Ruthless Navel-gazing

I was reading Nietzsche’s notebooks the other day when a phrase brought me up short. He characterizes the early Christians as “verlogenen kleinen Mißgeburten von Muckern.” This is so over-the-top as to defy translation. My first attempt, admittedly toning him down quite a bit, is “dishonest, petty, misbegotten hypocrites.” Kaufmann is more direct: “lying little abortions of bigots.” And this is not just private ranting that gets cleaned up substantially for public consumption; for publication, in Antichrist he says “kleine Mißgeburten von Muckern und Lügnern” which is far kinder: “little abortions of bigots and liars.”


Most of Nietzsche’s religious issues are really alien to me. For one thing, his revulsion at certain things never made sense to me quite because I do not experience revulsion much. Some have hypothesized that this is what causes the divide over gay marriage for example–if you don’t have visceral revulsion at certain sexual acts, the whole issue “makes no sense” as a moral issue, where moral issues are about kindness, honesty, promise-keeping, fairness, etc. So to feel revulsion at anything is strange to me, but apparently this is far less unusual than I would’ve guessed (i.e., visceral disgust at things one morally disapproves of).

Also, we tend to think that the moral failing of dishonesty requires express misrepresentation to manipulate another, but Nietzsche’s conception of honesty is much more stringent—requires something like the absence of negligence, a kind of thorough diligence and willingness to confront facts in the teeth of one’s own tendencies to denial or wishful thinking. His peculiarity is that negligence about accuracy and unwillingness to confront one’s own wishful thinking is something he considers dishonest. I have only gradually realized that this is a rather odd perspective for most people. It seems extravagant to call a wishful thinker a liar. But that is exactly how he thinks about such things. And the result is that his moral reaction to certain religious phenomena is far harsher than any other Enlightenment anticlerical; usually Enlightenment anticlericals will criticize religious leaders for lying in the ordinary sense, and characterize the people being lied to as fools or innocent victims, but Nietzsche is much harsher because he thinks the ordinary religious person is guilty of the moral failing of self-deception, and he is quick to call them “liars” when he’s on a tear about this.

It is odd the same way that it would be odd if I showed up at a Truther or Birther conspiracy theory fan meeting and called the people there “liars.” But that is what Nietzsche would do, because he thinks that wishful thinking is intellectually irresponsible, and being intellectually irresponsible is a form of dishonesty. And dishonesty fills him with visceral revulsion. All this is, if you think about it, rather idiosyncratic, however entertaining we may find it.

There is some temptation to think that in his critique of religion Nietzsche is saying things that many people would agree with, either factually or morally, but that he expresses himself in a ridiculously hysterical fashion, perhaps because of his own psychological problems. Though I don’t rule that out, I find that people who react to Nietzsche that way do so usually because they misunderstand him. Tentatively, the approach I take is Davidsonian in another sense: if Nietzsche were right about the facts as he understands them, and if we shared his moral framework, his reactions are not hysterical at all, but perfectly appropriate. This hypothetical stance helps to focus attention on what makes Nietzsche interesting: his factual beliefs and moral commitments are really different from ours. But rather than see him as being extravagant in the expression of reasonable judgments we share, we have to accept that his judgments are not always ours. He thinks wishful thinking is revolting; I merely find it pitiable if that.

Also, Nietzsche has some really unusual factual beliefs about the history and especially the psychology of Christianity and Judaism, which are quite speculative and often wrong. But if matters were as he claims, and if one had his impossibly stringent standards of intellectual integrity, then many religious phenomena would rightly elicit the kind of outrage he expresses. But: his standards are too stringent, and, ironically, a lot of his factual beliefs mistaken (or at the very least, not proven). One should be very careful to not make him more “reasonable” than he actually is. He is not reasonable by our lights about a lot of things, and this drives his word choices and his style.

In the end, Antichrist and the notebook material associated with it are among the worst stuff he ever wrote, and his enthusiasm for the former wildly wrong. His images of the Jews are oftentimes the crudest antisemitic stereotypes (why we have collectively lost the capacity to see this is an interesting question for another day), and his innovation consists largely in thinking that Christians and Jews are more alike than one might’ve thought. His moral judgments are perfectionistic in the pejorative sense because he had very little personal life and so could devote himself narcissistically to self-perfection by his lights while other people have jobs to do, children to raise, and don’t have the time or the energy or the need for navel-gazing, however “ruthless”. And so when he turns to ordinary people, and the absence of this ruthless navel-gazing that their religious attachments and commitments evidence, he sees “Jews” and that makes him want to vomit.

As a moral model, I would suggest that this leaves something to be desired.

About My Job

Conor Friedensdorf asked for people to write in to gripe about how their job is misunderstood. Since the odds are vanishingly small that he will publish my response, I will publish it here instead.

I am a philosophy professor, and subject to strange misunderstandings from almost everyone who comes to know this fact about me, to the point that I try to conceal it. A common reaction is “Really? Well my philosophy is…” followed by some crackerbarrel Polonial wisdom.

At a doctor’s appointment, the doctor examining me responded to my disclosure by expressing his heartfelt appreciation for The Power of Now, apparently some New Age mystical self-help book.

Others launch into a condemnation of students foolish enough to major in philosophy instead of something that is a surefire path to employment after nothing more than a bachelor’s degree, like sociology.

Some express resentment, as if there was something that made communicating some cultural literacy to young people (I start my Intro class with Plato) peculiarly more parasitic than other kinds of white collar work, like, say, title insurance.

And remarkably enough, colleagues in other departments seem to feel that we are simply the people who say no and raise objections every time they want to do something fun, “relevant” and intellectually irresponsible. I sometimes feel like shouting “hey! We are the people that invented the idea of modern science and modern democracy, and are the custodians of the memory of that inventing” but I fear that would be judged as delusional, as surely there must’ve been mathematical physics long before Descartes, an American Revolution long before Locke, a French Revolution long before Rousseau, a United Nations before Kant wrote ‘Perpetual Peace,’ etc. etc.

But I think my favorite off the wall response to having it dragged out of me that I taught philosophy was by a drunk at a cocktail party who asked, “oh? Where do you do that?” To which I replied (which was true at the time) “Northwestern.” To which she replied, “The airline?”

What The Nazis Wanted

Update 8/30/2010: Neuekristallnacht begins.

Though the following has some contemporary relevance, there may be a larger usefulness to it. In what follows, I should say that I am not more than an amateur historian. But I think I’m not wrong and that what I have to say is important.

On the intertubes, there is this thing called “Godwin’s Law” variously characterized and understood. One version is that in any debate, the first person to analogize the opponent to Hitler loses. Sometimes it is understood descriptively: in any discussion, eventually an opponent is analogized to Hitler. Or it could be a rule of thumb: do not make frivolous analogies to Hitler.

There is some sense to this. Though the Third Reich is useful to us as a touchstone of moral understanding, it is so only if we know how to use it. After all, the Nazis wanted an efficient automotive freeway system, and so did we, and this is not the height of human evil. More unnervingly, the Nazis wanted to dress their soldiers in uniforms and march them in uniform ways—but so do we. So does every country on earth that has a military, and even a few that do not. And they wanted to win wars. Well, no one wants to lose wars.

So if we are to use the touchstone effectively, we must exercise judgment, and that means being able to assess matters relevantly and proportionately. This can be difficult, because there is some temptation on both the Left and the Right to descry tyranny and shout “Nazi!” This invites (not “begs”—we are cranky language mavens here when it suits us) the question: what did the Nazis want? Because they did indeed want some very bad things, but things which are relevantly similar to things others have wanted and continue to want.

But first, let me make some controversial and unpleasant claims. The Nazis did not want to conquer the world in any meaningful sense, though presumably they would not have minded if the world fell into their laps by some stroke of incredible luck. To say otherwise is to make things too easy on ourselves: all we need to do is not want to conquer the world and hey-ho, we’re not Nazis. (By the way, should anyone get excited and happy at the discovery that they are not a Nazi? This seems inadequately ambitious in the morality department, as the Nazis set some sort of moral floor, not moral ceiling. We ought to be clear that accusing others of being Nazi-like, and holding out one’s own non-Nazi-hood, isn’t exactly the most amazing moral achievement ever, even if one is right. If one is wrong, well…)

Second, “breeding a master race” was not, it seems to me, an overarching policy goal either. We deceive ourselves about them and ourselves if we become overly fixated on this. Race talk played an important ideological function. Preoccupation with genetics as it relates to public health was something the Nazis, like just about every Western country at the time, was concerned about (recall Justice Holmes comment finding the sterilization of an allegedly mentally retarded person constitutional? “Three generations of imbeciles are enough”? Typical.) But race talk functioned in a rather different way for them than we think, and we will project our own issues on them if we make this the focus.

So here goes. The first thing the Nazis wanted was to wriggle out of the onerous obligations imposed on them by the Treaty of Versailles, and give a black eye to those they thought imposed them, particularly the French. The war in the west could be summarized as “revenge on the French.” This, however, was an old conflict, and the hostile stance toward France that led to its invasion was a policy which had no clear objective that I can see other than to retaliate, humiliate and weaken. This is not nice, of course, but if hostility toward the French is the essence of evil, I will have to re-appraise my otherwise favorable assessment of Talladega Nights. If waging war itself is the problem, then we have all been so up to our eyeballs in evil for so long that prospects for humanity are pretty hopeless. Let’s look elsewhere.

The Nazis wanted a one-to-one correspondence between German-speakers and German government, between nation and state. This is much more problematic, because at the advent of Nazi control of Germany, there were lots of Germans living as a minority in several other countries (and one great big other country, Austria, which also spoke German). From the perspective of hindsight, we of course think of the expansion of Germany into what is now the Czech Republic as an early sign of trouble, and the word “Munich” has become synonymous with “appeasement” of the most suicidal kind. But be fair: how could a world community complain about the implementation of the Wilsonian ideal of national self-determination? Shouldn’t every “people” have its own government? In what way is the peeling off of the Sudetenland in favor of Germany different from the peeling off of Kosovo from Serbia? If, at the end of the day, Albania annexes Kosovo, will we all feel a chill from the wind of moral evil? It was not so much the principle but the scale at the time which unnerved people.

Lastly, the Nazis were concerned with the danger posed by the Soviet Union and communism. This is closer to a third rail of discussion, so I will simply note that there is another country which has had this concern. You are probably living in it. If you think that fighting communism is a righteous task, you would do well to reflect that no one killed more communists in human history than Hitler.

By now, you may begin to think that I have drifted off toward the boundaries of moral greyness and beyond. But let me stress my purpose. The Nazis were evil. If you don’t want your country to be evil too, you are well advised to know why.

So here’s my “positive” account. First, the Nazis, like all large European nations, wanted to be a colonial power. This involves seizing large chunks of land already occupied and reducing the indigenous population to serfdom, squeezing their labor and exploiting the natural resources under their feet, while lording it over them in a spirit of despicable condescension. Most European countries had the good sense to keep this ugliness far from home, in Africa, say. But the Nazis saw no reason not to do this in Europe itself. They invaded Poland to make it into a colony. For a time, they seriously attempted to relocate Germans on newly constructed colonial farms in Poland after conquering it, but this was unsuccessful: not enough Germans wanted to go, and, bottom line, there were way too many non-German people already there. The seeds of the Final Solution were planted when it began to become clear that there was nowhere else to send them. The Polish Colony Plan would have to rely on a massive reduction of the population of Eastern Europe. Though there were a few Poles and other Eastern Europeans who were complicit in the Holocaust, we do the peoples of Eastern Europe a great disservice if we forget that Hitler wanted to create a demographic vacuum in Eastern Europe for this reason, was not particular about what non-Germans would have to go, and that untold millions of Gentiles also died as a result. Many of the most hideous features of Nazism are best understood as colonial practices taken to a nightmarish extreme, way too close to home.

The second “policy goal” was ideological and in retrospect rather difficult to explain, but terribly important for us to understand. In terms of the distinction between Left and Right there was something weirdly schizophrenic about how the Nazis viewed political reality, but because both their Leftish perspective and their Rightish perspective converged on the same result, in a sense they never had to decide what they were.

When the Nazis looked at the world from one perspective, they saw a globalized capitalist system, not under control of any one nation-state or even any concert of nation-states, but rather, under the control of financial institutions. These institutions, as they saw it, and the people who controlled them, being beyond any meaningful political control, were exploiting labor and had delivered the world into the penury of the Great Depression. The Nazis wanted a revolution, both social and political, against this ruling class. They called that ruling class, “the Jews.” But suppose they called it something else. Would that matter? If there were enough people that they could single out and identify as this exploitative class, and they were serious about their revolution, what would the human costs look like? For this reason alone, we should be as cautious and troubled in the face of anti-globalization rhetoric and agitation as we are about race-talk. A few years back, a lot of windows got broken in Seattle while the WTO tried to hold its meetings. When you see mobs breaking windows to protest the international bankers’ conspiracy, just remember that we’ve seen this sort of thing before.

But the Nazis had their Rightish side as well. They looked beyond their horizon and saw a totalitarian regime with appalling conduct, expansionist designs and a seductive ideology. This frightened them. They associated all this with an ethnic group within which one could sometimes find sympathy for all this (it is good to remember that many eastern European Jews looked to the Russian Revolution hopefully, and it was only later that the Soviet Union reverted to anti-Semitic type). An ethnic group defined by, of all things, a non-Christian monotheistic religious belief system and associated practices. And this ethnic group which they thought presumptively sympathetic toward this totalitarian adversary was within their very borders, building non-Christian places of worship and talking about, and planning, who knew what.

You see where I’m going with this.

This is why I wrote what some might’ve regarded as a silly yet inflammatory post about/to Bryan Fischer, who characterized Islam as a criminal conspiracy entitled to no First Amendment protections. He will protest that he has no desire to round up Muslims, let alone exterminate them. He only wants to exterminate their culture. And this despite the fact that American Muslims, the overwhelming majority of the over one million of them have done nothing but be raised into a religion which is the majority religion in some nations with horrible human rights records, a religion shared by a handful of people who attacked this country, spectacularly, nine years ago.

Seriously? The Nazis were evil because they characterized the Jews as a race, but if we treat a one million strong ethnic community defined by a monotheistic religion as a dangerous totalitarian criminal conspiracy, that is completely different because the word “race” is never used? Is that what you are saying? If so, you are deceiving yourself. Because what you want is exactly what the Nazis wanted. And when that place of worship gets built anyway because its builders have every legal, constitutional and moral right to build it, and you go there and do this to it, just be aware: this is how it begins.


Conor Friedersdorf, complaining about the preposterously inflammatory book title American Taliban: How War, Sex, Sin, and Power Bind Jihadists and the Radical Right (Allah alone knows what’s in the book) blames marketing needs and fears that “publishing houses are going to start re-issuing classics from their catalog under new polemical titles.”

Please? Pretty please? Let’s see some comments. How would you retitle indisputable classics for today’s take-no-unlawful-enemy-combatants culture? The lines are open.

Who Did This To You?

A reader writes to The Daily Dish:

“I lost my job in May. I finally got an interview with an out of state firm last week. The thought of moving my family across the country was hard enough to consider. They made me an offer. It would be a cut over my last job but still it would provide health insurance – heck they even would chip in on living expenses. Talked to my real estate agent today. We are under water by about twelve thousand. My choices are stay unemployed or walk away from the house. I have till tomorrow to make this choice.”

Anyone with half a heart, or the requisite amount of rational fear, should want to know why this had to happen.

In a normal world, money is a precious metal, that is, something whose supply is not easy to modify at will, and numbers indicating quantities of it are used to represent information about supply and demand for other things through a thing called “the price” which is associated with all commodities (except love, natch). By exchanging it for everything, we come to know the comparative value of everything, which is otherwise incredibly hard to do. (Suppose you are bartering apples for oranges. How do you know how many apples an orange is worth, or vice versa? Knowing the price of each, and arithmetic, will tell you).

Sometimes we want something but it’s really valuable, and we don’t have anything of equivalent value to swap for it. But we will, or gradually over time we will. Then what we need is to have someone give us some of the precious metal, in exchange for a promise to give it back later, plus some. (Why plus some? Why do we charge, and pay, interest? Well, if you have some, what incentive do you have to give it up, and all the opportunities to buy in the present that go with it?). How much plus some? Well, supply and demand apply here as well: if not very many people are borrowing, then someone who makes their living by lending will have to lower the price of the loan, the interest charged on it, because if the interest is too high, no one borrows, and lenders don’t eat. If you set the price too low, borrowers will got nuts and borrow a lot.

However, once you have paper money printed by the government, this gives your society a lot of flexibility, a lot of opportunities for the government to fiddle with the economy, because it can determine at any given time how much money there is, just by printing some (by contrast, there is no “just by making some” if someone wanted to determine at a given time how much gold there will be).

If the government doesn’t think there is enough economic activity, it can do a couple of things. One is to print a bunch of money and put it into circulation. This makes people initially think that they have more purchasing power, so they buy more stuff, others make more stuff, hire more people to make stuff, etc. But in the end increased demand for goods also follows, inexorably, the law of supply and demand, and prices go up. Since all demand has been stimulated, all prices go up. This is called inflation. It happened some here in the 1970s, but a lot in Germany in the 1930s, and a lot in Zimbabwe now, which is why people with a healthy sense of fear people are now reluctant to do this.

Another thing government can do is it can spend money itself, it can be the demand for goods and services, and then people respond to that purchasing activity by making goods, providing services, taking the money they get from the government for them to buy goods and services in turn, etc. etc. which is nice except that the government has to get this money either by taking it in taxes, which defeats the purpose because it takes money and purchasing power right back out again, or by borrowing it, which means taxes will have to go up eventually, with the same unfortunate effect, only later. Guess what we’re doing now.

Another thing you can do with paper money is the government can decide what interest rates will be charged, which determines how much borrowing happens, in two ways. First, if the rate is high people are less likely to borrow; if the rate is low, more. Second, whatever the government as lender does tends to get imitated by other lenders.

So, a few years back, the government (or more precisely, the Federal Reserve Board) decided it wanted a lot of economic activity (the immediate cause of this seems to have been fear brought on by the collapse of the boom in the 1990s). Having already decided that government spending and indebtedness is bad, and inflation is worse, it did so by setting interest rates really really low (not as low as now, where we are all but paying people to borrow money, but pretty low), this being the only remaining device for making stuff happen.

Now it is Econ 101 that when you set prices lower, you create more demand. This is common sense: people are more likely to do something if the cost of doing it is less, all else being equal. So the cost of borrowing money got lower, a lot lower. The result is that more people borrowed money, and more people bought things you can only buy on credit because they are so expensive, thus increasing the demand for those things, and thus running their prices up.

Like houses. You know the rest of this story.

Who made the decisions that led to this feeding frenzy in the housing market? Alan Greenspan, the top honcho at the Federal Reserve Board, and author of (irony alert!) a popular article titled “Gold and Economic Freedom,” in which he argues that paper money is a bad idea because it gives the government the power to tinker with the economy in ways that are at least manipulative, often with unexpected or untoward results, sometimes catastrophic ones.

Ah, yes. Cue Alanis Morrisette.

When the housing bubble burst and the economy collapsed, scads of people like the reader supra were left with houses they now couldn’t sell if their lives depended on it, and certainly not for what they paid, and the massive unserviceable debt that goes with it, all because they feared that if they didn’t buy when they did, it would only get more expensive to buy a home later. So they will abandon the home to foreclosure, because this is cheaper than selling. The foreclosing bank will be unable to sell it except for a loss. Banks taking a hit will be afraid to lend to anyone including businesses which need operating capital, and the whole economy will screech to a halt.

So that is who did this to you. Alan Greenspan.

If you ask Democrats, they will tell you that this was all caused by wheelers and dealers buying and selling to each other the massive amount of bad debt floating around, because where the bad debt itself came from is a complete mystery, it couldn’t possibly have been caused by the price of debt because how on earth could the price of something influence the likelihood that people will buy it? and anyway you can’t politically demonize the borrowers, the regular folks who just want a home, and it’s almost as awkward to demonize the lenders for giving them money, and at the least onerous interest rates in the history of money. Isn’t lending on generous terms God’s way? Isn’t that the moral of It’s a Wonderful Life? This is all called “misdirection.”

If you ask Republicans, they will tell you that this was all caused by bleeding heart liberals who created government programs like Fannie Mae and Freddie Mac which made it somewhat easier for less well off people to buy homes, so that they can run campaigns against big government, and hopefully thereby, get to control it for mysterious purposes of their own (if you think that that purpose is to cut spending, ask why they didn’t, when they controlled all three branches of government awhile back–they were too busy massively increasing Medicare spending while preparing campaign ads against “socialized medicine”, the first to keep them in office, and if that failed, the latter, to get them back in office). This leaves unexplained how Fannie Mae and Freddie Mac caused a boom in Hong Kong office space, and so I would say this should also be called “misdirection.”

Frustrating, no? But what to do? Well, get good and angry, for starters. But who at?

I know! I know! Hispanics! Muslims!

Three guesses what I call that.

The Fundamental Problem With Objectivism

I count some Objectivists as friends, and have always thought that those who condemn them are at the very least too quick to do so. We have common attachments: to small government, individual freedom, secularism, science, etc.

Objectivists insist that we start with fundamentals, that you can’t begin to hope to solve political puzzles and conflicts unless you get your deeper conceptual issues straightened out. This is often true. However, I think there is a deeper conceptual issue that Objectivists get wrong, and that this matters.

Objectivists take Bishop Butler’s admonition “everything is what it is, and not some other thing” and run with it, fast and hard. Fans and observers will know that their favorite way of expressing this point is with the phrase “A is A,” which is shorthand for Butler’s point. This is said to be Aristotle’s “Law of Identity.”

Objectivists have lots of company in the following confusion though; perhaps almost every philosopher in history shares in it [hat tip Ruth Millikan]. And that is: identity and classification are the same thing. They aren’t. I am self-identical. My left toe is self-identical. The temporal slice that is me today is self-identical. The silly mereological fusion of my left toe and the Eiffel Tower is self-identical. The class of all mammals is self-identical. The silly class given by enumeration that contains all mammals and the Eiffel Tower is self-identical. We are up to our eyeballs in the self-identical.

But the principle that says that everything is what it is, does not tell you how to classify things. We do not classify things by determining that they are identical. Otherwise classification would be way easier than it actually is. Rather, we classify things that are non-identical but relevantly similar. Brussel sprouts resemble carrots; the similarity is close enough in relevant respects that we regard them as both members of the same class: vegetables. But they are different in many respects too, just not in enough important ones.

Now I’m not saying that establishing identity is always easy, or tautological. If it were, there would be no such thing as the genre “murder mystery.” (Think about this long and hard). But most of the things Objectivists characterize as matters of identification are really matters of classification, where no identities are hidden, but what a good classification looks like may remain to be seen. These thoughts were triggered, by the way, by the last post on gay marriage. Consider the marriage conservative:

“Everything is what it is, and not some other thing. Marriage is the civil union of a man and a woman. Therefore, same-sex marriage is a logical contradiction. A is A.”

OK, we could do that. Or we could not do that. See how that works?

Consider one sort of hard libertarian:

“Taxation is theft. Theft is slavery. Slavery is immoral. Therefore taxation is immoral. Everything is what it is and not some other thing. A is A.”

These kinds of arguments dissolve like tissue paper origami swans in water as soon as it becomes clear that the correct formulation of the first step is “taxation resembles slavery in certain respects, and slavery is immoral.” This is exactly right. And the progressive can reply, “and there are respects in which taxation is also very different from slavery,” which is also true (for example, the government cannot sell you outright to anyone, the chattel dimension is missing, government is not a private party, what the taxes will be is decided by democratic procedures, etc. etc.). So what comes next? A discussion. How much do the similarities to the bad thing pervade the case? How do the dissimilarities reveal other similarities to good things? A lot? A little? Not at all? Etc. There is simply no honest shortcut around asking and trying to answer these questions. This applies even-handedly: the progressive who responds to “taxation is slavery” with “don’t be ridiculous” may not be laughing quite so hard if it turns out that there are disturbingly many relevant similarities. But, to repeat, there is no shortcut that will enable us to avoid examining the similarities and differences, finding out what they are, and then assessing them in light of our concerns.

There is a lot of anti-post-modern (!) rhetoric shared by Objectivists with both conservatives and old school progressives about relativism, anti-realism, social constructivism. And it is true that how we classify brussel sprouts and carrots doesn’t determine what they are like. Who in their right mind would’ve ever thought otherwise? But here’s a surprising fact. You know what is a social construction? Society is. And how we classify conduct has an awful lot to do with how we treat it, which in turn has an awful lot to do with what kind of conduct occurs.

Is hitting on your employees out of lust relevantly similar to refusing to hire someone because they are African-American? In some ways it is and in some ways it isn’t. In the end we decided that the similarities are relevant, and strong enough, that without changing the laws on the books, we’ve decided that the law that prohibits the latter also already prohibits the former. Changes in how we see which things are similar, which similarities are relevant, when the topics are charged with moral significance, are precisely how moral change happens.

If one fails to grasp the difference between classifying by similarity and identification, then one will repeatedly find oneself confronted with opponents who seem for all the world to be committing the most glaringly elementary errors in logic. If you saw this over and over again, you would find it well-nigh irresistible to think that your opponent was an idiot. Unless of course the evidence suggests the hypothesis that no one could be that stupid. Which will leave only self-deception, or malice and dishonesty as hypotheses.

And then we get books with titles like “Treason: Liberal Treachery from the Cold War to the War on Terrorism” or “If Democrats Had Any Brains, They’d Be Republicans” (not that these books were written by an Objectivist, but there seems to be an elective affinity there).

All this is unwarranted, because classification is not identification. After all, everything is what it is, and not some other thing!

Gay Marriage Primer Concluded

Back to the law stuff.

As we hinted at previously, there are two different analyses in play simultaneously that intersect, because of the complicated message of the interracial marriage case, the delightfully named Virginia v. Loving. The Court did not see the need to comment on how the two issues interacted there, because they both lead to the same result. The Equal Protection Clause is involved, and because the act of classification Virginia engaged in was racial, this triggered strict scrutiny. Virginia would have to show that classifying people by race for purposes of their marriage statute was necessary for achieving a compelling state interest. The state failed to show this, so the statute violates Equal Protection. But it also said that marriage is a fundamental civil right, thus triggering the Due Process Clause.

Brief digression on this. Opponents of gay marriage sometimes say that people forget that marriage is a creature of government, and they are right. That is why, instead of writing “fundamental right,” which might induce people to think of natural rights, I wrote “fundamental civil right.” But that does not mean that a right is any less important for all that. The Bill of Rights is largely concerned with what lawyers call procedural rights (e. g., freedom from double jeopardy). There are no procedural rights where there are no procedures, and so these too are creatures of government, and no less important for all that. And if one argues that these procedural rights are rooted in natural interests (consider, in this light the Eight Amendment right to not be subjected to cruel and unusual punishments), well, obviously the intimate relationships marriage as an institution are founded on express all sorts of natural interests too. Anyway.

Now a fundamental civil right also triggers strict scrutiny, so we end up getting the same result. Virginia can burden that right only if doing so is necessary to achieve a compelling state interest. Virginia loses.

Same-sex marriage has the same constitutional duality. First, it classifies people. Another digression: how exactly does it classify people? There are two ways to look at this. If Virginia v. Loving is the model, it classifies people by sex, by gender, not by sexual orientation. We didn’t talk about this before, but this is an Equal Protection issue as well. It triggers an intermediate form of scrutiny (because basically we’re OK with some sex/gender classifications, so we don’t want to make them all but impossible). Intermediate scrutiny says that the state must show that its action is an important means to a substantial state interest. You might think it odd that a government action which burdens gays and lesbians should be thought of as a form of sex discrimination, but there is precedent afield for this, in a non-constitutional context. There was a case, Oncale v. Sundowner Offshore Services, in which an employee sued his private employer for sexual harassment; the facts were men harassing a man because [correction: they thought that] he was gay. The Court held that because they would never have treated a female employee this way, this was treating someone differently because they* were a man (not orientation discrimination, which under this law, is perfectly fine as such). Delightfully, the author of the opinion was my favorite rigorist, Justice Scalia.

If, instead of gender classification, we see the California marriage statute as classifying (implicitly) by sexual orientation, then we’re in rational basis review. And as we saw, if you think of this one way, the state wins, because we usually let states win with rational basis review: the state can discriminate against people who drive fast, or people who practice medicine without a license, or any number of other things, and we don’t inquire too deeply into its motives. If, however, the discrimination seems to be driven by nothing but animus (against, for example, the mentally challenged) state action can flunk even rational basis review.

So now our ducks are lined up. The two sides in the constitutional question characterize the issue in the following ways (I’m going to help both sides out a bit because they haven’t put their best foot forward, at least not in court).

Statutes that implicitly restrict some generic legal privilege to heterosexuals are subject to rational basis review, and ordinarily in such cases we would not look too closely at the goals and means the state is after in such cases, unless there is animus. But discrimination against homosexuals is driven by nothing but animus, and so we must use rational basis review “with teeth.” (In any case, the Supreme Court has already told us this, in Romer). So what is the state interest? Procreation and child-rearing. But the state has not produced one scintilla of evidence that restricting marriage in this way has any tendency to further anything of interest in this area. But it’s not clear that this is even the right level of scrutiny, because on analogy with the non-constitutional, employment discrimination model, this statute classifies by gender (after all, in Loving v. Virginia, the Court didn’t say that the marriage statute classified by out-race orientation, but by race simpliciter). This heightens the scrutiny, making the state’s case even worse. Though procreation and child-rearing are probably important enough to serve as important state interests, intermediate scrutiny is flunked for the same reason rational basis review is flunked: there is no evidence that the restriction does the slightest thing to further the goal, let alone that it is substantially related to that goal. And this would be the case if we were not talking about, of all things, marriage. But marriage is a fundamental civil right, and this triggers strict scrutiny. Stipulate that procreation and child-rearing are compelling state interests, the restriction still has no evidence supporting it, and so surely can’t be necessary to achieve it. No matter what scrutiny you use, no evidence is no evidence.

Marriage is a creature of government, and homosexuals are not a class which triggers heightened scrutiny, so we are in rational basis review. As a rule, rational basis review defers to the government’s actions both as to means and ends, for the simple reason that in a democracy, the default position of the courts should be to let the people rule. The kind of deference rational basis review involves means that the courts cannot demand evidence, as if the burden was on the people to demonstrate the wisdom of its legislative actions, and only then will judges allow acts to be law. That is judge-ocracy, not dem-ocracy. So the complaint about evidence is entirely misplaced. The burden is not on the people to justify its choices, because we live in a democracy. Challengers’ attempts to heighten scrutiny, furthermore, are unjustified. The heightening that takes us to rational basis review with teeth in this context requires that the state action have literally nothing whatsoever to do with sexuality; there has to be a complete disconnect between means and ends to support the inference of animus. The state action in Romer, which among other things prohibited homosexuals from benefitting from statutes prohibiting private housing discrimination, had nothing to do with homosexuality, but rather with housing discrimination. If homosexuals were able to lobby to ban housing discrimination on the basis of sexual orientation, how on earth might that interfere with the state’s interest in there being no housing discrimination? The two things do not connect up in the right sort of way, and that is why the inference that the state action is nothing but an expression of hostility is well-nigh irresistible. But marriage is all about sexuality, so this argument fails. The state can regulate housing to achieve a housing-related purpose, and it can regulate sexuality to achieve a sexuality-related purpose, and it’s not a court’s job to second-guess this. What it can’t do is purport to regulate one thing in an utterly bizarre way as a mask for trying to hurt a class of people as an end in itself.

The argument that scrutiny gets heightened to intermediate scrutiny because of gender classification fails too, because it is bizarre. Marriage in its very essence is the legal union of a man and woman. By contrast, marriage is not in its very essence the legal union of two people of the same race. This is why no state has ever “prohibited” same-sex marriage because it literally goes without saying. It makes no more sense to say that a state does not permit people of the same sex to marry than it does to say that it does not permit people to marry multiple partners simultaneously, groups, corporations, animals, vegetables, inanimate objects, regions of space, abstract objects, etc. The issue is not that we fear that these things will come about if same-sex marriage is introduced, but if we begin to use the word marriage to refer to something which is not, in its essence, marriage, and this is reflected in law, then marriage simply no longer exists and has been replaced with something else. But surely the decision to abolish marriage is a decision for the people, not for the courts? Lastly, marriage is indeed a fundamental civil right, but not only could we repeat the preceding points even under strict scrutiny, but it is clear from the various ways that we regulate marriage even within its essential nature as a civil union between two people of the opposite sex, this has never been incompatible with its structuring to limit it to parties above a certain age, or of a certain distance in kinship. Surely if restricting marriage to people who are above a certain age and not first cousins would meet strict scrutiny (well, wouldn’t it?) restricting marriage to people who are the opposite sex does as well. Yes?

Those are the issues. As you can see, the strength of the legal arguments on both sides are dependent upon how prior conceptual issues are settled: what it means to be married, and what it means to be a homosexual. After those questions have been answered, the legal questions almost answer themselves. And since both sides are satisfied that those questions have already been answered, both sides think the constitutional issue is a no-brainer. Which is why it isn’t.

*The word “they” is now a singular as well as a plural neuter pronoun. You heard it here first.