, I submit, would be happy to say that, in Rowling’s mystery, the maid really is the murderer, no matter what Rowling herself believes.  I claim that they can say this with such confidence because they are taking up the internal perspective — and from that perspective, it is quite obvious that the maid is the murderer.

Another, perhaps more important, difficulty with the external perspective is illustrated by considering the interaction of claims (b), (c) and (d) above.  (b) implies (c).  (c) implies (d) is either true or false.  Indeed, (c) is really just the claim that (d) is either true or false.  Now, claim (b) is clearly true from the external perspective; Rowling wrote that (b) is true, and that is what makes something true from the external perspective.  In that case, it seems, (c) must be true from the external perspective.  (In fact, Jonathan has said (c) is true, and I take Jonathan to want to think of fiction from the external perspective).  But then it follows that (d) is either true or false from the external perspective.  But (d) is supposed to be neither true nor false from the external perspective.

This is not necessarily incoherent.  It might make sense to say that (d) is both either true or false, and neither true nor false, from the external perspective.  But again: I do not think we typically think about fictional worlds from a perspective so logically strange.  This suggests that we ordinarily do not look at fictional worlds from the external perspective.    

So, I (tentatively) conclude that our primary way of thinking about fictional worlds ought to be from the internal perspective.  From the internal perspective, all propositions are either true or false; fictional worlds are complete from the internal perspective.  So, it seems to me, the primary theory of fictional truth ought to be a theory of truth in "complete worlds."

This post on Lewis’s analysis of truth in fiction, by Jonathan at Fake Barn Country, is interesting.  I think it’s possible, though, that both Lewis and Jonathan might be doing more work than they need to do. 

There is a straightforward analysis of truth in fiction.  On this analysis, when we say that a proposition is true in some fiction, we mean that there is some world (i.e., the fictional, non-actual world) in which that proposition is true.  For instance, to use Jonathan’s example: It is true in the world of Harry Potter that there are wizards in England.  The straightforward way to understand this is to say that (1) the world of Harry Potter is a possible world, and (2) in that world, there is a place called England where wizards live.

The problem of fictional truth "gets off the ground" (i.e. becomes interesting and complicated) only when this straightforward analysis is rejected.  Lewis and Jonathan are in agreement, apparently, that it needs to be rejected.  Jonathan says:

[A]s Lewis recognizes, worlds specify too much. Worlds are complete; every proposition is true or false1 in each possible world. But fictions are not complete in this way. It is true in the fiction that Harry puts on shoes before flying away. But there is no fictional truth about which shoe he puts on first. Since there is no possible world in which Harry puts on shoes, but neither puts his left shoe on first, or puts his right shoe on first, or puts them on simultaneously, truth in the fiction cannot be truth in some possible world.

In possible worlds, all propositions are either true or false.  But, if Lewis and Jonathan are right, not all propositions are either true or false in fictional worlds such as the world of Harry Potter.  Thus the world of Harry Potter is not a possible world.  In that case, (1) above cannot be part of a coherent analysis of fictional truth.  Since (1) is part of the "straightforward" analysis of fictional truth, we cannot accept the straightforward analysis of fictional truth.

I like the straightforward analysis and would like to salvage it if possible.  I see two ways to do that: (a) One could claim that not all possible worlds are "complete," and therefore that the incompleteness of the world of Harry Potter does not show that it is not a possible world.  (b) One could argue that the world of Harry Potter is "complete," and therefore that even if all possible worlds are complete, the world of Harry Potter might still be a possible world.  Way (a) is problematic; there seems to be something decidedly impossible about an incomplete world.  But way (b), I think, has a chance.  Certainly, we are not told which shoe Harry put on first; but it does not follow from this alone that there is no fact of the matter about which shoe he did put on first.  Why not say that he must have put one or the other on first, even if we will never know which?

R.M. Hare says that the "universalizability principle" requires of us that, when making moral judgments,

we accept only those moral prescriptions which we are prepared to prescribe for all similar cases, no matter what position we ourselves occupy in them. This is a version of Kant’s Categorical Imperative, similar to one kind of utilitarianism; for this method makes us treat all others on equal terms with ourselves and seek the good of all equally.  (From this page.)

In this review of Hare’s 1997 by Georg Kamp, Kamp summarizes Hare’s requirement of universalizability as follows:

Whoever claims that a certain act is or was good or wrong is bound to claim that any other act of the same type, performed under circumstances of the same type, by actors of the same type, is good or wrong too.

If I understand him, Hare thinks (well, thought) that judgments must be universalizable in order to qualify as properly moral ones.  That is, Hare doesn’t just think that the correct moral judgments are all universalizable; he thinks that if your judgment is not universalizable, it isn’t really a moral judgment at all — not even an incorrect one. 

I think it might turn out to be the case that all correct moral judgments are universalizable.  However, I think there are genuinely moral judgments which are not universalizable.  In this post, I’ll provide an example of a moral code which, I think, yields non-universalizable, yet genuinely moral, judgments.  But first, it will be worthwhile to say a few things about how the universalizability requirement is supposed to work. 

Suppose I make this judgment: "If I am a salseperson, it is permissible for me to swindle customers if I can get away with it."  If the roles were reversed, and I were the customer and the customer were the salesperson, I would probably object to being swindled.  That is, I would probably believe that I have been wronged, even though the act, circumstances, and actors are all of the same type as those which appear in my original judgment.  If, in such a case, I would believe that I have been wronged, then my judgment that I may swindle customers if I can get away with it is not a universalizable one.

Of course, if I really want to hold on to this judgment, it is possible for me to say that, if the roles were reversed, and I were the customer, I wouldn’t object, and wouldn’t feel wronged, if someone swindled me and got away with it.  If I say this (and am not lying or mistaken), then my judgment, though clearly incorrect, would be universalizable.

This possibility may be troubling, but it cannot provide the basis of an objection against Hare’s view.  Hare claims that all moral judgments are universalizable.  He does not claim that all universalizable judgments are moral; still less does he claim that all universalizable judgments are correct.  So the appearance of a clearly incorrect universalizable judgment does not counterexample Hare’s view.  To counterexample Hare’s view, we need to find a genuinely moral judgment which isn’t universalizable.  I have in mind what I think is one such counterexample.

Suppose that Mother Teresa always insists on acting for the benefit of others.  If Mother Teresa were a salesperson, she would insist on giving discounts to all her customers, because that would benefit the customers.  But if Mother Teresa were a customer, she would insist on paying extra, because that would benefit the salespeople.  Mother Teresa’s moral code, in that case, is a sort of "inverted egoism" (i.e., it is a form of altruism).  Like an egoist, she thinks the distinction between herself and others is morally relevant.  The difference, however, is that she treats herself the way egoism would have her treat others, and treats others the way egoism would have her treat herself.

Some versions of egoism, of course, are universalizable.  For instance, a version of egoism according to which everyone ought to act for his or her own selfish interests is universalizable.  But a version of egoism according to which I ought to act for my own selfish interests, but everyone else ought to act selflessly in order to benefit me, is not universalizable.  Let’s assume Mother Teresa’s altruism is an inversion of that latter form of egoism.  That is, let’s assume Mother Teresa thinks that she ought to act in order to benefit others, but thinks that everyone else ought to act in order to benefit themselves.  Then Mother Theresa’s moral code, and therefore all the judgments entailed by it, are not universalizable. 

Probably, the real Mother Teresa would not have endorsed the "inverted egoism" I have attributed to her here.  But I think she may have formed judgments in accordance with something like this "inverted egoism."  At any rate, it appears that the real Mother Teresa believed she had special obligations (e.g., obligations to extraordinary acts of charity) which nobody else had, even though there was no "relevant difference" between her and anybody else.  If so, then even if Mother Teresa were not exactly an "inverted egoist," her moral judgments would still not have been universalizable.

If so, then if Hare is right, and all genuinely moral judgments are universalizable, then Mother Teresa was not making genuine moral judgments.  But I think Mother Teresa obviously was making genuine moral judgments.  Mother Teresa’s judgments may have been incorrect — that is, Mother Teresa may have been mistaken in thinking that she had special obligations to perform certain actions in certain circumstances which others did not have in the same circumstances.  But even if that is the case, I think Mother Teresa’s judgments were clearly moral ones.  If so, then it follows that Hare is wrong; not all genuinely moral judgments are universalizable.

Update: Dan says in comments that "Mama T" may not have been so altruistic after all.  Obviously, if that’s so, it doesn’t affect my central point here.  If you think Mother Teresa was a bad person, just substitute some other saintly person’s name into the post wherever you see "Mother Teresa."

Enwe says that today’s CP post on why many conservatives vote Republican is "too conservative," so she’s decided not to link to it.

The post is definitely flawed.  For one thing, it includes this claim:

The dilution of the institutional protection of marriage through marriage-like civil unions for unmarried couples is exactly the wrong step to take. Here again, it is the Republican party that aligns with the conservative position.

Bush has said, more than once, that he would support, or would be willing to permit, civil unions for gay couples.  My impression is that the Republican party is somewhat torn on this issue.  Some Republicans oppose civil unions for the same reasons they oppose gay marriage, but other Republicans seem to think that civil unions would be an acceptable compromise with gay marriage proponents.  The issue is complicated, I think, and RCK fails to take account of its complexity.  This tendency to oversimplify persists throughout RCK’s post.

A group of undergraduate students is conducting an online survey of bloggers about blogging and ethics (i.e., the ethics of blogging — not blogging about ethics).  The survey is here. 

In this post, Don Herzog attacks the view he calls "Strict Construction."  Strict Construction is a view about the proper role of judges.  It says that judges ought to apply "the language of the Constitution to what it straightforwardly refers to," rather than use it as a "springboard to make stuff up."  Herzog’s view seems to be that Strict Construction is overly simplistic and impractical.  He provides a few examples in which some part of the constitution simply cannot be "straightforwardly applied" without doing some sort of interpretive work.  Apparently, we usually need to make something up in order to decide what the constitution is telling us.  For instance, here is the first amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

And here is Herzog’s analysis of it:

Judges and other interpreters have to decide what every one of those terms means.  "Freedom of speech" has to be a term of art.  If you think it just means "speech," so that Congress is forbidden to abridge speech, you’ll have to swallow some remarkable implications:  no laws against commercial fraud, criminal conspiracy, price-fixing (an agreement to change prices is criminally actionable even if neither firm acts on it), and on and on.  So too, I don’t myself believe that "separation of church and state" is an illuminating abstraction, but you can’t rule it out as a sensible interpretation of the amendment by insisting that "those words don’t appear" there.

Strict Construction strikes me as the correct way to read a constitution.  I thought the whole point of a constitution was to encode basic principles before they’re needed so that the people in government don’t have to make them up.  The problem is that our constitution just doesn’t allow us to do that.  As Herzog says, Strict Construction, as applied to our constitution, gets us that the president has to be at least 35 years old; it doesn’t get us much further than that.   

I think this means that our constitution just isn’t a very good one.  It’s too vague in some places, and absurdly specific in other places.  It’s also extremely short.  It’s no wonder that if you take the constitution at its word, you’re not going to get enough information.  But that’s not a problem with taking the constitution at its word per se; rather, that’s a problem with the constitution itself, and its inability to be taken at its word. 

I take it that the standard view is that the vagueness of the constitution is a good thing.  On this view, an overly precise constitution would quickly become obsolete.  By leaving certain interpretive questions "open," then, the constitution allows us to continually "reinterpret" its meaning and to reapply it in new ways each generation.  But there’s a difference between abstraction and vagueness.  A suitable principle regarding freedom of speech, for instance, would need to attain a certain level of abstraction, so it would not be able to tell us whether this or that specific activity is to be permitted.  But  it would tell us how to determine the answer to that question for ourselves.  The constitution fails to do this.  "Freedom," "of" and "speech" all have meanings in English, of course; but those meanings are too vague to be expected to provide the right sort of guidance in deciding specific questions.  So in each generation, we are not simply applying the same principle, "freedom of speech," in new ways; we are actually making up new principles which each bear that name.  Of course, thus far in our country’s history, each made-up principle has been fairly reasonable.  That’s been lucky.