Legislating Values: A Reprise
I don’t think the legislature is morally or rationally obligated to advance legislation only on the basis of public reasons. One can, though, read the non-establishment clause of the constitution as requiring legislation to have a basis in public reason. But whatever the precise legalities, I think there are very strong practical reasons for the legislature to refrain from adopting any narrowly sectarian rationale for its laws.
Today’s show is about Legislating Values. Our guest is Congresswoman Anna Eshoo. The episode was taped in front of a live audience, at an event we called Backstage Live with Philosophy Talk. It was a lot of fun. I love doing the show in front of an audience. The post below the fold is a repeat of the post I wrote back in April in advance of a Capitol Hill symposium on the topic of Legislating Values in which I was a participant. Since we’ve got many new listeners and readers and since it’s pertinent to today’s show and since I’m lazy, I thought I’d bring it back up to the top of the blog. I think I still believe everything I wrote back then. But hey, this is a blog, anyway, so it’s alright to trot out less than fully developed ideas anyway. Right?
By the way, speaking of Capitol Hill, the whole crew will be back in DC, probably in April, to do an actual episode of Philosophy Talk from Capitol Hill, again in front of a live audience. We’re going to DC at the invitation of the Congresswoman, who liked the show so much that she insisted that we come and put a show on up on the Hill. We’re really honored to accept the invitation.
Speaking of taking the show on the road, before we go to DC , we head up to Portland, where we’ll do two shows. The first one will be at the American Philosophical Association meeting, in front of an audience of our fellow professional philosophers. Our guests will be Brian Weatherson, Liz Harman, and, probably, some yet to be named third person. The topic will be “The Future of Philosophy.” Come check us out if you’re in Portland for the Pacific APA. There will be food, drink, philosophy and radio. We’re hoping we can turn a room full of professional philosophers into accessible and engaging radio. Wish us luck!
The second Portland episode will be produced at the studios of Oregon Public Broadcasting, in front of an audience of their members. It’s highly probable that that episode will be produced for television, as well — in the mode of Imus in the Morning on MSNBC or, heaven forbid, Howard Stern. It should be fun.
Anyway, on to Legislating Values.
I’ve been invited to participate in a symposium on Capitol Hill on “Legislating Values: Setting Priorities for the 109 Congress.” The event is co-sponsored by Stanford University and the Economist Magazine. The small audience of no more than 75 will consists primarily of Capitol Hill staffers, think tank types, some journalists, and some Stanford Alums. It’s a really short deal — one hour. So far, my fellow panelists are Senator Joe Lieberman and Adrian Wooldrige of the Economist Magazine, author of Right Nation. The organizers still hope to enlist the participation of a Republican member of either the House or the Senate. So far, they’ve had no luck. [Update: Senator Jeff Sessions has agreed to participate.] It should be fun. In a call with the organizers the other day, I was asked the following question. “Suppose you had the ear of a US Senator for an hour, what would you want to tell him or her about legislating values?” I thought I’d reflect just a little on that in this post.
My role in this symposium is not to be a policy advocate. I certainly have my views and won’t shy away from expressing them. But I was asked to provide a more philosophical perspective by the organizers. Since I’m neither a political philosopher nor an ethicist by trade, I’m not sure exactly what they have in mind in inviting me. I do sometimes play a political philosopher and/or ethicist on the radio. Plus if you scratch any philosopher just a little, you’ll find the blood of a would-be Philosopher King coursing profusely through his/her veins. I’m no exception. So whatever they had in mind, I’m glad to oblige.
In the conference call mentioned above, I was told that the issues that might be addressed included stem cell research, the recent “values oriented” presidential campaign, Social Security, health care legislation, and national security issues. Quite a list for a one hour symposium! I was also warned that given the way that discussions on Capitol Hill sometimes go, some breaking news event could dominate the symposium and any well thought-out prepared remarks I wanted to make might simply have to be thrown out the window.
Anyway, here are some initial thoughts about the issues they put in front of me. I’ll take them in no particular order. First, about the general topic of legislating values, it seems to me that because we live in a polity with plural and conflicting values the national legislature ought to have a great deal of forbearance when it comes to legislating values. The legislature ought to be very very slow to ever impose one among the set of plural and conflicting values on the polity at large. It ought especially refrain from imposing values on the polity at large when that imposition cannot be justified by appeal to so-called public reasons. What exactly should count as a “public reason” is a matter of some contention. To a first approximation, by a public reason, I mean a reason acceptable as a reason to any reasonable participant in public debate, independently of their differences in comprehensive moral outlooks. A public reason should be recognizable as a reason to both a reasonable fundamentalist and a reasonable secularist, for example. There are some complications about this, but I won’t bother with them just now.
I don’t think the legislature is morally or rationally obligated to advance legislation only on the basis of public reasons. One can, though, read the non-establishment clause of the constitution as requiring legislation to have a basis in public reason. But whatever the precise legalities, I think there are very strong practical reasons for the legislature to refrain from adopting any narrowly sectarian rationale for its laws. These have to do with stability and legitimacy. In a democratic polity, the instruments of state power – especially the legislature and the executive – are simply there for the seizing by this party or that. If the party that seizes the instruments of power today, feels entitled by its victory to impose a narrowly sectarian set of values on the polity at large, then the competing party that seizes the instruments of power tomorrow will feel entitled to undo that imposition and impose values of its own. This seems to me a recipe for great social instability and for de-legitimization of the instruments of state power.
To get to a concrete issue, this means that the legislature ought not adopt a narrowly sectarian rationale for prohibiting, say, stem cell research. You can imagine someone deeply believing, on religious grounds, that even the mere blastocyst is an ensouled human life, with full human dignity, fully deserving the protection of the law. But that would stand as a reason to prohibit stem cell research only for someone who already adopted a certain narrowly sectarian moral outlook. And so by my lights that would be an illegitimate basis for public policy. To those of us who don’t share the narrowly sectarian outlook, a law based on that rationale alone would look more like a tyrannical imposition of a mere dogma.
I think it’s also worth thinking about the flip side of the question. Suppose that a substantial number of our fellow citizens do believe, as a matter of fundamental conviction, that the blastocyst is an already ensouled human life, with full human dignity. And suppose they believe this on dogmatic religious grounds. What are they to say to a state that will take no official notice of that conviction as a basis for public policy? “Ah well, we lose! Those are the breaks.” Fat chance! Especially if that conviction is shared by millions of fellow citizens. Those who hold such convictions would seem as entitled as anybody else to mobilize to change public policy. Moreover, some such convictions are are tied to projects that are deeply identity-constituting for those who hold them. If I am a committed fundamentalist, I do not regard my views about the sanctity of life as optional things that I may fairly be asked to abandon as the price of entry into the public square. To abandon those convictions is to abandon my very identity.
When the legislature legislates in ways that offends the most deeply held convictions of millions of citizens, especially when those convictions are tied to citizen’s identity constituting projects, there loom very real threats of instability and de-legitimization. And this is so even if the identity constituting convictions cannot withstand the public reasons test. That my reasons are not public, does not make them any less my reasons. I would expect a state in which I am to have a stake to be responsive to my reasons, whether or not they are public reasons. Of course, my reasons are not the only reasons. But a state in which I must abandon reasons that are distinctively my own, that are partly constitutive of my most identity constituting projects is not a state to which I can swear my deepest most enduring allegiance.
Let me hasten to add about the stability argument that I do not think that all instability is created equal. The emancipation of the slaves, the end of Jim Crow Segregation, forced busing to achieve school integration, the enfranchisement of women, African Americans, and other minorities, all involved great social, cultural and political upheaval. Many citizens objected strenuously to these changes. Nonetheless, to the extent that state power was instrumental in bringing about these changes, despite such determined resistance, such exercises of state power were, in my view, very good things. Where would be now, if arguments from stability had won the day against the forces of social progress?
Still, it has to be conceded that even now, sometimes many decades after the most heated debates have died down, we still feel the reverberations in our unsettled and divided politics of bygone days of turmoil and upheaval. Nonetheless, it seems right to me that stability in the service of reaction and repression is no virtue, instability in the service of progress no vice.
Unfortunately, though, it’s hard to come up with any principled basis for deciding just when the long term social benefits will outweigh the short or even long term social costs. This makes legislating values in a plural and conflicted social order an especially tricky thing. The one thing that I think is necessary, though certainly not sufficient, is a more enlightened and deliberative politics, a politics more firmly controlled by the real stake holders – we the people – rather than by a manipulative political class.
The political class in our country is really pretty astoundingly adept at manipulating and mobilizing certain voting blocks. What the political class largely doesn’t do very well, it seems to me, is to treat the people as the primary and essential stake holders in the deliberative processes of democracy. They come at us with phony issues that bear almost no connection to the hard choices that face us. Hardly any campaign I have witness has ever even attempted to lay out in an honest, systematic and fair-minded way, the real issues that face us, the real cost and benefits of the alternatives available to us, the real winners and losers. One might hope to find the media stepping in to play this role, but our corporate news media has gone vapid in the extreme and mostly focuses on pointless play by play. Think of the most recent presidential campaign and consider the debate now raging about the future of Social Security. What in that campaign laid the groundwork for the current debate? As far as I can tell nothing at all. Bush’s strategy was to energize and mobilize certain constituencies on the basis of what seems to me an utterly phony set of values issues. Kerry’s strategy was, well, hard to fathom. Once Bush had successfully used this cynical but effective technique to regain the stage, we are confronted, almost out of nowhere, with an attempt to radically alter Social Security. In the process, we are subjected to a stream of utterly misleading rhetoric about an impending crisis, rhetoric that construes Social Security as an investment vehicle rather than as a kind of social insurance. Whatever your view about Social Security, it’s hard to imagine any thinking reflective person having the feeling of being engaged as an equal stake holder rather than having the feeling of being manipulated and misled.
What seems to be saving the day and causing the outbreak of something like an honest debate is the surprising refusal of the Democrats to cave any further. Partly that is because there is really so little caving room left and so little politcal upside in further caving. So suddenly they have re-discovered a backbone of sorts and have rediscovered the virtues of principle over mere tactical positioning. Add to that the fact that the populace at large may have learned a lesson from the run up to the Iraq War. Whether you believe the administration deliberately lied to us or was deluded by blind imperial ambition or merely made a series of honest mistakes, it’s clear that the justification originally offered for that war has turned completely sour. Too much of that sort of thing and even the grand masters of manipulation start to lose credibility.
My point is that we urgently need a more honest, more deliberative politics, a politics that treats us all as real stakeholders, fully entitled to democratic participation, fully entitled to know the real costs and benefits of the alternatives available to us. Partly because of the foibles of human reason and the perversions introduced into our system by concentrated power, I am not entirely optimistic. Americans like to believe that we have the best of everything: the most vibrant economy in the world, the fairest system of justice, the best health care system, and on and on. The plain facts, hardly ever spoken of in our vapid corporatized media, often say otherwise. Our vibrant economy produces staggering inequalities between rich and poor. Our system of health insurance leaves tens of millions with few options but to turn to emergency rooms, at great costs to all. We have incarcerated more people for more crimes for longer periods than any industrialized democracy in the world. If we merely look around the world, we see that it need not be so. Democratic societies have handled some of the same problems that we face with far less division, inequality and injustice. Faced with these realities, however, many of us who are not imprisoned, who still have decent health care, or find ourselves on the upside of income inequality tend to construct comforting narratives that justify to us our own privileged position in the order of things. That does not make us evil or pernicious. It merely makes us human. But it also makes us ripe for the exploiting and manipulating by a set of concentrated interests, fully invested in maintaining certain elements of the status quo. Unfortunately, these concentrated interests own a large chunk of our politics. They are masters of manipulation and masters at mobilization on phony issues that don’t really get to the heart of the real issues we face together. Until their death grip on our politics is broken, many fundamental problems will, I fear, go entirely unaddressed.