Religion makes children less altruistic, less moral?

November 6, 2015 4 Comments


Enokson / Foter.com / CC BY-NC

A recent study reports that religion makes children more selfish. Another headline says that nonreligious children are more generous, and another casts the study results in terms of altruism. If true, this devastates the case for raising children with religion, right? After all, scientists said it, so that settles it.

Not so fast. Let me recap the basics of the study first. It included a “dictator game” to see how many stickers a child subject would reallocate when told of another child who was unfortunate enough to have no stickers. According to the study, kids from secular homes gave more stickers on average than kids from Christian and Muslim homes.

In another part of the study, the child subject watches someone being mean to someone else, and then is asked to evaluate the degree of punishment the transgressor should receive. Muslim kids assigned more severe punishment than the Christian kids did, and Christian kids assigned a more severe punishment than the secular kids did. From these findings, it is alternately reported that kids from religious homes are less generous, altruistic, and moral than their secular cohort.

While altruism, generosity, and selfishness all touch on what it means to be moral, these attitudes don’t exhaust what morality is. And by morality I mean ethics. Neither the researchers nor the journalists provide a meta-ethical context for understanding these observed behavioral differences. What difference would that make?

Scientists Can’t Wrangle Virtue

There are many ethical theories by which we might understand an action as moral. In his Nicomachean Ethics, Aristotle gave us a big one, the concept of virtue. A virtue is not an unmitigated good. A deficit or an excess of what would otherwise be a virtuous attitude results in vice. Take patience for example. Snapping angrily at your child on her first request for ice cream is a vicious deficit of patience. But letting your child run the credit card up–to its limit–with ice cream purchases is a vicious excess of patience.

In addition to having the right amount of an attitude at the right time, a virtuous person must know he is doing the right thing at the right time. And he must intend it. Let’s say that Uncle Scrooge walks past the orphanage, and while quickening his pace to avoid a volunteer collecting donations, he trips on a cobblestone. Some change he was gripping tightly happens to fly into the collection bucket. The volunteer profusely thanks Scrooge for his generosity, while Scrooge screws his face in dismay. First, Scrooge may not have known it was right to donate his change then. Second, from what we know of him, and his reaction, we conclude he didn’t intend to donate. If you know the episode “Jaynestown” from the TV show Firefly, you have another example of this. No knowledge, no intention, no virtue.

As the study itself acknowledges, the child subjects are still developing. For all we know, they don’t know that they are behaving virtuously as opposed to just doing what feels good. We know nothing of their parents’ theology, ideology, or worldview besides the labels the researchers choose to categorize them by. Without interviewing the subject, a scientist can’t accurately describe the subject’s motive. He can impose his explanation upon what he observes, but this fails to take the subject’s life of the mind seriously. Whatever else the researchers are trying to do, it isn’t research about morality.

What if Altruists are Suckers?

Granted the idea of virtue and vice, can there be such a thing as too much generosity? If we take the consequence of evolutionary behavior as the standard for morality, it’s certainly possible. Spurred by the evolutionary game theory in Richard Dawkins’ The Selfish Gene, philosopher J. L. Mackie proposed that altruistic behavior could be counterproductive for the survival of a species.[1] He relates this in an evolutionary survival game where a species of birds has developed the behavior of grooming each other in order to remove pesky bugs they can’t reach on the back of their own heads. An individual bird of the species can exhibit one of three types of behavior: sucker, cheat, or grudger. A sucker always grooms another bird no matter what. A cheat loves to be groomed, but never grooms another bird in return. A grudger grooms another bird, but will stop grooming another bird that takes advantage of her generosity. If the population is mostly grudgers, then cheats won’t thrive. But if there are enough “altruistic” suckers, grudgers could proliferate, even to the point where their “selfish” behavior drives the species extinct.

Mackie suggests that altruism may not be the most moral attitude after all. He identifies himself as a grudger: tit for tat, eye for an eye. It appeals to the innate sense of justice. After all, under normal circumstances, who would let a murderer go free? The secular children in the altruism study more arguably would do so, perhaps thinking they are being kind by overlooking another’s trespass. In this case, Mackie and thoughtful people might side with the Muslim children in their assessment of the appropriate punishment and who is more “moral.” Now the study doesn’t give us a clear sense of what degree of punishment is appropriate or virtuous. It hints that assigning “harsher” punishment is less moral, but why that would be the case is unclear.

So in sum, the altruism study and articles reporting on it miss two important things. First, because there is no ethical framework in view, we have no evaluative context for the children’s actions, and no actual understanding of their motivations. Instead, it is assumed that generous behavior is what makes for morality, and that desiring a wrongdoer be punished is a moral failing. But these assumptions are far from granted for critically thinking people. Second, the study fails to acknowledge an evolutionary scenario where altruism can be counterproductive. Instead of research and journalism that takes these two realities seriously, we have fodder for fit for the social media one-upmanship that fuels the spurious science-versus-religion narrative.

PS: With respect to the “dictator game” the experimenters conduct with sticker allocation, check out this blog post citing a study where the validity of dictator games are undermined by “experimenter demand effects.”

[1] Mackie, J. L.. 1978. “The Law of the Jungle: Moral Alternatives and Principles of Evolution”. Philosophy 53 (206). Cambridge University Press: 455–64. http://www.jstor.org/stable/3749875.

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Black Lives Matter, and they hold to quantum indeterminacy?

September 1, 2015 Leave a comment

Let’s applaud Democratic pundit David Mercer for appearing in a debate about Black Lives Matter on Fox News’ “Strategy Room.” Yes, I was watching Fox News, but I am hopeful that Pope Francis will soon be offering absolution for that particular sin. Seriously though, it’s praiseworthy whenever people with different views come together for discussion. Even if it’s stuffed with rote partisan talking points and there’s more heat than light.

Here’s a quote from Mr. Mercer I want to share with you (circa 3:25) :

When black men–now I’m above the age–but I had a better chance between 18 and 35 of going to jail or being shot than I did getting a college education.

Percentages apply rightfully to the activity of indeterminate theoretical entities, like the chance a subatomic particle will pop into being out of a quantum vacuum. Individual human beings, who are always particular and situated in history, don’t reduce down to a neat statistic. They always have the messy baggage of having had some particular woman as a mother, man as a father, or another person as guardian who raised them for better or worse. There are always certain values instilled, and a particular cultural milieu present. Whatever the mix of people and experiences, I bet it was this, more than mere statistical chance, that determined whether Mr. Mercer ended up going to college.

None of this is to “blame the victim” for those who end up killed or in jail. By the way, are there some excluded options, like going to trade school or just entering the workforce? At any rate, the claim I’m making is modest: persons are particular, and given the knowledge a person has about himself, any claim he makes that some statistical chance holds sway over him isn’t credible. It is one thing to talk percentages about the weather or health events, but socioeconomics always involve people informed by values who are making choices. Whatever the issue may be–race, gender, jobs, or families–let’s not abstract away that part of the policy conversation.

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Vacuous NYT report props up Planned Parenthood’s “videos were edited” meme

August 27, 2015 2 Comments


The New York Times reports today that “Undercover Planned Parenthood Videos Were Altered, Analysis Finds.” There’s almost no value to this story, because the only videos that the company chose to “analyze” were the shorter, edited videos, not the uncut, longer ones. To say an edited video was “altered” is trivial. It implies nothing about the truth of the content of the video.

Notice two things in this snippet from the NYT story:

According to the investigation, the reviewers could not determine “the extent to which C.M.P.s undisclosed edits and cuts distort the meaning of the encounters the videos purport to document.”
But, it said, “the manipulation of the videos does mean they have no evidentiary value in a legal context and cannot be relied upon for any official inquiries” unless C.M.P. provides investigators with its original material, and that material is independently authenticated as unaltered.

First, the analysts balk at giving substance to the claim that the videos were altered. Taking after Derrida, they are totally agnostic about what the video is really trying to say, and how that might differ from what the raw data of the uncut video really says.

Second, I’m not so sure that a “manipulated” video has zero evidentiary value in court. A testimony, whether written or recorded as audio or video, is necessarily a product of a human mind and hands at work. Call this manipulation. Yet, such testimony is often rightly admitted as evidence.

More pertinent to Planned Parenthood’s legal troubles, the longer videos that the Center For Medical Progress recorded are very likely not “manipulated” in the nefarious sense that the analysts suggest. The job of a legal prosecutor will be to draw on that uncut video evidence to produce a case that in effect corroborates the shorter, edited videos. And it is the jury, not these analysts paid big bucks to say nothing of value, who will decide the matter.

So what business does the New York Times have in producing this empty story, if not to carry water for Planned Parenthood? The report uncritically repeats the message of a company hired by Planned Parenthood. The coverage is one-sided; there’s zero effort to get comment by anyone not ultimately commissioned by Planned Parenthood. The headline is clearly meant to prop up the vacuous “videos were edited” excuse for ignoring the content of the CMP releases. Imagine how many social media feeds this unsubstantial NYT story is populating now, giving false relief to people who want to ignore the undeniable brutality, callousness, and illegality that these videos–edited or not–clearly attest to. Whatever The New York Times is doing here, it is not objective journalism.

Photo credit: / Foter / CC BY-NC-ND

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Feelings Trump facts? Four arguments against the Donald

August 23, 2015 2 Comments

Donald Trump is leading the pack for the GOP presidential nomination, and many attribute his popularity to the raw anger out there in America. I’ve never been one for unconstructive anger. So let’s say you are angry, and you don’t just want to emote, but want our country to be doing better again. What’s the way forward? Here are four reasons why it’s not Trump.

1. High unfavorable numbers

One recent poll reportedly puts Trump’s overall unfavorability at 59%, higher than even Hillary Clinton. What does it take to be even more unpopular than America’s robotic grandma, the secretive, defensive, and definitively Nixonian Mrs. Clinton?

2. Peforms worse than other GOP candidates in matchups

A recent swing state poll by Quinippiac showed not just that Hillary Clinton does worse than Joe Biden in head-to-head matchups, but that Trump consistently underperforms in those matchups compared to Jeb Bush and Marco Rubio. In Florida, Rubio and Bush comfortably beat Clinton and Biden in respective contests, while Trump eeks 2 percent past Clinton and falls to Biden by 3. In Ohio, Rubio and Bush best Clinton, but Trump trails her by 5, and goes down to Biden by 10. And in Pennsylvania, Rubio and Bush each beat the Dems while Trump loses to them. The pattern from this poll is clear: Rubio performs best overall, followed by Bush. Right now Trump doesn’t have what it takes to beat likely Democrat opponents. And given his stratospheric unfavorables, that is unlikely to change.


Tom Simpson / Foter / CC BY-NC-ND

3. The stay-at-home conservative voter is a myth

There has been a “stupid myth” floating around since 2012 that three or four million conservatives stayed home rather than vote for patrician, RINO-squish Mitt Romney. Commentator Laura Ingraham has warned that conservative anger needs a chance to play itself out this cycle. According to common wisdom, Trump is the prime shot at that.

Before we buy this premise, let’s go back and check the numbers. According to Michael Medved, Romney gained more than a million votes over McCain. When I crunched Wikipedia’s numbers, Romney’s gain was 985,177. And this gain happened amidst a decline of three million total voters between 2008 and 2012.

If historical observations by Kim Strassel and Ed Morrissey are reliable, then the myth of disaffected conservative voters arose before all the votes had even been counted! As Churchill has been quoted, “A lie gets halfway around the world before the truth has a chance to gets its pants on.” The snarling, anti-establishment Right is not as powerful or predictably peeved as typically touted.

4. Birthright citizenship trilemma: jobs, the rule of law, or unreasonable

Mr. Trump released policy statement last week that includes ending so-called birthright citizenship. This is an innovation in the debate on immigration, but it is a non-sequitur. Stopping illegal immigration has been, for conservatives at least, about a couple of more foundational principles: jobs for Americans and the rule of law. While I respect the drive to immigration reform that’s based on a concern for the rule of law, and the need to enforce laws, I don’t buy that ending birthright citizenship significantly increases job opportunity for American citizens. It is an arcane pursuit and any change to the job market will be indirect. So all of the energy for ending birthright citizenship must either come from a pure concern for the rule of law, or something more nefarious. Of course, many in the media and on the Left will gladly attribute xenophobia as the motivation. But if we give Trump the benefit of the doubt, his desire to end birthright citizenship must be about restoring some obvious mistake in interpreting the Constitution. He must be a candidate who champions the rule of law.

The problem for Trump is that he has bragged about paying off politicians and he trades off of the force of his personal charisma. He does not inspire confidence that he will uphold the rule of law. Someone who supports both Trump and ending birthright citizenship owes an explanation as to their priorities: jobs or the rule of law? If the rule of law, then why Trump and not a more principled conservative? If jobs, then why so fervent about the arcane task of ending birthright citizenship? The third alternative is that the supporter is not a reasonable conservative, but a xenophobe or just an unreasonable voter. The latter, sadly for America today, almost seems par for the course.

So, whether you are a Trump fan or suffer daily combat with a friend or relative who is one, I hope I’ve given you some food for thought. There are a lot of great candidates out there this cycle. Let’s be sure to elect one of them.

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Who gave you the right?

July 17, 2015 Leave a comment


KJGarbutt / Foter / CC BY

You’ve probably heard this question asked before: “Who gave you the right?” In everyday situations, the accused might just take the question as rhetorical, or a mere expression of puzzlement or frustration. After all, he might be certain that his right is absolute or a brute fact. Then who are other people to question it? Yet, rights claims conflict and are doubted all the time. Is there a right to life or a right to choose? Is there a right to bear arms or the right to enjoy a gun-free zone? Supreme Court decisions aren’t even immune to controversy. To get a proper grasp on stubborn rights conflicts, we need to not just heed professional jurists, but reason along with ethicists and philosophers also.

Modern rights theorists owe much to Enlightenment thinker Immanuel Kant. He pioneered a way of using “pure reason” to deduce what ethical duties a rational person has. In his Practical Critique of Reason, he asks, quaestio iuris, “by what right” should we make ethical deductions?

A successor to Kant, twentieth century philosopher Alan Gewirth, paid particular attention to what it takes to have a right. In his essay “Are There Any Absolute Rights?”, he invokes a general formula:

A has a right to X against B by virtue of Y.

This conception helps us see what substance lies behind a rights claim. Notice that regardless who is said to have the right (A), who must respect it (B, also known as the respondent), or what the right itself is (X), that the reason for it all is described by Y. This is the “justificatory basis” or the explanation of what ground the right.

I’d suggest another way to justify a right, this one coming from the premodern scholastic Thomas Aquinas. In his commentary on Aristotle’s Politics, Aquinas wrote, “What gives reason for action is always some intelligible benefit.” He goes on to elaborate three basic common goods: religious fellowship, friendship, and marriage. While Aquinas did not explicitly address modern rights as common goods, it seems reasonable to me to do so. It is not a stretch to say that a right is a kind of reason for action existing for “some intelligible benefit.” The question becomes, what is the intelligible benefit of any given right? This is asking for a natural law basis of rights.

In summary, I’ve given three approaches to rights. Kant focuses us on asking what duties impress themselves upon the rational person. Gewirth comes in a line of thinkers who break rights down into constituent parts. Finally, I’ve encouraged us to view rights as goods that serve a purpose. I’ve highlighted these aspects of rights in order to get people thinking about what rights claims really are. Another question we should address going forward is what makes rights binding? Back to Gewirth’s general formula, why does respondent B have a duty or obligation to respect person A’s enjoyment of right X?

This exercise isn’t just academic; I have a practical concern. If there is always a respondent B, it seems to me that rights always have a cost, which is always to in some way bar or constrain others in action. When that cost and limit is felt by another, don’t be surprised when she asks, “Who gave you the right?”

Sources consulted:

1. Finnis, John, “Is Natural Law Theory Compatible With Limited Government?” in Natural Law, Liberalism, and Morality. Ed. Robert P. George (Oxford: Clarendon, 1996)

2. Gewirth, Alan, “Are There any Absolute Rights?” in Theories of Rights. Ed. Jeremy Waldron (Oxford: Oxford University Press, 1984)

3. Wenar, Leif, “Rights”, The Stanford Encyclopedia of Philosophy  (Fall 2011 Edition). Ed. Edward N. Zalta http://plato.stanford.edu/archives/fall2011/entries/rights/

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I would like to congratulate you . . .

June 27, 2015 2 Comments


dbking / Foter / CC BY

I would like to sincerely congratulate my friends and family who see a moral victory in the recent Supreme Court decision legalizing same sex marriage.

But I am prevented by two considerations. First, this ruling has come at the cost of discarding the possibility that government recognizes marriages for the well-being of children. This essential purpose has been understood for millennia. I understand it is practically ineffective while we have no-fault divorce, and a culture that doesn’t value commited relationships. I would have these changed. Government recognition of marriage really should be about the couple’s responsibility to the broader community, particularly in raising their own biological children. It’s a reasonable norm with reasonable exceptions, that don’t entail the logic of the Court’s ruling. As nice as it is for two (or more?) people to express their desire to commit to each other, that is a matter for private communities, not the government. If we construe government to be in the business of affirming the validity of personal relationships, then that is effectively instituting a deeply held religious belief called progressivism.

Second, I am sad that people seem to think that human dignity and moral worth are secured by political activism and legislation. This is not the case. All human persons have intrinsic moral worth due to their being created in the image of God. This is not a particular evangelical belief, or a conservative belief. It is a reasonable, public, and humane belief. It is a justified, true belief. I know it to be true, and I bet you do, too. It was true before Friday’s ruling, it is true after the ruling, and it will be true no matter what other political developments happen in the future.

For good reason my conscience prevents me for celebrating this decision. It is my firm but not-at-all-certain hope that there remains tolerance and goodwill in this country toward dissenters.

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Should a Christian baker bake two cakes instead?

April 5, 2015 6 Comments

“And if anyone forces you to go one mile, go with him two miles.”

Matthew 5:41 (ESV)

The above passage has recently been used to suggest that Christian bakers, if asked to bake a gay wedding cake, should bake two instead. Does this prescription necessarily follow from Jesus’ very own words? Consider this application:

“And if anyone forces you to go to the back of the bus, go twice as far back.”

Anyone who knows the history of the American civil rights movement also knows this is dead wrong. It is a mistaken application of moral reasoning. This is because we know that sometimes, it is right to stand firm in the face of injustice. One thing we know of Jesus is that he always stood for moral truth; he was faithful to and never abandoned it. Even when people misjudged his intentions, to the point of crucifying him. Can we all at least concede the possibility that business operators are trying to make a similar stand?

It has been advised that a Christian should bake a cake to avoid hurting another’s feelings. But following Jesus seems to be more about being faithful to truth than aoviding hurting other’s feelings. Jesus did not swerve from truth when rebuking Pharisees, moneychangers, or even when interacting with the rich, young ruler. Even beyond what scripture says, it is common sense knowledge that we can’t control how others react to us. Avoiding hurting other’s feelings should not trump faithfulness to truth.

The current moment presents a dilemma for bakers, florists, and others who hold to conscience. Today, litigiious activists would force them to appear as if they are affirming and celebrating same-sex marriage as identical to natural marriage. To say nothing of scripture, there is a very real, natural, biological difference beween same-sex and man-woman relationships. The practical difference has been virtually obliterated for the sake of a coarse political agenda, built on mistaken premises. Activists seem to want to compel speech to the effect that, “I approve of you as a human being.” But I believe most of these business owners, like Washington state florist Barronelle Stutzamn, already approve of, and indeed truly love, their LGBTQ customers as human beings. It has been a long held truth that equal dignity comes from all of our being made in the image of God, imago Dei. Lawsuits and vitriolic compulsion do nothing to add or subtract from anyone’s dignity. Rather, they call into question the judgment of activists and progressive supporters who think such moves are justified.

It is a remarkable irony that as the voices of compulsion grow louder, people of conscience have all the more reason to take a stand for truth. And for Christians particularly, being misunderstood is not something to avoid, but to patiently endure until the truth prevails. As the U.S. civil rights movement itself illustrates, sometimes, it is the right thing to refuse what others demand of you.

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Neuroscientist: awareness is cartoonish caricature of reality

October 12, 2014 Leave a comment

Photo credit: Yuri Yu. Samoilov / Foter / CC BY

Photo credit: Yuri Yu. Samoilov / Foter / CC BY

Neuroscientist Michael S. A. Graziano recommends to readers of the Sunday New York Times his attention schema theory of consciousness. Is it a good advancement over other theories? Pay attention and become aware of what transpires in his opinion piece:

In neuroscience, attention is a process of enhancing some signals at the expense of others. It’s a way of focusing resources. Attention: a real, mechanistic phenomenon that can be programmed into a computer chip. Awareness: a cartoonish reconstruction of attention that is as physically inaccurate as the brain’s internal model of color.

In this theory, awareness is not an illusion. It’s a caricature. Something — attention — really does exist, and awareness is a distorted accounting of it.

I would like to offer a syllogism to clarify the issue:

1. If one knows for a fact that conscious experience is a cartoonish caricature of physical reality, then there must be an alternative account of what it is like to experience the world more accurately.

2. There is no alternative account of what it is like to experience the world more accurately.

3. Therefore, no one knows for a fact that conscious experience is a cartoonish caricature of physical reality.

The force of my argument lies in taking the claim of cartoonishness and caricature seriously. If the claim can’t be justified by a plausible alternative account,  then we should dismiss it as incoherent. To say that an amoeba or a computer experiences the world more accurately than we do is absurd, because they do not experience the world at all. The materialist is better off simply sticking with the claim that experiences don’t exist, rather than denigrating their accuracy. This is the law of excluded middle at work.

Notice that I am not refuting the attention schema theory of consciousness outright; I am just striking this one popular characterization of it from the realm of intelligibility.

For some good work on consciousness,  mental events, neuronal firings, and the ontology required for all of them, check out J.P. Moreland’s latest book, The Soul.

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Smuggling meaning into a Godless universe

August 20, 2014 3 Comments


mRio / Foter / Creative Commons Attribution 2.0 Generic (CC BY 2.0)

This recent blog post by a science writer at NPR insists that “We Don’t Need To Be Created To Be Relevant.” Here is how author Marcelo Gleiser frames relevance:

“For many people, the thought of being the result of mere accident is a nonstarter. They think that to be relevant we must have been created in some fashion. After all, the word accident usually denotes something bad. Chance is a better (but not perfect) word: We are the product of chance.”

Who or what are we supposed to be relevant to? Gleiser simply does not say. What he does do is subsequently expound on the mystery of biological life, reasoning that if intelligence is not necessary for life to dominate the Earth, then we are special.

Along the way, he punches the God of the gaps strawman, characterizing it as “a dangerous way to believe, given that science does advance and gaps do get squeezed away.” Its inclusion strikes me as odd; intelligence is a property of minds, things that science can’t induct into its material account of the world.

Consider the thoughts your mind produces: first-person, unified, subjective experiences which you can identify as being about things. A scientist cannot access these real phenomena directly; only you enjoy the privileged position that allows you to directly know and report what your mind thinks about. Science is principally incapable of describing the content of thoughts. Methaphysics, philosophy, and human language are needed. This is not God of the gaps, but simply what is beyond science’s purview.

Likewise, relevance, if it refers at all to the classical questions of ultimate meaning, value, and purpose, is illicit to science. The fact-value split initiated by eighteenth century thinker David Hume–and continued by the twentieth century developments of verificationism, noncognitive emotivism, and eliminative materialism–establishes that in a closed, material cosmos, there is no real value to anything, not even life itself. There is no “formal relation” between facts as they are, and values pointing to how the facts ought to be. You can’t get an ought from an is. No intrinsic worth, or ultimate significance. The rareness or infinitesimally unlikelihood of intelligent life is a quantitative measure that will not translate to the quality of being special or relevant.

In this world, roses are not red, and the sweetness of a salty summer sea breeze is an illusion of consciousness. Carl Sagan’s beloved pale blue dot holds no worth. Why pretend that it does? Bertrand Russell provides logically consistent advice for us when divinity does not partake in our cosmos: “only on the firm foundation of unyielding despair, can the soul’s habitation henceforth be safely built.”

But perhaps, this drab, desolate conception of reality is mistaken. Think about it.

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Are rights invented or discovered?

August 4, 2014 2 Comments

Writing for The National Constitution Center, Lyle Denniston pinpoints the crux of the nation’s protracted same-sex marriage legal battle:

[it] will come down to a debate about granting a new right to a group of people, or confirming a right that is historically contained in the Constitution.

Denniston doesn’t consistently name the views, so for sake of reference let the former view be “invented rights” and the latter “discovered rights.” The Ninth Amendment seems to provide a justification for discovered rights:

“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

That very promise, at least in one interpretation, set America and its institutions on a more or less continuous journey of discovering what those unspecified rights might be.

Trilobite Fossil at NMNH from Flickr via Wylio

Are rights discovered like fossils? © 2008 Mr.TinDC, Flickr | CC-BY-ND | via Wylio

I’d like to draw out the ontological implication of discovered rights. Or rather, a paleontological implication. It would seem on this view that constitutional rights are always existing, like some fossils that lay hidden, waiting to be dug up at the right moment in history. It would seem to invite a type of metaphysical Platonism. It might be like the Augustinian doctrine of traduccionism, the idea that you, me, and all descendants of Adam were actually present within him at the Fall of Man. What one thinks of traduccionism theologically is one thing. But constitutionally, wouldn’t it be a little absurd to posit that all future rights were somehow actually embedded in the document at the time of the Founders, waiting to be unpacked in a more progressive time? Could I now be writing words that contain new, untold rights of future generations? It seems quite absurd.

I find the alternative view better. Rights when enumerated, are spoken into being as new creations. Metaphysically, they would seem to be constructs. This does not make me a rights nihilist, but it might make me a rights nominalist.

Denniston frames the driving question of the more skeptical view this way:

What gives a new group, seeking constitutional protection, the right to ask that it get a new right all of its own?

But for those who would unpack preexisting rights, the question is, “Why should guarantees of equality of fair treatment be frozen in constitutional time?”

Notice the language: “equality of fair treatment.” The meaning seems under-determined, but to me the phrase looks redundant. Doesn’t fair treatment already imply an equality of consideration?

Take potential U.S. presidents Arnold Schwarzenegger and Madonna. It may be that the Constitution on procedural grounds fairly prohibits foreign-born Arnold from assuming the office of presidency but permits Madonna for the job. In this case, both persons can be equally and fairly considered, while the outcome is unequal but fair.

Denniston presents a final juxtaposition of discovered rights versus invented rights:

Is it a sweeping right to choose one’s life mate without interference by government? Or is it a right that is fundamental only because it has deep roots in the traditional definition of one-man, one-woman marriage?

The first alternative is deeply twisted logic. The failure of government to affirm one’s very personal life choice does not constitute “interference.” This again confuses the positive right to receive something from government with the negative right to be left alone by government.

Denniston’s second alternative of rooting an individual right to marriage in tradition doesn’t sit quite right, either. The third, unpresented alternative is, why think marriage is a right at all? It seems to me that marriage, especially on the child-centered natural law view, is not anything more than a privilege or duty done for the public good. Let legal marriage bet distinct from personal, theological, and cultural conceptions of marriage.

Just as a childless individual pays taxes for and obtains the general benefits of public education, so we all generally benefit from stable child upbringings that obtain when men and women fulfill the obligations and responsibilities entailed in a marriage covenant. On this overlooked view, if there is a right to marriage, it does not belong to individual citizens, couples, or throuples, but to society as a whole.

This is why I find it especially alarming when attorneys general choose not to defend state constitutional amendments defining marriage as between one man and one woman. Protecting an arguable public interest should not be left to personal whim!

If marriage is a policy in the public interest, we should consider that individual rights may not be able to expand forever. It should be becoming clear that digging up or inventing new rights is at best an absurd exercise, and at worst, damaging to the nation.

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