Gay marriage

I think a lot of the "homosexuality" we encounter in Classical studies was in fact bisexuality. These people had a socially approved interest in males (often much younger males too... I don't know how enthusiastic you are about importing that more) but were also able to maintain stable heterosexual interest in their wives whom they reproduced and raised children with (with the help of slaves, of course). But we are here talking about a category of people who are not going to be able to participate fully in "respectable" social life unless they are granted the "right" to call themselves married. These people in *our* society want exclusive homosexual relationships in which they will raise children and form families of their own, and they are asking for the same level of recognition for these as for conventional families. If the point of endorsing marriage and family is to improve the welfare of children, then I second Lymis' comment earlier: if the families will exist anyway, how is it better for society to leave them excluded from the respectable category of marriage?
Or don't you agree that individuals have a right to agree between them how and by whom offspring will be raised? I favor the government staying out of the determination of the structure of families for "Hayekian" reasons: the government does not and cannot know what is best for particular people within society. Social forms must develop freely and spontanaeously. The children themselves don't enter these arrangements voluntarily, of course, but then they never do. And they grow up later on and help determine the next generation of social structures. So gay families will only survive if they should survive - I don't think the State has the means or the right to decide this in advance.

Good solution, actually.

Reads fair. In practive, the concept, I think, will prove to need loads of tweaking. What if a couple, both unemployed (say he is a recently made redundant stockbroker and she a career homemaker), made quadruplets. Will the amount of subsidy be determined per head for stay-home providers and babies?

It is so difficult to make public policy decisions even on a theoretical level.

Ah, but it's easy on the theatrical level.

Right on! Love your word theatrical.

Exceptions don't make rules. But they do provide a test for proposed rules. If the rule cannot cover the exceptions, it either needs to be revised to provide for the exeptions or junked. In this case, either the "marriages are only about reproduction" rule needs to be modified to cover marriages that nobody is arguing are not marriages (like the excample given), or it tossed out as not a valid rule.
I grant that writing a rule which both covers marriages which have nothing to do with reproduction and still excludes same-sex marriages may be a challenge. But them's the breaks. If you want to just say "most marriages are about children," no argument here. But that begs the question of why same-sex marraiges are invalid.

As H.L.A Hart observed, the law operates in "the core and the penumbra" meanings. Depending on what the purpose of marriage is (I argued it is not about reproduction - as you suggest - but rather optimal child rearing* - this allows people who want to adopt to do so), SSM would be so far on the penumbra it would be meaningless. Just looking at the gender details of the isolated example you gave allows me to, prima facie, conclude (1) grandparents serve a practical role in optimal child rearing (be it telling the kids about their family history, taking care of themselves, showing loving embrace, or providing a model for a future marriage and all its benefits); and (2) it is perfectly within the the "core" meaning.

To change the rules - which you advocate to accommodate this extreme outlier - would involve immense state resources better spent in other areas. For example, to determine whether grandparents do achieve this a priori ideal - thanks to being old and in their twilight years, little bit hair there etc - then the state would need to spend time with them, I would need to inspect them, ask them questions, probe them. Instead, we give them the benefit of the doubt. Same with sterile couples: we would need to do expensive clinical tests whether the couple is fertile, having staff look into their age, details and probe their affairs (or it might be the case, they do end up having children despite being told by the doctors they can't - which happens!). This also raises questions of invasion of privacy and so on. This is why the rule is fine just as it is.

Furthermore, as observed in 26 judgements across this country, and studies I cited below, SSM does not move toward the "optimal" ideal - at least not at this point in time largely due to lifestyle choices. It therefore provides a perverse incentive - either by having people exit existing heterosexual marriages (it is debatable to what extent nature plays in determination of same-sex attraction) - or alternatively and more probably, allocates resources which are far from "optimal". The burden is not to prove the status quo is perfect. It's not. The burden is to prove that it would be worse over the long-run and given available data.

That said, I am more than happy to reconsider my view once long-term data (i.e. over 2 decades) comes in, with reference to (1) suicide rates of SSM coupled children; (2) evidence of larger degrees of fidelity among SSM (and lower rate of diseases), especially when married, (3) lifestyle evidence; (4) the access and psychological impact of any where children do not have access to the their biological partner; (5) any other unintended consequences.

Which explains why the initiative and referendum are a better form of judicial review than judicial review itself (remember judicial review was designed to delay change, to limit any advances, rather than to make change). Quick and Garran observed:

Referendums are there…not to prevent or indefinitely resist change…but in order to prevent change being made in haste or by stealth, to encourage public discussion and to delay change until there is strong evidence that it is desirable, irresistible and inevitable

You need all three caveats and not just one.

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* By "optimal" we mean (1) lower likelihood of domestic violence; and (2)drug use or disease, partly, though not exclusively, owing to higher rates of "bilateral loyalty"/fidelity.

To point 3) not really. Simply get Government out of the marriage business and leave the definition up to religion; some religons dont object to same sex unions.
Marriage has always had wider meaning than reproduction, it is a social alliance between families, kin groups or monarchies. The rather deathless construction of marriage had a lot to do with primagency and the fetishisation of sexual continence within the ranks of a particular monastic order.
If we're really going to cling to the idea of marriage as a utilitarian construct, then please by all means test all infants at birth for paternity, and declare the mother and father married. If there are no dependent children, there is no marriage. If somebody's been cheating, then simply convict the parties for polygamy and be done with it.

Equal treatment under the law applies only to *substantive* matters, in my view - not mere issues of semantics. Semantics are powerful shapers of opinion, of course - but that's because they are decided upon by the natural linguistic use of the community, and the State has no role in that. The state should not be trying to influence the development of a community's language use in order to side with a minority against a minority. Here the majority is not *aggressing* against the minority - it is simply refusing to admit them to a category which they themselves have constructed, which unfortunately they have a right to.

Perhaps, but if so, the question is not whether children are best raised by straight couples or by gay couples, but whether the children that gay couples are going to be raising either way are best raised in an environment where their parents are married or in an environment where their parents are denied marriage by law.

And even if you use the construction you are trying to use, why limit it to gay couples, and why apply it to all gay couples?

Because for it to make sense, you would have to be declaring that the very best possible gay couple under the most ideal circumstances is worse for children than the very worst straight couple that is still allowed to raise children.

Even if gay couples are not the very best parents for kids (a claim that is NOT borne out by actual studies), you'd have a hard time claiming that they are the worst possible parents.

Who else are you going to deny marriage to? And what other kids are you going to further disadvantage by claiming that their parents aren't the best and therefore don't deserve to be married?

It is not born out by actual studies because you haven't cited any as it is a new phenomenon and below I have cited which shows the lifestyle, on average, is more damaging compared to the heterosexual lifestyle. I am happy to cite the entire literature if need be.

And who else am I denying it to? No one - I haven't read clinical papers to find, generally a median rule, other more damaging lifestyle choices - be it on drug use, disease contraction, domestic violence etc.

"... the lifestyle, on average, is more damaging compared to the heterosexual lifestyle."

That doesn't seem to be the consensus view.
http://en.wikipedia.org/wiki/LGBT_parenting
http://www.apa.org/pi/lgbt/resources/parenting.aspx

"No one - I haven't read clinical papers to find, generally a median rule, other more damaging lifestyle choices - be it on drug use, disease contraction, domestic violence etc."

Not sure what you meant by that, but are you suggesting that we prevent all sorts of "unfit" people from having children - the drug addicted, the retarded, the handicapped, the ill, the constitutionally violent? Surely this is a reductio ad absurdum.

Wikipedia is not a "consensus" view. What I cited were medical journals on data available which compare the two lifestyles in areas of (1) domestic abuse; (2) drug use and (3) disease transmission rates. You did not challenge these papers, or their findings, which are backed up across jurisdictions.

The problem with your "parenting" argument is that you are right, but for all the wrong reasons: the consensus view is that there is no consensus given the lack of data. We can only use the above data - which surveys gay couples in the last 30 years (often reinforcing rather than breaking stereotypes) - to find premises and their possible implications. Any recent study would be complicated by:

(1) if lesbians often divorce their husbands after the children are already all grown up and left school;

(2) the most long-term data would be from the Netherlands, where the expansion of reproductive rights was started a few years after marriage was enacted in 2001.

The dissent in Goodridge puts the position thusly:

Conspicuously absent from the court’s opinion today is any acknowledgment that the attempts at scientific study of the ramifications of raising children in same-sex couple households are themselves in their infancy and have so far produced inconclusive and conflicting results ...[S]tudies to date reveal that there are still some observable differences between children raised by opposite-sex couples and children raised by same-sex couples [suicide rates, college entrance rates]...Interpretation of the data gathered by those studies then becomes clouded by the personal and political beliefs of the investigators, both as to whether the differences identified are positive or negative, and as to the untested explanations of what might account for those differences. (This is hardly the first time in history that the ostensible steel of the scientific method has melted and buckled under the intense heat of political and religious passions.) Even in the absence of bias or political agenda behind the various studies of children raised by same-sex couples, the most neutral and strict application of scientific principles to this field would be constrained by the limited period of observation that has been available. Gay and lesbian couples living together openly, and official recognition of them as their children’s sole parents, comprise a very recent phenomenon, and the recency of that phenomenon has not yet permitted any study of how those children fare as adults and at best minimal study of how they fare during their adolescent years. The Legislature can rationally view the state of the scientific evidence as unsettled on the critical question it now faces: are families headed by same-sex parents equally successful in rearing children from infancy to adulthood as families headed by parents of opposite sexes? The Legislature is not required to share that belief but may...wish to see the proof before making a fundamental alteration to [the marriage] institution

So much for that “consensus” view (and FYI - I am of the "wait and see" variety).

Furthermore, as a general rule, the median or average heterosexual couple as less likely to be "drug addicted" etc - and indeed the way we deal with all these other shortcomings is incentives such as tax subsidies, healthy eating in schools and the like (some of these issues you raised are not directly due to lifestyle choices - such as some handicaps or physical accidents).

Now, as I said, my burden is not to prove heterosexual marriage is perfect. My burden is simply to prove, as a general rule on available data of lifestyle impacts of one's sexuality, the status quo is closer to the optimal ideal than anything else. It is indeed absurd that we should be deviating from the "optimal range", so to speak and trying to make a triangle a square: http://www.law.harvard.edu/students/orgs/jlpp/Vol29_No3_Allen.pdf

As Ronald Coase observed, liberty does not operate asymmetrically - every action imposes an external cost on someone else. It is not whether I agree, it is which couplet - so liberty for whom. Liberty is a nice word, but tell us very little in drawing nitty gritty first order decision making.

I've already bored Stephen with this, but I have some concerns about Coase's symmetry. I haven't read him in the original but based on what Stephen has posted, his examples seem always to be proximate. A dentist next door to a jazz club or a farmer next door to a rancher.

I want to take for an example an old friend of mine who is gay and has wanted to marry since I met him more than 25 years ago. If he ever gets the chance to marry that will mean a lot to him. Now, I can imagine a symmetry that says he gets a lot of personal meaning out of that ceremony, but there is a tiny amount of harm done to millions of people who don't know my friend and don't want him to marry and, aggregated, millions of tiny harms equal exactly his personal benefit, so maybe there is symmetry.

But I also think the people who don't know him won't even be aware of the tiny damage they've suffered while he will feel whole. And I'll be glad for him. So I find Coasian symmetry compelling in fairly limited cases.

Dear Doug,

Firstly, I don’t know what your friend does behind closed doors, what he gets up to in his spare time and what his hobbies are. But we cannot conclude that if one person is ideal (the example of your friend), then the whole group is too. Now most of the people that are getting married tend to be men, not women – at least in Europe. As a general rule, gay relationships – as opposed to heterosexual relationships - are more likely to experience anal cancer (certainly, if he is a bottom)[1], syllphis[2], domestic violence[3], drug abuse and psychological disorders[5] (even in very liberal countries like the Netherlands) and the like [6]. But apparently, these “millions of tiny little harms [really externalities]” when aggregated outweigh the transient, metaphysical non-sense which your friend desires. Indeed, they are not "tiny" harms, they are material and last a lifetime.

Secondly, why not create your own institutions, your own BETTER lifestyles by a symbolic embrace and recognition of diversity and difference rather than making a square look like a triangle? If what makes him happy is a SSM, then this is just smacks of this pathetic craving of acceptance that “we need others to accept us because we are do mundane, boring and vain ourselves” - that just proves how utterly shallow this man is to put his bodily interests before everything else.

Thirdly, what about the custody battles we are ALREADY seeing with lesbians taking children away from their biological fathers? “Little harm” by what self-evident, universal criteria? Btw, this is a classic example of a Coasian externality. Other scenarios mooted include the non-biological parent in a relationship taking custody away from the child’s biological partner, simply to spite them, often by invoking their “relationship rights”. In a heterosexual relationship chances are the other person seeking custody is the biological father. That’s pretty approximate to me buddy.

So to repeat: you very well could be right. But let the data come it and I am more than happy to revise my preferences. Indeed, in a world free from violence, disease, famine or lawsuits, I might be persuaded indeed.

Ps If you are bored with it, then don’t reply.

REFERENCES (Partial review of studies)
---------------------------
[1] http://www.ncbi.nlm.nih.gov/sites/entrez?cmd=Retrieve&db=PubMed&dopt=Abs...
[2] http://www.bmj.com//content/325/7356/153.1?variant=full-text http://americansfortruth.com/issues/health-science/physical-health/page/2/ (studies cited therein)
[3] http://www.ncbi.nlm.nih.gov/sites/entrez?cmd=Retrieve&db=PubMed&dopt=Abs... ("married men who are not separated are at least 25 times less apt to be domestically attacked than a homosexual male in an 'on-going relationship.' Even if we include all married and separated husbands, the risk of domestic violence in a male-male homosexual relationship is still at least 18 times greater”); http://www.springerlink.com/content/r130ql0471892435/ (83% of homosexuals report they have been emotionally abused by homosexual partners); Gwat Yong Lie and Sabrina Gentlewarrier, Intimate Violence in Lesbian Relationships: Discussion of Survey Findings and Practice Implications, p. 46, Journal of Social Service Research 15 (1991) and Lettie L. Lockhart et al., "Letting out the Secret:Violence in Lesbian Relationships," Journal of Interpersonal Violence 9 (1994)pp. 469-492 (high violence among lesbians)
[4] http://www.narth.com/docs/methuse.html
[5] http://www.reuters.com/article/2010/09/23/us-aids-usa-idUSTRE68M3H220100923
http://www.ncbi.nlm.nih.gov/sites/entrez?cmd=Retrieve&db=PubMed&dopt=Abs... http://www.springerlink.com/content/jx13231641717w48/ http://www.annals.org/content/148/4/249.full
http://archpedi.ama-assn.org/cgi/content/abstract/149/5/521

I appreciate the answer, but do you see how there's a difference between same-sex marriage and terminating parental rights? Incidentally, in every state I'm aware of it's impossible to terminate parental rights without a finding of neglect or abuse.

Also, my friend may not be ideal or he might be but that isn't really the point. If I want to get married nobody's going to test my perfection. Why should his impunity matter to anyone but the theoretical oneday spouse?

I do think you're on better footing that it's a shame if this change comes via judges.

Doug,

No I'm not aware of the difference between terminating parental rights and SSM. Why? Because marriage comes with it a "bundle of rights" (see DOMA and the thousands of tax exemptions, duties and child-rearing responsibilities cited there in as well as those in U.S. case law[1]). The issue of parental rights now has to be modified for the situations I had described above (e.g. how to deal with two lesbians who divorce and to accommodate the rights of the biological father; who has the custody; what test or criteria; does biology have any role in custody?). Usually, this was worked out on the presumption of parentage i.e.

The impunity matters as it creates perverse and superfluous incentives that do not match the life cycle of homosexuals[2]. We work with rules, and those rules should come as closer as to "optimal" ideal (freedom from violence, better health, bilateral loyalty and so forth).

[1] http://heinonline.org/HOL/Page?handle=hein.journals/hjlpp31&div=20&g_sent=1

[2] http://www.law.harvard.edu/students/orgs/jlpp/Vol29_No3_Allen.pdf

Doug I refer you to my original discussion of Coasian Symmetry here. And in particular this point:

When libertarians talk about liberties [or “rights” in this case], they actually engage in a rhetorical sleight-of-hand. The trick is:

a) to pretend that certain liberties exist "asymmetrically" (by ignoring corresponding loss of liberty);

b) to give certain allocations emotive labels such "Freedom", "Liberty" or “Right to xyz”;

c) to choose examples where the liberty is concentrated on an individual or small group, and the symmetrical denial of liberty is indirect, or spread over a large group, or both, so it is easy to overlook its existence; and

d) to carefully choose examples likely to meet with the approval of the target audience - so that they appear at first sight to be self-evidently "correct".

The moment any attempt is made to apply apparently self-evident “liberties” in a practical context, it collapses – must always collapse - into an assertion of individual preferences.

And it almost always collapses into a simple assertion on the part of interested actors that their own preferences ought to prevail. Why should they prevail? Because they have dressed up those preferences in fancy language?

There is in fact no self-evident principle by which the individual preferences of people skilled in rhetorical devices ought to prevail over those of other people. Their individual preferences remain just that: individual preferences, dressed up in rhetoric.

You’ll notice that your recent reply:

a) uses precisely this rhetorical trick. How does one weigh up recognising the putative right of one person against the denial of the symmetrical putative rights of many other people. Perhaps if we had a hedonometer we could make the measurements and do the calculations, but no such instrument has ever been devised; and

b) as predicted, your conclusion is based entirely on an assertion that your own preferences ought to prevail.

. . . . . . . . (continued)

. . . . . . continued

As I have tried to make clear many times, I don’t begrudge you your political preferences. And it would be presumptuous of you to assume that I don’t agree with them.

But political preferences are not “rights”. If there was an objective “right” to same-sex marriage, why has it not revealed itself until this moment in history? Why did the judicial oligarchs – for example – uphold a ban on sodomy in Bowers v Hardwick (1986)??

I am not so solipsistically narrow-minded as to presume that my individual political preferences are objective truths.

I can imagine other people holding different political preferences, and I know for sure that the Almighty has granted me no Monopoly on Wisdom to judge which are “right” and which are “wrong”.

For example (and again do not presume that I hold these beliefs) I can imagine:

a) people who believe that homosexuals who marry will burn in hell, and who are trying to save them from eternal damnation; or

b) people who have a personal physical disgust of public homosexuality and are seeking to minimise the pain they suffer by seeing it; or

c) people who prefer that same-sex couples have all the same legal rights and obligations as opposite sex couples, but for the sake of tradition prefer to see the empty word ‘marriage’ reserved for its traditional use; or

d) people who prefer that the state have no involvement in marriage at all, and oppose state-sanctioned same-sex marriage in the same way that they oppose state-sanctioned opposite-sex marriage; or

e) people who prefer that the state not discriminate between two-party marriages and multi-party marriages, and who oppose same-sex marriage as a negotiating tool to have state-sanctioned polygamy recognised; or

f) people who prefer that same-sex marriage be promoted but only if there are to be uniform laws across all states, and oppose any one state going it alone; or

g) people who (looking at the solid support in the opinion polls) prefer that same-sex marriage be approved in a new referendum because that outcome would be better for the gay community itself; or

h) people who prefer that the People not prohibit same-sex marriage through a direct vote, but reason that to prohibit direct voting on that issue requires a constitutional system that can override direct voting on all issues, and – on balance – prefer direct voting as the lesser of two evils*; or

- and so on, and so on, and so on.

Who am I to tell such people that they are “wrong” and I am “right”?

The only other conclusion we might reach is that the people who use the language of “rights” are not solipsistically narrow-minded at all. The only other conclusion is that they are fully aware that their arguments are fatuous rhetoric but they wilfully insult our intelligence by using it anyway.

As I have said before, hold whatever political preferences you wish, and do not presume that I don’t agree with them . . . . . but please, please, please do not insult my intelligence with gobbledegook language about rights.

- - - - - - -

* On point (h) above, it is amusing to read The Economist’s bizarre rationalisation:

The Economist prefers that these things be settled by legislatures . . . . [b]ut sometimes civil rights . . . are not respected by democratic majorities, and courts step in.

It’s rather like saying to someone: “I would prefer it if you followed my orders voluntarily . . . but if you don’t I’ll break your arm.”

Stephen,

a) Yeah, you bet. I think a person making a choice that will primarily affect his or her self ought not have to subject that choice to popular referendum among strangers. That's not a rhetorical trick. Call it a preference. As it happens, my exclusive preference is to date women outside of matrimony so same-sex-marriage is the opposite of my preference and I think it should prevail.

b) No it isn't. I never said and don't think that in a political system my preference ought to prevail over the majority. My preference, which I've told you umpteen times I'm happy to submit to whatever aggregatedly preferred preference-aggregation device my neighbors accumulate a preference for. I might be over-ruled (although I don't expect to live that long for a Morrisian process to conclude) and I'm happy to respect that aggregated preference. But my preference, for aggregation purposes, is that a preference aggregation system be established so that certain categories of choice be left to individuals for their own preferences and that someone who needn't be called judges be empaneled by some process to vacate laws that infringe on those categories.

c) "Who am I to tell such people that they are 'wrong' and I am 'right'?" Beats me but you sure correct the hell out of us and at length.

Would you define a preference as something that ought not to prevail?

Stephen Morris,

Help me out with this:

You are saying all preferences are equal(using the example of your list (a) through (h), and so on above. None is good or bad, right or wrong.

Did I get that right?

Is that what you are saying?

Taken to its logical extreme, will your thinking ever lead you to the conclusion that a preference that says Thou Shalt Not Kill is not a priori a 'better' preference than Go ahead kill anyone any time for any reason.
I agree with your analysis up to the point of the 9th Circuit's most recent decision on Prop 8. But I have difficulty extending the same line of thinking on all "preferences".
Also, is your postion on 'preference' not itself a 'preference'?
You don't have to answer if you regard this a dumb question.
I am by no means challenging. I ask a genuine question. It is one that I have had for a long time. Bertrand Russell's observation always comes back to haunt me whenever I find myself in this intellectual quandary. I don't have time to dig up the original quote. He said something to the effect there will always be an un-untieable knot on the way of a brain trying to figure out how it works.

. . . . my preference, for aggregation purposes, is that a preference aggregation system be established so that certain categories of choice be left to individuals for their own preferences and that someone who needn't be called judges be empaneled by some process to vacate laws that infringe on those categories.

As discussed yesterday, setting “categories” is rather more difficult than it at first appears.

The United States Bill of Rights was supposed to do precisely that . . . and it has resulted in centuries of litigation over the precise extent of those categories:

a) when the boundaries are clear-cut it is because they are widely accepted amongst the community . . . but when they are widely accepted amongst the community why is there a need for judges to overrule? but

b) when the boundaries are not widely accepted amongst the community it is because they are not clear-cut . . . . but when they are not clear-cut, why should the political preferences of elite judges prevail?

Moreover, the boundaries are constantly changing. As noted before, if the boundaries were fixed why did the judicial oligarchs uphold a ban on sodomy in Bowers v Hardwick in 1986?

In this current debate we have seen heartfelt opposition to same-sex marriage from some commenters. Can we simply declare those people to be “wrong”? Have they always been “wrong”? Were they “wrong” in 1986? If not, when did they start being “wrong”?

The idea of setting objective boundaries is a conceit. It sounds plausible until one starts to think about it carefully, Then it collapses – and will always collapse – into illogical gobbledegook.

This is at root a debate between those who recognise that conceit and those who do not (or who insult out intelligence by pretending not to).

c) "Who am I to tell such people that they are 'wrong' and I am 'right'?" Beats me but you sure correct the hell out of us and at length.

It may be observed that I have not presumed to correct anyone’s preferences.

I have merely been pointing out the logical futility of trying to prove that one’s own political preferences (or the political preferences of some nominees, such as judges) are somehow “superior” to those of other people.

“Equality” is a relationship that is defined for numbers, vectors and various other groups, but not for preferences.

As for “good”, “bad” and “right”, again these are all subjective assessments. I have my own personal conceptions of what constitutes “good”, “bad” and “right”, but – as explained to Doug earlier – the Almighty has granted me no Monopoly on Wisdom in the matter.

This is a very old debate. Let’s see what John Locke had to say on the topic:

“There is almost no vice, no infringement of natural law, no moral wrong, which anyone who consults the history of the world and observes the affairs of men will not readily perceive to have been not only privately committed somewhere on earth, but also approved by public authority and custom. Nor has there been anything so shameful in its nature that it has not been either sanctified somewhere by religion, or put in the place of virtue and abundantly rewarded with praise.”

If what is regarded as morally “right” and “wrong” has changed so radically in the past, why would we presume that our current conceptions of moral right and wrong are perfect? And a fortiori why would we presume that our personal conceptions of moral right and wrong are perfect when there are people here and now who are expressing the opposite views.

As I mentioned to Doug earlier, in this current debate we have seen heartfelt opposition to same-sex marriage from some commenters. Even if we do not personally agree with them, by what principle can we simply declare them to be “wrong”? Echoing Locke, have they always been “wrong”? Were they “wrong” in 1986 (when the Bowers case was decided)? If not, when did they start being “wrong”?

Now, regarding the injunction “Thou Shalt Not Kill”, it may appear self-evidently correct in cases where there is widespread community agreement . . . . but in those cases there is no need for judges to overrule the community.

It is precisely when there is not widespread agreement that dispute arises, and when there is dispute the question arises “Why should the political preferences of elite judges overrule those of other people?”

Because “Thou Shalt Not Kill” appears to be so self-evidently correct, let us spend some little time considering cases where it not so self-evident:

a) does it apply to self-defence?

b) what constitutes self defence? Given the recent controversies in Britain over the shooting of house-breakers, is defence of property to be considered self-defence?

c) does it apply to capital punishment? If so, when in history did it begin to apply to capital punishment?

d) does it require the disbanding of the country’s military forces? If they are not to be permitted to kill, then why have them?

e) does it apply to “unborn” people? Many people – those who believe that life begins at conception - would argue that the US Supreme Court actually sanctioned the “right to kill” in its Roe v Wade decision;

f) does it apply to euthanasia? If so, under what circumstances does it begin to apply?

g) does it apply to animals? What about “intelligent” animals such as whales?

h) does it apply to acts of omission as well as acts of commission? For example, does “Thou Shalt Not Kill” impose an obligation for the citizens of wealthy countries to support famine relief - or other measures to reduce mortality – until such time as the mortality rate world-wide has been equalised;

i) likewise, does it require endless expenditure on health-and-safety or on road words until such time as death rates have been reduced to zero.

Immediately we see that what was supposed to be a simple problem of setting boundaries is simple only as long as everyone is in agreement where the boundaries lie. And when they are not in agreement, by what principle should the preferences of elite judges prevail?

Also, is your postion on 'preference' not itself a 'preference'?

This has been discussed previously (for example, here).

The answer is that it is indeed a preference. It is a preference for logical analysis of problems rather than slinging rhetorical slogans.

Now, it might be argued that these issues ought not to be determined logically. After all, that in itself would be an is-ought fallacy. Individuals might argue “To hell with logic! To hell with other people! I just want my own preferences to prevail.” They may adapt the famous expression sometimes attributed to Hermann Goring and declare: “Every time I hear the word ‘logic’ I reach for my revolver.”

But to eschew logical analysis raises a couple of problems:

a) how is there to be any useful debate on the topic if we do not proceed logically? and

b) if our opponents eschew logic, why do they feel the need to present pseudo-logical arguments to support their case?

I forgot to mention that I know a Vegan who believes that "Thou Shalt Not Kill" does apply to animals.

Apart from being vegetarian, she doesn't wear leather shoes or any animal materials. She won't even eat leaven bread because the baking kills the yeast.

As far as she is concerned the rest of us are all murdering bastards.

We have no disagreement on use of logic. I do not eschew logic in a debate on issues. That would be pointless.

So you agree your position on preference is itself a preference. You also said the sum and substance of that preference is for issues to be logically analyzed rather than muddied by slogans and rhetoric.

I’d like to restate my original question: How do we settle competing preferences? Who decides which preference prevails?

If I understood you correctly, your answer to that question was this: Where there is already widespread community agreement [on one of the preferences], then the preference agreed on would be the one to prevail; no judges need to be brought in to settle anything, least of all overrule the community. Where there isn’t widespread community agreement on any of the preferences, and therefore disputes arise, you again do not want judges to be brought in [to settle the disputes] . You do not because of this concern: Why should the political preferences of elite judges overrule those of other people? (btw, I am ok with “judicial oligarchy” - :))

Reading the question you thus asked, I now have another question. But before I go on, can I logically overlook the word “political” before “preference”? I am going to treat any preference of the judges the same, be they political, moral, religious, or they just lost a golf game over the weekend.

My question is this: If we don’t bring the judges in as your question intimates, what do we do to settle the community's disputes?

Consider the following scenario:

In community X, there arises an issue Y. Polls have revealed three preferences in the community on Y:

Preference #1: We allow ACT as long as ACT is justified by a good enough reason.

Preference #2: We do not allow ACT regardless of any justified reason.

Preference #3: We allow ACT if Act is justified, but only for reason F, but not A, B, C, D or E.

The poll further shows Preference #1, #2, #3 are divided 1/3, 1/3., 1/3 in the community.

What should the community do?

PS: Does you vegan friend read books? Some glued used in book binding is made from cow products. Don’t tell her if she doesn’t know.

"I have merely been pointing out the logical futility of trying to prove that one’s own political preferences (or the political preferences of some nominees, such as judges) are somehow superior' to those of other people." In spite of the fact that nobody has claimed their own political preferences are somehow "superior" to those of other people. Only that we have them and are willing to subject them to review not only democratically by our neighbors-in-polity but in the unbinding referenda of interested fellow readers of The Economist.

It doesn't matter much to me that political logic ultimately fails to be objectively true. It's still valuable for structuring a roughly stable environment in which the government elites approach commoners like me in humility.

Well said, sir.

In my own conclusion for this segment of the discussion, your two points on preference and right are well taken. I agree with you that some comments read here on the subject of gay marriage are given to making a priori assumptions, with little iteration of where a claimed “right” comes from, and why their preference should override their opponent’s. (Doug’s comments certainly are not among those. That tendency is not the monopoly of commenters on either side of the argument. It never is.

That said, certain matters in the world we live in are not neatly solvable or reconcilable by the use of logic alone. Logic puts debates on a track of responsible assertions, product of a way of thinking that insists on being accountable to itself and others who hear them. Ultimately, however, solutions to problems may not lie in the domain of logic, or found on the platform of the last stop the train takes us.

I think as long as there is human society, at some point society will not be able to avoid declaring a moral position on a difficult moral issue. And the declarant of this moral position may not always be the majority. History is replete with examples. Granted this moral position may merely be a dot on the onward trajectory of the evolution of the human society, to be later replaced by another dot – “updated” if you will. But the declaration needs always to be made. That “declaration” is more than a “preference

Sorry, I meant to post immediately preceeding post for Stephen Morris and erroneously clicked it under Doug Pascover.

Please, Stephen, the post was addressed to you. Thanks.

I’ll deal briefly with Doug first, and then get around to answering ashbird’s questions.

Doug writes:

In spite of the fact that nobody has claimed their own political preferences are somehow "superior" to those of other people.

I must have been reading an entirely different debate.

When people claim that “so-and-so has a right to X” (which is what this article and many of the comments have done) then either:

a) they are making a trivial positive observation about the current state of the law (i.e. which preferences are currently “enforceable” as decided by the institutions of government); or

b) they are making an essentially political statement (“I believe that these preferences ‘ought’ to be enforceable”) and trying to convey the impression that their preference is superior by calling it a “right”.

So which is it? Are they making a trivial observation about the current state of the law? Or are they insulting our intelligence by using rhetorical language to convey the impression that their political preferences are superior?

If it is the former, they are wasting my time. If it is the latter, they are insulting me. Either way I’m angry.

Doug (and ashbird) may have inferred that I am opposed to judges making some or all decisions.

A careful reading of the foregoing reveals that that is not at all the argument I have put. I have merely drawn attention to the logical futility of trying to prove that judicial determination is a superior method.

Again, I have done that because those who talk about “rights” rhetorically seem to be suggesting that judicial determination is either self-evidently superior or can be logically established to be superior. Again, that claim is an insult to the intelligence and I am keen to put it to rest.

Doug, for example, tried to come up with a solution by talking loosely about introducing “categories”. But we were immediately able to show that any such attempt to set categories either:

a) would not require judges if there was widespread acceptance of what the boundaries were; or

b) would collapse into a disputed political question where there wasn’t widespread acceptance of what the boundaries were.

So introducing the concept of “categories” may be rhetorically satisfying, but it does nothing to establish the superiority of this method of decision-making.

Now, we could end the debate right here. We could simply refrain from using “rights” in the rhetorical sense. We could simply declare a moratorium on insulting one another’s intelligence. That in itself would be a big step forward.

But I submit that we can actually go further. I humbly submit that we can produce a logically coherent answer to ashbird’s questions:

“How do we settle competing preferences? Who decides which preference prevails?”

Before we get to the meat, let’s begin by examining ashbird’s example. It provides some useful lemmas for what is to follow.

Ashbird hypothesises that “Preference #1, #2, #3 are divided 1/3, 1/3., 1/3 in the community.”

In fact the problem is even more complicated than it appears, in two respects:

a) each person will have not only a first preference, but will also have second and third preferences. The problem is one of aggregating not just first preferences but of aggregating the individuals’ vectors of rank-order preferences; and

b) there are potentially other options that exist, or could be conceived. The vectors are not fixed at three dimensions. They can expanded indefinitely by suggesting new options (i.e. through “bargaining and compromise”).

The classic problem which ashbird alludes to is where – for example - a majority prefers #1 over #2, a majority prefers #2 over #3, and a majority prefers #3 over #1.

Moreover, there is some famous mathematics concerning such situations. Arrow’s Theorem tells us that there is no device for three or more people which simultaneously:

a) is based on the rank-order preferences themselves;

b) is non-dictatorial;

c) can cope with any number of options;

d) is unaffected by the introduction of irrelevant alternative options (won’t suddenly prefer #3 over #2 because #4 has been introduced); and

e) can be guaranteed to be pareto-efficient (if everyone prefers #1 to #2, it won’t select #2).

Significantly, what Arrow’s Theorem does not say is that if (a) to (d) are true, then (e) must be false. It doesn’t even suggest that it is likely, just that it could occur.

This leads to the concept of “indefinite pass” devices. If we had a “definite pass” device satisfying (a) to (d) and if - upon completing the final pass - we ended up with (e), then we’d be stuck with something no-one wanted.

An indefinite pass system would not be stuck. It would simply go on putting forward new options (“compromises”) until a stable outcome was achieved. Nothing in Arrow’s Theorem suggests that a stable outcome cannot not be achieved or that it is unlikely to be achieved. Indeed, given the infinite scope for compromise and trade-off it is likely that it would be (and, even if it isn’t, there are other solutions available which involve breaking up the set of people into independent subsets).

Also, in a definite pass system, voters may be forced into tactical voting. Consider the following example from the 2007 French election:

- a majority of voters preferred Royal to Bayrou (first round);

- a majority of voters preferred Sarkozy to Royal (second round); and

- a majority of voters preferred Bayrou to Sarkozy (in Bayrou/Sarkozy opinion polls before the first round although this preference was split by the Royal/Bayrou preference in the first round, and Bayrou was excluded).

Voters with the rank-order preference Royal, Bayrou, Sarkozy were placed in the invidious position of either supporting Bayrou tactically in the first round or running the risk of Sarkozy beating Royal in the second round.

Condorcet methods aim to resolve such circularities (A beats B beats C beats A) if they arise, but they are themselves susceptible to gaming through the introduction of irrelevant alternatives that can change the results. For example, a dummy quasi-Sarkozy candidate introduced in the first round would have split the Sarkozy vote.

Note also that in voting for a fixed number of candidates – as opposed to options - there is no possibility of generating compromises. You could not take part of M. Sarkozy’s economic rationalism, trade it off with some of M. Bayrou’s consensus, and finish it off with a dash of Ms Royal’s idealism (although you might look for a new candidate in a later round).

Gaming a definite pass voting system can be difficult. Tactical voting may involve anticipating the tactics of other voters, who are trying to anticipate the tactics of other voters, and so on indefinitely. In this case the outcome may result in a “defacto lottery” in which each voter has no idea how his or her vote will affect the final outcome.

We thus have two possibilities, either:

a) the outcome is a defacto lottery; or

b) there exist one or more individuals potentially in a position to game the system, either because they have inside information on voter intentions or because they are in a position to introduce an irrelevant alternative after everyone else.

In an indefinite pass system options may be tailored and amended endlessly - with modifications being introduced in successive rounds - until a combination arises which is stable in its support. Any gaming in one round may be reversed in subsequent rounds. And the knowledge that further rounds are always available means that voters can reject attempts at gaming that might have obliged them to vote tactically under a definite pass system.

Now, ashbird’s question is essentially:

“How may we reasonably go about choosing ‘aggregation devices’ which in turn determine which preferences are to prevail”?

To begin, we may note that much of what passes for reasoned argument is really just opinions and preferences, often accompanied by evidence or argument which aim to show how those opinions came to be held by the speaker or writer . . . and why they “ought” to be held by other people.

Most of the time this is a reasonable approach because it is predicated on the assumption that the various preferences will eventually be aggregated in the aggregation device to produce a joint decision. Not surprisingly, people seek to influence others’ preferences in the hope that they might thereby affect the aggregate preference in their favour.

Significantly, however, the result of any preference aggregation depends not only on the input preferences, but on the device itself. A device may “privilege” some preferences over others. In lay terms, it may give “greater weight” to some individuals. Or, in other words, the result may not be invariant to an arbitrary exchange of identities among individuals. (An even more formal definition won’t fit within the word count).

Discussions concerning the choice of aggregation devices themselves are categorically different. Because the issue at stake is the device itself, there can be no assumption concerning the device by which individual preferences will be aggregated. Any such assumption might privilege some preferences a priori and pre-determine the result.

Thus any statement of preference regarding devices is fatuous because there is no pre-agreed device with which to aggregate it with conflicting preferences. As a result, the usual mode of debate collapses into one or more recognized fallacies.

First, if one presents an individual preference concerning the “best” aggregation device, it is irrelevant. It will inevitably be but one of many conflicting preferences, and without a pre-agreed device with which to aggregate those preferences, an individual statement of preference tells us nothing at all.

Secondly, if the statement of preference is presented as being conclusive, then it collapses into a petitio principii. It invites the obvious response: “By what principle is that individual preference privileged over all others?” Any answer to that question ultimately cycles round to another statement of individual preference which begs the original question.

Thirdly, if the statement of preference is supported by evidence or authorities – and it is suggested that that evidence or those authorities make it conclusive - then it becomes an is-ought fallacy or argumentum ad verecundiam respectively. Evidence and authorities may explain why people have arrived at their opinions. They may persuade others to change opinions. But they are not in themselves conclusive.

It is, however, possible to propose a means of aggregating preferences that avoids such illogicalities. That is an aggregation (or more plausibly a series of aggregations) that does not privilege any preferences.

We could say that non-privileging devices are the eigenfunction for preference aggregation in the absence of (logically indefensible) a priori privileging. When first choosing a device, they are the only devices which do not require the doing of something that is logically impossible to do (i.e. identifying individuals whose preferences are to be privileged a priori, without reference to a previously agreed device).

What do such devices look like? We can identify some necessary characteristics:

a) the votes for and against any option must be weighted equally (to avoid privileging some individuals by giving their votes greater weight);

b) the options to be voted upon must not be pre- or post-vetted by some privileged group (to prevent a privileged group vetoing viable options); and

c) the way in which options are eliminated must not be controllable by a privileged group (which in turn requires an indefinite-pass system, because any definite-pass system - as discussed previously - either could be manipulated in the final pass or would collapse into a de facto lottery - which would privilege a priori those who prefer the choice to be made by lottery over those who do not).

We see that these conditions describe an initiative-and-referendum system.

That is not to say that the final choice will be an initiative and referendum system. It may choose to restrict or even abolish initiative and referendum (although it almost never does). It could choose to hold a lottery.

Note that this argument applies to any arbitrary set of individuals. It does not address how to choose sets of individuals. That problem might be solvable using a global polity market as discussed here.

Actually, I was just trying to use a hypothetical, as simple as possible, stripped of all possilbe and probable complexities (of course in real life things are not neat and linear like the hypothetical!), in order to flush out the more germane and urgent issue to me; that is to say, more germane and urgent from my perpective. That issue was: When a community is divided and all the representative preferences are more or less equivalent in "strength", in other words, no landslide for anyone, no miniscule count for anyone, what might be a workable solution for coming to a choice among the preferences in that community?
I did not have an answer to my own question. I did not even presume to know one!

It occurred to me that my earlier discussion might have assumed too much prior knowledge.

I should perhaps have explained that the term “aggregation device” encompasses the entire system of government, the entire decision-making algorithm that determines which preferences are to be enforced.

It encompasses not only direct voting, but the use of agents such as elected politicians and appointed judges.

The entire algorithm must– one way or another – deal with all the scenarios, even those where preferences are finely balanced. In practice, trading and compromise are typically used to generate new options which have more clear-cut support.

There is no point asking “What should that algorithm be?” Different people will have different preferences about what it ought to be, and the discussion will bog down in a slanging match of opposing opinions.

The only useful question - as noted before - is:

“How may we reasonably go about choosing the algorithm – the ‘aggregation device’ – that will in turn determine which preferences are to prevail?”

I hope I have demonstrated that:

a) for an arbitrary set of individuals, the only reasonable way to do that (the only way that does not require the doing of something that is logically impossible to do) is to begin with a “non-privileging” device; and

b) an initial “non-privileging” device will have the characteristics of an indefinite-pass initiative-and-referendum system.

We do not know what final system it will adopt.

Thanks for the elaboration. It helps.

I am satisfied that your final statement is: "We do not know what final system it will adopt".

I also agree with you there is no point asking “What should that algorithm be?” Different people will have different preferences about what it ought to be, and the discussion will bog down in a slanging match of opposing opinions.

Indeed, there isn't a universal algorithm. If there were or had been, human society would have reached a state of stasis long before our time. Nor is it, I think, desirable to have such an algorithm, for it will be inherently antithetical to change, and change is part of life. Change is life.

You can tell by the way I talk I am (as I told Steven Spadijir) not a poli-sci person. I am interested in human nature and have spent quite a little time delving into its study. The way people talk about politics fascinates me, more than politics itself. In fact, I don't understand a damn thing about politics. It invariably gives me a headache.

But it certainly has been quite an education following this discourse. If nothing else, I learned some big words!

Will look for your posts in the future. I wish LaConta will blog again. I can't imagine the debate you and he will have together.

Always fun!

oligarchy: government by a small group of people. From the Greek oligos few.

It is the same root as oligopoly, a market in which supply is controlled by a small number of producers.

Government by the wealthy is plutocracy from the Greek ploutos wealth.

Yes, you're quite right, the root does mean that.

But court justices aren't oligarchs in that sense either. In that sense of the word, oligarchs have a monopoly on political power, which SCOTUS of course does not have. So while I was mistaking the word's connotations for its denotation, it does seem you're still misusing it.

You know, I should just get off my high horse and say what I'm thinking. I'm really getting annoyed with intellectuals trying to buttress their arguments with name-calling. Of course, they're intellectuals, so they're too sophisticated to call judges "dicks" and too precise to call them "tyrants". But what possible justification could you have for calling SCOTUS justices "oligarchs" except that you want to evoke images of Russian mobsters?

I use the term “judicial oligarchy” because it is the term that accurately reflects the state of affairs: a small group (Greek oligos few) of judges (Latin judicialis belonging to the law courts) with the power to rule (Greek arkhein to rule) by legislating from the bench.

One needn’t take my word for it. Learned Hand – who has been quoted at various places in these comments – was one of the most famous judges in United States history, and after a lifetime on the bench he likened the Supreme Court to “a third chamber” [of the legislature].

The use of the term “oligarch” to describe wealthy Russian businessmen reflects the widespread perception that they effectively run the government.

"Secondly, by intervening, the United States’ judicial oligarchs are snatching defeat from the jaws of victory for the gay community"

Marriage is Defeat.
Discrimination is Victory.
Ignorance is Strength.

I suppose you believe black people snatched defeat from the jaws of victory in Brown.

In the present case, opinion polling shows that a majority of people in the United States now support gay marriage. Proposition 8 was passed by a narrow majority in 2008 and would almost certainly be repealed by a new referendum. This would the provide the opportunity to have a (positive) right to marriage determined by the direct vote of fellow citizens, and the opportunity to silence detractors once and for all.

So, yes, in this case the intervention of the oligarchs is snatching defeat from the jaws of victory for the gay community.

In the case of Brown v Board of Education, the oligarchs were repealing discriminatory legal doctrines which they themselves had invented in 1896 to neuter the Fourteenth Amendment, an amendment which had been initiated and ratified by the institutions of elective government.

Screaming slogans - even ironic ones - is no substitute for calm, reasoned analysis.

I suppose you believe black people snatched defeat from the jaws of victory in Brown

Absolutely! Rather than creating a black state, or vigorously comprising on the issue, Brown was a false hope which did absolutely nothing to increase the plight of African Americans:

http://wvgazette.com/News/BrownvBoardofEducation/200405020012
http://www.pbs.org/newshour/bb/law/jan-june04/brown_5-17.html
http://www2.hawaii.edu/~kent/BrownWrong.pdf
http://www.poynter.org/uncategorized/95844/55-years-later-media-reflect-...
See also Rosenberg, 'The Hallow Hope: Can The Supreme Court Bring About Social Change?'

Like with this decision did with gays, it failed to create a movement which changes hearts and minds. Instead, we simply got several decades of discussion about "judicial activism".

Of course, while you accused me of being a bigot in relation to Prop 8, I think it is you who is the bigot - systematically advocating judicial decisions which effectively disfranchise black voters. American's abolished poll taxes via the initiative process so blacks could vote. But not it appears to much avail given their preferences now be vetoed by 2 white men. There were the Jim Crow laws, now there a Jim Crow oligarchs.

And there is nothing to suggest discrimination is not victory. Numerous proposals about gays having their own unique, new institutions were suggested: Jane S. Schacter, The Other Same-Sex Marriage Debate, 84 Chi.-Kent L. Rev. 379, 394–98 (2009) (probing the extent to which “social groups, especially historically subordinated ones, can shape the social meaning of their own choices and struggles”). See generally Lawrence Lessig, The Regulation of Social Meaning, 62 U. Chi. L. Rev. 943 (1995).

"Oligarch" is also used to describe rule by a wealthy few in Aristotle, though, inasmuch as he distinguishes oligarchs from - the word's escaping me & I haven't got time to look it up - is it "aristarchs" he uses or just aristoi?

That's besides the point, however. Regardless of how the extant classical sources used the term, they are unanimous in maintaining that giving additional power to a small group of intelligent experts in government is a very good idea.

Your issue with SCOTUS may be that they sometimes legislate, but the classical sources aren't going to back you up on that.

Regardless of how the extant classical sources used the term, they are unanimous in maintaining that giving additional power to a small group of intelligent experts in government is a very good idea.

This appears to be a fallacy of irrelevance. Whatever preferences might be expressed in "extant classical sources" about the supposed "goodness" or otherwise of giving power to "a small group of intelligent experts in government", it has nothing to do with the use of the term "judicial oligarchy".

The term still accurately describes a small group of judges with the power to rule by legislating from the bench.

Regardless of how the extant classical sources used the term, they are unanimous in maintaining that giving additional power to a small group of intelligent experts in government is a very good idea

This rhetoric also commits the classical logical fallacy of argumentum ad verecundiam because it invokes grand “classical sources” and their unanimity. So what? We have several hundreds, indeed thousands, years of evidence of government-by-philosopher kings. Didn’t the “small group of intelligent experts” predict there would be no GFC and claim we are living through a “Great Moderation”? (Not) Didn’t the “small group of intelligent experts” / statesmen help stop WWII? (Not) Didn’t the “small group of intelligent experts” prevent massive famine in Russia? (Not) I'm sure the listed could be extended indefinitely...

Furthermore, why it should be judges who are the experts? Experts in what exactly? Why not logicians? Mathematicians? Philosophers? Poets? Musicians? Psychologists? Physicists? Political Scientists? Mensa Society members? People who hear voices? What about “experts” in practical everyday life and experience, which we all have through our shared constitute culture?

-----
Ps This got me thinking – those who argue marriage should be marriage because of its historical definition might be committing the Etymological fallacy. Fortunately, I argue using the data, and hope to shift preferences that way.

Dude. So you accuse my last post of ad verecundiam.

But then your next paragraph contains a statistical fallacy - listing off three examples where experts were wrong is in no way an argument that untrammeled democracy is a superior form of government to one that reseves a certain amount of authority for experts.

Then the paragraph after that appears to contain a slippery slope!

Not irrelevant at all. The classical sources don't use "oligarchy" to refer indiscriminately to small groups of people wielding disproportionate power. At least from Aristotle onward, it's a pejorative for unjust small-group rule.

It's not a purely descriptive term - it contains a negative judgement, and that is why I think your applying it to SCOTUS is unjustified. Persuasive language, if we want to keep playing the name-the-fallacy game.

You are not denying the ad verecundiam.
There is no “statistical fallacy” – I merely cited examples of their horrific nature (genocide, mass murder, several world wars, starvation, mass unemployment, civil wars), falsifying the absolute glory of government by elites. What is the worse that "untrammeled" direct democracy has done? Nothing of this magnitude - most of the "untrammeled stuff" is never enforced i.e. it is over symbols, rather than systematic economic or material well-being. Look at all those dictators in Switzerland and Uruguay since the adopt of "untrammeled" democracy!
I don’t regard a slippery slop as a fallacy provided the data exists to back it up: “if 75-85% of axe murders – depending on the data set - kill again, then letting them loose means they will probably kill”. Possibly tendency evidence with substantive probative value. I also noted any data or “slippery slop” might be contingent on future data.
Nor have you addressed who these experts are, how they will be chosen and why they have a Monopoly on Wisdom over a range of policy matters.

My, what a long way we have come. First we were told:

. . . what possible justification could you have for calling SCOTUS justices "oligarchs" except that you want to evoke images of Russian mobsters?

The answer to that was – quite obviously - that “judicial oligarchy” is a term that accurately and concisely describes a small group of judges with the power to rule by legislating from the bench (a usage completely consistent with the primary definition, at least in my dictionary, of “government by a small group of people”).

Then we were told that the usage was not allowed because:

Regardless of how the extant classical sources used the term, they are unanimous in maintaining that giving additional power to a small group of intelligent experts in government is a very good idea.

For some reason it became improper to use the term because “extant classical source” regarded such rule as a “good idea”. Interesting, but completely irrelevant.

Now we are told that the usage is not allowed because:

. . . . it contains [presumably in the opinion of Ghengis Keynes] a negative judgement, and that is why I think your applying it to SCOTUS is unjustified.

So are we to be prohibited from using any language that contains – in the opinion of Ghengis Keynes - a “negative judgement” on role of the US Supreme Court? Wow!! That would certainly muzzle debate. (Although I’m sure some clever lawyer could manage to construct a cunning argument to demonstrate that such censorship actually embodied the “right” to free speech!)

I use the term “judicial oligarchy” quite deliberately to draw attention to the political power exercised in the United States by a small group of unelected elite lawyers.

I use the term “judicial oligarchy” quite deliberately to cast light on the absurdity of the “rights” language which defenders of judicial power routinely use to cast a veil over what is going on.

As Learned Hand observed, judges use a “veil of adjectives” to conceal their exercise of political power and that: “If we do need a third chamber [of the legislature] it should appear for what it is, and not as the interpreter of inscrutable principles.”

Perhaps Ghengis Keynes’ annoyance with my use of the term “judicial oligarchy” stems from a desire not to have that veil removed!

I'm not prohibiting you from making negative judgements on SCOTUS by any means. I'm just highlighting that calling SCOTUS oligarchic is not the same as arguing that their legislative power is illegitimate. But I find it more and more distasteful, this use of pejoratives in place of argument.

I don't know what dictionary you're getting your definition of "oligarchy" from, but it's crap. The modern sense of "oligarchy" derives primarily from Aristotle:

"Of the above-mentioned forms, the perversions are as follows: of royalty, tyranny; of aristocracy, oligarchy; of constitutional government, democracy. For tyranny is a kind of monarchy which has in view the interest of the monarch only; oligarchy has in view the interest of the wealthy; democracy, of the needy: none of them the common good of all." Politics, book III, pt 7.

Now don't pretend you were calling SCOTUS an oligarchy because of the dictionary definition. (I might be a sucker for pretty girls with ample... vocabularies, but I'm not that stupid.) You're trying to convey without bothering to give an argument that it's a perversion of good government.

I'm not prohibiting you from making negative judgements on SCOTUS by any means. I'm just highlighting that calling SCOTUS oligarchic is not the same as arguing that their legislative power is illegitimate. But I find it more and more distasteful, this use of pejoratives in place of argument.

I don't know what dictionary you're getting your definition of "oligarchy" from, but it apparently blows. The modern sense of "oligarchy" derives primarily from Aristotle:

"Of the above-mentioned forms, the perversions are as follows: of royalty, tyranny; of aristocracy, oligarchy; of constitutional government, democracy. For tyranny is a kind of monarchy which has in view the interest of the monarch only; oligarchy has in view the interest of the wealthy; democracy, of the needy: none of them the common good of all." Politics, book III, pt 7.

Now don't pretend you were calling SCOTUS an oligarchy because of the dictionary definition. I ain't stupid, you know. You're trying to convey without bothering to give an argument that it's a perversion of good government. And those sort of hucksterish tactics are beneath someone of your obvious intelligence.

This branch of the debate grows more bizarre with each iteration.

First we were told:

. . . what possible justification could you have for calling SCOTUS justices "oligarchs" except that you want to evoke images of Russian mobsters?

Then we were told that the usage was not allowed because:

Regardless of how the extant classical sources used the term, they are unanimous in maintaining that giving additional power to a small group of intelligent experts in government is a very good idea.

Then we were told that the usage is not allowed because:

. . . . it contains a negative judgement.

Now we are told which precise definition of “oligarchy” we are required to use. My trusty Collins English Dictionary which has served me so well all these years is apparently “crap” (or it “blows”, depending on which version of the comment you read).

Consequently, the use of the word “oligarchy” must be pejorative because Ghengis Keynes prohibits any interpretation of the word that is not pejorative.

But there is a peculiar contradiction in Ghengis Keynes’s argument:

Now don't pretend you were calling SCOTUS an oligarchy because of the dictionary definition. . . . . You're trying to convey without bothering to give an argument that [the US Supreme Court’s political power is] a perversion of good government.

Why is this a contradiction? Because earlier on Ghengis Keynes told us (approvingly) that:

“extant classical sources . . . . are unanimous in maintaining that giving additional power to a small group of intelligent experts in government is a very good idea.”

Now, if one agrees with this sentiment, why would one regard a vivid description of the US Supreme Court’s political power as pejorative? If one regards concentrated political power in a small group of [supposed] experts to be “a very good idea”, then presumably one would interpret the term positively.

Perhaps Ghengis Keynes could provide us with an alternative term we might use – other than “judicial oligarchy” - to concisely describe the exercise of political power by a small group of judges.

I suspect that Ghengis Keynes won’t. I suspect that Ghengis Keynes is trying to disguise that exercise of political power by rejecting any language which draws attention to what is actually going on.

"I suspect that Ghengis Keynes is trying to disguise that exercise of political power by rejecting any language which draws attention to what is actually going on."

I'll reject any language that contains an implicit value judgement about what is actually going on, yes. And I'll expect you to make your case with data and argument rather than name calling.

As predicted, Ghengis Keynes has failed to provide us with an alternative term – other than “judicial oligarchy” - which concisely describes the exercise of political power by a small group of judges.

Some authors refer to that as the "judicial branch of government". That's a nice, neutral term you could use.

“Judicial branch of government” fails to convey the essential concept (noted by Learned Hand, who served in it!!) that the judges are making political decisions by legislating from the bench.

Again to quote Hand:

“If we do need a third chamber [of the legislature] it should appear for what it is, and not as the interpreter of inscrutable principles.”

It would seem that Ghengis Keynes does not want it to “appear for what it is”.

Until some term is produced to encompass that essential aspect of judicial rule, there is little point continuing this debate.

You're asking me to come up with another term that includes your preferred value judgment on SCOTUS? What do you think this is, Mechanical Turk?

So, to summarise:

First we were told:

. . . what possible justification could you have for calling SCOTUS justices "oligarchs" except that you want to evoke images of Russian mobsters?

Then we were told that the usage was not allowed because:

Regardless of how the extant classical sources used the term, they are unanimous in maintaining that giving additional power to a small group of intelligent experts in government is a very good idea.

Then we were told that the usage was not allowed because:

. . . . it contains a negative judgement

which was odd. Given that Ghengis Keynes had just previously quoted approvingly the suggestion that “giving additional power to a small group of intelligent experts in government is a very good idea”, why would the term necessarily be interpreted as to "contain a negative judgement"???

Anyway, moving along . . . . . then we were told which precise definition of “oligarchy” we are required to use (only a pejorative one would be acceptable), and that reputable dictionaries which said otherwise were “crap”.

Then we were told that Ghengis Keynes:

reject[s] any language that contains an implicit value judgement about what is actually going on

despite Ghengis Keynes’ previous suggestion that “giving additional power to a small group of intelligent experts in government is a very good idea”. If that is not a value judgement, I don’t what is. Presumably only “value judgements” which conflict with Ghengis Keynes’ own are proscribed!!

Anyway, moving along . . . . . then Ghengis Keynes, having rejected out of hand (as "crap") the vocabulary offered by reputable dictionaries:

a) failed - repeatedly - to provide any language at all which might be used to give a neutral description of the exercise of political power by judges; and

b) characterised the mere description of a political role as a “value judgement”, notwithstanding:

i) that judges themselves have referred to this aspect of what they do; and

ii) that Ghengis Keynes had used value judgements earlier.

Long experience has shown that fundamentalists will go on arguing around in circles like this forever rather than question their own beliefs. The value of public forums such as this one is to draw them out into the open and expose their beliefs to the wider world who can then make their own judgement.

Oh!! Silly, silly me! I missed a step.

First we were told:

An oligarchy is a system of rule by the wealthy.

Presumably that definition came from one of Ghengis Keynes’s private collection of approved dictionaries: the ones that aren’t “crap”.

It was imprecise of me to call your dictionary "crap". What I should have said is that one doesn't appeal to a popular dictionary to settle the meaning of a complex normative term like "oligarchy". The dictionary definition is just for beginners who need a skeleton of meaning to be able to understand a passage using the term.

Haha. I withdraw! I withdraw! Ps. I meant "debate", not "debt" - was typing too fast.

But Doug, the serious point is that Steven Spadijer is correct.

There are no objective rights. If these rights were "objective", then why did they not exist - for example - back in 1986 when the oligarchs upheld the ban on sodomy in Bowers v Hardwick. They are the creation of elitist judges. If you belong to a minority that has political support amongst the elite, you'll get your rights. If you don't, you won't.

There is nothing fair, or moral, or even logical about such paternalistic rule ("Platonic Guardians" as Learned Hand called them).

Because this is a language blog, let's consider the use of the word "right". It is clear that “right” is used in two quite different senses that are often deliberately confused by those who have an agenda to do so:

a) there is a positive use of the word “right” to describe “an enforceable preference”. Depending on the form of government, enforcement is decided either by the People, or by elected political agents, or by unelected judges. If, as a matter of fact, the People or the Legislature or the Courts are enforcing certain preferences then we may say - positively - that a right exists; and

b) there is the rhetorical use of the word “right” to describe a subjective preference that a certain preference ought to be enforceable.

Those who use the word rhetorically confuse these two meanings. They purport to convert a subjective preference into a positive truth. We must conclude either:

a) that they are simply too dull and solipsistic to conceive that there could be preferences in the world other than their own; or

b) they are fully aware of what they are doing but choose to insult our intelligence by doing it anyway.

What makes me angry - and I do get angry - is when people insult my intelligence. We find this again and again in The Economist. Under its current editor, the journalists put forward gobbledegook rhetorical arguments that a child could see through. Do they really think we are so stupid that we cannot see straight through the illogical of their case.

Perhaps we ought to have a constitutional protection against having one's intelligence insulted!!

Stephen Morris,
I learned much by reading your comments here, in particular on "What is a right". I just wanted to say thank you.
Doug warned. You delivered! I did not make a bad grade in Con Law, but you gave me a whole different perspective.
Don't get too angry though. The price of intelligence is you have to suffer fools. Consider the alternative.
Again, many thanks.

I think there's another side, Stephen. As I see it, there are two ways to hold up preferences as meaningful. One is by democracy, in which preferences are aggregated and no individual's preference is privileged. That's the Coasian view you hold up, at least as far as I've understood it. But the other is to exempt certain categories of preferences from regulation and not test them democratically but figure that if I like green and you like purple, I'll have green and you'll have purple and there's no privileging of color. The only preference privileged is individual liberty over consensus.
I think that's what we mean by right. A right is the exemption of preferences by category from popular referendum. And I think, if you like, I would be content to have the preference for liberty over consensus be legitimated democratically.
I think there's a difference between a judge saying that people who want to marry others of the same sex should not have their preference submitted to the preferences of others and a judge saying that I ought to marry a male.
Lastly, if you feel I am insulting your intelligence, I am not. This is just the best I can do.

Doug, you will note that your entire argument is itself a statement of preference.

Let’s consider its implications.

First, there is the issue of how to go about aggregating your preference (concerning the form of government) with the preferences of other people. This has been discussed many times, and you are no doubt aware of the argument that the “democracy eigenfunction” (described here) is the only means of deciding the form of government which does not involve the doing of something that is logically impossible to do (i.e. identifying individuals whose preferences are to be privileged a priori).

Secondly, there is no suggestion that such an aggregation must choose Democracy as the ongoing form of government. This is where my argument differs from Steven Spadijer’s. I am not here to spruik the essential superiority of Democracy as a form of government, only the logical necessity of Democracy as the means of choosing the form of government. Having said that, we may note that wherever people have been given the freedom to choose they have almost invariably chosen to retain Democracy.

Thirdly, there is no reason why such an aggregation could not implement a scheme such as the one you propose. Indeed, the Swiss have their own Bill of Rights – interpreted by their own Federal Supreme Court - which is rather more extensive than that of the United States. They have, however, retained the right ultimately to override that Court, although the process of doing so might require one or more referendums.

Fourth, history suggests that devising “categories of preference” is rather more difficult than you imagine. After all, isn’t that precisely what the United States Bill of Rights sought to do? And it has resulted in centuries of litigation over the precise extent of those categories. Moreover, we may see how those boundaries move over time. As noted before, if the boundaries were clear-cut why did the judicial oligarchs uphold a ban on sodomy in Bowers v Hardwick in 1986?

As discussed in a previous comment when people talk about “individual liberty” (as you have done) they casually ignore the symmetrically opposite denial of liberty. In this current case, we have seen vocal, heartfelt opposition to same-sex marriage from some commenters. Whatever we personally may believe about same-sex marriage, by what principle can we simply declare all those other people to be “wrong”? Have they always been “wrong”? Were they “wrong” in 1986? If not, when did they start being “wrong”?

So, as appealing as the idea of “categories of preference” might be, we see immediately that the boundaries are still matters of preference.

All of which leads to, fifth, the questions: Who is to do the deciding? And who is to decide who does the deciding? As discussed many times before, the current system of judicial oligarchy in the United States has never been approved by the People. It was not even preferred by the politicians who drafted the constitution. The matter of judicial review was explicitly debated in the Convention, with a proposal for review immediately upon enactment (a little like the Conseil Constitutionnel in France today). That proposal would have required a bill to be re-passed by a two-thirds vote if either the President or the Supreme Court vetoed it, or by three-fourths if both had vetoed it. The proposal was considered and rejected in favour of a presidential veto only. The current form of judicial supremacy was established de facto by John Marshall only in Marbury v Madison, well after the Constitution was ratified.

Finally, none of the arguments above create objective “rights”. We are still forced to the conclusion that those who use the rhetoric of “rights” either:

a) are too solipsistic to imagine that their own preferences could be anything other than objective truths; or

b) know full well what they are doing but choose to insult our intelligence by doing it anyway.

This is where my argument differs from Steven Spadijer’s. I am not here to spruik the essential superiority of Democracy as a form of government, only the logical necessity of Democracy as the means of choosing the form of government

“Spruiking” carries a sinister overtone. For the record, I would characterize what you and I do as benevolent charity work – freely, without any pay, correcting The Economist in its relentless campaign against Democracy. At present, I am not a member of any direct Democracy group, and simply support this thing we call “facts” and “context” (to avoid misinformation). I'd correct the The Economist not just on Democracy, but on its views on taxation, federalism or a range of social policy issues. In the context of Democracy, you take care of the logic part; I'll take care of the data and research part. A perfectly sensible arrangement I would say.

The judge didn't use any #%@! words to reject prop. 8. But he did say it was not "rational". So I guess over half of California is not rational enough to decide what marriage is and is not?