Tuesday, October 14, 2014

A libertarian response to the traditionalist response to the libertarian objection to state-codified marriage

My pal Guernsey just posted a link to this website, which attempts to defend traditional marriage from a variety of critiques without (openly) employing religious arguments. At first, I hesitated to respond. From a policy perspective, the debate about whether we should have selective government recognition of straight marriage is pretty much over for most Americans, and no impartial observer expects it will ever revert to old policies once gay marriage becomes legal in all 50 states.

However, it is my hope that the debate about whether we need the state to recognize marriage at all has just begun, and it turns out Guernsey’s site offered a valiant effort at answering that critique. I admire the site’s valiant attempt to put an argument in libertarian terms, so I thought I’d gently go through it line by line.

They write:

 “Marriage — whether it is officiated by a priest or a judge, has always had civil implications, whether or not a civil magistrate requires prior permission.”

Maybe so, but who cares? What has always been need not, and often ought not, continually be.

“Marriage simply puts the government on notice that the married partners are now a family unit, and that they lay claim to the natural duties and privileges that accompany procreative relationships.”

This quote uses marriage interchangeably with “procreative relationships.” But they are not interchangeable: not all procreative relationships are marriages, and not all marriages are procreative. I also look forward to an outline of just what those “natural duties and privileges” allegedly are.

“it’s true that requiring a “government permission slip” (issued by a magistrate or judge) prior to marriage is a modern phenomenon that has been used to oppressive ends. However, this doesn’t mean that prior to marriage licensure, married partners incurred no legally enforceable moral duties to each other”

I’m glad they seem to agree that government’s should merely “recognize”, as opposed to “permit,” marriage. But again, they have yet to specify which “legally enforceable moral duties to each other” marriage allegedly entails. Perhaps that’s because there are none which they could state openly on libertarian terms.

“Consider a state-of-nature exercise: Does a father have any inherent obligations to his children and their mother, irrespective of any prior to any contract or agreement he’s made?”

That was sneaky – not the state of nature exercise itself (which I heartily applaud), but sneaking in “to his children” and “their mother” into the same question. They are different questions. A father does have inherent obligations to his children – namely, to provide them with basic food, shelter and care – but he does not have any to the mother barring additional agreements. Having sex with someone does not carry with it any “duties”or “obligations” to that person beyond the act itself (and certainly not any that are legally enforceable!) whether or not the sex results in childbirth. I suspect the website’s authors would disagree, but stating why would require them to use polarizing and subjective religious arguments.

“Does a mother have a legitimate claim upon the father of her children, irrespective of and prior to any contractual agreement or civil legislation?”

No. What does that even mean, to have a “legitimate claim” to another person? Does it imply ownership? I’ve heard of having “legitimate claims” to the throne, or to the heavyweight boxing title, but never to another human being.

“Do parents have a natural right to raise their children together according to their own discretion (absent severe abuse or neglect), regardless of whether civil governments respect that right?”

Yes. They in no way need the government to do that.

“If the answer to each of these questions is yes, then procreative intercourse gives rise to obligations (as well as rights and privileges) that spouses have with regards to each other and their children. Civil marriage is simply the process by which courts minimally acknowledge, respect, and on rare occasions enforce or defend these obligations and rights, just like it acknowledges, respects, and defends property rights (by providing recourse in a court of law when they are violated).”

The first sentence again uses “procreative intercourse” interchangeably with “spouses.” They are by no means interchangeable, as I’ve already explained. But the bigger problem here is that they’re building off a foundation their libertarian audience has not yet accepted. The answer to those questions was not always yes. Many of the obligations they very vaguely alluded to with rhetorical questions do not exist. Civil marriage is therefore not the process by which courts “acknowledge” those obligations, but the process by which they invent and impose those obligations.

“Courts typically acknowledge marital rights and duties by promoting permanence, treating marriage and family as an autonomous legal unit, and enforcing the ongoing duties of material care and support (such as alimony, child-support, etc.) when the relationship otherwise breaks down.”

Finally we get some specifics here, but they’re not ones libertarians would support. Lifelong permanence is not a duty of having sex. It cannot, I suspect, be called a duty of having sex without venturing into quasi-religious waters which the vast majority of people no longer support. As such, promoting permanence is not “acknowledging” anything we libertarians already agree exists, it’s just pontificating about the highly subjective desirability of extending a relationship long term.

The courts are justified in enforcing child-support, but that is a parental obligation, not a marital one. Courts can and do enforce child-support even among families that were never married. And alimony is a pure fiction of the state that certainly does not exist as an inherent or natural obligation in the state of nature. Of course, the state of nature does permit consenting adults to agree on terms of separation amongst themselves. And under a libertarian state, if they write the terms of this agreement down in a contract, they can enlist the help of courts to enforce them. But none of this involves “acknowledging” anything inherent in the natural order of things, and none of it requires marriage.

“When a woman approaches a judge with a claim that her husband has violated his marital duties (for example, that he has neglected to materially care for and support the family)…”

Once again they use “the family” instead of “the children” so they can pretend it’s obvious there’s not a difference. Fathers and mothers have a responsibility to materially care for their children, but not for each other. Declining to give money to that person with which you had or have sex is not “neglect.”

Stella Morabito explains “When a couple enters into a civil marriage, they are not inviting the government into their relationship, but rather putting the government on notice that they are a family unit,”

But marriage is not necessary to put the government on notice that you are a family unit: unmarried families notify the government of this every day. Inversely, putting the government on notice that you are a family unit is not necessary to get married. Or at least, it shouldn’t be, which is what libertarians are fighting for.

“Isn’t marriage just a contract like any other?
Some think so, but we don’t. We think that when a man and a woman get together and engage in procreative intercourse, they obligate themselves — in legally enforceable ways — regardless of whether they signed a contract or not….By engaging procreative intercourse, men and women step into a web of duties that they cannot blithely ignore without consequence to innocent third parties. Civil marriage is simply a legal mechanism by which the obligations that spouses have towards each other and their children have been minimally recognized by state authorities.”

This hits upon the crux of the matter. The best rebuttal I can give is that they’re simply wrong. Procreative intercourse does NOT step into a web of duties. It steps into one duty: if you happen to make a kid, and the mother decides to keep it within her beyond the point when it develops into a living human being, you both have to help keep it alive until it’s old enough to do that for itself. No other consequences are imposed on third parties by the behavior of having sex, and certainly not consequences so immoral as to justify state interference.

“Consider: does a man only have obligations to his children if he signed a contract agreeing to those obligations? If not, then why would his obligations to their mother be different?”


For the very good reason that there are no obligations to the mother! At least, not beyond those which all individuals have to one another (respect their rights, don’t kill or steal from them, honor your promises, etc). I concede the obligation to the child preexists any contract, because the child has a right to life which it cannot possibly sustain itself, and so the only two people who bear responsibility for the need to keep it alive are the parents. But mothers can sustain themselves! There are very real distinctions between the many types of obligations this article loosely alludes to, and libertarians will not be convinced by vaguely glossing over them.

Update:

In addition to responding to it line by line on this blog, I wrote the following comment to the authors of the blog (which has some redundant overlap with the above, but functions more as a summary):

As a libertarian, I found your argument unconvincing. That said, I also found it polite and fun to read, and appreciate the attempt to reach out and make a case on libertarian terms. In the interest of advancing the debate, I thought I’d help you improve your argument by pointing out where it falls short from the libertarian vantage point.

The main problem is that you are building off a foundation that most libertarians have not yet accepted: the notion that all procreative relationships carry inherent moral duties and obligations in a state of nature, and furthermore that we all agree on precisely what they are. You provide a full list of what these duties and obligations allegedly are (merely alluding to them with rhetorical questions in the “state of nature exercise”) but throughout the article you mention material provision for mutual spawn, material provision for one another, union into a single political and economic unit, fidelity, and permanence. I agree with only the first item on that list. Since we do not need civil marriage to enforce child support, that doesn’t convince me.

From that point forward, the rest of your argument falls without this foundation. If the obligations do not exist, civil marriage is not the process by which they are acknowledged, but the process by which they are invented and imposed. Libertarians believe the state should not impose subjective moral judgments on its subjects. And without the need to enforce or defend those pre-existing obligations, civil marriage serves no purpose which voluntarily consenting adults cannot serve just as well or better with contracts and the like.

Perhaps the reason you did not specify those duties and obligations is that justifying them individually would require wading into highly subjective, quasi-religious waters. The closest you get comes in the “Isn’t marriage just a contract?” section, in which you ask why a father’s obligations to the mother are “any different” from those to his children. Seriously? Well for one, mothers can feed themselves and live on their own, just as they presumably did before intercourse took place. You get the point I’m making here: there are very real distinctions between the many types of obligations this article loosely alludes to, and libertarians will not be convinced they come as a bundle by vaguely glossing over those distinctions. I suspect you will have a difficult time persuading libertarians that having sex carries with it legally enforceable or promotable moral duties to remain in permanent, sexually exclusive lifelong relationships “irrespective of and prior to any contractual agreement or civil legislation,” though I do hope you’ll at least advance the debate by taking on the endeavor at greater length.

Monday, October 13, 2014

Letter to the JHU Politik defending libertarianism

A friend from the JHU debate team wrote this article for a student-run political magazine on campus. The following was my response.

"Alexander Grable's recent article on libertarianism is a misleading hit piece against straw man arguments that little resemble anything libertarians actually believe. Nazi analogies and cherry-picked quotes from the thousand-page novels of a right-wing author – who, by the way, is as controversial within libertarian circles as she is outside them – amount to alarmist scare tactics unworthy of rebuttal. As for Pinochet, one wonders how easy it would be to discredit the political left if it sufficed to point out that some of its most radical members at one point sympathized with oppressive regimes. Somewhere between 80 and 100 million deaths at the hands of 20th century communism come to mind.

In his few substantive arguments, Grable completely misunderstands what coercion entails. He writes, "[m]any libertarians wish to restrict the state purely to its coercive functions: courts, the military and the police." But all state functions are coercive – that's what distinguishes them from voluntary private transactions. And even within the courts, military and police, libertarians are at the forefront of minimizing that coercion through their opposition to the drug war, police militarization, civil asset forfeiture, mandatory minimums, and lethal adventurism abroad.

Grable is right about one thing, however: we libertarians are hatching a frightening plot. It works in two phases: first, we take over the government! Mwa ha ha ha! And then?


We leave you alone. How scary is that?"

Sunday, October 12, 2014

Bureaucracies are not Businesses (and cannot be run as if they were)

(Written for a class assignment. Both Senator Snuff of South Dakota and his quote are fictitious. I'm posting it here anyway because the argument itself gets brought up all the time).

Earlier this week, Senator Snuff of South Dakota lamented the alleged ineptitude of government bureaucrats. Wishing “we ran American government like a business,” he opined that “[i]f we just got some of the clever fellas who run American business at the top of our government agencies, they’d get them sorted out in no time.”

Such comments play well to a conservative base that glorifies business almost as much as it vilifies government, but they grossly mischaracterize the real impediments to bureaucratic efficiency. The truth is that government agencies face unique challenges and constraints which distinguish them from businesses, and prevent them from being run in a similar fashion.

First, market competition provides business leaders with more direct and accurate signals than those government agencies receive, which better equips and better motivates businessmen to streamline their operations in innovative ways.

In a competitive marketplace, efficient organizational structures maximize profits while inefficient ones hamper them. Over time, these trends indicate to business leaders which strategies are working and which are not, allowing them to refine their own business structures accordingly. Since businessmen have a great personal incentive to increase profits, this information motivates them to anticipate problems, enact necessary changes, and overcome organizational obstacles to innovation.

Most bureaucrats face different information and different incentives. While businesses take signals from the purchasing decisions of hundreds of millions of diverse people, bureaucrats take them from a relatively small group of political decision makers – often elected in gerrymandered districts, with low turnout and few alternatives, and operating in a gridlocked and unwieldy political morass dominated by special interests. Even in the least competitive of private markets, the amount of choice which the average person has in deciding which businesses they frequent far exceeds the amount of choice they get in determining which government agencies receive their tax dollars. This makes market competition a more accurate signaling device than any public equivalent.

Agency heads also accrue minimal benefits from eliminating inefficiency, and run less risk from permitting it. If a public organization finds a way to do its job more efficiently, they do not get to keep the resulting surplus; since they operate on the public dime, they are legally required to kick leftover funds back to the general treasury. And since Congress governs bureaucratic conduct with a labyrinth of rules and legal boundaries, bureaucrats are far more likely to lose their job by challenging their constraints than they are for failing to adapt or innovate. In concert, these pressures cause public officials to prioritize rigid adherence to existing rules and norms at the expense of creative reform. Replacing current agency heads with business leaders would do nothing to alter that incentive system.

Secondly, business leaders have much more flexibility and autonomy in the management of their organizations than do public bureaucrats.

Business leaders can increase the capital at their disposal by selling shares, borrowing, retaining old earnings, fundraising, or reallocating from other departments. Government bureaucracies cannot do any of these things, because their allocation of resources is stipulated by federal appropriations bills.

Business leaders can fire people at will, even eliminating whole divisions if they deem it necessary. Alternatively, they can relocate workers from one division to another. By contrast, political patronage and strong public sector unions make this very difficult for bureaucrats, as contracts are much more set in stone.

Business leaders can raise or lower their employees pay, but many bureaucracies (like the military, for example) have fixed statutory pay grades which make this impossible.

Beyond mere managerial convenience, such differential powers send ripple effects throughout the entire organization. While private employees are kept accountable and motivated by the knowledge that they might be canned or given a raise depending on their performance, public sector workers are tempted to shirk their duties by the knowledge that agency heads are essentially powerless to stop them.

Finally, bureaucracies are tasked to accomplish different sorts of jobs than businesses. Whereas businesses have one clear objective – making money – government agencies often have multiple, ill-defined, evolving and unprofitable objectives by legislative design.

Firstly, the missions of government agencies are often left ambiguous. Due to shifting political climates, it is not always in the interests of politicians to be specific in their instructions. And due to regular election cycles, these instructions often change depending on which governing ideology is presently in office. This makes it difficult for agency leaders to give their subordinates clear direction.

Secondly, partisan gridlock at times gives bureaucracies contradictory instructions. For example, congressmen concerned about civil liberties may try to obstruct the efficient operation of the NSA; those desiring to raise public alarm over budget cuts may order bureaucrats to cut the most visible spending programs first. Alternatively, gridlock may cause legislative instructions to be watered down or full of pork-barrel spending, which impedes efficiency no matter who is in charge. In either case, bureaucratic inefficiency is not a function of incompetence, but of a confusing system of pressures which bureaucrats must constantly juggle and appease.

Finally, the sorts of jobs government agencies are likely to have are inherently less likely to be profitable, which is often the precise reason they were assigned to the public sector in the first place. For example, in the running of prisons, a clever businessmen in search of profit might seek to cut costs by crowding prisoners into smaller cells, or not feeding them as much, or not cleaning the cells as often. That lawmakers choose to give a certain service to the public sector instead indicates there are other values besides pure cost efficiency which they want the prison operators to take into account. The cutthroat cost-consciousness of the business world does a poor job of balancing those priorities.

Businessmen operate more efficiently than bureaucrats not because they are “clever fellas,” but because managing a private firm is fundamentally different from running a bureaucracy. Attempts to improve the efficiency of government organizations are laudable, but they can only proceed if we first abandon this false analogy.

Marijuana legalization is not an “experiment”

In the wake of his state’s decision to legalize marijuana, Colorado Governor John Hickenlooper expressed his skepticism about what he considers “one of the great social experiments of the 21st century.” Since then, the media has taken a great affinity for the term.

On the day after legalization took effect, the Wall Street Journal disparaged the “bong inspired visions” of the “Stoner State” that led to “Colorado’s Pot Experiment.” In February, The Christian Science Monitor describedThe marijuana legalization experiments underway”, and Al Jazeera titled their discussion of the issue “Colorado’s legal pot experiment.” By March, the title of a Dallas News article fretted that Colorado mustn’t let their “pot experiment draw in teenagers,” while CNN repeatedly described the “Colorado experiment” with bemused condescension as well.

Soon enough, the president had jumped on the bandwagon, describing Colorado’s referendum as “an interesting social experiment” in his speech at the White House Correspondent’s dinner. By late April, the word “great” had been added. Slate described the effects “five months into Colorado’s great pot experiment.” In July, The Economist titled this article “The Great Pot Experiment”, and in August the New York Times followed suit with another titled “The Great Colorado Weed Experiment.” And just yesterday, the Associated Press reminded us we are now “nine months into Colorado’s recreational pot experiment.”

One wonders how many months of peaceful and productive non-cataclysm need be strung together before a policy change qualifies as non-experimental.

A year from now, when legal pot is nearing its second birthday, will it still be called an experiment? When other states follow suit next month, will they only be experimenting as well? Just this week, gay marriage also became legal in Colorado. How likely is it that the media will begin reminding us of the experimental nature of this decision?

If such redundant word choice strikes you as a belabored attempt to push a certain narrative, you have good instincts. The word “experiment” is intentionally loaded with statist sentiment – carefully chosen to frame the debate within the perspective of a liberal policy wonk. Just as the establishment is unsettled by the drug war’s impending demise, everyday people view “experiments” with a suspicious eye. When you go to the hospital, an experimental treatment is a method of last resort. Scientists experiment on animals because the dangers of experimenting are too great for human subjects. Experiments are risky, and experiments can fail. To describe legalization as an “experiment” is to strongly suggest that it might turn out badly. At the very least, it implies that the jury is still out, that the results are pending, and that we should be cautious and skeptical to follow suit until we have a chance to study the results.

The oldest trick in the establishment’s bag is to make opposing ideas appear frightening and radical. The full context of Obama’s quote at the Correspondent’s dinner is a perfect example:

“Michelle and I watched the Olympics — we cannot believe what these folks do — death-defying feats — haven’t seen somebody pull a “180” that fast since Rand Paul disinvited that Nevada rancher from this dinner.  (Laughter.)  As a general rule, things don’t like end well if the sentence starts, “Let me tell you something I know about the negro.”  (Laughter.)  You don’t really need to hear the rest of it.  (Laughter and applause.)  Just a tip for you — don’t start your sentence that way.  (Laughter.)
Speaking of Rand Paul — (laughter) — Colorado legalized marijuana this year, an interesting social experiment. I do hope it doesn’t lead to a whole lot of paranoid people who think that the federal government is out to get them and listening to their phone calls.  (Laughter.)”
Obama had no joke about legalization – he didn’t need to bring it up at all. Yet he chose to sandwich a brief mention of it right in between the sentence about a racist cowboy in armed rebellion against BLM officials and the joke about tinfoil-hat-wearing alarmists fretting over the NSA. The loons! Of course, neither racism nor privacy paranoia have any actual connection to marijuana legalization, and the president did not even allege a connection. He used it as a segway between those topics merely to associate it with marginalized viewpoints – to send the subliminal message that legalization is some cooky newfangled fad that only paranoid racists support.

Reasonable, educated, moderate, respectable people, the narrative continues, would never dare take such a bold and sudden move without a better understanding of the consequences. In the CNN video I linked to above, S.E. Cupp fancies herself as one of these people. In between giggling over bad puns with the word “high” in them, Cupp warns that we’ll “have to see” about legalization because “there’s a lot to watch.” Before we determine whether this is good policy, she notes, “we’ll have to see if all of the people who want marijuana have already bought it” or if it “leads to more pot smoking.” If so, she continues, “we want to know among whom?” and if it leads to “more illicit substances?” Lest she failed to drive home how dubious it all is by now, she repeats the word “experiment” at the end of her clip as well to get the point across: legalization is a dicey proposition whose prospects of success remain very much in doubt.

What Cupp, Obama and their ilk fail to understand is that ceasing to incarcerate victimless, unthreatening, morally innocent people is not the means to some other end, but the end itself. We do not need to await the results of marijuana legalization in one place to inform us about the wisest course of action elsewhere because legalization is the result. There is nothing to watch, and we don’t have to wait and see, for there is no possible outcome from Colorado’s referendum that could render it a poor decision.

The driving factor behind the growing number of Americans who support the full and immediate legalization of marijuana is not the nuanced policy analyses offered by public health experts. It is not that millions of Americans have pored through the studies on both sides of the debate and simply changed their minds about whether it’s addictive, or whether it would reduce violence, or whether it would decrease the deficit. The Coloradans who voted to legalize neither know much nor care much about this complex web of interconnected second and third order effects. What motivated Coloradans to legalize was the ever-growing recognition that those with different recreational preferences from their own can and should peacefully coexist amongst them, without fear of unthinkably harsh reprisal. It was simple tolerance.

The effects of legalization on the budget, or the economy, or public health, or child pot usage rates, or the damn dogs will all be beneficial. They are also ancillary. The effects on those who want to make personal choices about what they put into their own bodies, without being forcibly removed from their homes and potentially raped in overcrowded prisons for years at a time, are fundamental and undeniable. Legalizing drugs cannot fail at its principal purpose: it is, by definition, guaranteed to succeed at making pot legal. It is not risky, and it is not an experiment.

Prohibition was the experiment – and holy God in Heaven, did it fail.

Thanks to prohibition, nearly two million Americans are arrested for drug offences every year. Over 1/3 of them wind up in prison. The incarceration rate in the Land of the Free has tripled over the past 40 years, and is now the highest in the world. A full ¼ of these prisoners are nonviolent drug offenders, and thousands of those are serving life sentences due to drug war mandatory minimums. One of them might have been 19 year old Jacob Lavoro, who only two months ago was facing 10-99 years for making pot brownies with 2.5 grams of THC until public outrage pressured officers to seek “only” 2-20 years.

Thanks to prohibition, drug usage increases even as the federal government shells out hundreds of billions of dollars trying to make it decrease. The annual budgetary cost is $40 billion. 100-150 times a day, SWAT teams conduct “no-knock raids” in which they kick in the doors of private residences and ransack them on the suspicion of finding drugs. When the inhabitants are armed, they sometimes kill the officers accidentally for fear they are a burglar – and then get jailed for decades or even executed for the error. When the inhabitants are unarmed, the policemen sometimes kill them anyway (or their dogs, or their bedridden 80 year old grandparents), whether or not any drugs are found. All of this happens with unbelievable frequency.

Thanks to prohibition, 35 year old fathers are deported for weed they smoked when they were teenagers. 54 year old women are selected at random, rectally and vaginally probed for 6 hours in search of drugs, and when none are found, billed $5,000 for the pleasure. 27 year olds will spend the next twenty years doing hard labor for possessing half an ounce of pot. Policemen trick autistic teenagers into buying drugs in exchange for federal funding. Children are stripped from their mothers for months on end due to false positives from poppy seed dressing (or years if they dare use medical marijuana in states where it’s legal). Aaron Sandusky is serving ten years in prison for selling medical marijuana in that same state. He is out of appeals. Patients in desperate need of Vicadin suffer in agony because other doctors are afraid of going to jail for prescribing them.

Thanks to prohibition, blacks are targeted 3.7 times as often as whites despite identical usage rates, creating deep-seated distrust of policemen that propagates racial tension and inequality. Thanks to prohibition, Jamaican father of two Dalton Knight Wilson is midway through a 30 year sentence for having a baggie of marijuana seeds in his car. After all, as his West Texas juror later proclaimed, “we taught that nigger a lesson.”

Imagine for a moment that it was prohibition, not legalization, which had taken effect this year. Imagine that on January 1st, Texas had become the first state in the nation to criminalize marijuana, and hordes of oh-so-inquisitive reporters had descended on the state to see the results for themselves. Imagine the four paragraphs of hyperlinks I just provided you were what they found. Who in their right mind would consider that experiment a success? If the media dutifully reported on these developments to a public that had not already grown accustomed to them, how many other states would wish to follow Texas’ lead?

And yet, I cannot remember the last time I saw a mainstream media outlet investigate existing drug policy with so skeptical an eye as they apply to Colorado every day. I don’t even think they would call it news – drug war stories that should appall us are so frequent and perpetual that outlets deem them too run-of-the-mill to report. Prohibition’s destruction is too normal to stand out, its horrors obfuscated by being ordinary. However much partisan bias exists at the major news networks is more than overshadowed by their bias for the status quo.

So allow me to set the record straight. Colorado and Washington (and Uruguay and Maryland and Minnesota and a growing many other places) are not “experimenting” with legalizing pot. They have merely decided to terminate the devastating 40 year experiment with prohibition in which the rest of the country remains mired. This decision is not the fickle whim of an overly adventurous outlier; it has as much irreversible staying power as the 21st amendment did 80 years before. Like the recognition of gay marriage, it results from slow, belated but very likely permanent progress in the public’s tolerance antiquated social taboos.

Even if the economic benefits of legalization peter out, Coloradoans will never revert to pretending that those who drink their intoxicants are somehow nobler than those who smoke them. Even if drug usage increases, Coloradoans will no longer fear or punish those with different recreational preferences from their own. At long last, a majority of Americans have decided to ignore the centrist fear mongers and busybodies who have tried so hard for so long to keep nightmarish moral imperialism alive and kicking. Thankfully, shrouding that intolerance behind loaded word choice will not change their minds.

Saturday, October 11, 2014

Debate on assisted suicide

With the story of Brittany Maynard circling the internet, I recently got in a debate on physician-assisted suicide with my friend, roommate, frequent sparring partner: the free speech champion and (in?)famous Hopkins Voice for Life founder Andrew Guernsey. It spilled over onto Facebook when he posted an article by prominent social conservative blogger Matt Walsh criticizing the public's widespread support for her decision. Several other people commented on the link as well and it eventually turned into a pretty sprawling discussion. In the interests of brevity and focusing the debate I will only post his posts, my own, and those we directly responded to (under pseudonyms, as I always use in courtesy to those who are unaware they're being quoted).

The condensed transcript is below. I will update it as new comments and rebuttals are added.

Andrew Guernsey (AG): "If you are saying that it is dignified and brave for a cancer patient to kill themselves, what are you saying about cancer patients who don’t? What about a woman who fights to the end, survives for as long as she can, and withers away slowly, in agony, until her very last breath escapes her lungs?Is that person not brave?" (quoting the Walsh article)

John: Or just both are brave and take a lot of strength to do.

AG: If everyone is brave, then nobody is. Bravery implies a noble cause as well as strength. The paths of despair and of perseverance cannot both be noble.

John: Not sure how that applies here. Choosing between suicide or suffering til you die is a pretty hard decision. Neither choice is easy and it takes a lot of bravery and strength to go through with both.

AG: If all choices are equally moral and equally brave then why seek to prevent or dissuade people from suicide in the first place--isn't that judgmental? The fact is, we don't get to decide whether human life has value. Our lives are all free, unconditional and unmerited gifts from our Creator, and each of us is created to be loved--and our choices and attitudes can't change this reality---to boot, it's even written into the Declaration as the sort of first principles of our nation's founding. Even John Stuart Mill agreed about suicide that speaking of liberty without life is a nonsensical proposition. The fundamental divide here appears seems to be between those who admit it's a wonderful life (get the reference) and those who think life is an empty void where we have create our own rules/meaning and invent right and wrong/good and evil for ourselves. It all comes down to first principles of moral action. I can't disprove nihilism---I don't need to---it disproves itself.

Elon: Isn't bravery subjective? That would allow for both cases. Not sure where it's written that there is an objective bravery or that suicide is morally right or wrong.

Albert: Why isn't it brave for a clinically depressed person to commit suicide? They're life can be just as unbearable as the life of anyone who has terminal cancer. If we shouldnt try to prevent suicide in terminal cancer patients, we shouldnt try to prevent it in mentally ill patients either - to do so would be a failure to recognize the serious medical nature of mental illness.

Andrew Doris (me): I'm not saying anything about whether Maynard is brave, and Walsh is fighting a straw man by bringing bravery into it. I'm saying it's her choice, and that both you and Matt Walsh should stay the hell out of it.

AG: 
When crowds come out to protest the euthanization of an ebola infected dog, and then celebrate the killing of a sick cancer patient --- we have gone seriously wrong as society.

Me: Most would agree that the soldier who dives on a live grenade in order to absorb the blast in his body and save his friends is extraordinarily brave. But calling him brave does not insinuate that his comrades are cowardly; we might view the other soldiers, who instinctually ran away from the grenade, as brave also, merely for volunteering to fight on the front lines in the first place. The statements “soldiers are brave” and “soldiers who willingly sacrifice their lives are brave” are not “contradictory narratives,” even though those who dive on grenades are but a small subset of all soldiers. Similarly, terminally ill patients forced to make difficult choices in the midst of great physical and emotional duress may comport themselves bravely no matter which decision they ultimately make.

The soldier who dives on a grenade also, in a technical sense, commits suicide. But it does not follow that by venerating that soldier’s heroism and self-sacrifice, we are endorsing other sorts of suicide in other situations (just as endorsing war itself does not endorse killing in other contexts). It seems obvious to me that whether or not suicide is ever okay, not all suicide should be weighed the same in our moral calculus. Even if Walsh thinks it should, he must know that most of his adversaries do not see it that way. He knowingly conflates the different types of suicide anyway, writing:

“I’ve been sickened to see that suicide is now most commonly described with words like ‘dignity,’ ‘bravery,’ ‘courage,’ and ‘strength…I am terrified to think that my children will grow up in a culture that openly venerates suicide with this much unyielding passion.”

Walsh is too smart not to see the distinction he glosses over. By feigning horror when people condone one unique subset of the larger whole, Walsh is attacking a straw man to raise moral panic, which is intellectual dishonesty plain and simple.

AG (paragraph breaks added by me): In the scenario you described, Andrew, the soldier is trying to save his fellow soldiers (primary effect) and, in the attempt, it will kill him (secondary effect). He isn't trying to commit suicide, he's trying to save his buddies, with the terrible indirect effect of being killed. Physician-assisted suicide, on the other hand, has the primary object and intention of killing a human life. No way to get around that.

If our laws say that the value of human life is up to "individual judgement" then we will have unhinged the foundation of the American project of ordered liberty---the dignity of the human person. And as Albert
(pseudonym) argued, we will no longer be able to stop our mentally ill friends and family members from harming themselves because it infringes on "their right to self-autonomy." 


To say there is a right to be killed by a doctor is no different from saying that there is a right to be enslaved voluntarily. To walk around in a master's chains violates human dignity, even if desired by both master and slave. Consent cannot make sex trafficking okay either, even if mutually consented to by both the pimp and the prostitute for whatever reason. Both of these things are wrong, regardless of consent, and should be outlawed. Similarly, a doctor killing a suffering patient, even if desired by both parties, violates the fundamentally violates dignity of that patient and ought to remain prohibited.

Euthanasia hurts all of us. What a sick person needs, besides medical care, is love and support of friends, not killing. The problem in the world, as Mother Teresa said, is not too much suffering, but too much wasted suffering! We need to learn how to accompany and care for the suffering---to see it as an opportunity--even if it's difficult, for us to come together and support one another in our times of need.


Me: I'll respond in order, to keep it organized.

1. Couldn't you argue that the "primary object and intention" of physician assisted suicide is decreased suffering, with the unfortunate truth being that the only way to do that is through the "terrible indirect effect of being killed"? Injecting yourself with a chemical you know will kill you seems no more direct than jumping atop a grenade you know will kill you.

2. You say, "If our law says that the question of the value of human life is up to individual judgment, then we will have unhinged the foundation of the American project of ordered liberty." I don't see how. In fact I think the American project of liberty is based entirely on the ability of each individual to make judgments about what to do with their own life, liberty and property. Prohibitting certain judgments restricts that liberty.

3. (edited due to a misunderstanding, disregard the old #3)

Albert's argument about the mentally ill makes a big leap between two things I think are very different: things we should try to prevent, and things we should outlaw. He writes: "If we shouldnt try to prevent suicide in terminal cancer patients, we shouldnt try to prevent it in mentally ill patients either." But I'm not arguing against trying to dissuade Brittany Maynard's choice. I'm arguing against making it illegal, and throwing doctors in jail if they agree to help her execute that choice. If you think euthanasia violates the dignity of the patient, it is your right to advise the patient not to choose it, or the doctor not to provide it. It is not your right to wield force upon either of them, nor to enlist other people to do it for you.

4. There is no such thing as voluntary enslavement. By definition, slavery must be involuntary. Voluntary servitude can be discontinued at any time by either party without repercussion, quite unlike slavery. And quite unlike slavery, volunteering to serve another - whether for charity or food or any wage - should be totally legal.

5. I think prostitution should be legal too, so that analogy won't convince me either!

Melissa: 
I have lived with chronic depression my entire life. Thoughts of death are symptomatic of this illness. However, it is a slap in the face to suggest that suicide is an ever an act of heroism--choosing life despite unimaginable suffering is the ONLY heroic choice!

What if the symptom of depression could only be relieved if we kill someone else? Should we do that? Is that heroic? If it relieves my suffering would it be logical that I have the right to kill someone else because of my interior suffering and my only relief is if I get to kill someone?

Disordered or false compassion is not true compassion for someone who is suffering. True compassion acknowledges and appreciates that someone is suffering and is choosing to live as fully and joyfully as one can, despite his or her suffering. THAT is what it means to die with dignity--to accept that suffering until natural death occurs.

Me: Maureen, I'm sorry you suffer from depression and appreciate the insight that gives you on the issue. I'm also sorry if anything I said offended you or seemed to belittle the resolve and inner-strength required to fight such a disease. The crux of my argument is not that this woman is heroic, but that words like words like heroic, brave, and dignified mean different things to different people, and that the law should allow each of us to act on our own conceptions of righteousness so long as we do not impede other people's ability to do the same.

I think the example of a soldier diving on a grenade to save his friends shows that on rare occasions, suicide CAN be heroic. At the very least, it demonstrates that not all suicide is the same. Likewise, not all killing is the same. For example, we distinguish killing in self defense from other sorts of killing, which is why we do not consider most soldiers to be murderers. We also distinguish based on consent; your comparison to killing someone else is invalid because unlike Brittney Maynard, that person presumably does not want to be killed.

The heart of the matter is that many people - myself included - see a another distinction between killing yourself when imminent death is inevitable and killing yourself when it is not. Perhaps you think both are immoral, but even if so, don't they at least seem different? Might one be worse than the other? As with killing in general, suicide can be called wrong in the abstract even as we carve out exceptions to the general rule. I do not believe God's moral code is so simplistic and unwieldy as to be unable to discern the complex nuances that inform our moral intuitions.

Me (in a separate comment): Guernsey writes: "The fundamental divide here appears seems to be between those who admit it's a wonderful life (get the reference) and those who think life is an empty void where we have [to] create our own rules/meaning and invent right and wrong/good and evil for ourselves."

False choice. I think it's a wonderful life (not an empty void) where God helps us discover (not where we have to create) right and wrong/good and evil for ourselves. The Bible is an awesome starting point for that endeavor, which informs, guides and refines our moral intuitions. But it does not tell us all we need to know about moral philosophy in explicit terms, and it does not free us of the responsibility to think for ourselves about what's right and wrong in the same way we seek truth in every other category of human knowledge.



Update:

AG: Apologies for the delayed and lengthy response:

1. In the grenade example, if the person survives the grenade blast, he will have still fulfilled the object of his action, namely saving his fellow soldiers by using his body as a shield. The soldier’s
death is not a means to an end but a side effect. Swerving off the road to avoid hitting a child also has a high risk of death for the driver, as does running into a burning building, saving a drowning person, etc. Naturally, in a society that presumably values human life, we call these acts noble and brave, whilst murder and suicide ignoble. The suicide dies because he views his life as meaningless, and the martyr dies precisely because he so values his principles and the lives of others that he forgets himself---to paraphrase Chesterton. In the case of euthanasia, surviving the attempt would constitute a failure to achieve the desired end. The killing of the sick person is the means to the end of suffering—and hence is immoral and a violation of their dignity. There is also a difference between “killing” through withholding basic medical treatment/food or administering lethal drugs, and “letting die” by removing the presence of extraordinary medical care such as scarce and expensive machinery when there is no hope of recovery. The former, I argue, is immoral but the latter permissible. (This line of moral argument is called “double effect” and applies in numerous cases if you are curious)

2. In Planned Parenthood v. Casey, Justice Kennedy famously upheld Roe, writing: “At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.” Kennedy suggests here the alleged conflict between freedom and law which underlies much of modern conception of liberty, which can be seen from Mill to Nietzche to Rawls in varying degrees….the age old tension between “Freedom from” of negative liberty vs the “freedom for” of positive liberty. In this view, to “legislate morality” is to do violence to individual (“autonomy” meaning literally “self-law” in Greek) ---who decides for himself what is right and what is wrong. The way I with much of the Christian and classical Western tradition of natural law, reaching back to Aristotle and Plato, see it, however, statecraft is soulcraft, that there is an objective moral law that governs human affairs and flourishing, and that codifying some of these rationally discernible moral precepts in law (like do not deliberately kill an innocent human life, or do not steal, etc) help to form the souls and consciences of the community to direct them to their proper end. Far from doing violence against the individual, such legislations of morality serve as signposts in the right direction for individuals who threaten to do violence to themselves and their communities by their actions.

In the marketplace of consumer goods, a laissez fairre approach often can be a good thing--- to have minimal regulation precisely because there is not always a right answer for everyone. There is not a clear answer about what is best shoe to buy or the best trumpet to use, and in what quantity, depending on people’s preferences and circumstances. But a laissez faire approach to morality is a bad idea in those areas that touch upon the foundational moral principles of human action and a just society—for which there is a right answer for everyone by virtue of our shared humanity---and some of these rational precepts indeed overlap with the faith-based beliefs of Christians, Jews, Muslims, Hindus, etc. A moral collectivism in these matters is necessary in order to safeguard individual liberty, because human liberty and diversity must be bounded by the constraints of our common humanity. (e pluribus unum---out of the many one) can only make sense as long as there is a “one” of some sort we can identify.

You write::“Many people - myself included - see another distinction between killing yourself when imminent death is inevitable and killing yourself when it is not.” Why must it be imminent? Some of the proposed euthanasia cases are people with chronic illness or disability, who could live on for decades, albeit disabled or with pain, but who have lost the will to live any longer. The fact that you have to go to such lengths find acceptable circumstances for legal physician assisted suicide is one the one hand understandable, since it is extremely difficult to see and hear someone in such pain who wants to end their life---but on the other hand it is premised upon an assumption that from the standpoint of the law, this life is all there is, with the moral implication that such suffering has no meaning---that suffering is meaningless before the abyss of nothingness that follows, such that there can be no more “utility” narrowly understood in further existence that could justify opposing the desires of another. But physician assisted suicide cannot provide what the desire to end one’s life actually suggests—which is a search and a desire to find meaning and purpose. Law can serve the end of showing that life has a purpose--as laws against murder do, but removing laws that prevent doctors from becoming killers --- suggests by its intolerable tolerance, a lack of meaning and a lack of caring for the lives of the terminally ill. We cannot say it is wrong to give suicidal pills to a young adult with a deformed face who has been struggling with depression his whole life, and then turn around and say it is okay to give suicide pills to that same person if your doctor has said you have less than six months to live.

Suffering and death are guaranteed in life. There is simply no way to avoid either of these things. How we deal with suffering and the dying says everything about what we say the dignity of life truly is as a society. If we are endowed by our Creator with rights to life, liberty and property, what gives us the right to kill ourselves, let alone to pass a law allowing a doctor to take away someone else’s life who has lost the will to live do it? You can’t play both sides by saying, get the government out of it, because the government has a legitimate role in affirming the fundamental value of human beings, even of those who may not believe it for themselves.

Me: 1. You make some good analogies here with the swerving driver and the fireman, but I still think ending your life is not the primary purpose of euthanasia: if there were a way to end her suffering without dying, she would take it. You write "In the case of euthanasia, surviving the attempt would constitute a failure to attain the desired end." But that's only true if the sickness remained. The chance that Brittany wakes up from her euthanasia not only alive but cured of cancer seem scientifically impossible...but as someone who's seen grenades explode, I doubt they're much lower than the chance the soldier survives lying on top of one.

Imagine doctors wanted to give Brittany Maynard a highly experimental treatment that had never before been tried on human subjects. Imagine that the experts thought this treatment had a 5% chance of saving her life, and a 95% chance of killing her. Would it be immoral to administer this treatment? If you say no, then what if it were a 0.5% chance? In this situation, it seems likely Maynard would still prepare herself for death before the treatment were administered, calling her friends and family into her room and saying her goodbyes in much the same fashion. She may pray for a miracle, but deep down she knows she is deciding to do something which will almost assuredly kill her. So how small does the likelihood of success need to be before it ceases to be something attempting to cure her and becomes suicide?

AG: Even if you knew for certain he would not survive the blast, the soldier would still not be committing suicide-- his death is not the means to the end of saving others, but an unintended side effect. When someone catches a bullet for someone, we all know that the act was one of defense of human life, not an offensive attack against his own. The martyr did not deliberately initiate the act of violence, or the tragic circumstances thereof. Common sense tells us the acts are different. Administering a risky new treatment that could likely kill Brittany, would not be suicide, but an attempt to save and preserve her life--or those of others after her should the treatment succeed. It is a qualitatively different act of administering a drug aimed at healing her (although things could go very wrong unintentionally), and administering a drug aimed at killing her. The history of medicine is a long list of procedures that have gone wrong in trying to heal human life (not destroy it deliberately). The euthanasia case involves deliberately ending one's life--even though the end goal is to end suffering, the means to the end involves killing, not saving human life. The evil of killing and death is not an intended side effect, but precisely how one goes about doing the good thing of reducing human suffering. And as the old saying goes, the path to hell is paved with good intentions. It's not a probability calculation, but a question of means and ends. Doctors used to take the classical version of the Hippocratic oath for this reason, which reads: "I will use those dietary regimens which will benefit my patients according to my greatest ability and judgement, and I will do no harm or injustice to them. I will not give a lethal drug to anyone if I am asked, nor will I advise such a plan; and similarly I will not give a woman a pessary to cause an abortion."

Me: 
You do a good job of explaining the origins of our different conceptions of liberty, clearly through lots of practice in similar discussions haha. Obviously I think all of it is very very wrong, but perhaps we're going in circles by rehashing it. I will cherry pick a few snippets, though. I apologize preemptively for the length. Also, I propose that if you want to continue the discussion from here on out, we move it over to my blog to stop giving all these nice people who liked your status an onslaught of notifications.

  • You think "statecraft is soulcraft," and I think that's amazingly naive. Perhaps you mean statecraft should be soulcraft in an ideal, perfect world, which is fine - but that it is soulcraft? Look at our current state: a tangled mess of gridlocked parties, powerful interest groups, ignorant voters and bloated bureaucracies. Statecraft is a game of corrupt, power-hungry and deceitful rich people doing whatever necessary to remain in office. Now look at all the states that have ever existed in the course of history, including especially those states which claimed to govern according to the eternal, rationally discernible Catholic truths you advocate. Were they better? Did their actions and decisions accurately reflect the moral guidance of our souls? The state has been an instrument of destruction and pain for the majority of its history, before and after Aristotle and Plato. It's one thing for them to hypothesize about Republics led by philosopher kings, and quite another to put it in practice.

    When the state seeks to impose complex new regulatory schemes, build new bureaucratic agencies or launch tax-and-spend initiatives, you are wisely skeptical that it's an efficient or effective tool for implementing those plans. Why is it more efficient at legislating our personal morality? You express great doubt that the government can effectively manage schools or healthcare, but when it comes to regulating drugs or sex or war, you trust it to not only discern but effectively enforce this allegedly objective morality. Why?
  • You think "codifying some of these rationally discernible moral precepts in law...help[s] to form the souls and consciences of the community to direct them to their proper end." I have two doubts about this.

    First, I think the list of objective truths which are rationally discernible is far smaller than you do, such that even rational, informed and well intentioned people can and do disagree on moral issues. Our opinion on these issues has far more to do with our unique upbringings, experiences and values than it does how rational we are. But we've already discussed this in person so maybe we're going in circles again.

    Second, even if there are as many rationally discernible objective moral truths as you say, and even if you're right about what they are, and even if you are able to get the government to codify them into law, what is your evidence that codifying helps convince the community at large of their veracity? It seems to me world history suggests just the opposite; the longer these conservative Christian moral precepts remain in effect, the more and more backlash they incite, and the more minds are pushed towards liberal conceptions of progress and tolerance. Do you deny that the past several centuries, and certainly the 20th century, have featured steady progress away from religious conservatism, both inside the government and outside of it? That doesn't mean religious conservatism is wrong, but it does cast doubt on the idea that codifying it "helps form the souls and consciences of the community."
  • You write "Far from doing violence against the individual, such legislations of morality serve as signposts in the right direction for individuals who threaten to do violence to themselves and their communities by their actions." I'm all for using the state to prevent individuals from doing violence to their communities, but even that definitely involves "doing violence against the individual." To advocate state enforced morality is to advocate doing violence against those who breach that morality. That's what enforcement consists of. Everything the state does is inherently violent, because the use or threat of force is the only thing that separates it from the private sector. That may be okay in certain situations, but you have to at least own up to it.
  • You insist "there is a right answer for everyone by virtue of our shared humanity...human liberty and diversity must be bounded by the constraints of our common humanity" - You're gonna have to be more specific than that if you want your ideas to catch on. To people who don't already agree with you, references to "shared" or "common humanity" seems like a bunch of flowery hand waving. What values underlie our humanity is a matter of great debate, so to me, this translates to "there is a right answer for everyone by virtue of what I think." By contrast, all I'm saying is "there is a right answer for ME by virtue of what I think." You needn't agree that's any different, but can you at least understand the moral intuitions about individuality and diversity that cause most people to find your assertion more troubling than mine?
You lapse back into abstract ruminations later on in your post as well. You opine that declining to imprison physicians who assist in suicide implies: 
  • "that suffering has no meaning"
  • "that suffering is meaningless before the abyss of nothingness that follows"
  • "that there can be no more "utility"...in further existence"
But imprisoning them implies:
  • "a search and a desire to find meaning and purpose,"
  • that "law can serve the end of showing that life has a purpose."
  • and it "says everything about what we say the dignity of life truly is as a society"
Say wha??? This is not an argument as presently formulated. You use the word meaning three times, and purpose twice, but never specify how suicide calls either into question. I too think life has meaning and purpose, and yet I disagree with you. Why does the fact that something has meaning signify that we cannot reduce its longevity? Is it suffering which has meaning, or life? If it's life, why must we speak in absolutes? Might some life be more meaningful than others? If it's suffering, does that include cases in which lessening it does not involve death? If so, isn't that the same logic that leads some religious fanatics to oppose medicine in general? Sure, Vicadin or surgery might help you fight your illness, but who are we to lessen the suffering which God hath ordained? Should we just pray instead? Perhaps that's not what you meant to suggest, but if not, you've yet to specify which suffering it is okay to lessen and which is it not.

Lastly, you accuse me of "going to such great lengths to find acceptable circumstances for physician assisted suicide." I go to exactly zero lengths: it should be legal in all circumstances. It should be legal for perfectly healthy people in the prime of their lives in no mental or physical pain at all - not because it is advisable or noble or brave or in any way good under those conditions, and not because the law should actively encourage it in any situation, but because banning it makes no sense. Even if it were my business, it is no deterrent! It is no "moral signpost" - just as criminals are not deterred from gun ownership by laws banning guns, suicidal people are not deterred from killing themselves by pious political finger-wagging. If banning suicide does not prevent or even decrease suicide (as you privately admitted to me in our conversation), why do you feel so compelled to write "suicide is bad" on a piece of paper and have the president sign it? Doing that neither bolsters the conviction of those who already think it wrong nor changes the mind of those who do not. It's just moral imperialism.