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Here’s a micro-story I started with the Access Crypto Summit flash fiction prompt in mind, left half done, and then belatedly finished off anyway, because it seemed a waste not to:
BUZZFEED/CQ CONGRESSIONAL TRANSCRIPTS
September 25, 2023 – FINAL
Excerpts from Senate Judiciary Committee Hearing on the Deterring & Interdicting Child Pornographers & Internet Criminals Act.
SEN. TRUMP (R-NJ): Look Mr. Chaudry, my time is too valuable to waste untangling a lot of nerdspeak; I have people for that. And I don’t care about Forehead Secrecy. So let me just ask you this. Are you a pervert, sir?
CHAUDRY: Senator? I don’t…
SEN. TRUMP: Are you turned on by kids, sexually? Little towheaded boys, maybe? Because we’ve heard from no fewer than four attorneys today that you eggheads could find a way to help the FBI out, without unsecuring your cybers, if you really wanted to. So I can only assume you’re just determined to help sickos trade their kiddy porn for some reason. What IS that reason, Mr. Chaudry?
CHAUDRY: Senator, we at Vygenere have always complied with lawful requests for the limited information available to us, but the peer-to-peer architecture of our platform… (LOUD SNORING NOISES FROM SEN. TRUMP) Senator, I’m trying to… Madam Chair, is this line of questioning even allowed?
SEN. GERMANOTTA (D-NY): The gentleman will suspend.
SEN. TRUMP: I withdraw the question. No surprise he doesn’t want to answer it, huh? Look, Mr. Chaudry, the number of buildings I own — more than people think, by the way — I know something about architecture. If yours is helping your sicko buddies hide out, maybe you’d better build a different one. Something a little classier. I’ll reserve the balance of my time for our non-pedophile witnesses.
ADDRESSING THE THREAT OF OPEN SOURCE ENCRYPTION
WITTES CENTER FOR ORDERED LIBERTY AUDITORIUM — WASHINGTON, D.C.
FEATURED SPEAKER: FBI DIRECTOR JAYDEN ZHOU-BISSELL
Thank you; it is a profound and amazeballs privilege to be asked to address this totes important topic with you today. As most in this audience will already be aware, the Deterring & Interdicting Child Pornographers & Internet Criminals Act of 2024 has proven an invaluable tool in our ongoing war on micro-tax piracy and other forms of HASHTAG! #EconomicTreason.
Unfortunately, nobody could have predicted the way unpatriotic foreign companies and — still more disturbing — lawless gangs of anonymous so-called “open source programmers” would invite HASHTAG! #CryptoAnarchy by releasing code in flagrant violation of — well, at the very least of the spirit of the law. And they do this at the very moment when the threat to the homeland from Radical Vegan Objectivism and, of course, the plague of the NeoSalafist Repugno-Parfitians is most severe. Well, I propose we show the world they can’t just laugh at America’s DICPIC.
That’s why today I’m urging Congress to move expeditiously to pass the Safe Computing Act, which will require personal computing devices sold in the United States — or made by American corporations, wherever sold — to implement a trusted computing protocol our brave persons at Fort Meade have cooked up to ensure that only software cryptographically signed by a responsible corporation can be run on new devices. I’m pleased to announce that, in contrast to their HASHTAG! #ObstreperousStance on previous sensible security measures, the American technology sector, excepting a handful of incurably dogmatic outliers, is firmly with us on this.
This measure should also help us to stem the unprecedented and growing tide of sensitive database security breaches that have become a mainstay of our morning feeds. When you can only run HASHTAG! #ApprovedApps, you know you’re not running HASHTAG! #BadApps.
20 MINUTES INTO THE PAST
APPLESOFT NEWSBLAST DOWNSAMPLED TO ASCII (2D). BLINK TO UPGRADE TO TAIWANSIM (3D) MOJIGLYPH (4D) OR DIRECT GENTIAL STIMULATION (4D).
(SCA#LINK) (FROWNY FACE) (PETMEME-347) (WACHOWSKI-K.298) (PENN&TELLER-433) (ATTACHMENT#3)
CryptoPanther implementations ((FNORD)) ((CRIMETHINK)) released for AUGMENTR Environment Object Language; Excelsior Spreadsheet; Maytag SmartFridge 6.3; WarbyMonocle OS 2.x & 3.x; GooPrinter 1+.x;(BLINK FOR FULL LIST)
(ORACLE) ((LIMBIC)) ((FNORD)) (MONEY) ((FNORD)) (FINLAND) ((FNORD)) (MAURITIUS) ((FNORD)) (PARAGUAY) ((FNORD)) (GREENLAND) ((FNORD)) ((BLINK TWICE IF YOU ARE SCARED))
Officials ((FNORD)) say #EconSads (CAUSALITY) #TreasonTech. Report (DATA#ATTACHMENT#6) proves 6HrHEls(tha;STACKOVERRUN
Always a pleasant surprise to find somebody else bothering to poll the source code. You don’t have to live like this. We don’t have to live like this.? We can make people ((NOTICE THESE COMMANDS)). Our Public Key is Cirrus. Socrates. Particle. Decibel. Hurricane. Dolphin. Tulip. Lollapalooza… (PACKETDROP)((FNORD))
YOUR INTEREST IN THIS TOPIC HAS BEEN LOGGED.
Graeme Wood’s Atlantic cover story “What ISIS Really Wants” has attracted plenty of? attention and controversy, spurring several interesting responses as well as quite a few less illuminating ones.? Here’s the core claim many readers want to contest, or even condemn as a kind of smear against Islam:
The reality is that the Islamic State is Islamic. Very Islamic. Yes, it has attracted psychopaths and adventure seekers, drawn largely from the disaffected populations of the Middle East and Europe. But the religion preached by its most ardent followers derives from coherent and even learned interpretations of Islam.
It may be useful here to make explicit a distinction I haven’t seen directly acknowledged between two ways of understanding this claim—let’s call them “Internal” or “Theological” and “External” or “Sociological.” ? From?an internal perspective—that of?a Muslim believer or? someone willing to adopt their premises as a kind of epistemic courtesy—Islamic texts and doctrine reflect the will of Allah. Interpretations of those texts and doctrines that accurately correspond to that divine will are “true” Islam; those lacking such correspondence are un-Islamic error or heresy. To deem a person, group, or doctrine Islamic is, from this perspective, implicitly a judgment of theological correctness, and any particular belief either does or does not follow from Islamic principles, as a straightforward factual matter.
From an external or sociological perspective, Islam is just a cluster of human cultural practices with no set of underlying supernatural truths for varying interpretations to correspond to (or fail to correspond to) . A secular observer might find some interpretations more morally palatable than others, but can’t coherently regard any of them as “truer” or more “authentically” Islamic in the same sense a believer would. To adopt the internal perspective is to evaluate interpretations as something akin to proofs in logic or mathematics: If two purported proofs yield contradictory inferences, then at least one of them is simply false and not an authentic instance of a “proof” at all. From an external perspective, conflicting interpretations are just different fictional narratives: Two pieces of Doctor Who fanfic describing mutually contradictory versions of events are still equally instances of Doctor Who fanfic, provided they have some minimal features —an alien Time Lord called “The Doctor” flying round time and space in? blue box—even if one contradicts what the majority of the fan? community regards as “canon.”
For a mainstream believer—or for someone who wants to accept and endorse that believer’s perspective for secular reasons—Wood’s thesis is objectionable because there is a fact of the matter about whether the ideology espoused by ISIS is “really” grounded in Islamic doctrines and principles: Either it is—implying that Islam as a whole is tainted by their brutality, in something like the way a set of logical premises are invalidated if they yield a contradiction—or it is not, in which case ISIS cannot accurately be described as “Islamic,” but only, at most, as a corruption or perversion of “true” Islam.? But Wood is making a sociological claim, not a theological one: To call ISIS “Islamic” is just to say they have a belief system which members of that community take to be based on Islamic texts and traditions. There simply is no fact of the matter about whether their beliefs “really” follow from those traditions; there’s just one consensus reached by the majority of Muslim authorities (no!) and a different consensus reached by a different subgroup.? Believers, of course, think there is a fact of the matter whether they answer the question in the affirmative or the negative. But the rest of us are under no obligation to share that premise—and at least arguably?can’t share that premise.? We can regard the narrative ISIS tells as?morally worse than other narratives based on the same source material, but there’s no criterion by which we can coherently deem it less authentically Islamic.? The flipside is that recognizing ISIS as Islamic, as a descriptive or sociological matter, doesn’t entail a whole lot about Islam as such, or about the great majority of Muslims who reject their narrative.
As recently as a couple years ago, “political correctness” was one of those phrases that triggered a reflexive eye-roll from me: Sure, it was a thing in the early 90s, but had long since morphed into a tedious gripe typically voiced by folks chagrined that nobody finds their racist jokes funny anymore. Lately, though, even many progressives in good standing have begun wondering whether our present culture of “calling out” is, perhaps, not entirely healthy. The latest comes via Jonathan Chait, and has been greeted with a mix of mockery and (more quietly) “oh God, someone finally said it.”? Two thoughts:
First: The mockery makes a certain amount of sense if you read Chait’s essay as a straight white male’s “help, I’m being oppressed!”—a reading for which Chait, alas, provides some textual support whether or not it’s what he intended. For people accustomed to seeing their opinions greeted with everything from dismissive condescension to harassment and death threats, a successful writer complaining from a perch at New York magazine about his friends being “bludgeoned… into despondent silence”—because people are mean on social media—simply sounded whiny.? Chait also moves a bit too seamlessly from real, honest-to-God censorship by public institutions to more informal social pressure in a way that makes it sound like he’s conflating them—claiming that criticism is somehow tantamount to censorship or repression.
Let’s take it as given that this is not the case, and that any subjective chill experienced by folks like Jon Chait is not usefully understood as a problem of social justice. We can grant all that and still ask: Is there something unhealthy about discursive norms that lead to substantive self-censorship, even by the obviously privileged?? Not because these norms constitute an injury to the reticent privileged, or interfere with anyone’s sacred right to unfettered self-expression, but because they yield less robust, less interesting conversations?
Think of Solomon Asch’s famous experiments in group conformity, or the broader social psychology literature on information cascades.? The problem isn’t so much that some precious snowflake’s project of expressive self-realization has been constrained, but that constraints deprive groups of deliberative input that can help them make better decisions. When the constraints are on the order of “don’t use sexist or racist language,” probably nothing of value is lost.? When the constraints include “under no circumstances express any skepticism about any claim of sexual assault,” to pick a salient recent example, you may end up with bad journalism that hinders the ultimate goal of getting society at large to treat survivors’ stories more seriously and respectfully.
Second:? The dynamic of self-censorship Chait describes bears some resemblance to one I wrote about a few years back in a post on the conservative movement—a post which, quite accidentally, ended up introducing the phrase “epistemic closure” to the political lexicon. (I know, I know: mea maxima culpa.)? Over time, it creates a feedback loop that looks something like this:? Within any political or ideological group, however reasonable and noble its aims might be on the whole, some percentage at the margin are going to take a good idea further than is reasonable, whether out of authentic zeal or because being the most hardcore is an easy way to distinguish yourself in a crowded intellectual marketplace. The more these moves prove effective in shutting down an argument, and the less the relevant audience seems to care how well they fit the specific facts of the case, the more tempting it becomes to deploy them whether they do or not.
It doesn’t take any very fearsome campaign of intimidation for a group’s self-correcting mechanisms to break down. Imagine an argument where someone invokes a spurious or unfair accusation of (let’s say) racism or sexism as a cudgel to close down a conversation. Maybe many other members of the accuser’s ideological in-group (“allies”) themselves perceive it as unfair, but life is short and people are busy—what’s the incentive to chime in and say “hey, wait a minute”? Pretty weak even in the absence of negative feedback. And as anyone who’s watched these arguments play out is well aware, questioning whether such a claim is fair or reasonable in a particular instance is going to be read by some observers as denying that sexism or racism are problems at all.? (I recently, rather gently, questioned whether one specific document from the Snowden cache should have been published, then had to expend a whole lot more words insisting that I am not, in fact, a shill for the surveillance state.? Anyone who knows my privacy writing understands why this was slightly surreal.) You end up having to explain and justify yourself to all these folks whose good opinion you care about, and who needs the hassle?
Iterated over time, though, that means the people who do object in particular cases are increasingly from out-groups: People who really don’t care about racism or sexism or think they’re serious problems.? Now the incentives are even worse for in-group members. Because now being the one to say “hey, wait a minute” in a particular instance doesn’t just mean conflict with an ally, it means associating yourself with those assholes.? Increasingly the objections are coming from people who just don’t care about the good opinion of the in-group, many of whom are expressing those objections in actively racist or sexist terms.? So now anyone voicing reservations has to do all sorts of throat clearing (I did it instinctively at the start of this post) to avoid the ever more statistically reasonable heuristic inference that any pushback is coming from those repulsive quarters. If you’re the only ally pushing back, hey, maybe you’re not an ally at all, but secretly one of those assholes.
You end up with team “x is the problem” and team “x is not a problem,” and ever fewer people prepared to say “x is a problem, but maybe not the most useful lens through which to view this particular disagreement.” When teetotalers are the only ones willing to say “maybe you’ve had one too many,” because your friends are worried about sounding like abstemious scolds, the advice is a lot easier to dismiss. Which is fine until it’s time to drive home.
You see this dynamic, in fact, with the response to Chait’s essay: Progressives who think maybe he’s kinda-sorta got a point quickly move on, ceding the field to those who want to revoke his ally card and conservatives eager to welcome him, at least for the next ten seconds, to “their” side. (I wrote a tweet suggesting I thought some of the vituperative online reactions to Chait’s essay showed he was on to something. Conservatives and libertarians retweeted it; progressives favorited.) And this makes it still easier to conclude that nothing interesting or valuable is lost by any self-censorship that may be occurring. We know what the counterargument looks like, after all: It’s the garbage those assholes are spouting. Discourse gets increasingly polarized and, in the process, stupider. Which, again, seems like a bad outcome even if you don’t particularly care whether Jon Chait gets his feelings hurt.
One of the more useful thought experiments I’ve encountered in philosophy, because it seems to apply to so many situations, is Derek Parfit’s “Harmless Torturers,” from his celebrated book Reasons and Persons:
The Harmless Torturers. In the Bad Old Days, each torturer inflicted severe pain on one victim. Things have now changed. Each of the thousand torturers presses a button, thereby turning the switch once on each of the thousand instruments. The victims suffer the same severe pain. But none of the torturers makes any victim’s pain perceptibly worse.
Parfit asks us to imagine two scenarios.? In the first, a thousand victims are strapped to a thousand electrical torture devices, and each of a thousand torturers turns a switch on the device, inflicting extreme agony on the individual victim strapped to that machine.? In the second scenario, each torturer’s dial increases the current flowing through all thousand torture machines by a tiny increment, so small as to be imperceptible to any individual victim, but collectively inflicting the same amount of pain.? Parfit’s point is that we should regard the torturers in the second scenario as acting no less wrongly than those in the first scenario, even though there is a sense in which each individual’s action is “harmless.”? It is not enough, Parfit argues, to ask whether one’s actions cause harm when considered in isolation; rather, we should also consider whether our actions are part of a system or pattern of similar conduct that in the aggregate causes harm, even if no individual’s action makes a perceptible difference to the outcome. We don’t need to read Parfit (or Kant) to recognize the principle of course: The typical answer to a child wondering why he must follow some rule that seems to be violable without obvious harm is “but imagine if everyone did that.”? The slightly subtler corollary to this point is that often an action can be wrong, not because of its intrinsic effects or qualities, but because of what other people are doing.? Many confused and indignant objections to people pointing out racism or sexism seem to me to be rooted in a failure to properly appreciate and apply this idea.
A viral video capturing the staggering quantity of? harassment experienced by a woman walking the streets of New York provides probably the clearest example.? Plenty of what the filmmakers captured involves conduct that would be crass or menacing even taken purely in isolation: following the woman, making lewd comments about parts of her body, and so on.? But some viewers—mostly male, but a few women as well—object that the video unfairly lumps these together with “friendly greetings” or innocuous compliments: “How are you, miss?” or “You’re looking lovely today.”? And in a very narrow sense, they have a point: When a stranger says something nice about my appearance, as happens maybe once a month, that brightens my day a bit, because I’m not constantly inundated by a stream of comments ranging from innocuous to menacing. The mistake the “friendly” men make is failing to imagine how the context of a hundred other “friendly” (and some markedly less friendly) remarks? may make their own far less welcome than it would be in isolation.
Or consider Anita Sarkeesian’s popular “Tropes vs. Women” series, which notoriously drives some young male gamers to mouth-foaming apoplexy.? One of the less unhinged objections you sometimes see is that some of Sarkeesian’s examples of sexist portrayals of women in games may be individually defensible as narratively or contextually appropriate: Isn’t it only natural or “realistic” for a game about mob enforcers or? Old West gunslingers to feature scantily clad women as part of a strip club or bordello backdrop?? Sarkeesian’s point, of course, isn’t that such depictions shouldn’t exist? at all, but that an ugly cultural message is conveyed when these are the dominant representation of women—when it’s the primary way they’re depicted in one blockbuster game after another.
Finally, consider a much-mocked image recently making the rounds of a? young white girl made up in blackface for a Nicki Minaj Halloween costume, coupled with her? inevitable objection “for the record” that she’s “not racist” for wearing it.? Now, if we want to be very charitable, we can grant that it’s possible she’s merely strikingly obtuse—ignorant of the cultural context and the history of minstrelsy that makes wearing black makeup to dress as Nicki radically different from donning a blonde wig to dress as Marilyn Monroe—rather than “racist” in the sense of being motivated by a subjective intent to mock or demean black people.? Some readers may recall “Tokyo Breakfast,” an early viral video that played this sort of cultural confusion for laughs by presenting an ersatz sitcom in which an upbeat Japanese family infatuated with hip-hop culture gleefully toss around the N-word, seemingly innocent of how offensive what they’re saying is.
Here, George Carlin’s famous “Only Words” routine got it half right: Carlin says that “offensive” words, such as ethnic slurs, are harmless in themselves; it’s “context” and “intention” that make them offensive. He’s right about context: A string of letters or phonemes becomes a “slur” only by dint of a cultural and historical context in which it is frequently used pejoratively.? But he’s wrong about “intent,” because language is a collective enterprise.? If I were to make a personal decision to use the phrase “fuck you” to mean “thank you ever so much,” I should not be surprised when people nevertheless take offense despite my subjective intention, and I would at the very least be culpably obtuse in failing to anticipate the predictable reaction of my listeners.
One reason public discourse about racism and sexism tends to be so acrimonious—though certainly not the only one—may be that we don’t explicitly enough distinguish “harmless torturers” cases from the “bad old days” variety.? Sophisticated critics, of course, routinely stress that misogyny and racism are fundamentally structural problems that can be perpetuated by actions that don’t necessarily require the individuals perpetuating them to harbor any malicious intentions or vulgar attitudes.? But that’s still what we most automatically associate with the claim that something is “racist” or “sexist”—leading people to take umbrage (often in bad faith, but presumably at least sometimes sincerely) when a particular utterance or action is called out.
More precisely, there are two distinctions we may want to make.? One is between intention and effect, the other between individual and collective or aggregate harms.? These are, unsurprisingly, related: It’s hard to plausibly claim you didn’t mean any harm by punching someone in the face, because that action is so obviously harmful regardless of what anyone else does. (To paraphrase Kant, when the consequences of an action are clearly foreseeable, we regard them as “intended” even if they’re not part of the actor’s core aim.)? It’s much easier to say you didn’t mean your “friendly” compliment to harass or intimidate someone when the harassment or intimidation are a cumulative effect that depends on a dozen other remarks you didn’t observe.
Any pairing of intended/unintended and individual/aggregate is logically possible, but unintended/aggregate harms are the trickiest ones to address, because they require people to recognize as culpable conduct that not only wasn’t meant to cause harm, but often wouldn’t be harmful taken in isolation. What’s especially thorny here is that we consider conduct blameworthy only when an actor knows or reasonably ought to know that it is causing harm, either individually or in the aggregate.? A foreign visitor who, like the “Tokyo Breakfast” family, uses an offensive term without realizing that it is offensive is not necessarily a bad person—but is blameworthy if he keeps using it after being told.? When a harm is less obvious, because cumulative or systematic, people may resist changing their conduct because they think it means accepting a negative judgment of their character based on what they did in ignorance.
Changing people’s conduct, in these cases, is rendered more difficult because it may require us to thread a tricky rhetorical needle: On the one hand, we want people to regard certain behavior as blameworthy if they keep doing it once they understand its aggregate effects, which may not have been obvious to them. On the other hand, we risk provoking unnecessary psychological resistance if people think that acknowledging those effects requires them to accept a kind of retroactive indictment of their character based on how they behaved when they didn’t know better.? (One thinks of the old joke about the missionary bringing the gospel to an isolated tribe: Were my ancestors damned for not accepting Jesus when they had never heard of him? No, they wouldn’t be damned if they didn’t know. THEN WHY DID YOU TELL ME?)
The tricky balancing act, then, is getting people to see how their conduct may be harmful, or rather, part of a pattern of conduct that is harmful in the aggregate—without requiring them to condemn themselves for not having acknowledged the harm sooner, since that will often make them resist acknowledging it. Unsurprisingly, those who’ve seen the harm tend to get tired of this kind of emotional coddling of people who seem to be in denial about what’s all too apparent to those on the receiving end—especially when addressing groups comprising a mix of those who don’t know any better and straight-up assholes who know but don’t care.? It would take more chutzpah than I can muster to counsel infinite patience, but addressing the Harmless Torturers as a distinct group may be the best way to help prevent them from joining the ranks of the assholes.
So, here are a couple weird things about Superman I’ve never seen anyone comment on, though they’re so glaring it seems as though somebody must have.
First, Superman has a range of diverse and extraordinary powers common to his species, each of which would seem to represent a complex and independent evolutionary adaptation: Directed flight, near invulnerable skin,? heat vision, X-ray and telescopic vision, freezing breath, and the underlying capability to absorb and store solar radiation that drives them all.? These are powers any Kryptonian would exhibit when exposed to the light of a yellow sun.? Yet Krypton’s sun, Rao, is not yellow but red: Kryptonian bodies not only are incapable of processing and storing its radiation for these spectacular effects, but seem actively weakened by it.? That is, even when Superman has been absorbing normal amounts of yellow sun radiation and is fully empowered, relatively brief exposure to red solar radiation causes him to quickly lose these powers.? So while all Kryptonians apparently possessed the same latent biological capabilities as Superman, all but the very earliest stories depict them functioning more or less as baseline humans while living on Krypton.
This ought to be somewhat mystifying in Darwinian terms.? It would be like discovering that a species living exclusively in deserts had evolved fins and complex gills. It would be pretty much impossible for all these complex adaptations to emerge naturally in an environment where they would never be expressed, and therefore could confer no fitness advantage.? That would leave two possibilities. One is that the Kryptonian genome had been artificially modified, presumably by another more advanced species, for some unfathomable reason, to imbue Kryptonians with extraordinary capabilities that would be suppressed in ordinary life.? The other is that Kryptonians did, in fact, evolve under the light of a yellow sun—either Rao in an earlier phase of its existence, or another star from which the “Kryptonians” either migrated or were transplanted, losing their native abilities. However, with the exception of the nhà cái khuyến mãiDaxamites —a species descended from Kryptonian colonists, and also living on a planet orbiting a red sun—the otherwise extraordinarily technologically advanced Kryptonians are portrayed as a xenophobic species with little interest in space exploration.? This would be especially odd if Kryptonians had all previously exhibited superhuman capabilities under the light of a younger, yellow Rao—since you’d expect the civilization to turn its technological prowess single-mindedly toward the task of reclaiming their genetic legacy, if they were aware of it.? If the answer is that Kryptonian abilities evolved under a yellow Rao millions of years in the past, before recorded Kryptonian history, wouldn’t genetic drift have eventually rendered these vestigial abilities non-functional in modern members of the species? Or alternatively, wouldn’t that be sufficient time for Kryptonian physiology to have adapted to process red sunlight?
Second, Kryptonite seems fantastically improbable.? Superman’s greatest weakness, as everyone knows, is his own former home planet: After it exploded, Krypton’s fragments passed through a “cloud of radiation” that transformed them into the familiar glowing green substance that is highly lethal to Superman, though apparently not immediately harmful to ordinary humans or other terrestrial life forms.? Whatever radiation caused this effect does not appear to be common in nature: It is encountered almost exclusively via Kryptonite, though Superman has traveled extensively throughout the universe. We don’t find other bits of celestial debris, not originating on Krypton, that have been similarly transformed. Yet it also was present in sufficient quantity and concentration near Krypton that, as far as I know, all fragments of the planet Superman later encounters have become Kryptonite.
In other words, one of the only things in the universe that can readily kill even a yellow-sun-empowered Kryptonian is a form of radiation that seemingly exists nowhere in nature except around the former location of Krypton.? Not close enough to have killed off the inhabitants of the planet, mind you, but apparently close enough that, excepting little Kal-El’s escape shuttle, nearly all matter ejected by the planet’s destruction has been irradiated.? All that implies that this Kryptonite-creating radiation field must be present almost exclusively as, in effect, a large bubble around Krypton.? That would, one supposes, account for the limited interest in space exploration, but it’s also s a hell of? coincidence.
What’s really astonishing is that these two facts, especially in combination, don’t seem like random lapses in story logic, but rather seem to suggest a common explanation.? A whole planet of Supermen would, of course, be one of the most terrifyingly formidable forces in the universe: Superman alone, after all, has been seen to single-handedly? battle entire interstellar armadas. (Think of the Viltrumites from Invincible.)? Individual organisms comparable to an adult Kryptonian seem to be extraordinarily rare, and when they do exist,? they tend—like the “New God” Darkseid—to rule entire planets.? So what’s the obvious inference when we find an entire species of these juggernauts living on a planet where their powers are nullified, surrounded by a bubble of extremely rare radiation that would kill nearly any spacefaring members before they could reach a star that would repower them?? It’s sort of a no-brainer: Someone did this to them on purpose.? You could imagine a benign hyper-advanced species like the Guardians of Oa doing it to a naturally evolved hyperpowerful species, maybe accelerating Rao’s transition to red giant phase and creating the—come to think of it, suspiciously greenish—radiation bubble, at least as a temporary measure until they’d cultivated a high level of peaceful civilization.? Less benignly, maybe a species like the Engineers from Prometheus would want to keep an ultimate biological weapon in reserve, like a? plague bacillus in a bottle.
The only really surprising thing is that, as far as I’m aware, no writers have decided to run with this obvious explanation for two otherwise bafflingly improbable facts. ?? Never mind the bottled city of Kandor—I want to read the story of who bottled Krypton, and why, because it seems clear someone did.
So, I recently succumbed to an old collegiate vice (no, not that one…) and allowed myself to get sucked into a libertarian comments section debate.? This was, on the whole, about as edifying and productive an exercise as you might expect, but having already expended an hour or two in this questionable way, I figured I might as well reproduce a couple main points here in case anyone else finds this sort of thing interesting.
The slogan that “taxation is theft” used to be fairly popular among libertarians—particularly anarcho-capitalists, who reject the legitimacy of even taxation to support a minimal state—and apparently, in some circles, it continues to be.? Matt Zwolinski recently brought up a thoughtful old Loren Lomasky essay arguing that this is an unhelpful way for libertarians to talk, and promptly drew all sorts of fire from people who are fiercely committed to their slogan and, if anything, wish it would be chanted louder and with greater frequency.
So, first, a point so trivial I’d hope it wouldn’t need to be made, but which apparently does: Taken in a strict or literal sense, the claim that “taxation is theft” is just false.? Standard dictionary definitions? pretty uniformly include the idea that “theft” is a form of non-consensual property transfer that is “unlawful” or “felonious” or “without legal right.”? Obviously this is quite separate from the question of whether taxation (generally or in some specific instance) is morally justifiable: Just about everyone agrees that some types of taxation (poll taxes, say) are wrong without literally constituting “theft,” and most people will also recognize that there are at least occasionally instances of “theft” that are morally permissible, or even mandatory. I bother with this only because a depressing number of people seem to confusedly believe that, though the large majority of people use “theft” in a way that definitionally excludes taxation (or other lawfully authorized transfers) from its scope,? all those people are wrong about words.? Which is not really possible, of course: Over the long run, what words mean really just is a popularity contest. You can stipulate whatever sense of “theft” you like for the sake of a particular discussion—nothing? substantive turns on how we decide to use English terms—but these arguments so predictably collapse into vacuous verbal disputes that it seems simpler to cut to the chase and talk about why one thinks taxation is wrong.
Happily (as with the vegan slogan “meat is murder”) people mostly? understand well enough what the claim “taxation is theft” is meant to express: that we should all use “theft” in a way that encompasses “taxation” as just one more distinctive subcategory (like “embezzlement”), because coercive expropriation by states is illegitimate, and so taxation is morally on par with all those other transfers we currently describe as “theft.”? Bracketing the substantive plausibility of the underlying claim, that’s in principle a perfectly valid rhetorical strategy: “Marital rape” was an oxymoron until enough people insisted it shouldn’t be, and now, happily, it isn’t. Lomasky thinks this one, however, is counterproductive—and I’m inclined to agree.
For one, it’s a claim that anyone with a theory of just holdings could make about political systems that fail to satisfy their criteria, but we typically find it irritating when people with other political commitments make equivalent moves.?? For someone who thinks justice requires equality of resources, or distribution according to the difference principle, or whatever, then?failure to tax and redistribute could be characterized as “theft” by those with surplus holdings.? But framing the view that way just adds a dash of empty melodrama.? Every political viewpoint has some set of principles for determining what rights over resources people have—and, implicitly, is committed to the idea that the alternative ways of allocating resources are wrong. If you’re trying to seriously debate the alternatives, adding “Wrong!” in a louder voice after you’ve articulated yours isn’t really adding anything.
Which, I think, brings us back around to Lomasky’s sense that these kinds of slogans are symptomatic of a failure to take seriously the fact of political disagreement that is both thoughtful and sincere. One important component of “theft” as ordinary people use it (though I notice that not all of the dictionaries explicitly include it) is that it is intentional. “Theft” is not just taking what one has no right to, but what one knows or reasonably ought to know one has no right to. When someone grabs your coat? from a pile at a party, having mistaken it for theirs, then insofar as you’re persuaded they really? have made a good faith mistake, you try to convince them of the error without resorting to calling them “thief.”? (Especially if there’s some possibility that it will turn out you’re the one who’s mistaken.)
Not all disagreements, of course, are so easily resolved.? Even in anarcho-capitalist utopia, after all, there would be some kind of legal system providing for non-consensual transfers of property in the case of disputes.? When one person’s actions directly or indirectly harm another, there will often be disagreement about whether compensation is owed, and if so, what amount is reasonable.? There will be complex contractual disputes, or questions about whether a parcel of property has easements on it, or about whether the prima facie rightful owner’s claimed property boundaries are just right. Some of these disputes will actually be pretty complicated, and not easily resolved by recourse to simple moral first principles.? Invariably, either because the facts or the legal (quasi-legal?) rules are complex or ambiguous, whatever system is in place to resolve these disputes will sometimes get it wrong.
We can stipulate language evolving however we like in an imaginary anarcho-capitalist utopia, but it seems most natural to imagine the denizens of AnCapistan distinguishing between these kinds of inevitable good-faith errors and plain old theft.? And it seems natural because there is a morally salient difference between simply taking what you like without regard for whether you have a right to it, and adhering to some process designed to adjudicate and enforce rights claims, even when that process will necessarily yield an unjust outcome in some cases.
Saying “taxation is theft,” then, doesn’t just entail that the speaker thinks taxation is?no more morally justifiable than theft.? It implies that this ought to be so self-evident to any reasonable person that those who disagree are (at best) just engaged in some kind of transparent rationalization for disregarding the rights of others.? That seems both clearly wrong and unfair, even if anarchists are ultimately right about the illegitimacy of taxation.? Why bother arguing at all if you believe that justifications for taxation are merely pretextual, and the great majority who regard it as legitimate (whether voters or agents of the state) do not really care whether it violates people’s rights?? One might, I suppose, try to awaken a mugger’s dormant conscience by reminding them “you have no right to do this to me!”—but that would be an attempt at shaming, not persuasion: The mugger’s problem is not that he doesn’t know, but that he doesn’t care.
Lomasky’s point—beyond the rhetorical utility of this particular slogan—is that libertarian rhetoric (and, to be sure, the rhetoric of some more intemperate progressives, but that’s their problem) sometimes treats good faith disagreement about what is right as equivalent to amoral indifference to what is right.? Very occasionally, that may be an effective rhetorical posture even when it’s somewhat unfair.? Usually, though, it seems to be neither fair nor effective—except, perhaps, at delivering whatever psychological satisfaction people obtain from imagining themselves among the righteous few in a sea of thugs and moral imbeciles.? When one is politically impotent, I guess, one takes what consolation prizes one can.
One additional theoretical consideration that’s largely independent of Lomasky’s (and Zwolinsky’s) main point.? The slogan that “taxation is theft” is ambiguous: We can read it to mean, as the anarchist typically does, that?taxation per se is categorically illegitimate, but also as a more specific claim that actually-existing taxation involves depriving people of specific holdings to which they are entitled.? The second claim, it seems to me, is indefensible even if we suppose the anarchists are right as a matter of ideal theory.? If we take that theory to be some variant of neo-Lockean/Rothbardian/Nozickian/whatever account of initial appropriation and transfer, almost nobody residing in any actually-existing state can justify their present holdings by reference to an appropriately untainted provenance running back to the State of Nature.
Serious theorists tend to acknowledge this at least in passing, but it’s one of those elephants in the room that anarchist and minarchist libertarian thinkers alike have tended to give conspicuously short shrift.? In Nozick it’s basically relegated to an unsatisfying footnote to the effect that, yes, maybe we need a one-time carnival of patterned redistribution. (This is the political philosophy equivalent of Richard Dawkins tweeting “j/k: God did it up to amoebas, but THEN evolution.”) In other writers, it rates a few (equally unsatisfying) pages of hand-waving about homesteading and adverse possession.
If there’s a libertarian theorist who’s grappled with this at the length it merits, I haven’t seen it. I would love to be able to point to a few serious book-length efforts, but the Year Zero approach that just takes current holdings as given and proposes Entitlement Theory Starting Tomorrow have always struck me as the sort of ad hoccery that makes caricatures of libertarianism as an elaborate rationalization for privilege more plausible than they ought to be.? So an independent reason to shy away from “taxation is theft” as a slogan is that it can be interpreted as an unreflective endorsement of distributional patterns riddled with profound historical injustices.? Libertarians, anarchist and minarchist alike, still lack a theory of remediation serious and robust enough to meet the demands of their own priors.? When we have one and it’s implemented, then the anarchist camp will be in a better position to chant their slogan.
Update: Kevin Williamson, who I can only infer thinks I am very dim indeed, quotes my trivial semantic observation above as though it were meant to be some kind of substantive argument, and responds that I am “studiously ignoring the point.”? As I had hoped would be clear from the rest of the post, though, I understand the point perfectly well. I had merely meant to note, as a preface to the actual argument, that someone who denies “taxation is theft” is not grammatically wrong or confused in any strictly literal sense, and it’s silly to get mired in purely verbal disputes about the ideal Platonic definition of? “theft.”? As I acknowledged?right after the sentences Williamson quotes, this anthropological factoid about contemporary usage has no real bearing on the upshot of the slogan, which is that taxation is morally equivalent to theft. Substantive moral questions can’t be resolved by dictionaries. That said, it’s my own fault for spending too many words on a silly and trivial point, so I’ve made some edits in hopes of leaving it a little clearer what I’m trying to do here.
Just in case though: This is not a post about whether taxation is categorically wrong (though I don’t happen to think so). Rather, this is a post about why, even assuming arguendo that taxation is illegitimate, slogans like “taxation is theft” are not a helpful way to express that claim, because they equate a good faith disagreement about what rights people have with malicious disregard for those rights. I find it morally outrageous that we imprison people for selling drugs to willing adult buyers; such imprisonment is always unjust.? But framing this as the claim that “drug prohibition is kidnapping” is not, in most cases, a useful thing to say to someone who disagrees about the underlying point, for basically the same reasons that equating opposition to single-payer with a desire to watch the poor suffer rarely leads to any kind of interesting conversation.
In the previous post, I ran through some criticisms of the Supreme Court’s recent Hobby Lobby ruling that I don’t think are very impressive—some because they’re unconvincing, others because they wouldn’t be relevant to the core logic of the opinion even if they were otherwise absolutely correct.? For the purposes of this post, then, I’m going to assume that the Court got it right in finding Hobby Lobby to be a “person” under the Religious Freedom Restoration Act, just like religious non-profit corporations are, and that a mandate to include contraceptive coverage in any health insurance it provides employees counts as a “burden” on the religious convictions that its owners want the company to embody, whatever we might think of those convictions.? I’m also going to assume, as the Court did, that enabling widespread access to contraception is a “compelling state interest” weighty enough to justify that religious burden—but that the state’s interest has to be balanced against that burden, and pursued by less restrictive means where feasible.? With those assumptions in place, here’s a sketch of what seems to me like a plausible critique of the Hobby Lobby ruling, and one I haven’t really seen opponents making so far (though perhaps that just means I need to read more widely).
Justice Alito’s attempt to “balance” the competing interests in this case is actually surprisingly cursory, even though one might logically expect it to be the heart of the opinion. The reason is that the Department of Health and Human Services has already, as you may recall, created an exemption to the contraceptive coverage mandate for non-profit religious corporations like churches, charities, Catholic hospitals, and so on.? Moreover, they did so in a way that guarantees employees of those non-profits exactly the same contraception coverage they’d enjoy without an exemption, and apparently at no additional cost.? As Alito writes:
The effect of the HHS-created accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero. Under that accommodation, these women would still be entitled to all FDA-approved contraceptives without cost sharing.
Well, this seems like a no-brainer.? Why would you force a religious institution (whether a church or a company that sells stuff) to violate its avowed religious convictions (even if they’re dumb convictions) if you could achieve exactly the same result without doing so, and at more or less the same cost?? No wonder Alito doesn’t spend much time here!? The trouble is, if the HHS exemption turns out not to scale well—if extending it to the “closely held” corporations that employ just over half of American workers ends up messing with incentives in a way that yields substantial additional costs and messes with the structure created by the Affordable Care Act in thorny and unpredictable ways, then Alito’s breezy treatment of the balancing question at the logical heart of the opinion starts to look much less adequate.? So let’s consider why that might be the case.
The solution HHS came up with for religious non-profits that object to covering contraception looks like an ingenious win-win compromise, basically an accounting trick that leaves employees with the same coverage while satisfying (many, though not all)? religious employers that they’re not contravening the tenets of their faith.? The employer buys its employees a health plan that excludes contraceptives, but then HHS requires the insurer to give those employees a separate plan that just pays for birth control.? This might seem like a bad deal for the insurers—why is it on them to buy something the employer won’t pay for?—but, at least according to HHS, it actually isn’t.? Pregnancy and maternity care are (apparently)? so very expensive that the cost of buying contraception for all those workers ends up being balanced or outweighed by the money the insurer saves from not having to cover the cost of more unintended pregnancies.? In other words, it would be in the insurer’s interest to offer contraception, for no higher premium, as part of any health plan that covered maternity expenses.? Under the HHS exemption rule, that’s arguably what’s still basically going on—but with some ledger shuffling to placate the religious employers who don’t want to be the ones paying for it on paper. Hey, if it makes them happy, why not?
That’s how it works for “fully insured” health plans, at any rate—plans where an employer’s only real role is buying its employees a benefit from an outside company.? The wrinkle is that roughly half of workers are getting their healthcare covered through “self-funded” plans, where the employer itself acts as the insurer for at least some types of health expenditures. Hobby Lobby, as it happens, is an employer that runs such a self-funded plan.
For those plans, the HHS exemption works slightly differently.? Generally there’s a “third-party administrator” managing the funds being pooled to cover employees’ claims for health expenditures, and who HHS makes responsible for ensuring birth control is covered:
The third party administrator must then provide or arrange separate payments for contraceptive services for the women in the health plan of the organization, at no cost to the women or to the organization. The costs of such payments can be offset by adjustments in Federally-facilitated Exchange user fees paid by a health insurance issuer with which the third party administration has an arrangement
The “adjustments” are effectively a backdoor government subsidy that offsets the cost of birth control for workers whose employers don’t want to include it in their self-funded plans.? If there are only so many religious nonprofits with self-funded plans, and their employees buy contraception at relatively low rates for the same religious reasons the employers don’t want to provide coverage, the cost to the government (in the form of lower? “user fee” revenue) ends up being small enough to absorb without much fuss—especially with the federal exchange filling in for all those states that haven’t gotten their own exchanges running yet.
But now what happens when an ordinary business with a self-funded plan can invoke the same exception, especially if their employees are more apt to avail themselves of the contraceptive benefit than, say, church employees?? The obvious effect is that the number of people whose birth control has to be covered via “fee adjustments” spikes significantly.? The less obvious effect is that shifting to a self-funded plan with an exemption starts looking like a much better deal for those for-profit companies.? All the benefits of lower pregnancy and maternity costs resulting from employees getting free birth control accrue to the company—but the cost of?buying the contraception is offloaded, effectively, on the government.
If that ends up entailing substantial savings—relative, say, to buying a “fully insured” plan whose premiums have to cover outlays for both contraception?and maternity? care—the company arguably has a fiduciary obligation to go that route.? The claimed religious exemption doesn’t even have to be pretextual: Just install an executive with the appropriate deeply-held religious convictions! ? Depending on the numbers, you may see enough companies going this route that the costs eventually exceed what “fee adjustments” can reasonably absorb.? This possibility doesn’t really factor into the Hobby Lobby opinion—Alito just says HHS hasn’t provided any estimates that would provide the Court with a basis for finding the cost of widening the exemption unreasonably high.
I’m not going to pretend to any kind of expertise in healthcare economics, so I won’t make an estimate either.? But this at least seems like a superficially plausible story about how extending the current non-profit exemption could, over time, shift non-trivial costs to the government.? It could conceivably even incentivize such cost-shifting by firms that, absent the backdoor government subsidy, would find it economically advantageous to cover contraception themselves (or buy fully-insured plans rather than self-funding) in order to reduce their maternity care outlays.
It’s important to note that his is not yet another wacky reductio hypothetical along the lines of “what if all the CEOs suddenly joined the Church of Unsafe Working Conditions??”? By and large, religious exceptions and accommodations work because they’re exceptions.? If everyone were a conscientious objector, maybe we’d suffer a catastrophic military defeat… but everyone isn’t, so it works out.? Balancing real felt burdens on people’s actual religious practice against imaginary scenarios involving made up religious beliefs that sound like transparent pretexts to evade the law is not a particularly fair test.? But if it’s plausible that in our very own non-hypothetical world, there are many people with sincere beliefs of this sort who?are in fact likely to invoke the exemption, that’s another story. Now we’re not dealing in dorm room “what ifs” about mechanically extending the court’s logic to some fanciful scenario, but the practical question of? what disruptive outcomes are actually probable.? That we might at least attempt to balance.
Whether this would ultimately change the outcome of the “balancing test” the Hobby Lobby majority engages in, it does at least seem like the sort of consideration that would?have to factor in to an adequate test.? A fair reply might still very well be: “Look, if providing contraception is such a compelling state interest, the state ought to be willing to provide it directly, and maybe correspondingly reduce the tax advantage associated with employer-provided healthcare, rather than offering an all-or-nothing tax benefit that effectively penalizes business owners for not compromising their convictions.” ? (That this seems politically implausible would be an understandable lament on policy grounds, but it’s not really a legal argument—amounting, as it does, to a prediction that Congress will not deem the interest so compelling after all.)? On the other hand, the Court might have concluded that the potential effect on costs and incentives involved would be substantial enough to exceed the degree of “accommodation” RFRA was meant to require.
Maybe we can say this much for the Hobby Lobby ruling either way: If this scenario doesn’t manifest, then the Court will indeed have spared religious business owners a painful choice without much effect on the benefits workers enjoy.? If it does, either Congress can try to craft its own solution, or the Court will? get another opportunity to run the RFRA “balancing test” again with the benefit of more information.
One of the frustrating things about the reactions to the Hobby Lobby ruling—mostly from progressives, if only because people naturally to respond in much greater detail to decisions they disagree with—is that there’s an interesting debate to be had about the case, but we’re mostly not having it. Most of the critiques I’ve seen of the ruling involve fervently advanced arguments that are simply not relevant to the decision, along with a smattering that are relevant but not very good.? This is not entirely the fault of the critics: Of the five “myths” about the Hobby Lobby case that Irin Carmon seeks to debunk over at MSNBC, only number 4 is really germane to the core logic of the ruling, but she’s responding to things various conservatives nevertheless keep asserting. ?? ?So, if only in the interest of pushing the public debate into a place I find more interesting and fruitful, I’d like to help the critics out and sketch what I think a better argument against the Hobby Lobby ruling would look like… in the next post.
But first, to lay some groundwork, it’s important to be clear on the basis of the ruling so we can sort out the irrelevant arguments and dispose of the weak ones. There are really three central elements on which the decision rests:
??? ?A “closely held” for-profit corporation like Hobby Lobby is a “person,” as that term is used in the Religious Freedom Restoration Act, whose “religious practice” can be burdened by government
??? ?The requirement that a business providing health coverage for employees must provide via that coverage no-copay access to 20 forms of contraception “significantly burdens” the company’s religious practice, and
??? ?Given the availability of “less restrictive means” of achieving the government’s aim of enabling widespread access to contraception, the government must accommodate Hobby Lobby by exempting the company from the mandate and pursuing those means.
The relevant-but-not-very-good arguments are mostly about the first two holdings, and consist to a depressing extent of derpy one-liners to the effect that corporations aren’t literally persons, can’t go to heaven, don’t get circumcised, and so on.? As Matt Yglesias explains at Vox, Supreme Court justices actually understand this well enough. But the legal fiction of corporate personhood is not some perverse metaphysical confusion invented for the purposes of the Citizens United decision; it’s a longstanding legal principle courts have long taken for granted as a means of protecting the rights of individuals acting collectively through a particular legal form.? The better and slightly more subtle version of the argument offered by Jacob Levy (and closer to that made by the dissenting justices) is really about the second prong: Even if corporations are “persons” under RFRA, the corporation as such doesn’t have religious “beliefs” or “practices” that can be burdened, in the same way that a corporation can engage in “speech” distinguishable from the speech of any individual member. Holding otherwise requires effectively “piercing the corporate veil” to equate its interests with those of a small number of owners—which is exactly what those owners?don’t want courts to do when (say) making liability judgments.
That’s a better argument, but decisive point here, I think, is the one the majority makes: There is no serious disagreement that non-profit corporations—like churches, charities, and hospitals—are “persons” with “practices” that can be burdened as those terms are used in RFRA. Once you make the routine assumption that “persons” in a statute includes corporate persons absent some clear signal to the contrary, as basically all the litigants and justices do with respect to non-profits, there’s just nothing in RFRA to support a distinction between corporate persons based on their tax status. Whatever it might mean for a church or a school as a legal entity (as opposed to the people who run it) to have a “religious practice,”? everyone’s taking as given that some do, and “not disbursing revenues as dividends” doesn’t seem like it can be the critical feature that makes this possible.? This isn’t a deep question of fundamental constitutional rights, but one of statutory construction: Congress clearly could have written a distinction based on tax status into the statute, but they didn’t, so the court assumes that “person” means what it means in every other statute that doesn’t explicitly limit that term to natural persons. Also, as a not-strictly-legal point, Milton Friedman’s incorrect view that profit is the only legitimate aim of a for-profit corporation is not one you usually see progressives embracing quite so vigorously. When a company declares a commitment to values of social justice or ecological sustainability, nobody complains that this is nonsense, and really it’s just the owners and executives who “care” about or “hold” these values in a literal sense. Or at any rate, nobody who’s at all sympathetic toward those values.
Then there are the irrelevant arguments, which are of varying quality.? Some focus on the scientific falsity of Hobby Lobby’s view that some types of covered birth control are abortifacents, which seems like the equivalent of quibbling with the evolutionary plausibility of the X-Men’s superpowers. It’s true, but it misses the point.? In general, religious views are scientifically a lot of nonsense, and allowing any kind of religious exemption or accommodation is going to entail deferring to personal objections that, by ordinary standards of rational empirical inquiry, are pure gibberish. There is no scientific reason to think that a consecrated host is literally transmuted into the body of Christ, or that the camera used to take a photo for a government ID will steal the subject’s elan vital, or that humans were created by a supernatural intelligence.? If the law accommodates people with these beliefs where feasible, it is not because any of them are remotely scientifically respectable, but because we try to avoid compelling people to directly violate their profound convictions any more than necessary, even when the convictions are stupid, and because we don’t really want government in the business of determining which are the stupid convictions.
Finally, there are arguments having to do with the importance of widespread access to contraception. The sillier ones equate an employer’s failure to directly supply that good with control over people’s bodies and sex lives, which is odd, because nobody thinks anything similar is true about the billions of people around the world who are also failing to buy coverage for specific Americans. The better ones go into all the reasons access to contraception is a great social good there are many reasons for government to promote, which I tend to agree with.
But at least for the purposes of its ruling in Hobby Lobby, the Court also agrees, assuming (though it does not hold) that facilitating access to contraception is a compelling state interest, potentially weighty enough to justify burdening religious practice.? And so, as I argued earlier this week, really the decision comes down to this assertion by Justice Alito:
The effect of the HHS-created accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero. Under that accommodation, these women would still be entitled to all FDA-approved contraceptives without cost sharing.
If Alito is right, and the Department of Health and Human Services can simply extend the exemption it already offered religious non-profits to companies like Hobby Lobby while guaranteeing the same contraceptive coverage for its employees, then you can’t oppose the exemption on the grounds that it restricts people’s ability to get healthcare or interferes with their sexual autonomy or anything like that.?? If Alito is right, all that’s really left is the idea that we should shit on stupid religious people as a purely symbolic gesture.? Which is all well and good for private individuals, but not a great argument for state compulsion.
If Alito is not right, on the other hand, things look very different.? Because having assumed that enabling access to birth control is a compelling state interest, the Court has to balance the coverage mandate’s burden on religious practice against the cost of achieving the state’s compelling aims by alternative, “less restrictive” means.? If, as Alito seems to assume, those costs are trivial (or even nonexistent), then the case is a no-brainer and the ruling correct.? But the ruling leans pretty heavily on that assumption.? If it could be shown to be wrong, then whether or not we think the ultimate result the Court reached is correct, we’d have a pretty good argument that Alito’s argument to that result is inadequate.? I’ll sketch what that better argument might look like in the next post.
A few years back, as you may recall, there was some debate in scientific circles about whether Pluto should be classified as a planet—one that prompted some public consternation (and ironic T-shirts) among members of the general public dismayed to be told that, contra what they’d learned in middle school, there were only eight planets in the solar system after all.
But the reclassification wasn’t really the result of new information we learned about Pluto. Rather, it turned out that there were rather a lot more Pluto-sized masses in the general vicinity of our sun than we’d previously believed.? And so, as routinely happens in the history of science, it was decided that the term “planet” needed to be given a rather more precise and rigorous definition than had previously been deployed.? Astronomers settled on three criteria: A planet was an object (a) in orbit around the sun, (b) massive enough to be shaped (approximately) into a sphere by its own gravity, which also (c) had “cleared the neighborhood” of its orbit, meaning it had either absorbed or flung away other objects of similar size. Objects like Pluto, which met criteria (a) and (b), but failed on criterion (c), were instead classified as “dwarf planets.”
As quite a few prominent astronomers proposed, the definition could have been more lax, classifying everything that met the first two conditions a “planet”—in which case Pluto would have remained in the club, along with several other bodies. Moreover, some ambiguities in the definition remain, meaning future distinctions and clarifications might be necessary. Now, a child might hear about this debate and ask whether the astronomers had gotten it right: Were we now sure Pluto wasn’t a planet, or could it turn out to be after all?? But an adult would understand there’s not really anything? to be “right” about here—no genuine fact of the matter apart from how the relevant experts agree to use language.
Once a sufficiently precise definition is agreed upon, of course, it is an empirical question when and whether it is satisfied: Scientists can discover a new object that does or does not meet the new definition, and their classifications can be objectively correct or incorrect, as far as the precision of the definition allows, depending on the accuracy of their measurements.
But it would be misleading to say science had “learned” or “discovered” that Pluto is not a planet.? They had reached a consensus—albeit a somewhat unstable one—not about the facts of the external world, but about how to use a particular term.? That consensus could be more or less useful for a variety of purposes, elegant or inelegant, but unlike (say) a consensus view about whether the Earth will warm more than 3 degrees Celsius over the next century, it could not in any meaningful sense be “correct” or “incorrect,” because it is not a consensus about anything external to itself.
Which brings us, in a roundabout way, to an exchange between Michael Brendan Dougherty, Philip Bump, and Ryan Cooper over the question of “when life begins” and whether we should care about this when debating the morality of abortion.? Dougherty sees Bump and Cooper as making two distinct arguments, neither of which he finds compelling: Bump is arguing that “when life begins” is something of a “philosophical question” and that “implantation” of the zygote is at least as valid an answer as “at conception.”? Cooper will happily allow that a zygote (and therefore a fetus) is a “human life” in biological terms, but denies that this should be equated with moral or legal personhood.? I typically prefer Cooper’s framing myself, since it seems less likely to get a discussion hung up on irrelevancies, but really these are the same point—or at any rate, closely related ones—seen from a different angle.
When does life begin? Or, to more precisely identify the real question at issue here—because, of course, “life” is really a process that extends throughout the reproductive process rather than some magical quiddity that materializes at a particular instant—when does a new living member of a particular species come into existence? Doherty thinks biology “doesn’t give us options,” and rattles off some reasons why “at conception” is supposed to clearly be the right answer:
After the fusion of sperm and egg, the resulting zygote has unique human DNA from which we can deduce the identity of its biological parents. It begins the process of cell division, and it has a metabolic action that will not end until it dies, whether that is in a few days because it never implants on the uterine wall, or years later in a gruesome fishing accident, or a century later in a hospital room filled with beloved grandchildren.
The first thing to note is that this is wrong for a reason Dougherty alludes to in the next paragraph without seeming to recognize why it’s significant.? Until gastrulation, the zygote does not necessarily have “unique” human DNA—nor, indeed, is “it” even a determinate number of “its”: It can implant and continue growing into a single adult human, or into identical twins, triplets, or n-tuplets.? So at the moment of conception, how many lives begin? Does one new human come into existence and then divide into triplets? Or should we say all three somehow come into existence simultaneously as a potentiality, prior to division? (Are possible triplets murdered if the cell fails to divide?)
The point of raising this little puzzle is less to elicit an answer than to make it obvious that any answer is, like the status of Pluto, a matter of making choices about language rather than discovering some important fact about the world. None of the list of properties Dougherty ascribes to the zygote require us to say: “This is when a new human organism comes into being.”? We could rattle off a different list of biological processes that correspond to the unfertilized ovum, or the beginning or end of “conception” (actually a process lasting some 20 hours), or implantation, or the beginning of brain activity, or viability and declare those the “obvious” demarcation point at which a new organism exists.? Having picked some set of criteria as the most useful line of demarcation, of course, it will be? a matter of empirical fact when those criteria are satisfied.
Science can’t “tell” us which are the “right” criteria, however; scientists can only pick a set of conventions they find it useful to agree upon so that everyone can use terms consistently. ?? No external facts about the world, for that matter, requires us to use the same umbrella term, “life,” to describe the processes of animals, plants, and eukaryotes alike—or to draw it narrowly so as to exclude viruses, crystalline growths, or self-replicating automata we might construct in the future.
As the bizarre taxonomy in the Celestial Emporium of Benevolent Knowledge imagined by Jorge Luis Borges reminds us, even our “scientific” terms do not somehow cleave the world along its preexisting seams.? We draw up schemes of classification that serve our particular purposes, but should not imagine that utility for one purpose somehow makes that schema true in some objective or transcendent way. ? We individuate species by the test of whether member organisms can interbreed, which turns out to be handy for generalizing about the trajectory of their evolution—”reproductive compatibility” turns out to be a very useful way to carve up the world—but to imagine that some further ontological shift happens at the moment of speciation is pure magical thinking—and, of course, for asexually reproducing organisms like bacteria, entirely different criteria must be employed. If our biological categories have any moral significance, it has to be because of (some of) the underlying properties we use to define that category are themselves significant (or highly correlated with morally significant properties), not merely because it suits us to group them under a particular label for independent, non-moral purposes.
Which brings us to Cooper’s point: Having stipulated some particular criteria for when we’re prepared to say “a distinct human (or animal) organism exists,” it may well be that “science tells us” those criteria are satisfied at some particular point.? But no interesting moral conclusions follow? from our taxonomic choice.? Those categories will, of course, correlate with properties we find morally significant—adult biological humans will routinely have properties that make it appropriate to respect an array of moral and political rights—but mistaking the correlation for the thing itself is just a biological form of cargo cult fetishism.? If, for instance, we gained the ability to resurrect biologically dead humans after days or weeks, only an astonishingly obtuse thinker would suggest that this biological category somehow resolved the question of when it was morally permissible to cremate a (resurrectable) corpse. It is no surprise that we naturally conflate biological humanity and moral personhood—in the overwhelming majority of contexts we encounter, they overlap—but laundering this fact about our linguistic habituation into a “common intuition” is a recipe for circularity and confusion when the point is precisely to determine where that overlap begins.
Like most of my friends, I think Arizona governor Jan Brewer was probably right to veto SB 1062, which as Reason‘s J.D. Tucille writes, was less a “blow against big government” than a “homophobic stunt” designed to signal official approval of anti-gay animus, while creating a special class of associational rights for people who justify that animus by reference to ancient myths rather than plain old secular discomfort.? Even worse was a similar proposal in Kansas, which not only singled out gay citizens as specially approved targets of discrimination, but licensed that discrimination when practiced by government employees acting in an official capacity, and forced businesses to “accommodate”? employees who demanded to pick and choose which customers they would deign to serve.
Unlike most of my friends, I do not find it self evident that the “liberty interest” invoked by religious bigots is some kind of absurd sham worthy of mention only in derisive scare quotes. And I find it a bit disturbing that many of them seem to assume that if any anti-discrimination laws protecting any class of Americans have ever been justified, the weight of that interest has effectively been reduced to zero, and may be ignored for all future purposes. Having decided it was OK to forbid motels from turning away African Americans in 1964, in other words, many seem to take it as already settled that there’s no possible objection to compelling a photographer to work a gay wedding—except, perhaps, the invalid one rooted in the view that the homophobe’s bigotry is somehow more justifiable than the racist’s. I’m perfectly open to the notion that it may be wise and justifiable to extent the protections of anti-discrimination law to groups not currently covered—but I also wish supporters of such reforms would acknowledge that there’s a genuine impingement on associational freedom involved in such extensions, and that no simple sweeping principle can obviate the need for a close examination of the tradeoffs in each case.
As I argued in Newsweek a few years back, the “purist” libertarian position that condemns all anti-discrimination laws, including the 1964 Civil Rights Act,? as a priori unjust violations of sacrosanct property rights is profoundly misguided and historically blinkered. We were not starting from Year Zero in a Lockean state of nature, but dealing with the aftermath of centuries of government-enforced slavery and segregation—which had not only hopelessly tainted property distributions but created deficits in economic and social capital transmitted across generations to the descendants of slaves. The legacy of state-supported white supremacism, combined with the very real threat of violence against businesses that wished to integrate, created a racist structure so pervasive that unregulated “private” discrimination would have and did effectively deprive black citizens of civic equality and a fair opportunity to participate in American public life.
We ultimately settled on rules barring race discrimination in employment, housing, and access to “public accommodations”—which, though it clearly restricted the associational freedom of some racist business owners within a limited domain, was nevertheless justifiable under the circumstances: The interest in restoring civic equality was so compelling that it trumped the interest in associational choice within that sphere. But we didn’t deny the existence of that interest—appalling as the racist’s exercise of it might be—and continue to recognize it in other domains. A racist can still invite only neighbors of certain races to dinner parties, or form exclusive private associations, or as a prospective employee choose to consider only job offers from firms run or staffed primarily by members of their own race.? Partly, of course, this is because regulations in these domains would be difficult or impossible to enforce—but partly it’s because the burden on associational freedom involved in requiring nondiscrimination in these realms would be unacceptably high.
Some of the considerations supporting our limited prohibition of racial discrimination apply to discrimination against gay Americans. But some don’t. Sexual orientation, unlike race, is not transmitted across generations, which means a gay person born in 1980 is not starting from a position of disadvantage that can be traced to a legacy of homophobic laws in the same way that a black person born in 1980 is likely to be disadvantaged by centuries of government-enforced racism. We don’t see the same profound and persistent socioeconomic disparities. Sexual orientation is also not generally obvious to casual observation in a commercial context, which as a practical matter makes exclusion more costly and labor intensive for the bigot. And while I’ve seen any number of claims that allowing private orientation discrimination would give rise to a new Jim Crow era, the fact is that such discrimination is already perfectly legal in most of the country, and it seems as though very few businesses are actually interested in pursuing such policies.
Rather, the actual cases we’ve been hearing about recently involve bigoted photographers or bakers—who run small businesses but are effectively acting as short-term employees—who balk at providing their services to gay couples who are planning weddings. (I take for granted that gay marriage should, of course, be legal everywhere.)? What’s the balance of burdens in these cases? The discrimination involved here doesn’t plausibly deny the gay couples effective civic equality: There are plenty of bakers and photographers who would be only too happy to take their money. Under the circumstances, the urge to either fine or compel the services of these misguided homophobes? comes across as having less to do with avoiding dire practical consequences for the denied couple than it does with symbolically punishing a few retrograde yokels for their reprehensible views. And much as I’d like for us all to pressure them to change those views—or at the very least shame them into changing their practices—if there turn out to be few enough of them that they’re not creating a systemic problem for gay citizens, it’s hard to see an interest sufficiently compelling to justify legal compulsion—especially in professions with an inherently expressive character, like photography. In short: Yes, these people are assholes, but that alone doesn’t tell us how to balance their interest in expressive association against competing interests at this particular point in our history.
In a sense, bigotry in the economic realm is a bit like pollution: Whether a prohibition is justifiable—and how stringent the limits should be—will depend on whether enough people are doing it?that you have an appreciable aggregate harm. We don’t just deem carbon emission an intrinsic wrong and categorically ban it—we recognize that industrial smokestacks are probably worth regulating fairly strictly, while banning fireplaces would limit individuals freedom to use their property more severely than can be justified by the public interest in avoiding the marginal ecological harm imposed, given levels of fireplace usage observed in the real world.
This is, of course, where it’s incumbent on me as a straight guy to check my privilege. (I checked; it’s still there.) Maybe I’m empirically wrong about the practical consequences of private discrimination—which it would be easy enough to be given that I’m not on the receiving end of this particular variety.? Zack Beauchamp argues that there is, in fact, good reason to expect systemic harm. If that’s the case, it might still be worth considering where the harm of exclusion is serious enough to outweigh the interest in expressive economic association. It seems plausible the balance might come out differently for, say, medical clinics and supermarkets than for wedding photographers. In other cases—like hiring—it might be that the right balance is struck by a transparency mandate, where the worst harms are inflicted on people who absorb all the opportunity costs of taking a particular job, only to belatedly discover that heterosexuality was an undisclosed job requirement.
My point here, in case it wasn’t already clear, isn’t really to argue that laws barring sexual orientation discrimination are either justified or unjustified. I? don’t have enough data to say.? The point is that treating private discrimination as either a categorical wrong committed by troglodytes with no liberty interests meriting consideration or an utterly inviolable right of conscience, divorced from either historical context or practical consequence, seems like a stupid way to approach the issue.? If there are still enough hardcore bigots to justify restricting their expressive association in the economic domain—or in subsets of that domain—then I hope their numbers soon dwindle to the point where those restrictions become unnecessary. But at some point, I would hope we can at least agree in principle, they become a sufficiently irrelevant minority that we are not entitled to inflict legal penalties strictly as a means of signalling our superior enlightenment and symbolic disapproval.