Deriving Moral Principles from Our Ethical Intuitions
Rick Garlikov
People tend to have fairly strong ethical intuitions about whether an
act is right or wrong, but find it difficult to know or state
specifically what
makes it right or wrong without running into counter-examples of
acts that meet their stated criteria but which they intuitively feel has
the opposite moral value. For example, many people cite a version
of the Golden Rule and say something like "Well, that is how I would
want someone to treat me." But if you ask whether that then means
if you wanted someone you don't even know but have just seen across the
street to come over and grab and kiss you, you should just go grab and
kiss them, the answer ought to be "no". Not everyone wants the
same things. And even what someone wants may not be right for them
to do or have.
It can be extremely difficult to get at
the root of our intuitive ideas, let alone put it into words that will
stand scrutiny. The history of moral philosophy is filled with ethical
principles formulated by intelligent, thoughtful people -- principles
which are flawed and will not stand up to scrutiny. Laws have the same problem.
That is in part why insensitive or malevolent people can find loopholes
in laws that allow them to follow their letter while clearly
transgressing their spirit. It also allows for honest
misunderstanding. When I was a child, we visited distant older
relatives and at dinner at their home on the first night, my great aunt
asked me if I would like seconds of one of the dishes and I declined by
saying "No, thank you" but adding that it was because I didn't like the
way it tasted or that it did not taste good. My father was
embarrassed and incensed and told me privately shortly thereafter that
you "never complain about food someone has been kind enough to serve
you; you eat it and be grateful for it. Otherwise you hurt their
feelings and that is not nice." A few years later, we were having a
family gathering at the small farm one of my aunts and uncles lived on,
and I was
given a glass of milk that tasted really terrible, but I dutifully
drank it without complaint and just figured that was the way farm milk
tasted. A short time later an older cousin held up his glass of
milk and announced it tasted terrible. I knew he was about to be
severely reprimanded and punished because he should have known
better. But to my astonishment, my father took the glass from him
and smelled it, recoiled, and said the milk had turned and was spoiled
and not to drink it. Uh oh; this is not looking good for me because my dad
knows I already drank a glass of it. I was sitting next to him at
the table, but I tried to make myself invisible. It didn't
work. He turned to me and said "You drank a whole glass of this
before and didn't say anything was wrong with it. What is the
matter with you!" The best I could think of at that age was "But
you said never to complain about the taste of food someone gives you"
which now clearly seemed to have at least one exception, but I
immediately suspected he would take that as my blaming him for whatever
this disastrous thing I had done was, so I just lied that "It tasted
okay to me." I was not old enough to have simply been able to
point out I must have an intellectual deficit that was likely
genetic from the male side ....
Now, there are many elements involved in what
makes an act ethically right or wrong and that need to be considered:
- its having better or worse consequences than
other available options,
- the
likelihood/probability of the different consequences happening,
- the fairness and
reasonableness
of distribution of burdens and benefits,
- goods and harms of the consequences,
- rights that
might be violated,
- incurred obligations that need to be met,
- necessity or value of risk of possible harm versus
the potential benefits,
- fair and reasonable expectations of people to
be able to do,
- deservingness of people affected,
- negligence,
- failed
attempted harm, etc.
But people tend to intuitively selectively
focus on one or more that
seem to be definitive to them about an issue under consideration and
ignore the potential significance of the others. Ask military
people about the duty to obey lawful but clearly wrongheaded orders and
they will generally say it is obligatory to follow them because one
should be obedient to the orders of superior officers who must know what
they are doing, and that it is imperative for any operation that
everyone does what they are told because everyone's well-being is
dependent on that. And yet 1) we condemned Nazis at the Nuremberg
trials whose defense was they were following orders, because we think
they should have known better and shown more personal responsibility for
their actions, and 2) soldiers often have PTSD based on a deep, hidden
understanding that orders they followed were wrong while simultaneously
believing they had no choice but to follow them because it was their
duty and, yet, that they shouldn't have obeyed them; that they
did the right thing but somehow it wasn't right. It sets up a
serious moral, stressful cognitive dissonance they cannot resolve and
that haunts and plagues them -- a terrible sense of guilt for having
done the right thing, which is contradictory, since guilt implies doing
something wrong.
The problem of flawed, narrow selective focus on one or two underlying
moral (or similar underlying legal) elements can be demonstrated
by examining: 1) the executive order to prevent spread of COVID-19
promulgated by
New York's Governor Andrew Cuomo, 2) the concurring opinion
rendered by
Justice Neil Gorsuch about that order, which is not that different in
substantive points (or reasoning) from the majority opinion, but which
makes them in more pointed ways, 3) this article in The New York Times about Gorsuch's opinion by Bret Stephens, "Thank You, Justice Gorsuch: Liberals will one day cite and celebrate this defense of religious liberty", and 4) The New York Times
"picks" of response comments to Mr. Stephens by readers -- comments that
tend to encapsulate public and political opinion about government
restrictions in general to try to end the pandemic. As I will explain below, these four sources
collectively and individually exemplify how we do ethical and/or legal, reasoning poorly, often reflecting what opponents
view as intentional and malevolent hypocrisy, though it may only be
unintentional logical inconsistency.
[Slight digression here: In some cases it is only
apparent inconsistency because those who think it hypocritical or
inconsistent either read more into at least one of the statements than
was intended or is reasonable to infer and/or they
mistakenly believe significant distinctions are only hair splitting,
trumped up devices to barely avoid inconsistency in some merely
technical, minimal way. I will leave it to the reader who is
interested in pursuing this to notice in the opinions rendered in Roman
Catholic Diocese of Brooklyn, New York v. Andrew M. Cuomo, Governor of
New York such a disagreement between Justice Gorsuch and Chief Justice
Roberts, over whether Roberts was inconsistent in the importance of Jacobson v. Massachusetts in his South Bay decision compared with his opinion in this case.
On the other hand, selective focus can also cause unnecessary hypocrisy,
as when the Republican Senate during President Obama's second term
refused to consider his nominee for the Supreme Court with the publicly
stated reason that a president should not be able to make such a Court
appointment within a year prior to a presidential election but then,
four years later, rushed through President Trump's appointment to the
court a month before the 2020 election. On the face of it, that
was hypocritical, but they could have avoided the hypocrisy by just
saying they were not going to appoint another justice to the Supreme
Court they thought would be too liberal and that they prefer to take
their chances that a more conservative president would be elected who
would submit a more conservative nominee for the Court. That
reasoning, even if it would have been against the spirit of the
Constitutional requirement of advice and consent of the Senate would
have been consistent with their confirming the conservative nominee
President Trump named, in case he would lose his bid for
re-election. By invoking an unnecessary, supposed principle that
was ludicrous, probably unintended by the framers of the Constitution,
and likely counterproductive, as it turned out to be, they unnecessarily
laid themselves open to obvious hypocrisy. And the fact the
Democrats had given the same hypocritical reason, when the nominee
didn't suit them, doesn't justify the Republican's using it. Both
sides were openly hypocritical when the mere selfish, power hungry greed
they were ineptly and futilely trying to hide would have sufficed for
their purposes and suited them better.]
Now, most people are able to see much more clearly, as Jesus pointed out in Matthew
7:3, the tiny speck in other people's eyes than they see the log in their own,
though
that does not mean one's criticisms of others cannot be unreasonable or
even ridiculous. But it
is generally far easier to criticize correctly the ideas of others
than to see the errors in one's own ideas. And particularly in
arguments where there may be many pros and cons, advocates for opposing
conclusions, particularly when both conclusions are wrong, pretty much
talk "past each other" by repeating
their own believed "pros" and the other side's "cons", instead of
seeking ways to eliminate or avoid the problems with each position while
incorporating, preserving, and building on the good ideas in
both. They attack the most extreme positions or implications of
the other person's ideas while ignoring the most extreme ones of their
own. In some cases all it would require is qualifying the
proposals of both sides, but people seem reluctant or psychologically
unable to do that. They tend to demand more than is reasonable in
order to prevent getting less than they should have or need. So
they tend to pursue policies that precariously ping pong back and forth
depending on the vagaries of who has more political power at any given
time. Such policies are generally likely to be poor or
problematic because they ignore the other ethical elements involved, especially those
which reflect or encompass the other side's legitimate concerns and
needs.
I am not advocating compromises, but reasonable accommodations. Compromises often
disappoint both sides and sometimes keep more of the bad of each than
doing any good. The cliche that "I have upset both sides by my
proposals shows I must be doing something right" is a really sad goal,
rather than finding ways to please both sides by "accommodating" their
needs and desires, even if that means showing them that they have
different, more basic, underlying goals, then they realize or are asking
for. The most absurd example of compromising would be to for
two people to drive to a washed out bridge and after disagreeing
whether they should take the road to the right or the road to the left
to get to their destination, they decide to compromise and go straight
-- over the washed out bridge. But that is often what compromises, rather than reasonable accommodations,
achieve, though the results are not as obvious, immediate, or dramatic.
Putting All This In Light of the Case of the initial Cuomo Executive Order Intended to Prevent the Spread of COVID-19 -- not in order to take a side or resolve
this issue, but to point out what is wrong and missing in the
considerations, thus causing the problem to be more difficult or impossible to address adequately or resolve |
The significant parts of the Cuomo order in question are (with my own comments about it being given in red):
o Based
upon the severity of the cluster activity, the Department of Health
shall adopt in the most severe, or “red zones,” the following mitigation
measures:
§ Non-essential
gatherings of any size shall be postponed or cancelled; all
non-essential businesses, as determined by the Empire State Development
Corporation based upon published guidance, shall reduce in-person
workforce by 100%; houses of worship shall be subject to a capacity
limit of 25% of maximum occupancy or 10 people, whichever is fewer [the
giving of an absolute number (in this case 10, and in the next section,
25,) seems to me to be a terribly mistaken, unnecessary flaw in the
wording or design of the order -- one that should be corrected, could
easily be corrected, and which was corrected in a revision of the order
that accompanied other updated information; and I don't understand why
it is worded this way or where the
limit of 10 comes from or why any number needs to be stated specifically
if the point is to have no more than 25% occupancy, leaving room for
"social distancing". Clearly, a huge room (or large religious
sanctuary) can allow far more people to be at a (supposed) safe distance
from each other than a small room. The inclusion of an absolute
number makes no
sense if the point is safety by distance between and among
individuals. The court was right to criticize (the inclusion of)
that
specific, or any specific, absolute number but that part could have been
struck down without necessarily invalidating the rest, if the rest was
considered okay. But the majority of the Court did not consider
the rest to be okay.]; any
restaurant or tavern shall cease serving patrons food or beverage
on-premises and may be open for takeout or delivery only; and the local
Department of Health shall direct closure of all schools for in-person
instruction, except as otherwise provided in Executive Order.
o In moderate severity warning areas or “orange zones” the following mitigation measures:
§ Non-essential
gatherings shall be limited to 10 people; certain non-essential
businesses, for which there is a higher risk associated with the
transmission of the COVID-19 virus, including gyms, fitness centers or
classes, barbers, hair salons, spas, tattoo or piercing parlors, nail
technicians and nail salons, cosmetologists, estheticians, the provision
of laser hair removal and electrolysis, and all other personal care
services shall reduce in-person workforce by 100% I am not sure I understand this provision, but it seems to close or prohibit these businesses/activities/services; houses of worship
shall be subject to a maximum capacity limit of the lesser of 33% of
maximum occupancy or 25 people, whichever is fewer [again,
the unnecessary use of some, seemingly arbitrary absolute number that
could be significantly less than that determined by the percent of
capacity needed for the sought social distancing]; any restaurant or
tavern shall cease serving patrons food or beverage inside on-premises
but may provide outdoor service, and may be open for takeout or
delivery, provided however, any one seated group or party shall not
exceed 4 people; and the local Department of Health shall direct closure
of all schools for in-person instruction, except as otherwise provided
in Executive Order.
The wording of the
conditions in this order does leave it subject to the criticisms given
by the U.S. Supreme Court majority and by the concurring opinion
discussed below. But that wording is a shortcut description for
two complex concepts or measures that would escape the Court's
objections as those objections are stated, and those shortcuts should
have been recognized in a way that then would have allowed and required
further consideration by the Court. That further consideration
might or might not have yielded the same result, but the result could
then be more reasonable. While the Court is not required to
salvage the arguments meant by the litigants, it is also not right for them
to clearly misconstrue them in the way they did. Attorneys for the
governor's office should not have been expected to anticipate the
Court's misunderstanding of the criteria stated in the executive order
or to have made the order or its rationale more explicit to prevent
the Court's cavalierly, carelessly, or at best, uncharitably, doing that. More about this in the
relevant place below.
The U.S. Supreme Court ruled the order pertaining to
religious service attendance capacity to be unconstitutional because they said it violated
the first Amendment free exercise of religion clause. Justice
Gorsuch wrote an independent concurring opinion [following the main opinion in the document in this link]. In it he stated (in black font here, with my comments in red font):
"Government is not free to disregard the First Amendment in times of crisis. A case could be made the executive order does not disregard the First Amendment's requirement to "make no law respecting an establishment of
religion, or prohibiting the free exercise thereof", but
takes into account a legitimate exception to it for public safety, not unlike the exceptions
to freedom of speech or freedom of the press. There is no reason
to believe freedom of religion and the free exercise thereof is
absolute. Clearly any religion which required human sacrifice
would not be protected in that exercise by the Constitution. Given
that group activities present some risk of public endangerment from the
spread of COVID, the question is whether there is an unacceptable risk
factor threshold that should be an exception to the First Amendment and
what it is and why. At a minimum, that Amendment
prohibits government officials from treating religious exercises worse than comparable secular activities, unless they
are pursuing a compelling interest and using the least restrictive means available." The
use of the absolute maximum numbers clearly violates the "least
restrictive" condition for large sanctuaries, but the "comparable
secular activities" condition depends on the criteria for essential
versus non-essential activities. I don't think that condition
cannot be met, because, particularly for the six Catholics on the
Supreme Court and Catholic litigant, even Jesus argued for socially
distanced, remote worship from home, in Matthew 6: "5And
when you pray, you shall not be like the hypocrites. For they love to
pray standing in the synagogues and on the corners of the streets, that
they may be seen by men. Assuredly, I say to you, they have their
reward. 6 But you, when you pray, go into your
room, and when you have shut your door, pray to your Father
who is in the secret place; and your Father who sees
in secret will reward you openly." Clearly
Christ claimed that worship in a sanctuary in a group was not essential
to the practice of religion. And it is
difficult to see how a rule consistent with the preaching of Christ
could be a prohibition of the free exercise of Catholicism or
Protestantism. It
apparently does violate an orthodox Jewish rule to attend synagogue for
certain worship services, but it does not violate the minyan
requirement, and it is not clear that orthodox Judaism requires women to
attend synagogue, but that still leaves the issue of a possible
public health exception to the first Amendment in order to promote the
general welfare
and provide for common defense, as the Preamble to the Constitution
says are main purposes of the document, along with securing, not simply
liberty, but "the blessings of liberty" -- which involve not using one's
liberty to endanger or harm others unnecessarily or unreasonably.
I am not trying to prove the Governor's executive order does not violate
the First Amendment, but simply showing it may not, and that whether it
does or not, it is not necessarily simply "disregarding" the first
amendment.
"New York’s
Governor has asserted the power to assign different color
codes to different parts of the State and govern each by executive
decree. In “red zones,” houses of worship are all but
closed—limited to a maximum of 10 people. In the Orthodox Jewish
community that limit might operate to exclude
all women, considering 10 men are necessary to establish a
minyan, or a quorum. In “orange zones,” it’s not much different.
Churches and synagogues are limited to a maximum of 25 people. These
restrictions apply even to the largest cathedrals and synagogues, which
ordinarily hold
hundreds. And the restrictions apply no matter the precautions taken,
including social distancing, wearing masks,
leaving doors and windows open, forgoing singing, and disinfecting
spaces between services." As already pointed
out, the inclusion of absolute numbers such as 10 and 25 are major
errors, but the capacity limit to ostensibly allow for sufficient social
distancing seems a reasonable general welfare, common defense
exception. The specific wording and separate clauses about "houses
of worship" is troubling as singling out religion but not if it was
meant to deny exemptions to religion about social distancing
requirements. In other words if the order is meant to include,
rather than single out, religion, it is not a violation any more than
fire capacity ordinances or building codes would be.
"At the same time, the Governor has chosen to impose no
capacity restrictions on certain businesses he considers “essential.”
And it turns out the businesses the Governor considers essential include
hardware stores, acupuncturists,
and liquor stores. Bicycle repair shops, certain signage
companies, accountants, lawyers, and insurance agents are
all essential too. So, at least according to the Governor, it
may be unsafe to go to church, but it is always fine to pick
up another bottle of wine, shop for a new bike, or spend the
afternoon exploring your distal points and meridians. Who
knew public health would so perfectly align with secular
convenience?" 1) While this is an
inconsistency for any reasonable distinction between essential and
non-essential activities, and the use of righteously indignant sarcasm
is deserved, that does not mean the right remedy is to throw out the
distinction between essential and non-essential altogether nor to
include religious group worship as an essential activity, instead of
making the far more reasonable judgment that bicycle shops, liquor
stores, and such are not -- and joining Christ in claiming that group
religious worship is not essential either. 2) Insofar as a
reasonable distinction
is made between essential and non-essential and reasonable,
non-arbitrary criteria are used to designate which activities are which,
that would seem not to violate any principles of fairness or justice,
or be a source of unwarranted or illegal discrimination.
"As almost everyone on the Court today recognizes, squaring the
Governor’s edicts with our traditional First Amendment rules is no easy
task. People may gather inside for
extended periods in bus stations and airports, in laundromats and banks,
in hardware stores and liquor shops. No
apparent reason exists why people may not gather, subject
to identical restrictions, in churches or synagogues, especially when
religious institutions have made plain that they
stand ready, able, and willing to follow all the safety precautions
required of “essential” businesses and perhaps
more besides. The only explanation for treating religious
places differently seems to be a judgment that what happens there just
isn’t as “essential” as what happens in secular spaces. This
is only true insofar as there designated secular spaces are arbitrary,
and in the cases of bicycle shops and liquor stores, etc. foolish and
misguided to be considered essential. Indeed, the
Governor is remarkably frank
about this: In his judgment laundry and liquor, travel and
tools, are all “essential” while traditional religious exercises
are not. That is exactly the kind of discrimination the First
Amendment forbids." Insofar as that
accurately describes the Governor's intention and meaning of the order,
it is a justified criticism. I just don't think it is likely what
Governor Cuomo meant or that there can not be a reasonable way to
consider religion
as non-essential in terms of being necessary for the preservation of
life in the way something like grocery stores are, or possibly even
hardware stores if capacity is limited, social distancing, and mask are
used, and curbside delivery is used. There are many activities
that are emotionally, spiritually, and psychologically important and in
some sense even necessary, but not in the same physically sustaining
sense that food, medical care, gas, heat, water, plumbing, sanitation,
etc. are. I can see that bicycle shops, if operated with social
distancing, masks, etc. could be essential, given that so many people
turned to bicycling as a form of exercise (which is important from a
health standpoint) that bicycles quickly sold out online and in many
stores that sold them. But I find it difficult to believe liquor
stores are a necessity, though that in part may be because I cannot
stand the taste of any alcoholic beverage and may wrongly be considering
all the references to the need for alcohol during lockdowns
(particularly with children) as being merely humorous. However,
all that was to be determined in some reasonable way by the Empire State
Development Corporation, with public guidance or input, not by the
whims of Governor Cuomo. As to economic or financial necessity of
operating businesses, that is a different, but extremely crucial concern
and issue
there are ways to meet even when businesses are shut down. For
example, see "Pandemics and Economics"
or various articles by economist Paul Krugman and others. In a
free market society such as ours, income is a necessity, and for many
people keeping the business they own or work is their primary or only
source of income. So in an economic sense, without some kind of
relief most businesses are essential, even if their goods and services
are not essential for sustaining the health and lives of their
customers.
[Concerning the Court's ruling in an opposite direction in the previous case of South Bay Pentecostal Church v. Newsom in a 5 - 4 decision] "THE
CHIEF JUSTICE expressed willingness to defer to executive orders in the
pandemic’s early stages based on the
newness of the emergency and how little was then known
about the disease. ... At
that time, COVID had been with us, in earnest, for just
three months. Now, as we round out 2020 and face the prospect of
entering a second calendar year living in the pandemic’s shadow, that
rationale has expired according to its
own terms. [I don't understand the "according to
its own terms" part unless it involves some expiration date on "newness"
or some cap on knowledge even though we don't have much understanding
yet or particularly effective treatments, though some better than we did
in early 2020. But the fact the pandemic is no longer brand new
or there is a bit more known than was before, hardly seems like a reason
to discard the reasoning in South Bay Pentecostal about the public health risk and deadly danger.] Even if the Constitution has taken a holiday
during this pandemic, it cannot become a sabbatical. Colorfully
expressed, but not thereby reasonable because there is no arbitrary
time limit on emergency circumstances. If the courts were closed
because of an ongoing flood, one wouldn't say simply that as flood
waters are still rising and Noah's ark is drifting by "Well, it's been a
week now; so we need to hold court; this is not extended holiday or a
sabbatical." We are not enjoying either a holiday or a sabbatical.
There are exigent circumstances that have not sufficiently abated even though time has indeed passed. Rather than apply a
nonbinding and expired concurrence from
South Bay, courts must resume applying the Free Exercise
Clause." but if that means using the same or relevantly similar reasoning as in South Bay, the same result should be reached.
"... we may not shelter in place when the Constitution is under attack. Things never go well when we do" The
Constitution is not under some arbitrary, sinister, or malicious
attack. People are under attack by a deadly, virulent disease that
requires measures not anticipated, some of which may be
unconstitutional and ruled so. But Andrew Cuomo is not trying to
destroy the Constitution using the pandemic as an excuse.
"It is time—past time—to make plain that, while the pandemic poses many grave challenges, there is no world in
which the Constitution tolerates color-coded executive
edicts that reopen liquor stores and bike shops but shutter
churches, synagogues, and mosques." While
I love the colorful (pun intended) sarcasm, that is a seriously unfair
interpretation of the executive order, and the Court should have known
better. The implication of part of the reasoning in the majority
opinion and in Justice Gorsuch's opinion is that Cuomo arbitrarily
determines the color code of the day. Gorsuch wrote that advocates
defending the executive order argue that even if "those actions do violate the Constitution [...]
they say, we should stay our hand all the same. Even
if the churches and synagogues before us have been subject
to unconstitutional restrictions for months, it is no matter
because, just the other day, the Governor changed his color
code for Brooklyn and Queens where the plaintiffs are located. Now those
regions are “yellow zones” and the challenged restrictions on worship
associated with “orange” and
“red zones” do not apply. So, the reasoning goes, we should
send the plaintiffs home with an invitation to return later
if need be.
To my mind, this reply only advances the case for intervention. It has
taken weeks for the plaintiffs to work their
way through the judicial system and bring their case to us.
During all this time, they were subject to unconstitutional
restrictions. Now, just as this Court was preparing to act
on their applications, the Governor loosened his restrictions, all while
continuing to assert the power to
tighten them again anytime as conditions warrant. So if we
dismissed this case, nothing would prevent the Governor
from reinstating the challenged restrictions tomorrow .... Both Governor Cuomo and Mayor de Blasio have
“indicated it’s only a matter of time before [all] five boroughs” of New York City are flipped from yellow to orange."
This misses the point of the color codes and
what they stand for, which presumably is a level of rate of infection
measured in some sort of objective way that has nothing to do with the
whims or will of Governor Cuomo. The color codes simply are a
shorthand designation for a threat rate, like red flags at the beach or
green, yellow, and red zones on a temperature or pressure gauge, or the
colors designating altitude levels on a land map, from land that is
below sea level to mountain peaks or other high elevations. Red
zones in New York
are those that have a high, specific threshold infection rate, orange
zones a somewhat lower
one, and yellow zones lower yet. I don't know the details or
whether the system is logically or scientifically sound, but it is based
on objective data that has nothing to do with whether Andrew Cuomo is
feeling prankish or hostile toward religious practitioners on a given
day or whether he has a court case coming up against them or not and
needs to pull the rug out from under the complaint to try to render it
moot until the next opportunity to abuse religions and the Constitution.
Bret Stephens' comments on Gorsuch's opinion:
"It
was one thing for courts to defer to executive authority in the early
days of the crisis. But how long can governors override fundamental
rights?" The reasonable answer would be as long as
exigent circumstances last that justified the override in the first
place, just like in the case above of severe, prolonged flooding.
"
But,
as Gorsuch noted, one also has to be modest about judicial modesty: “We
may not shelter in place when the Constitution is under attack. Things
never go well when we do.” For many people
things don't go so well even with the Constitution in place,
particularly when it is interpreted in unnecessary, arbitrary ways that
are not helpful. Can you say Dred Scott? or any other past
decisions later reversed by the Court, and as many people want to do
with Roe v. Wade, as this court has theoretically been appointed
to do. But, more important in response to the comment about
sheltering in place, there is a difference between cowering from an
outright attack and rationally doing things differently under adverse
conditions not under anyone's control -- particularly when what one is
doing differently is in the spirit of Preamble or purpose stated for the
Constitution at its beginning.
"That’s
a thought that ought to inspire everyone when, and only when correctly applied in the right circumstances, liberals most of all. Imagine
slightly different circumstances, in which, say, a conservative
governor of a red state had used pandemic concerns last summer to impose
draconian limits on public protests, and that he had done so using
color-coded maps that focused on denser urban areas and that seemed to
apply most restrictively to predominantly Black neighborhoods. Slightly
different circumstances with a radically different purpose unless
Andrew Cuomo is some sort of vindictive, closet atheist and religious antagonist and denigrator,
or unless it really is only in black urban densely populated areas where
people want to protest and their only means of doing so is assembling in close proximity in the
streets. Unfortunately the news media covers marches more than
speeches, and determines the importance of the cause by the number of
marchers. That needs to change not only for safety in pandemics,
but because the relative number of believers doesn't make a position
right or wrong, reasonable or unreasonable, worthy of coverage or
unworthy of it.
"Now imagine this governor had, at the same time, loosened restrictions on
large gatherings such as motorcycle rallies, business conventions and
football games — on the grounds that these were essential to the
economic well-being of the state. Any objections? Again,
if there really was a pandemic, it would be the allowing of these
activities, not the prohibiting of the protests, that would be
wrong. The reverse would only be true if there was no danger in
congregating. This in fact is where liberals have been wrong in
ignoring any problems with political protest rallies, while castigating
Trump political rallies. It is not simply the believed worthiness
of the cause, but the relative value of the risk and the necessity of
risking spreading a fatal disease for that cause that determines the
reasonableness of the gathering. Even if the cause is important,
it may not be important enough to justify dying for or killing others
for.
"The point here isn’t that the interests of public safety and respect for
executive authority must always and fully give way to the assertion of
constitutional rights. They shouldn’t and don’t. Right. Nor is the point that
the behavior of religious communities during the pandemic has been
beyond reproach, or beyond the reach of justifiable legal sanction. It hasn't. Also right. The point is there are no second-class rights — and the right to the free
exercise of religion is every bit as important to the Constitution as
the right to assemble peaceably, petition government for redress and
speak and publish freely -- every bit as important,
yes, but the right to assemble whether for religious or political
purposes is not as reasonable in a pandemic as are the rights to
petition, speak, and publish freely. And
I seriously doubt the "right to assemble" was intended mainly to allow
or encourage protest marches, as opposed to meetings where people could
criticize the government and make peaceful plans for change without fear
of government reprisal. That goes in circumstances both ordinary and
extraordinary. As Justice Samuel Alito put it in a speech this month
that caused some gnashing of teeth: 'All sorts of things can be called
an emergency or disaster of major proportions. Simply slapping on that
label cannot provide the ground for abrogating our most fundamental
rights.' But neither is incorrectly or
arbitrarily denying an emergency exists grounds for maintaining a right
that will cause significant harm by ignoring it for no commensurate
value. Whether something really is an emergency or not and should
be treated as such is not determined by one person labeling it one way
and another person labeling it the opposite. Liberals and
conservatives do themselves and everyone else a disservice simply by
opposing everything the other 'side' proposes or believes.
"There
is a perennial danger that rights denied or abridged during one
emergency for one class of people will ultimately be denied during
another emergency for another class. No more
than the danger that rights accorded in both cases will allow
unnecessary significant harms in each, and no more than the danger that a
right permitted to one group will still be denied to another group at
the same time or in a different similar case. The reverse is also true. The
victory for conservatives in last week’s ruling will be a victory for
liberals somewhere down the road. The precedent set by the ruling, and
the power of Gorsuch’s concurrence, will make the victory sweeter." Not
if in either or both cases the victory is Pyrrhic and has only lighted
fools the way to dusty death. Repetition of a bad argument doesn't
make it better, even if it is for a good cause.
Focusing on rights at the
exclusion of significant consequences is an ethical error, as is
focusing on consequences at the exclusion of significant rights.
Also, false dichotomies are not helpful. The choice, for example,
is not church services in person or no religious worship, and the choice
is not church services or no hardware stores.
The
rest of my remarks are directed toward Bret Stephens readers' comments
in the relevant places, most or all of which focus on one ethical or
legal element instead of all that need to be considered. And in
some cases, just like in the Supreme Court opinions, a logically
mistaken conclusion is drawn even from the elements considered. As
above, for example, even if it is true that liquor stores should not
reasonably be considered essential while religious institutions are not,
that doesn't logically imply that group religious worship is
essential. It might just imply that liquor stores are not
essential. It is just as consistent to say that neither is
essential as to say that both are.
Times Pick
As to their endangering others, this is not totally unlike the danger of drunk driving, distracted driving, driving while fatigued, excessive weaving or speeding. Although driving itself is often an essential activity, driving in a way that unnecessarily endangers others is nevertheless wrong. The issue is at what threshold level any otherwise, or normally, legitimate activity becomes unacceptable risk. When does liberty become license; and when does your liberty become sufficient risk to others to be reasonably considered reckless endangerment or depraved indifference to the lives of others.
That is not easy to answer, and each of us probably has conflicting intuitions about it, let alone different intuitions from each other. One interesting way to see that is to consider what the safety record and accident rate of driverless cars will have to be for them to become permitted on the roads. As it stands now, any driverless car accident, particularly a fatality, gets the fleet of them pulled off the road, but we don't forbid all driving because humans have accidents, including some 30,000+ fatalities in the U.S. each year. If driverless cars prove to have a safety and/or fatality record 10% better than humans, will they be, should they be, allowed on the road? 25% better? 50% better? 200% better? What will their record have to be for us to be willing to risk allowing them to share the roads with us? Will it depend on just the rate of accidents or also the kind of accidents? If they are safer for other drivers but more deadly for bicyclists or pedestrians, will we prohibit them? What if they are safer than young drivers and aged ones, but less safe than middle-aged drivers?
President Trump and many others seem to think that the nearly 300,000 U.S. COVID deaths in the first full year of the pandemic are an acceptable price to pay for allowing mobility and travel, schools, sports arenas, bars, restaurants, offices, and all other businesses, and the economy in general, to be open. That is implied by their saying in that context that "it is not in the millions, as originally feared and predicted by some." Often they seem to find it particularly acceptable since most of the fatalities, they claim, are older people and/or those with co-morbid conditions, as if somehow those deaths did not matter very much.
Well, Neil, it takes me maybe ten minutes, max, to grab a nice Rioja, and there are three other people in the store, virtually none of whom are singing “Oh Breathe on me, Oh Breath of God.” See, there is nothing wrong with sarcasm or snark. But is there always social distancing in your aisle at the wine shop? And is it okay to kill four old people to have your bottle of wine? -- if that is the risk you are running by running in and out? Gorsuch went so far, in fact, that the Chief Justice found occasion to call him out over it: “To be clear, I do not regard my dissenting colleagues as “cutting the Constitution loose during a pandemic,” yielding to “a particular judicial impulse to stay out of the way in times of crisis,” or “shelter[ing] in place when the Constitution is under attack.” Ante, at 3, 5–6 (opinion of GORSUCH, J.). They simply view the matter differently after careful study and analysis reflecting their best efforts to fulfill their responsibility under the Constitution.” But, apart from being more entertaining to read, Gorsuch's stronger way of stating his point makes it easier to see the flaw in his thinking. It makes his thinking more clear. He does see Cuomo's order, and any defense of it, as an unjustified attack on religion, and it is important to show why it is not, as well as why it is not wrong in any other way. Less dramatic language can accidentally hide important ideas and reasoning, and can mask the significance of points that need to be recognized.
From a legal standpoint, the fact that restricting a Mass to fifty people might be easier to bear than a limit of ten does not mean that this is the sort of decision we want a court to micromanage. The Court was saying the government should not be micromanaging it at all -- including the governor. Whether the governor was micromanaging it is open to question though. Using the absolute numbers in the original order, probably yes; but I would argue that using public health guidelines, probably not.
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