A Philosopher's Blog

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The Constitution & Same Sex Marriage

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Some people, such as Mike Huckabee, have proposes a Constitutional amendment banning same sex marriage. This strikes me as a bad idea.

My main opposition to this idea is not based on my views of same sex marriage. It is, rather, based on my view of the function of the Constitution and other bodies of law. This, in turn, shapes my view on what sort of laws should be a matter for the Constitution and what should be a matter for “lesser” laws.

In various debates with people on this matter, many bring up the argument that since same sex marriage is immoral it follows that it should be banned by the Constitution. My standard reply is that the function of the Constitution is not to ban immoral actions. This is shown, in part, by the contents of the Constitution itself. It is primarily a document that enumerates rights and the nature of the state. As such, a ban on same sex marriage does not seem to fit the document.

In response, some people try to counter by saying that the Constitution exists to protect us and since same sex marriage is a great evil, it should be banned at that level.

In response, think about things like murder, rape, and theft. None of these are outlawed by the Constitution. It is not that these deeds are not important or not evil. They are not covered by the  Constitution because such matters are handled more appropriately by other types of law. Unless we are wiling to accept that banning same sex marriage is vastly more important than protecting people from murder and is on par with fundamental rights, then there seems to be no reason to make it part of the Constitution.

If same sex marriage is actually a great evil, on par with murder and theft, then it should be outlawed in the same manner that these are outlawed. It does, however, have no place in the Constitution.

Huckabee, God and the Constitution

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While most politicians tend to be a bit vague when it comes to religion, Huckabee, to his credit, is quite clear on this matter. Recently, when speaking on same sex marriage, he had the following to say: “[Some of my opponents] do not want to change the Constitution, but I believe it’s a lot easier to change the constitution than it would be to change the word of the living God, and that’s what we need to do is to amend the Constitution so it’s in God’s standards rather than try to change God’s standards.”

While I believe, like Aquinas and Aristotle, that the laws of humans should reflect the true moral order of the universe, I disagree with Huckabee on this matter.

My first objection to his proposal is that such an amendment cannot be justified in terms of the two primary purposes of the American state. The America state, like other states, exists to protect the citizens from harm. The American state, like some other states, also exists to protect the liberties of the citizens. An amendment against same sex marriage serves neither purpose. While same sex marriage may offend some, it does not appear to do any actual harm to society. In any case, it certainly does not seem to something so devastating as to require a constitutional ban. Such a ban also does nothing to further liberty.

My second objection is a practical one. If we start adding religious based restrictions to the Constitution, this opens the door to allowing additional religious based restrictions. While some people might applaud this general idea, their applause would soon turn to cries of dismay should religious views they disagree with be made into law. History, both recent and distant, provides a multitude of examples in regards to what happens when laws are made and justified on the basis of specific religious views. The results are not generally conducive to justice or liberty.

My third objection is an epistemic one. How, exactly, do we know that the law of God forbids such marriage? While we have certain passages in religious texts, knowing what God truly wants is somewhat problematic. If someone could conclusive show that God exists and wants X, then it would make sense to make X the law. After all, God is supposed to be perfect and hence what He wants would be in accord with His perfection. Sadly, while most people think God wants what they want, they do not know what God truly wants.

One final point, which is not really objection, is that if Huckabee is truly sincere and means to apply God’s law to America, then he must be kept from being President. Given what he said, his operating principle is that he will make what he sees as God’s rules the law of the land. This would be catastrophic, assuming that he plans to follow the Bible as he guide. A quick examination of the Bible reveals that under Huckabee, horrific things would be made legal: rape, slavery, the murder of disobedient children, and so on. Also, as many humorists have pointed out, shellfish would be outlawed (goodbye Red Lobster) since they are abominations. Yes, there is much that is good in the Bible, but there is much that is clearly not good.

Thanks for speaking your mind and making it clear, Mike.

Mind Reading

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Mind reading machines have long been a standard feature in science fiction, but they are now (to a degree) a reality.

Scientists have found that by using a functional magnetic resonance imaging device (a form of MRI) they can determine, with a high degree of accuracy, what a person is thinking. Of course, the capabilities of the technology are still somewhat limited. For example, the scientists could tell whether the subject was thinking about a hammer as opposed to a pair of pliers. But, they presumably could not read the contents of this blog from my brain. At least not yet.

Naturally, this has numerous philosophical implications. Fortunately, philosophers have already thought a great deal about this matter.

When I discuss John Locke’s theory of personal identity, I always bring up the matter of the mind reading machine. Locke’s view is that personal identity is based on consciousness, so the same person=the same consciousness. Put crudely, if you truly remember something, then that was you.

Locke goes on to discuss the implications his theory has for punishment. He argues that if you do not remember doing X, then you did not do X. If X is a crime, then you would not be guilty of that crime. Locke does note that we cannot tell whether people truly remember or not, hence the courts convict based on the evidence available to them. Since God knows everything, God knows what is remembered or not-and hence God only punishes people for what they remember (and hence did).

When discussing this, I always mentioned that if a machine could be made that would read memories, then guilt and innocence could be determined-assuming, of course, that Locke’s theory is correct. Of course, when I talked about this in the past, such a machine was a mere theoretical possibility.

Now that the machine is a reality, it can be used for just such a purpose. We might very well see people being brain scanned during police investigations in order to determine what they remember. For example, if only the killer and the victim would remember certain details about a murder, then the machine could be used to test suspects.

While such usage as a crime fighting device might be laudable and while I generally like technology, when I read about these new capabilities provided by the fMRI in Newsweek (Page 22, January 2008 issue) I felt a chill. I have a rather active imagination and immediately thought of how this capability will be horribly abused and misused in the future.

It could be used to steal secrets from people (imagine a brain scanner that can work from a distance-which is certainly a theoretical possibility).

It could also be used to seek out dissidents in repressive states. In short, the device could become the means to break through what had been our last area of true privacy-our minds.

While this seems like a small thing, it could well be a breakthrough (or horror) on par with nuclear weapons-something that radically changes the nature of the world in nightmarish ways. Be afraid…but try not to think about it.

Senators, Sex and Solicitation

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Recently Senator Craig of Idaho was arrested for soliciting sex from an undercover policeman in a public restroom. Not surprisingly, the senator publicly endorses a conservative agenda and has actively denied being gay for quite some time.

The senator was not specifically targeted. He was simply caught in a net that is routinely cast in the United States to catch men soliciting gay sex in public places such as restrooms. Interestingly, the men are not arrested under laws governing prostitution (unless, of course, they are offering to buy sexual services). Instead they are typically charged with indecent exposure and committing sexual acts in public places.

Not surprisingly, there is considerable debate about whether the police should be enforcing such laws.

The main argument against having the police enforce such laws is that such enforcement uses resources that could be better used elsewhere. From a moral standpoint, police resources should be deployed in way that does the most good for society. While such sexual behavior is clearly not a very good idea, it does not seem to generate enough harm to warrant such extensive police efforts. Instead of staking out restrooms to arrest men looking for sex, the police could be dealing with people that pose a clear danger to society. Thus, it could be concluded that such laws should not be enforced.

The standard and correct reply given by most police officials is that the police have a duty to enforce the law. It is not their role to decide which laws should and should not be enforced. It is the responsibility of the law makers to decide what the laws should be.

Of course, the police do get to decide the extent to which they will commit resources to enforce a law. Since there are so many laws, the police cannot hope to equally enforce them all. For example, speeding is illegal but the police lack the resources to patrol all streets twenty four hours a day year round. Instead, they assign traffic control resources as they see fit. So, the police could spend less effort enforcing the laws in question and thus better utilize their limited resources for the good of society.

Naturally, if such laws do not adequately serve the good of society and are wasting resources, then such laws should be repealed. If it is not a good idea to enforce a law, then it is clearly not a good idea to have that law. This raises the question about whether such laws serve the good of the community.

On one hand, soliciting sex from strangers in public places is clearly a bad idea. There is the risk of disease and, as the senator found out, the risk of damaging one’s reputation. Further, many men who have been arrested are involved in long term heterosexual relationships. Some are married and some even have children. Such men are clearly doing wrong-they are violating the trust of their partners, potentially exposing them to sexually transmitted diseases, and engaged in deception. Since the law should aim at preventing harm, it seems reasonable to have such laws.

On the other hand, there are many types of harmful behavior that are not illegal. For example, a person can smoke, drink, not exercise and cheat constantly on his girlfriend and everything is perfectly within the law. So, the question comes down to what sort of harms should be dealt with by the law.

Filed Under: Law

ATVs

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Years ago my dad bought a 4 wheel ATV. Naturally, I thought this was pretty cool and had  a great deal of fun driving it around the woods at camp (no, not band camp). I was never hurt while doing this, probably because I’m fairly sensible and have a decent grasp of the physics of moving and crashing bodies.

Apparently I’m fairly unusual. In 2005 there were 136,700 ATV related ER visits (Newsweek May 14, 2007 page 59). Of these 40,000 involved people under 16. Ohio, where I went to college, leads the way: 10,000 ER visits per year. This amounts to a nice income of about $30 million for the hospitals.

Many states have made it illegal for young children to use ATVs and a debate is to take place soon regarding federal restrictions on ATV use by minors. Of course, this raises a variety of questions.

The first question is a practical question: will such laws reduce the number of injuries? Such laws could help-provided that people abide by them. Of course, most ATV injuries seem to be related to poor judgment. For example, the Newsweek article cited above begins with a description of a boy who decided to use his uncle’s ATV after he had been told not to do so. He ended up being seriously injured when he accidentally struck a dog at 60 MPH. Would the law have prevented this? Would the boy have thought “Gosh, I’ll disobey my family, but I must obey the law!” Most likely not. Thus, it seems likely that such laws will not be very helpful. No doubt some people will follow them and it is likely that the police will stop some kids. But I suspect the law will be about as effective as the laws governing underage drinking. That is, not very.

The second question is a moral one. Should the government attempt to use law in place of proper parental supervision? On one hand, it is evident that parents are failing 40,000 children each year by allowing them to be injured on ATVs. Given that the state has a duty to protect the citizens, then it seems reasonable for the state to step in and take action. On the other hand, it would be preferable if steps were taken to improve peoples’ judgment rather than simply imposing another law. After all, the law itself does nothing-it is the actions of people that leads to results. If the law is passed and the poor judgment remains, then the problem will still remain. After all, the law does not make people any wiser or better-it mainly just provides a reason to punish people after they have exercised poor judgment.

Dog Hero and Pit Bull Bans

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A brave Jack Russel Terrier died saving children from marauding pit bulls. The terrier, named George, held off the two pit bulls thus allowing five children to escape. George survived the attack but was so badly mauled that he was put down.

This incident shows that good dogs are truly our best friends-they are willing to die for us. It also shows that people create some very bad dogs and do not take responsibility for their pets. That is both sad and morally wrong.

I’ve had mixed experiences with pitbulls myself. I’ve been attacked by a pit bull while running (no injuries on my part, beyond some scrapes I received from sticking a fallen tree into the dog’s mouth), Isis has been attacked by pit bulls in the dog park and I’ve seen plenty of pit bull fights. But, I’ve also known some very nice pit bulls who are proper dogs.

In all these cases the main factor has been the owner. People who chose dogs from lines that have been “bred mean” and then encourage that tendency (I’ve seen people slapping their pits to make them mad enough to fight other dogs) are making the greatest contribution to the pit bull problem.

Because of these bad owners many places have imposed bans on pit bulls. For example, some dog parks not allow them and even some areas of the US ban them completely.

Because of my own bad pit bull experiences, I am very sympathetic to such bans. When I’m sitting in the dog park watching some genius slapping his pit bull puppy and trying to get it to fight other dogs, I think that such bans might not be a bad idea.

But, from one moral standpoint, pit bull bans could be seen as wrong because they restrict all pit bulls based on the poor choices and actions of some pit bull breeders and owners.

Of course, the ban could be justified on utilitarian grounds-although some good pits and their owners would suffer, the harms prevented by banning pits in general could outweigh this suffering.

At this time, I’m still divided on pit bull bans. My inclination is that it is probably better to deal with matters individually. For example, particular individuals could be banned from dog parks, etc. because their dogs are known to be vicious. Of course, if there are many bad pit bulls, dealing with individuals might be too costly in terms of time and resources. In that case, areas rife with bad pits might require sweeping bans to protect the many from the misdeeds of the few…at the expense of some innocents

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