Yesterday Han highlighted the differences between two versions of constitutional originalism. On the one side, are those like Justice Clarence Thomas who contend that fidelity to the constitution requires “rolling back the welfare state, repealing regulations, and perhaps even putting an end to progressive taxation.” In contrast, Justice Antonin Scalia adapts a more pragmatic approach, arguing that “upending post-1937 case law and reversing settled principles would prove extremely disruptive, both in the courts and society at large.”
Scalia’s position is, in many
respects, intuitively appealing. Such a drastic shift in constitutional interpretation would no doubt be “disruptive” to institutions and the lives of citizens. But, “this faint-hearted originalism” is also problematic in that it introduces a subjectivity that his theory prides itself on avoiding.
By focusing on the original meaning of the constitution, originalists seek to prevent judges from basing their decision on personal political beliefs and values. For example, the question of whether the death penalty is unconstitutional for
minors depends solely on the common understanding of cruel unusual punishment at the time the constitution was ratified, not any personal feelings about capital punishment.
But, if Scalia admits that sometimes “settled principles” should be respected, than he has to make subjective choices about when originalism should be applied. Certainly rolling back the welfare state would be disruptive to a society, but so to would overturning Roe v. Wade. There is no objective criterion for deciding when past precedent should be respected and when it can be ignored.
Perhaps Scalia is right that it would be too costly to remain faithful to originalism in all cases, but such a concession also undermines part of what makes the doctrine of originalism appealing in the first place.
Image by Flickr user stephen.makser under a Creative Commons Attribution License
What to do when parents don’t want their children exposed to certain material?
Charles’cheap viagra//www.thepublicphilosopher.com/2010/09/28/the-loss-of-innocence-is-more-than-a-literary-trope/”> post yesterday raised some critical questions as to when “parents should have the power to ban school texts.” While there are obviously difficult cases, I think most people would balk at the idea of pulling Catcher in the Rye or The Adventures of Huckleberry Finn off of the shelves of school libraries. But, what about parents who don’t want the book removed from the library or classroom altogether, but instead simply object to their child having to read the work as part of a class assignment? How far should schools go to accommodate the wishes of the parents of individual students? Read more
The New York Times had an interesting online viagra
th”>article on the ethical implications of clinical trials for medications. In the article, two cousins were diagnosed with melanoma; one received a new drug (PLX4032) that had slowed the spread of the disease in other patients, while the other was not eligible for this treatment because of the need for a control group to test the long term effectiveness of the drug.
“I think we have to prove it,” said Dr. Paul B. Chapman, a medical oncologist at Memorial Sloan-Kettering Cancer Center who is leading the trial. “I think we have to show that we’re actually helping people in the long run.”
But critics of the trials argue that the new science behind the drugs has eclipsed the old rules — and ethics — of testing them. They say that in some cases, drugs under development, PLX4032 among them, may be so much more effective than their predecessors that putting half the potential beneficiaries into a control group, and delaying access to the drug to thousands of other patients, causes needless suffering.
The topic raises a whole host of ethical issues, such as whether this treatment plan violates the Kantian formula that people should be treated as ends in and of themselves and not as means to some other end. One possible solution is to have a more flexible system of clinical trials where researchers can shorten the length of the trials if it seems medication is especially effective in treating the disease, or if there is a strong medical consensus that long term risks are unlikely.
Image by Flickr user dmason used under a Creative Commons Attribution License
When can military leaders criticize constitutionally protected speech?cialis 20mg>
Last week General David Petraeus made news for speaking out against a Florida church’s plan to burn copies of the Koran. While many commended General Petraeus for his comments, a few others felt his tone was inappropriate. Over at the Democracy Arsenal, Michael Cohen worries that Petraeus may be discouraging other forms of free expression that are vital to the democratic process.
Now I would imagine that Petraeus is correct, but there is something deeply disquieting about having a four-star general characterize an expression of constitutionally protected free speech as a danger to American troops and US national security operations.
I sort of hate slippery slope arguments, but it seems to me that this is the very definition of a dangerous slippery slope.
For example, would people be comfortable if Petraeus characterized an anti-war march as a threat to the US mission in Afghanistan? Or what if Petraeus condemned a Congressional vote to cut funding for a weapons program as a threat to US soldiers in the field? Such behavior would almost certainly overstep not just the letter of civil-military relations, but certainly the spirit.
This past Friday Han criticized Ron Rosenbaum’s article, which suggested the United States should end drone attacks in Pakistan. In defense of the attacks, Han drew an analogy between bombing targets that don’t impose an immediate threat and preemptively attacking criminals who threaten your families safety.
Suppose a bunch of villains surround your house and lock your family inside. They plan to break in and kill you all the next day. At night, when they are asleep, you see a chance to kill them – are you morally allowed to do so? The obvious answer is that you are, even if they are currently not posing any threat (they are not even conscious). Read more
A while ago, I investigated how much CEO's deserve to make. My conclusion, we needed better tools for quantifying the worth of executives to a company.
This presents a further challenge, that of determining the value of the executive to the company. Supporters of current executive salaries would argue that these people are the most important figures in gigantic corporations, and that their salaries reflect their contribution. Given that the ratio of a CEO salary to the average worker in the company is increasing so sharply, this would mean that the relative value of company executives has been rising exponentially.
Debates over executive compensation have ignored these trends, and commentators have failed to seriously investigate metrics that could actually measure the value of a CEO to a company.
Unfortunately, that’s the only way to settle this contentious debate.
Are these sort of criticisms appropriate?
Glenn Beck’s Restoring Honor rally has come and gone, but the conservative television host is continuing to make headlines this week. On Sunday, he strongly critiqued President Obama’s religious beliefs.
Beck claimed that Obama “is a guy who understands the world through liberation theology, which is oppressor-and-victim.”
“People aren't recognizing his version of Christianity,” Beck added.
Is Beck’s criticism of Obama a valid critique of the President’s philosophy or an inappropriate attack on a matter of personal faith? Read more
Douthat clarifies his argument
In his New York Times blog, Ross Douthat wrestles with one of the most persuasive critiques of his recent article against gay marriage; the notion that there is no reason to view heterosexual relationships as exceptional or “distinctive” in a way that merits them being prioritized over homosexual relationships.
In responding Douthat argues that:
The interplay of fertility, reproductive impulses and gender differences in heterosexual relationships is, for want of a better word, “thick.” All straight relationships are intimately affected by this interplay in ways that gay relationships are not.
In today’s New York Times Ross Douthat dismisses many of the traditional arguments against gay marriage, but concludes by stating that heterosexual marriage is unique in an important respect.
This ideal holds up the commitment to lifelong fidelity and support by two sexually different human beings — a commitment that involves the mutual surrender, arguably, of their reproductive self-interest — as a uniquely admirable kind of relationship. It holds up the domestic life that can be created only by such unions, in which children grow up
in intimate contact wit
h both of their biological parents, as a uniquely admirable approach to child-rearing. And recognizing the difficulty of achieving these goals, it surrounds wedlock with a distinctive set of rituals, sanctions and taboos.
Is this “organic connection between human generations” so essential to the definition of marriage that allowing gay and lesbians to marry will undermine the essence of the institution? The other question is, what about heterosexual couples who cannot have children or would rather adopt? On what grounds do they have more of a right to marriage than a gay couple?
Image used under a Creative Commons attribution license from Flickr user Steve Polyak
Clive Crook of The Atlantic has an interesting take on WikiLeak’s handling of the documents on the Afghanistan war. In the piece, Crook draws a parallel between WikiLeaks and the Rolling Stone article on Stanley McChrystal.
A few weeks ago the McChrystal scandal was in the news. I asked a few journalist friends about it. “Suppose you had the story that Hastings had. But also suppose that you thought McChrystal was a great general, that the war was worth fighting, and he would have to resign if you reported what his team had said. Wouldn’t you feel some qualms about writing the story?” Most of my friends said that they might, but that good journalists suppress such thoughts because it was not their job to worry about it. Yes, I thought. So whose job is it, then?
I’m sympathetic to Crook here. The consequences of releasing this sort of information has to be a consideration for any reporter. On the other hand, if a reporter’s choice of stories is framed by her view that the “war is worth fighting” we could end up with a very subjective perception of the conflict.
Photo by Flickr user The U.S. Army used under a Creative Commons Attribution license.