The Pragmatic Eudaimonist: A Response to David Tubbs

 
 

David L. Tubbs’ criticism of pragmatic liberalism reveals that he misunderstands both the necessary complexity of constitutional law and its relation to civil society.

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In the April issue of First Things, I published an article, entitled Eudaimonia in America, in which I made two main points. The first was that, although the liberal political institutions of the United States can easily and naturally be justified on the basis of a liberal political philosophy, they can also be justified as pragmatic political compromises worked out by people who disagree sharply on moral issues and have divergent interests and life goals. I called the former kind of justification for liberal institutions philosophical liberalism and the latter pragmatic liberalism.

My second point was that a Roman Catholic like me, who understands morality to be eudaimonistic in the manner of the Aristotelian-Thomistic tradition, can and should be a pragmatic liberal, because, in the totality of current circumstances, liberal political institutions comprise the best available system of government in the sense that they afford the best chance of allowing people to lead good human lives, which is the central concern of eudaimonistic moral philosophy.

In September, at Public Discourse, Professor David L. Tubbs wrote to disagree with me. He begins by associating me with Mario Cuomo and his infamous Notre Dame speech, in which Cuomo argued that the law ought not prohibit abortion because so many of our fellow citizens would not support the prohibition. This distresses me, for my published writings leave no doubt that my position is just the opposite of that of the former New York governor.

But Professor Tubbs has even deeper worries about me. He thinks that my position “raises questions about the strength of [my] simultaneous commitment to the moral philosophy of eudaimonism,” to which he says I only “purportedly” subscribe. He thinks my appreciation of cultural and religious pluralism in the United States has “spawned doubts in [me] about the universality of certain moral principles,” and perhaps because of these doubts I “want to lead a fairly quiet existence, some distance away from the often contentious arguments about what public morality in our liberal democracy requires.” In acting on this desire, I am guilty of “a betrayal of the Aristotelian-Thomistic tradition” and so am only “a reluctant eudaimonist.”

Basically, Professor Tubbs doubts I really believe in the moral views I espouse.

Happily, I am such an easygoing fellow that I will readily forgive someone I have never met of accusing me in print of moral insincerity. I would suggest to him, however, that in dealing with the writings of a fellow scholar, it is customary to extend the author the courtesy of at least pretending to believe that he means what he says. If Professor Tubbs thinks my commitment to eudaimonism and my commitment to pragmatic liberalism are incompatible, the correct course is to argue that I have failed to see that my position is internally inconsistent, not to question the sincerity of my moral convictions.

Which brings me back to the more relevant things that Professor Tubbs says about my article. He and I agree that, on a eudaimonistic account, government should help people lead good human lives by enacting laws that discourage vice and promote virtue. Where I suspect we disagree, however, is that while the matter seems relatively straightforward to Professor Tubbs—if certain actions are vicious and especially if they endanger the moral formation of the young, the law should prohibit them—I see the matter as being more complicated. I am especially concerned with the fact that the law is an administrative system run by human beings, and considerations arising from this fact can often make a law that Professor Tubbs would support dangerous and unjustifiable.

For example, all good eudaimonists would agree that parents should love their children and treat them justly. Now suppose there is a man of perfectly sound mind who, in his last will and testament, divides his property among his children in a patently unjust way. The law is quite clear on this: the courts will not intervene to reform his will to effect a more just result. Why? Because if we allowed that sort of thing, many children would challenge the wills of their deceased parents, and a court of law—or, more accurately, the human beings who act as judges and juries—are not likely to be able to get good and reliable information about all the facts and circumstances, perhaps occurring over the course of a lifetime, that would determine what kind of division of property is really just in the case at hand. The person with the best information was the testator himself, and although some testators will do grossly unjust things, on average a court that disturbed the arrangements made by testators would do more harm than good: it would be more likely to change just results to unjust ones than the reverse, and in doing so it would run up costs for everyone involved and society as a whole. So we have to accept some unjust results because, due to various human limitations, the law is not an effective instrument to remedy them.

The same concerns play out in grander legal issues. In my First Things article, I discussed Brown v. Entertainment Merchants Associations, a case in which the Supreme Court struck down a California statute that limited the sale of especially violent video games to minors. I argued that, while the effects of the statute taken on its own would no doubt be good, the Court was right to hold the statute unconstitutional. The reason, I said, is that upholding the statute would have vastly expanded the government’s power to regulate speech.

Under current First Amendment law, with certain exceptions, the government may suppress speech only if doing so serves a compelling government interest by narrowly tailored means—a standard that was obviously not met in this case. Hence, allowing the law to stand would expand government power to regulate speech. In fact, such a decision would imply that the government could regulate speech that it found vile, disgusting and worthless—the real reason California wanted to regulate the speech in question. Such a power is one with which government cannot safely be trusted, for legislative majorities may easily find, say, certain people’s religious speech to be vile, disgusting, and worthless.

As with reforming the will of an unjust testator, the problem is not the result in the individual case, which may well be quite good; it is that we are deciding not just about the result in this case but about what kind of system of laws we will have. We must consider the overall effect of each decision on how future cases will be decided as well.

Professor Tubbs finds this reasoning curious, and he poses to me several questions. “Why does [Miller] not take the statute on its own terms?” Answer: because the issue before the Court was not whether the statute was good on its own terms but whether it was constitutional, which amounts to the question of whether the government should have authority to make such a law. Hence, acknowledging that the statute is, in itself, good does not settle the relevant issue.

“Why is [Miller] only interested in whether the games lead to actual violence?” Answer: because existing First Amendment law requires that, to suppress speech, the government must demonstrate a compelling government interest, and the interest alleged by California in defending the law was the connection between violent video games and actual violence. Professor Tubbs may want to count the moral improvement of the young as a compelling government interest, but we have not done that in the past because we have historically not trusted legislatures to decide which speech improves the morals of the young and which does not. If the moral improvement of the young were a compelling government interest, the government could then prohibit minors from reading the books it decided were immoral—a result too fraught with peril to contemplate.

Finally, “Isn’t a eudaimonist supposed to be interested in the state of our souls and long-term capacity for virtue?” Answer: Sure, and I am interested in those things. That is why I worry so much about the possibility that government, which is generally controlled by people who do not share my eudaimonist values, might be granted the power to shape the morals of the young.

Professor Tubbs also has much to say about contraception. In my original article, I argued that Patrick Deneen’s idea that contemporary social pathologies related to sex arise from the philosophical mistakes of the American founders is fanciful, and that the rise of sexual promiscuity has primarily to do not with political philosophy but the advent of cheap and reliable contraception, which greatly lowers the costs of sex outside of marriage. Professor Tubbs thinks that the Supreme Court played a very important role here when, in Griswold v. Connecticut, it struck down a Connecticut statute that made it a crime for any person to use a drug or instrument to prevent conception.

As an originalist in constitutional law, I think that Griswold was wrongly decided and that it involves dreadful legal reasoning. But I also think that it is almost as fanciful to blame Griswold for our social pathologies as it is to blame the political philosophy of the eighteenth century. Griswold may have hastened an inevitable result, but long before Griswold public opinion had moved sharply in favor of contraception. As early as 1930, the Anglican communion had reversed its historical view and allowed that contraception was sometimes morally permissible. All the major Protestant denominations followed. By 1960, five years before Griswold, there was a broad social consensus in the United States that contraception was permissible and that contraceptives should be widely available, and they generally were. If Professor Tubbs thinks that, but for Griswold, we would still have and enforce laws against the sale and use of contraceptives—well, I admire his faith in the power of the law, but I do not share his judgments about social realities.

Professor Tubbs ends by proposing three principles to make my pragmatic liberalism more coherent. First, he says that “even though eudaimonists may need to acknowledge that contemporary liberalism has won important policy battles, they should not take the next step and broadly affirm the principles of contemporary liberalism.” I agree with Professor Tubbs here, but it is really more a case of his agreeing with me. The whole point of my First Things article was, after all, that eudaimonists should support liberal political institutions for pragmatic reasons and not as a matter of moral principle.

Second, Professor Tubbs says that “eudaimonists should be wary of any policy set by the Supreme Court relating to the begetting, rearing, and education of children.” I agree with this as well, but since the Supreme Court’s decisions on such matters have outraged moral conservatives for the last fifty years or so, I doubt Professor Tubbs’s reminder is all that necessary.

Third, “eudaimonists should affirm civic engagement as a moral duty for themselves,” a proposition with which I am yet again happy to agree. Professor Tubbs worries, though, that I in particular should pay special heed to this admonition, for he fears that I will retire to a “quiet existence some distance away from the often contentious arguments about what public morality in our liberal democracy requires” and so betray the Aristotelian-Thomistic tradition.

I am happy to take counsel from any wise man, and I promise Professor Tubbs that I shall remain civically engaged. In fact, he can count on me to point out public folly and silly talk about morals whenever I find them in the public discourse.

Robert T. Miller is professor of law and the F. Arnold Daum Fellow of Corporate Law at the University of Iowa College of Law.

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