This is the centerpiece of Murray’s argument: The American project can be sustained only by virtue; and culture, more than politics or economics, is the social force that sustains (or corrupts) our virtues. The Founders knew this. For them, it was a truism that our republican form of self-government depended on a virtuous people who could exercise individual self-governance. And from the founding generation until 1960, a shared national culture fostered the virtues necessary to sustain both the American project and our authentic happiness, which Murray defines as “lasting and justified satisfaction with life as a whole.”

But since 1960, Murray argues, the virtues of the bottom third of America’s population have weakened, and two social classes with divergent cultures and little interaction have emerged, threatening the future of the American project. His thesis leaves us wondering how this happened and how we can fix it, but his book disappoints those who seek causal explanations or plausible solutions. He focuses on the scene before us, not on how it arose or how we can change it. (I should add that the cultural changes he reports aren’t based on race or ethnicity; Murray filters out these variables by focusing on non-Latino “white America.”)

Murray defines the “founding virtues” as industriousness, honesty, marriage, and religion. The basic idea is that one should work hard to get ahead in life, follow the law and keep one’s word, be faithful to one’s spouse and do right by one’s children, and worship that author of the universe who makes everything—morality included—intelligible. Culture long sustained these virtues through fraternal organizations such as the Elks, Moose, and Odd Fellows, television, cinema and radio, the Sunday pulpit, and the McGuffey Readers used in American schools.

For Murray, what made America exceptional before 1960 was that almost everyone shared and participated in this culture. The rich and powerful weren’t hermetically sealed off from the rest of society. People tended to view themselves and treat others as if all were of the same class. He points, for example, to a 1963 Gallup poll in which “95 percent of the respondents said they were working class (50 percent) or middle class (45 percent).” Following Tocqueville’s observation that “Americans of all ages, all stations in life, and all types of dispositions are forever forming associations,” this attitude built up what Robert Putnam termed “social capital”—connections to other people, norms of reciprocity, trust, and neighborliness. These voluntary associations, Murray notes, “drew their membership from across the social classes, and ensured regular, close interaction among people of different classes.” And the classes weren’t all that different: they lived out the same virtues, valued the same goods, and led similar lifestyles. They watched the same TV stations, listened to the same music, ate the same food, lived in homes more or less comparable, drove similar cars.

The culture of the 1940’s and 1950’s taught Murray what it meant to be a man:

To be a man means that you are brave, loyal, and true. When you are in the wrong, you own up and take your punishment. You don’t take advantage of women. As a husband, you support and protect your wife and children. You are gracious in victory and a good sport in defeat. Your word is your bond. Your handshake is as good as your word. It’s not whether you win or lose, but how you play the game. When the ship goes down, you put the women and children into the lifeboats and wave good-bye with a smile.

He admits that his summary sounds like a list of clichés, but that’s his point: “they were clichés precisely because boys understood that this was the way they were supposed to behave.” School, church, and the airwaves reinforced the message: “It was taken for granted that television programs were supposed to validate the standards that were commonly accepted as part of ‘the American way of life’—a phrase that was still in common use in 1963.” It was a time, in fact, when the Production Code of the Motion Picture Association of America could include this line: “The subject of abortion shall be discouraged, shall never be more than suggested, and when referred to shall be condemned.” Murray isn’t blind to the many problems that plagued America during this time—racism, sexism, poverty, pollution—but he insists that the culture did support many crucial virtues.

And then it came apart. In the past 50 years, a “new upper class” and a “new lower class” have formed. The new upper class, accounting for about 20 percent of the population, has been formed by competitive admissions in higher education that select for intelligence, a new economy that values cognitive ability above all else, and marriage patterns that couple successful intelligent people, who go on to have equally talented children. Living, working, and socializing together, they’ve formed a distinct upper-class culture while continuing to live out the founding virtues: crime is low and industriousness is high, predictably, but they also marry, stay married, and practice religion at remarkably high levels. And, as a result, they’re pretty happy.

Things aren’t so good for the lower 30 percent. Few people go to college, only half of those aged 30–49 are married (and their marriages aren’t as happy as those on the top), 45 percent of their children are born out of wedlock, only 60 percent of adults work at least 40 hours a week (only 53 percent since the recession), crime is up, and religious practice is down: 60 percent are religiously disengaged, and only 12 percent, by Murray’s estimate, constitute the “religious core.” This last factor is particularly troubling, for as Putnam noted, about “half of all associational memberships are church-related.” Not surprisingly, these behaviors produce rather unhappy lives.

Murray’s observations aren’t novel. David Brooks in Bobos in Paradise popularized some of these trends at the top, and Brad Wilcox’s research at the University of Virginia has highlighted them at the bottom and top, and in the middle. While Murray doesn’t explain what caused the bottom third’s plight, he does note broader cultural changes that began at the same time: the civil rights movement, the feminist movement, the sexual revolution and introduction of the contraceptive pill, and the introduction of government welfare programs through the War on Poverty. Surely these had some impact.

So how does one rebuild a common culture, one that promotes virtue for those on the bottom? Murray predicts two futures. His pessimistic vision sees a hollow elite. Though they enjoy great wealth and social capital, the new upper class lacks the self-confidence necessary to defend the founding virtues. They ascribe to “ecumenical niceness,” whereby one is to live and let live. They “lost self-confidence in the rightness of [their] own customs and values, and preach nonjudgmentalism instead.” This attitude contributes to the “unseemliness” of some elite behavior: Aaron Spellings’ 56,500-square-foot home and a Pfizer CEO’s $99 million golden parachute (after poor performance) are prime examples. If the elite really are hollow, then for Murray “all is lost”: the class is “as dysfunctional in its way as the new lower class is in its way.”

Murray’s optimistic outlook, however, foresees a great civic awakening. Murray favors this event as the likely future, though tentatively and for impressionistic reasons. He predicts the following: The elite will wish to avoid an American version of the European collapses. They will realize that the welfare state cannot work for scientific, moral, and fiscal reasons. And they will rally around American ideals, start “preaching what they practice,” and engage the bottom of society. Murray doesn’t ask that the elite “sacrifice their self-interest,” only that they recognize its breadth: “a life well lived requires engagement with those around us.” Though it might “be pleasant to lead a glossy life, it is ultimately more rewarding—and more fun—to lead a textured life, and to be in the midst of others who are leading textured lives.”

I have trouble seeing this prediction as a viable solution to the problems Murray has described. First, too many elites are deeply committed to the sexual revolution and secularism—and thus are actively working to undermine the founding virtues of marriage and religion. Second, I fear that many of the new elites practice the founding virtues only for their utility, not their moral value.

As to the first point, Brooks in his review claims that Murray’s data show that “it’s wrong to describe an America in which the salt of the earth common people are preyed upon by this or that nefarious elite. It’s wrong to tell the familiar underdog morality tale in which the problems of the masses are caused by the elites.” But is this really true if the Hugh Hefners and Margaret Sangers of the world shaped American culture post–1960? Today’s popular culture no longer promotes the founding virtues—we need only consider our music, movies, television shows, and the public morality imposed on us. There’s no denying that there has been a coordinated effort to undermine the family, morality, and religion in America.

As to the second point, I’ve noticed a sort of practical Machiavellianism among the undergraduates I’ve taught—many of whom come from and are going to the new upper class, though most are of the middle. Insofar as they behave in ways that conform to traditional morality, it’s largely because they’ve figured out that those behaviors lead to the most practical success. Rather than practicing moral virtues, they’ve acquired Machiavelli’s “effective truth,” virtu. They’re good utility-maximizers. But they don’t believe in a binding morality, in obligations to virtuous behavior, or in any sort of moral sanction from God. If they do believe in God, it’s a God without demands. It’s what Christian Smith described as a “therapeutic deism.”

You can even see this phenomenon in Murray’s own language. The harshest denunciation he can muster is to call something “unseemly”—a term more suggestive of aesthetic than binding moral judgment. And the biggest push he can give the new upper class to help the new lower class is to say that a “textured life” is more fulfilling than a “glossy” one.

We are left with an elite who through education, law, and media have torn down the values and beliefs that made America prosperous, even while they still behave more or less in accord with those values for strategic, utility-maximizing reasons. If this is true, I don’t foresee the optimistic future in which they choose to interact with the lower class, nor how their engagement could fix the problems of the lower class. University of Pennsylvania law professor Amy Wax has noted that we need to create and sustain “simple rules for simple people.” While the particularly cunning may be able to navigate this world by cost-benefit analysis for their long-term happiness, most people can’t. They’ll default into maximizing their short-term welfare. What we need, and used to have, are a series of shortcuts, heuristics, mores, and life-scripts—culture—that help people navigate their lives without recreating the rules from scratch.

Wax’s analysis “reveals why preserving a ‘marriage culture’ is not just a matter of ideological commitment. Its most important effects are in encouraging the daily habits of thought and action that foster lasting bonds. Strong marriage norms help guide and shape decisions that lead to optimal choices.” Other research shows both that marriage causes behavioral change and that non-marriage can explain cultural pathologies. As the late Steve Nock demonstrated, after their wedding men tend to spend more time at work, less time at bars, more time at religious gatherings, less time in jail, and more time with family.

But I don’t see how Murray’s suggestions will restore this lifestyle. Regardless of the technicalities, the recent discussions on Public Discourse show that God and morality are linked at a conceptual level—and even more strongly on a psychological and motivational level. What’s more likely to prompt a new elite to interact with the poor: a discussion of unseemly behavior and textured life, or seeing Christ in the poor and hearing commandments to love one’s neighbor? What’s more likely to help restore the founding virtues: documenting how they lead to long-term self-interest and utility-maximization, or believing that God desires virtue of his people and sanctions those who fail to practice them—especially those who work to destroy them?

Murray is right to remind us that republican self-government relies on virtue, and that virtue needs the support of culture. But he should go a step further to ask what creates culture. George Weigel reminds us that at the heart of culture is cult, religion. Murray’s data and analysis don’t tell us enough about the types of religion being practiced, and the specific beliefs being fostered. Therapeutic deism and sexual revolution a healthy culture do not make. But a morally demanding God, with transcendent values, just might.

Ryan T. Anderson is Editor of Public Discourse: Ethics, Law, and the Common Good.

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But consider the range of America’s political-economic challenges: How to balance our budget; how to reform the major entitlements of Social Security, Medicare, and Medicaid; how to get the economy growing again; how to increase employment; how to increase social mobility; how to help the poor.

Though related, these issues are profitably examined one at a time. Poverty, for example, is undoubtedly linked to our debates about government regulation, taxes, and budgets. It is certainly tied to our debates about income inequality, social mobility, and unemployment. But poverty in America is not primarily about any of these issues. And political commentators of all stripes perform a major disservice when they mesh them together.

Thankfully, Lawrence Mead knows this, and has been instructing all who will listen on issues of poverty and policy for the past thirty years. A professor of politics and public policy at NYU, Mead was the intellectual driving force behind the welfare reform act of 1996. His latest work, From Prophecy to Charity: How to Help the Poor, is a concise statement of a lifetime of scholarship. It is a wonderful book that covers the causes of poverty, how we measure it, who the poor are, how government has tried to help, where it’s gone wrong and where it’s succeeded, and how competing ideologies have hindered or helped real policy reform. Though the book is short, it contains a wealth of information and wisdom. (The volume appears in the AEI Values and Capitalism series; I discussed another title in that series, Wealth and Justice, here.)

The critical questions for Mead are these: What do the poor really need? How can we effectively meet that need? Money comes second to what Mead argues the poor truly deserve: a lifestyle transformation. “Progress against poverty,” he insists, “requires programs with the capacity to redirect lives, not just transfer resources.” In reaching that goal, he adds, “recent conservative policies are more effective than what came before, and it would be a mistake to abandon them.”

Mead self-consciously argues against those who “have contended that the poor are entitled to aid regardless of lifestyle or, alternatively, that they should get nothing at all from government.” He appeals instead to Biblical wisdom, where our duties to the poor are based “not on abstractions such as rights, freedom, or equality but on restoring community.” The key, then, is to promote “right relationships”—with spouses, children, employers, and the broader community. To do this, Mead thinks, we need to understand better the causes of poverty.

While government measurements of poverty focus on economic factors, Mead stresses that behavioral dimensions play a larger causal role. Poverty would be simple to fix if it were just about economic need: then we would only have to give more money. But the long-term poor today are unlike the working poor of yesteryear. In an affluent society like ours, Mead argues, “poverty is not usually forced on people for very long by conditions.” Rather, “most have become poor, at least in part, due to not working, having children outside marriage, abusing drugs, or breaking the law.” Simply doling out more money does not counter these underlying causes of poverty, which call for behavior changes that encourage law-abiding, productive lives.

The World Bank classifies moderate poverty as living on less than $2 a day. By that standard, the U.S. has virtually no poverty. In the 1960s, our government’s official measure was set at three times the cost of a minimal food budget, which, adjusted for inflation, came to $17,285 in 2009 for a family of three (consisting of one parent and two children). Given this standard, the official poverty rate was 13.2 percent in 2008 and 14.3 percent in 2009. While these figures note anyone who fell beneath the poverty line in a given year, Mead asks us to focus on those who remain poor for multiple years, not those who hit a temporary rough patch. This long-term group includes 6 to 7 percent of the American population. And while the young, disabled, and elderly used to make up their majority, Mead notes that now they are outnumbered by healthy working-aged people.

Why are people in the prime of their lives poor? Mead argues that “poor families typically arise when parents have children without marrying and then do not work regularly to support them.” This pattern provokes a vicious cycle: children reared in these circumstances grow up to be poor themselves because they are more likely to drop out of school, get involved in crime and drugs, become sexually active at a young age, and never learn the value of an honest day’s work. “By these routes,” he says, “women end up early as single mothers on welfare while men go to prison. … Despite having children, neither men nor women usually attempt to marry or work regularly. That is the immediate reason they usually become poor.” If one graduates from high school, gets a job, marries, and then has kids—in that order—there is very little chance of falling into poverty.

Mead responds to a host of competing arguments about poverty, noting that “poverty is caused mostly by low working hours, not low wages.”  Good middle-class jobs may be hard to find right now, but there are ample low-skilled jobs available: “In 2009, only 12 percent of poor adults who did not work blamed this on their inability to find work. In 2007, before the recession, the figure was only 5 percent.” These jobs, Mead insists, “are still sufficient to avoid poverty and welfare for most families.” Our recent economic downturn isn’t to blame, for “in good times and bad, most poor adults are not even in the labor force, so the recession little affects them.” (In fact, the recession has mainly hit the middle class, and, Mead helpfully reminds us, “inequality and poverty are largely separate problems.”)  While he has a lot to say about employment, Mead has less to say about causes of and responses to the erosion of marriage, where 40 percent of all Americans are born out of wedlock, including 71 percent of blacks.

The welfare reforms of the 1990s worked precisely because they addressed both material and behavioral causes of poverty. While critics argue that welfare reform consisted of budget cuts, Mead notes that after the reform more money was spent helping the poor, not less. But the money came with strings attached—recipients had to work. According to Mead, “Most experts opposed reform, believing that few poor could work, given the barriers they faced. But most welfare mothers successfully left the rolls for jobs, with most of the leavers emerging better off.” This confirmed Mead’s central insight that cultural (and political) expectations, not economic barriers, prevented employment. Mead admits that low-skilled workers do not have an easy life, but he insists that working makes for a better life than not. And how to get people working is a separate question from how to get them moving up once in the job force.

Mead’s arguments partly counter some of those made by Charles Murray. While Murray focused on the rewards (and hence incentives) for bad behavior that welfare provisions provide, Mead argues that “the seriously poor are less calculating than economists suppose. If they were economically rational, they would never have engaged in the patterns that made most of them poor.” And yet, the way in which welfare was provided did keep people from working. So, while research has “not shown that social problems like nonemployment or unwed pregnancy result chiefly from the economic incentives set up by welfare,” he writes, “It is indeed true that liberal social programs have been counterproductive, but that is chiefly because they are permissive, giving no clear guidance about how recipients ought to behave.”

While the first wave of welfare reform largely affected poor women—mothers with children receiving aid—a second round of welfare reform, Mead argues, should find effective programs that put nonworking men into the workforce, and establish better academic and moral standards in schools. Mead unabashedly says that education and welfare need more paternalism. This paternalism is bemoaned by many for being judgmental (not being “value-free”), but this is precisely what Mead thinks the poor need. And what we owe them. Mead argues that the most effective welfare programs administered by the states “all set clearer rules for client behavior and back them up with oversight. Evaluations confirm that paternalistic programs generally perform better than nondirective ones.” Religious and other non-governmental partnerships can play an important role in this, Mead suggests.

While From Prophecy to Charity has certain limitations, it should be read by anyone who cares about government policy that helps the poor. I would like to have seen more discussion about prudential concerns: how to counter government-provided welfare’s crowding out effect on private charity, how to best structure government partnerships, and what is entailed by a precedent of attaching moral strings to welfare when government is run by the morally corrupt.

Mead’s discussion of competing perspectives on welfare also leaves much to be desired, as it consists largely of his own idiosyncratic interpretation of a handful of Biblical passages, and, in justified frustration with religious voices who have opposed welfare reform, he overstates his case against them and too quickly dismisses important voices. He is correct to say that a major problem with the prophetic tradition is its scarcity of guidance for what the rich can effectively do to help the poor, and of requirements for the poor themselves.

As I see it, the two dominant political philosophies of our day are forms of liberalism, but neither deserves the title nor lives up to the merit of classical liberalism. Neither the Right’s form of libertarian liberalism nor the Left’s  form of social welfare liberalism (both of which show strong streaks of lifestyle liberalism) can adequately form the basis of a governing philosophy, especially when it comes to the plight of the poor.

The libertarian argues that the sole purpose of government is the protection of rights, and that the only real rights are negative rights—freedom from force, fraud, and harm, whether perpetrated by other individuals or by governments. Taxing the non-poor in order to assist the poor is robbery, a violation of property rights, and itself a form of injustice. Provided they do no harm to others, individuals should be free to live life as they please, the libertarian argues, even if this means ignoring the plight of the poor. Market forces and private charities, if left free from state interference, will sufficiently succor the needy.

The welfare state liberal champions a conception of government where every citizen solely in virtue of his humanity has rights to adequate material resources necessary for a dignified life. Whether it be John Rawls’s “primary goods” or Martha Nussbaum’s “central capacities,” the state is supposed to equip people with a fair share of what they need in life—but it isn’t to influence how they use that share, nor to place moral conditions on how they receive it. At the heart is a positive right to materials coupled with a negative right from influence.

A sound political philosophy would hold that the state should be concerned about the welfare of all people. This means that our obligation to the poor has to be tied to their well-being, and thus necessarily connected to influencing their behavior. This is best understood not in terms of rights—whether positive ones to welfare or negative ones of noninterference—but in terms of promoting their good, with its material and moral components. In essence, any legitimate care for the poor has to be paternalistic. It has to teach true moral values: that one needs to be educated, that one needs to work, that one needs to marry before having children, that one needs to respect the law.

Classical liberal political philosophers understood this, because they knew that protecting natural rights also entailed promoting what Michael Zuckert has called a “natural rights infrastructure.” This can’t simply be a physical infrastructure of highways and courthouses, but a moral and behavioral infrastructure as well. An earlier political philosophy simply termed this infrastructure the common good. Promoting this necessarily forces us into discussions about human well-being and the moral norms that should govern our behavior. Sound guidance on this is what we owe everyone, poor and rich alike.

Ryan T. Anderson is Editor of Public Discourse: Ethics, Law, and the Common Good.

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Copyright 2012 the Witherspoon Institute. All rights reserved.

Peter Wehner and Arthur Brooks provide a prime example as they helpfully lay out much of the case for democratic capitalism in their new book in the AEI Values and Capitalism series, Wealth and Justice: The Morality of Democratic Capitalism. They start by arguing that democratic capitalism is the political-economic system that best corresponds to a human nature that is neither hopelessly flawed nor infinitely perfectible, but rather is a mix of beast and angel. The system allows citizens to pursue their self-interest, rightly understood, in a way that need not be either selfish or selfless, but still contributes to the common good. It also avoids the coercion and corruption present in the more totalitarian alternative regime structures while more satisfactorily helping the poor: “Markets, precisely because they are wealth-generating, also end up being wealth-distributing.”

They go on to recount the economic achievements of capitalism, which are, quite simply, staggering. Regardless of how you measure standards of living—infant mortality, life expectancy, literacy, hunger, disease, violence—the spread of capitalism has benefited everyone, they argue, and particularly the poor. As they note: “If you were born in London before the dawn of modern capitalism, the norm was destitution and grinding poverty, widespread illiteracy, illness and disease, and early death. And, even worse, your children could expect a similar fate. The possibility for progress was almost nonexistent for your progeny.” But with the rise of capitalism, all of this changed. Though they are careful to note the downsides of the Industrial Revolution, they argue that it needs to be measured against life prior to it, which was “bleak, cruel, and short.”

The attempts to fix the problems of industrialization proved to hurt the poor, not help them. Wehner and Brooks document the failures in worldviews that sought “a world with the benefits of capitalism, but without its costs.” So they tally the effects of communism, as it misread human nature and “shackled more people in more chains than any other political theory in history.” Concentrated power led to abuses, atheism devalued humanity, and a materialistic outlook viewed people as “merely economic units in the service of the state.” In the end, 65 million died under Mao, 20 million under Stalin and Lenin, and 2 million (a quarter of the Cambodian population) under Pol Pot. And for those who survived, living standards were poor.

But in “places where capitalism has taken root and flowered, income and living standards have shot up.”  In “capitalist nations, extreme economic poverty has been largely eliminated. There is an abundance of food. Literacy is commonplace; so are clean water, vaccinations, and access to advanced medical care.” Wehner and Brooks note that where capitalism has not taken root, “people live under brutal tyrannies, political corruption, malnutrition, and even starvation; social and technological progress is stymied, economies are stagnant, and the quality of life is dismal.” They conclude that “Capitalism has done more to lift people out of abject poverty than any other system in human history. All the other models—including collectivism, socialism, and communism—have proved to be deeply flawed, and their human effects are often calamitous.”

What about the impact capitalism has on culture, morality, and the human character? While claiming they have sympathy with some of these criticisms of capitalism, Wehner and Brooks explore none of them and “begin with an obvious counterpoint: The material progress that flows from capitalism is no small matter. Lifting people out of poverty is a hugely impressive and important moral achievement.” They continue in this vein by arguing that capitalism avoids the coercion of alternative political regimes and thus preserves a crucial human value: freedom. Not only that, economic liberty helps bolster and support other political goods, especially civil rights and religious liberty, and it helps foster peace between nations.

So what about the Bernie Madoffs of the world? Wehner and Brooks argue that Madoff isn’t the result of “free markets corroding moral character,” but rather of “poor moral character corroding free markets.” They conclude that “the answer is not less capitalism. It is better capitalists.” But we can’t expect the economic order to produce this. Nor can we expect the political order (the government) to produce this: “A free economy, like a democratic political community, requires certain preconditions in order to best function, most especially a strong civic and social order and a shared belief in an underlying moral code.” In other words, the mediating institutions of society—families, churches, schools, voluntary associations—need to produce what the market and the state can’t—decent people—but without which neither can survive.

Wehner and Brooks conclude the book by asking, “Is capitalism unjust?” They claim that starting in the 1970s, academics in America “broke with previous political philosophers from the ancient Greeks to the American founding fathers in arguing that the fundamental task of the state is to end inequality.” And they claim that “the core of this belief is that inequality is intrinsically bad and even intolerable” and that government should do something about it. Their response is odd: “First, we note that jettisoning capitalism will not lead to greater equality.” But who is suggesting we jettison capitalism? Still, they go on for several pages recounting, again, the ills of communism, and then move on to ask a string of rhetorical questions about how far liberals want us to go in addressing inequality:

What would proper redistribution of income look like? Should everyone have the same income, regardless of one’s occupation and station in life? … Should their income be set by the federal government? If not, should income equality be achieved by taxing at such a prohibitive rate that the gap between LeBron James and the hotdog vender is largely eliminated? And, if so, what would be the negative impact on the performance and output of people who now earn huge salaries? In short, what lengths are the new egalitarians willing to go in order to eliminate or reduce the gap? And at what cost?

They answer none of these questions, cite no egalitarian scholars who support such a worldview, and entertain no alternative conceptions of social justice. Instead, they do their best to explain away many worries one might have about economic inequality and to argue that government measures to fix them would be worse than the problem itself. They conclude: “Efforts to achieve level income have failed everywhere they have occurred because such efforts cut against the human grain. Yet even if it were achievable, we would still reject it on moral and philosophical grounds.” On their view, “forced egalitarianism is itself unjust.” They cite select Biblical verses and church teachers to conclude that redistribution of wealth, “if it is done at all, it is done voluntarily, as an act of charity, out of gratitude for what God has done, not as an action of the state, through coercion.”

Wealth and Justice highlights both the strengths and weaknesses of the conservative case for democratic capitalism. Yes, capitalism protects liberty and free enterprise, and it raises the standard of living as it creates and distributes wealth. But Wehner and Brooks say hardly a word about property duties or about what a just distribution of wealth on their view would look like (one fears that for them it is whatever the market produces). Also, in their rush to defend capitalism against critics, they fail to discuss any of its downsides. For a generation wrestling with economic questions (see: Occupy Wall Street and Tea Party), conservatives need to provide a more thoughtful consideration and response to what worries people about capitalism.

First, capitalism and culture. Much of Wehner and Brooks’s defense of capitalism relies on the strength of the civic and social order. But while they want this sphere to influence the economic sphere, they have little to say about how the economic sphere also influences culture. For them, capitalism didn’t corrupt Madoff, Madoff corrupted capitalism. One need not be a Marxist, however, to note that our economic arrangements influence our culture and morals. Every notable political thinker has thought this; start the list with Plato and Aristotle. So saying that the answer is “better capitalists” doesn’t take seriously the effect that capitalism can have on character, especially given its reward structure. And while Wehner and Brooks mention the neoconservative Daniel Bell’s Cultural Contradictions of Capitalism (only to dismiss his worries), they have little to say about the consumerist and materialistic culture that capitalism can promote. Ditto on the debasement of popular culture with mass-produced, market-driven “art.”

Second, social justice. Wehner and Brooks assert “that capitalism is best at doing what it is most often accused of doing worst: distributing wealth to people at every social stratum rather than simply to elites. The evidence of history is clear on this point—the poor gain the most from capitalism.” Is this really true?  It depends on how one reads the passage. Yes, considered historically, the poor gain the most from capitalism as compared to alternative economic regimes, especially where communism is presented as the only alternative regime. But do the poor benefit the most from capitalism, as compared to the rich? This is a concern that animates many, and not only those in the OWS movement. Wehner and Brooks are silent about it.

In fact, they make an unfortunate claim that “what fundamentally separates capitalists from those who want to redistribute income is a different concept of justice—‘distributive justice’ versus what has been called the ‘productive justice’ of capitalism.” So after claiming that the 1970s egalitarians broke with the tradition of philosophical thought, Wehner and Brooks reject a central theme in that tradition, first articulated by Aristotelian and Thomistic philosophy: distributive justice.

In its place, they believe in “productive justice,” the view that “economic growth will create opportunity and wealth for those in every social stratum—and, in the end, generate the best of all worlds: allowing people to succeed without penalizing excellence and achievement and providing opportunity for those at the bottom rungs of the ladder to move up.” But this ignores the issue: Are the gains of economic growth distributed justly? Noting that capitalism creates the highest Gross Domestic Product, and the fastest GDP growth, says nothing about how that wealth is distributed. Wehner and Brooks offer no standard, no principles of justice on how to think about this question. And the idea that we always will be able to grow ourselves out of economic problems is wishful thinking, as thinkers as diverse as the libertarian entrepreneur Peter Thiel and the economic scholar Tyler Cowen have argued.

Perhaps most disconcerting, however, is that Wehner and Brooks offer no principles of justice on how individuals should deploy their wealth, and in a book titled Wealth and Justice this is disappointing. Supporting free markets and limited government doesn’t even begin to address the question of how citizens should behave in the market: Can a citizen be guilty of injustice in how he uses his wealth? Do citizens have duties—in justice—to distribute their wealth? Wehner and Brooks are silent.

In framing their argument as a defense of capitalism against the alternatives of life pre-Industrial Revolution and life under communism, Wehner and Brooks have made their task too easy. The real question facing developed capitalist countries now is what type of capitalism to have, and what type of wealth distribution. Among the most thoughtful thinkers on these questions, few are strict egalitarians, and so even here Wehner and Brooks have engaged a strawman. One might think current disparities in wealth are unjust, not because material equality is the goal, but because human flourishing is, and too many people lack the requisite material goods for that flourishing. Income and wealth equality isn’t the concern, but having sufficient goods to meet one’s needs and fulfill one’s vocation is. Likewise, one might worry about the disparate political power that comes with gross material inequalities. Wehner and Brooks say nothing about these concerns.

When the godfather of neoconservatism, Irving Kristol, wrote Two Cheers for Capitalism, he intentionally held back from giving it a resounding three cheers. He knew there were downsides, and that conservatives had to be honest about these in order to address them adequately. But the conservative message about capitalism today glosses over these facts, proposes no principles of justice, and fails to engage—let alone persuade—our fellow citizens who worry about our economic order. Conservatives writing in defense of democratic capitalism need to spend less energy fighting off communism, and more energy developing a conservative vision of social justice, painting a picture of what a better capitalism could look like. If conservatives don’t, the only alternatives will be coming from the Left. And that would be an injustice.

Ryan T. Anderson is Editor of Public Discourse: Ethics, Law, and the Common Good.

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Nussbaum is Professor of Law and Ethics at the University of Chicago and, along with Sen, a Founding President of the Human Development and Capability Association, the publisher of the Journal of Human Development and Capabilities, which works closely with the United Nations Development Programme (UNDP). In other words, this is an important, indeed consequential, body of scholarly literature, and it challenges many reigning scholarly orthodoxies about “development” in hopes of changing public policy. As Nussbaum notes, “We need a counter-theory to challenge these entrenched but misguided theories, if we want to move policy choice in the right direction.”

What are these entrenched but misguided theories? Nussbaum explores three approaches to development: GDP approaches, utilitarian approaches, and resource-based approaches. A GDP approach tries to measure development in terms of GDP per capita, the average amount of wealth in a nation. But Nussbaum faults this approach for failing to pay attention to each individual, especially those at the bottom, who might not enjoy any of the benefits of increased average GDP if the distribution of benefits lies solely among those at the top. Furthermore, this approach treats incommensurable aspects of human lives—“health, longevity, education, bodily security, political rights,” and more—as if they could be measured by a single number. Utilitarian approaches, measuring average utility (understood as preference-satisfaction), face similar challenges, for they too aggregate across lives and components of lives. But more troubling is the subjective nature of the measure, falling prey to the “social malleability of preferences and satisfactions.” After all, “when society has put some things out of reach for some people, they typically learn not to want those things.” Resource-based approaches make the mistake of assuming that material goods and wealth are adequate “proxies for what people are actually able to do and to be.”

This concern for the opportunities actually available to people drives Nussbaum’s capabilities approach. As she states repeatedly, the key questions to ask are: “What are people actually able to do and to be? What real opportunities for activity and choice has society given them?” We can’t measure this, even approximately, by looking to GDP, self-reported satisfaction, or physical resources. Instead, Nussbaum argues that there are multiple irreducible factors necessary for human development, and that each of these has to be measured individually, not with an eye to aggregate or average scores, but by taking each individual as a locus of value. Her measure is not materialistic: social and legal policies and conventions play an important role in shaping what opportunities really exist. In other words, culture counts.

Nussbaum’s approach focuses on each person as an end, with the ability for choice and freedom among a multiplicity of values. The capabilities approach is “evaluative and ethical from the start,” asking “which [capabilities] are the really valuable ones, which are the ones that a minimally just society will endeavor to nurture and support?” But while her conception is moral, Nussbaum insists that it is not moralistic: Governments should support the development of capabilities, but not influence their functioning, leaving individuals free to choose how to exercise their capabilities, for “capabilities have value in and of themselves, as spheres of freedom and choice. To promote capabilities is to promote areas of freedom, and this is not the same as making people function in a certain way.” So, she concludes, “there is a huge moral difference between a policy that promotes health and one that promotes health capabilities—the latter, not the former, honors the person’s lifestyle choice.”

What are the central capabilities? Nussbaum’s list includes ten broad areas:

1. “Life.”
2. “Bodily health” (“including reproductive health”)
3. “Bodily integrity” (including “opportunities for sexual satisfaction and for choice in matters of reproduction”)
4. “Senses, imagination, and thought” (“being able to use the senses, to imagine, to think, and to reason”)
5. “Emotions” (“being able to have attachments to things and people outside of ourselves”)
6. “Practical reason” (“being able to form a conception of the good”)
7. “Affiliation” (“being able to live with and toward others”)
8. “Other species” (“being able to live with concern for and in relation to animals, plants, and the world of nature”)
9. “Play” (“being able to laugh, to play, to enjoy recreational activities”)
10. “Control over one’s environment” (“being able to participate effectively in political choices” and “being able to hold property and having property rights”)

Nussbaum doesn’t offer much in defense of this list, as she subscribes to John Rawls’s theory of political liberalism, by which we must offer citizens “public reasons” free from any particular “comprehensive doctrine” of the good or the right in framing our public policies. Nor does she explain why states have a duty, in justice, to immanentize the eschaton: “The basic claim of my account of social justice is this: respect for human dignity requires citizens be placed above an ample (specified) threshold of capability, in all ten of those areas.” Sadly, she neither specifies these thresholds nor provides any argument for why this is a valid principle of justice. Even if it is (and I’m inclined to think something like it is), she owes her readers an argument. Instead she makes ungrounded appeals to human dignity and equality, and then claims that these are entitlements that a state must provide: “All people have some core entitlements just by virtue of their humanity, and it is a basic duty of society to respect and support these entitlements.”

Perhaps that’s the proper place to start highlighting the severe defects in Nussbaum’s Creating Capabilities. First, she never defends her conception of justice against competing conceptions. F. A. Hayek and Robert Nozick leveled serious criticisms against the concept of “social” justice and defended alternative classical-liberal (libertarian) conceptions. Whether or not one thinks they got it right, their arguments demand a response. Nussbaum shows no awareness that not everyone is a welfare-state liberal.

Instead she asserts that the American Founders, and the Declaration of Independence, support her view. Citing the Declaration, she writes that governments are founded “to secure these rights,” and then concludes that if government doesn’t “secure basic entitlements” (her ten capabilities), then it is unjust. She adds some rhetorical bluster: “The idea that the American Framers were libertarians, or fans of ‘negative liberty,’ is extremely misleading,” and continues: “The very idea of ‘negative liberty,’ often heard in this connection, is an incoherent idea: all liberties are positive, meaning liberties to do or to be something.” She concludes that her capabilities approach “is no recent invention,” but is “a deep part of mainstream liberal enlightenment thought.” Of course the American Founders, along with Hobbes, Locke, and Kant, as well as Hayek and Nozick, would have disagreed.

Second, regardless of the political justice of her account, she puts remarkable but utterly naïve faith in governmental institutions. One of her bald assertions is that “governments of richer nations ought to give a minimum of 2 percent of GDP to poorer nations.” She then shows deep hostility to free enterprise, civil society, voluntary associations, and private charity as proper remedies for poverty: “Suppose a nation attempted to solve its distributional problems through private philanthropy. It doesn’t work, and we know that.” Tell that to the students trapped in our inner-city government-run schools who yearn to attend the Catholic school across the street.

She continues in this vein. “However fine the [charitable] organizations are,” she notes, “they are not accountable to people in the way that a democratic nation is accountable.”  Really? Is a public school—beholden to the teachers’ union and city hall—more accountable to the people than a charitable charter school? Here Nussbaum does attempt to offer a reason: “if [charitable organizations] listen to anyone when setting strategy, it is, most often, to their big donors.” Unlike politicians, of course. Are our foreign aid programs really more responsive to “the people” than an Evangelical micro-finance charity?

Third, Nussbaum thinks that “equal respect for persons” requires that we “avoid taking a stand” on the controversial metaphysical issues that divide citizens, and instead base “political principles on some definite values, such as impartiality and equal respect for human dignity.” But as has been shown repeatedly, the Rawlsian search for “public reason” that is distinct from “reason” is a fool’s errand. Every time one rules out certain reasons as “non-public” but summarily includes one’s own as “public,” one necessarily appeals to a controversial standard, and merely asserts one’s preference for one’s own view (as is evident in Nussbaum’s list). More importantly, what we owe our fellow citizens as a matter of equal respect, when making law, is the truth: to give them good reasons, sound reasoning thought all the way through. Why should we artificially disqualify a class of true reasons from being the basis of political action? Nussbaum gives no reason.

Her Rawlsian predilections help explain why her theory of justice is weak: “I argue that the entire world is under a collective obligation to secure the capabilities to all world citizens.” But she doesn’t argue this; she just asserts it. From within her Rawlsian confines, she can’t offer any reason for this “collective obligation.” She must realize her weakness, for she admits that “my view does need to rely on altruism,” and by the book’s closing she is seeking to develop a “political psychology” to promote “emotions of compassion and solidarity.” When you can’t provide reasons to care for others, the only things left to do are to psychologize and to manipulate the emotions. A better philosophical approach would be able to appeal to our rational faculties.

Not only can’t Nussbaum explain why we have these duties in justice (or why we should be just in the first place), her account is inherently statist because of its Rawlsian “political, not metaphysical” framework. Since her approach only allows for reasoning about political institutions, once she identifies her central capabilities, “we cannot move directly to the assignment of duties to individuals: key duties must be assigned to institutions.” But this gets the entire story wrong. As thinkers as diverse as Aquinas, Locke, and Kant have argued, individuals have moral duties to assist those in need, and while the state should promote the common good, the state’s role in directly providing assistance to the poor is a secondary function, one where the state ought to assist individuals and voluntary associations in meeting their tasks before usurping that role from them.

(One must also ask how Nussbaum’s argument in favor of animal rights and animal entitlements meets the demands of “public reason” by avoiding controversial metaphysical claims: “That animals can suffer not just pain but also injustice seems, however, secure.” After all, “animals pursue not simply the avoidance of pain but lives . . . of honor or dignity.” She takes this bizarre anthropomorphism so seriously that she writes: “One form of intervention into nature that seems crucial is animal contraception. This will mean, for animals, modifying the capability list where reproductive choice is concerned.” Animals, as a matter of justice, don’t deserve reproductive choice.)

Fourth, and perhaps most crucial, Nussbaum never gives an argument for why we should care about capabilities rather than the exercise of those capabilities toward fulfilling ends. While she is willing to make morally controversial claims about which capabilities are central, she refuses to say how they should be exercised, claiming that this agnosticism respects freedom. But we best respect freedom by promoting a broad range of worthy ends for which to act, while also insisting that certain ends are unworthy of choice precisely because they degrade those people who choose them.

Nussbaum’s failure to explain how capabilities should be exercised brings out a central problem in her talk of “human dignity.” Repeatedly, she claims that all nations contain “struggles for lives worthy of human dignity.” That phrase occurs again and again: “some living conditions deliver to people a life that is worthy of the human dignity that they possess, and others do not.” Disregard the infelicitous usage of “lives worthy of dignity”—all lives are worthy of dignity. What she ignores is that “some living conditions” aren’t the only qualifiers for human dignity—so are human choices. Some exercises of human capabilities, some choices, are in line with human dignity, and some are not. If we are to measure human development and think about its justice, we must think about how capacities are exercised.

In another effort to avoid talking about how capabilities are to be exercised, she declares that Aristotle “did not instruct politicians to make everyone perform desirable activities. Instead, they were to aim at producing capabilities or opportunities.” But Aristotle thought that the entire point of politics was promoting the good life—not promoting morally ambiguous capabilities, but directing them to their appropriate ends.

Nussbaum uncritically helps herself to an Aristotelian understanding of government—without arguing for it— and then distorts it to rush to her own conclusion: “Given a widely shared understanding of the task of government (namely, that government has the job of making people able to pursue a dignified and minimally flourishing life), it follows that a decent political order must secure to all citizens at least a threshold level of these ten central capacities.” Among her fellow liberals, this is not a “widely held” view of government. Nevertheless, she needs to explain why concern for a dignified and flourishing life should translate into a threshold of capacities without concern for their exercise. She’s wrong to think that we should promote “health capabilities” rather than health. Health is the human good, and we can promote it in a way that respects human freedom.

If you put it all together, Nussbaum’s theory demands that a state coercively tax its citizens (ignoring negative-liberty claims to private property rights) to create a government-run program (disregarding subsidiarity) that will ensure that “opportunities for sexual satisfaction and for choice in matters of reproduction” are provided (regardless of how those capabilities are exercised). In fact, she writes that “thinking about sexual orientation through the lens of the whole list of capabilities” makes us see that laws refusing to treat same-sex relations as if they were marriages are “unfair,” just like “antimiscegenation laws,” “conferring a message of stigma and inferiority.” But if we really want to measure human development, we should ask how our sexual capabilities can be exercised in accord with human dignity, in a truly ennobling way, and we should seek to promote a culture (including a legal culture) that respects and promotes that ideal.

A sound theory of social justice would have to explore the constituent aspects of human flourishing—not just capabilities, but their truly perfective ends. It would have to investigate the moral norms that govern conduct with respect to these ends, particularly property rights and duties. Finally, it would have to ask what role the state plays in helping to secure human well-being. Social justice is too important a topic to leave matters where Nussbaum’s Creating Capabilities leaves them.

Ryan T. Anderson is Editor of Public Discourse: Ethics, Law, and the Common Good.

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Copyright 2011 the Witherspoon Institute. All rights reserved.

And yet the temptation is always there to vote to serve our private good, our special interests, our favored ideologies—simply because they’re ours. For their part, some candidates cater to the strongest business faction or public sector union, or outsource their own judgment to focus groups, campaign advisers, and opinion polls. By examining issues and ideas at one remove from the pressures of electoral politics, journals like this one aim to give voters and lawmakers alike the material for keeping vigil against such tendencies.

Today, Public Discourse launches a ten-day symposium on “Liberty, Justice, and the Common Good: Political Principles for 2012 and Beyond.” With a view to the next election, we’ve commissioned ten essays, each covering one of the major policy areas that scores of Public Discourse pieces have examined, to give us a survey of the landscape as we scrutinize the candidates who inhabit it. We also hope these articles will prompt the candidates themselves to think through these issues more thoroughly, as they look to enact good policy and not just curry favor with various factions.

These essays make arguments. They appeal to no authority other than the authority of reason itself to suggest a coherent political philosophy and how it applies to many policy particulars. In a way, these essays will be exemplars of Public Discourse’s mission: to put intellectual polish on our political lens, to sharpen our insights into the common good.

Developing a coherent conservative political philosophy can be difficult. Fiscal conservatives can seem at odds with foreign policy hawks, and both are at odds with social conservatives; but this symposium’s essays make one extended argument that a conservatism concerned to foster the common good—with limited government understood as effective government acting in proper ways, in the proper spheres—can unify and justify all three dimensions of contemporary conservatism.

The Essays

At the heart of political life lies the question, “Who belongs to the political community?” Whose good counts when we speak of the common good? In today’s essay, Carter Snead argues that this question is at stake in the abortion and embryo-destruction debates, and that we get it wrong at the cost of millions of innocent lives. He draws on biological science and philosophy to argue that human life begins at conception, and that all human beings are persons with equal dignity. In a nation committed to the ideals of liberty and equality under law, to remove legal protection from some human beings, thus exposing them to lethal violence, and to tax others to pay for their destruction—is the gravest injustice. To withdraw the law’s most basic protection from an entire class of human beings is to fail to take the common good seriously. The life issues are the most important issues facing any candidate. Snead contrasts the records of our current and previous presidents on these issues to suggest several policies that today’s candidates must embrace.

If a central task of good government is to recognize the equal dignity of every human life and protect those lives in law, our leaders must also recognize that new life is best nurtured in the context of the marital bond of mother and father as husband and wife. In tomorrow’s essay, Maggie Gallagher argues for the importance of the institution of marriage, both for the health of our society and for principles of limited self-government. The state cannot be allowed to redefine natural, pre-political institutions such as marriage. It must recognize real marriage, and seek to protect and promote it. The breakdown of the family has been one of the chief causes of poverty in our nation, and anyone concerned with the wellbeing of children and the economic health of our nation should see the family as the original—and best—department of health, education, and welfare.

Allowing the family to perform its essential functions is an important part of limiting government overreach and fostering economic wellbeing. In Wednesday’s article, Samuel Gregg argues that presidential candidates should champion two principles for reviving America’s economy. First, the government’s economic activities should be primarily limited to those functions it alone can perform. And second, government interventions into the economy beyond core functions such as upholding the rule of law and public order should be limited to instances when intermediate institutions of civil society as well as families are temporarily failing to perform their proper roles. This, he argues, is not only crucial for America’s moral and economic wellbeing; it is also consistent with the Founders’ view of how Americans can live out the ideals expressed in the famous words: life, liberty, and the pursuit of happiness.

Protecting human life, defending marriage, and limiting government’s reach to its constitutionally proper sphere depend crucially on the activity of the Department of Justice and the Supreme Court. For our elected officials to achieve these good aims, unelected judges and political appointees to the DOJ must soundly interpret, apply, and enforce our laws, particularly our fundamental law, the Constitution. In Thursday’s article, Ed Whelan argues that presidential candidates should appoint constitutionalist judges and justices and use the confirmation battles that inevitably will occur as opportunities for teaching the importance of our framers’ design. The battle over our courts is especially important for returning the issue of abortion policy to democratic processes and, so it seems, to keeping the battle over marriage there. Candidates should commit to selecting DOJ officials who share these judicial concerns, and are willing to defend the Defense of Marriage Act (DOMA).

One of the most contentious legal issues is religious liberty. In Friday’s article, Helen Alvaré argues that candidates must pledge to protect the conscience rights of religious communities, not least because they make innumerable contributions to our country and perform vital services to the weakest and most vulnerable among us. The state should not use its coercive power to force religious institutions to perform abortions, offer contraceptives, recognize same-sex unions as marriages, place children for adoption with same-sex couples, or force any citizen to pay for any of these activities. Doing so commits a grievous political injustice by violating religious liberty, and thus weakens the rich contribution that religious communities make to the common good.

Of course, America also plays a role in fostering liberty, justice, and the common good outside our borders. In next Monday’s article, Jennifer Bryson argues that credible U.S. foreign policy abroad begins with great leadership at home. We need a president who can take on our domestic financial challenges and honor the kinds of democratic values we seek to promote abroad. America needs leadership that can act swiftly and wisely, so that the United States can be an effective partner of pro-democratic forces in the current Middle East revolutions.

Recent healthcare reforms trample conscience rights in various ways, but healthcare issues (including healthcare entitlements) also contribute to our fiscal problems. In next Tuesday’s article, Yuval Levin argues that fixing America’s healthcare system must be a central concern in the election but that the Left’s preferred approach—which boils down to the centralization of decision-making power and the rationing of medical services—is economically and ethically unsound, and likely to result in poor care. Levin outlines several steps for good reform.

One oft-neglected topic in debates over marriage and the family is the role that parents should play in directing the upbringing and education of their children. In next Wednesday’s article, Jane Robbins defends parents’ authority in childrearing. Government should support parents, not usurp their roles and just authority. But the current administration, through several initiatives, is trying to impose a national educational scheme in keeping with the views of early-20^th-century progressives that only experts can efficiently manage the country. Parental control over education can be protected only by adherence to the 10^th Amendment, which reserves authority over education to the states or to the people. For the sake of our constitutional freedoms and out of respect for the values of parents and families, Obama-era initiatives must be resisted.

The education of our nation’s children isn’t the only part of their development that ought to elicit deep public concern. Another is their ability to mature into sexually responsible adults. With respect to that goal, it is no exaggeration to call pornography, especially child pornography, a plague on our nation. In next Thursday’s article, Patrick Trueman argues that candidates must pledge to protect our children from pornography, which entails committing to vigorous prosecution of illegal adult pornography as well as child pornography.

Pornography’s spread in our country has encouraged our contemporary form of slavery: trafficking in sex slaves and sexual tourism. Though this might seem like a problem for other countries’ leaders, the Department of Justice reports that 83% of victims in confirmed sex-trafficking incidents are United States citizens. In next Friday’s essay, Laura Lederer argues that a culture of exploitation and violence, especially sexual exploitation of children, is at epidemic levels here in the United States and around the world. The current administration’s response is anemic, and more must be done. She identifies six different ways in which our government can better protect its citizens from becoming sex slaves.

A Postscript

We hope that our readers find these essays informative as they cast their votes next November—and in the meantime as they contribute to broader debates in their own discussions, campaign contributions, and volunteering efforts.

Two weeks from today is the South Carolina Presidential Forum. One of the three questioners for that forum is Public Discourse editorial board member and Princeton constitutional law professor Robert P. George. He’ll be drawing from these essays as he shapes his questions. And after the debate, he’ll share his reflections with readers in the final essay of our series here on Public Discourse.

Ryan T. Anderson is Editor of Public Discourse: Ethics, Law, and the Common Good. This essay is the introduction to the 2012 Election Symposium. Read all of the entries here:

• Ryan T. Anderson, “Liberty, Justice, and the Common Good:
  Political Principles for 2012 and Beyond”
   
• O. Carter Snead, “Protect the Weak and Vulnerable:
  The Primacy of the Life Issue”
• Maggie Gallagher, “Defend Marriage: Moms and Dads Matter”
• Samuel Gregg, “Fix America’s Economy:
  Two Principles for Reform”
• Ed Whelan, “Defend Our Laws: Justice Matters”
• Helen Alvaré, “Uphold Conscience Protection:
  Religious Freedom’s Contribution to the American
  Experience and Threats to its Survival”
   
• Jennifer Bryson, “Promote Democracy:
  Start at Home but Don’t Stay at Home”
• Yuval Levin, “Heal the Sick and Reduce the Debt:
  The Moral Economy of the Healthcare Debate”
• Jane Robbins, “Empower Parents:
  Return Educational Policy to the States”
• Patrick Trueman, “End Child Pornography:
  Enforce Adult Pornography Laws”
• Laura Lederer, “End Human Trafficking:
  A Contemporary Slavery”
   
• Robert P. George, “Reflections of a Questioner:
  The Palmetto Freedom Forum Revisited”

Receive Public Discourse by email, become a fan of Public Discourse on Facebook, follow Public Discourse on Twitter, and sign up for the Public Discourse RSS feed.

Support the work of Public Discourse by making a secure donation to The Witherspoon Institute.

Copyright 2011 the Witherspoon Institute. All rights reserved.

Or consider the work of Lee Epstein and Jack Knight in what is viewed as the most important book on judicial behavior in the past generation, The Choices Justices Make (1998). In explaining the causes of justices’ behavior, Epstein and Knight write, “Among the most important of these is the primacy of policy preferences; that is, judicial specialists generally agree that justices, first and foremost, wish to see their policy preferences etched into law. They are, in the opinions of many, ‘single-minded seekers of legal policy.’” While policy preferences are the most important determinant, according to Epstein and Knight, they go on to show how Justices act strategically, given the institutional constraints of the Court and other branches of government, to get their preferred outcome.

Both of these examples, from Congress and from the Court, show the insufficiency of the reigning models of political science. They are either simply false, or they’re tautological. Anyone familiar with elected officials, or who pays any attention to electoral politics, knows that there are differences among politicians. Some really are single-minded reelection seekers. But some aren’t. Some take positions on controversial issues that cost them votes, and they do so knowing that it will cost them votes. Are the actions of a Rick Santorum or Sam Brownback or, for that matter, a Joe Lieberman, best understood as rationally selected means to the end of reelection? Or might some politicians take positions on policy that they truly think best, consequences be damned? This is an empirical question. And an empirical science can answer it only if it does not start by assuming an answer.

So, too, with the Court. Without a doubt, there are some justices whose behavior has quite explicitly revealed that their loyalty is not to the Constitution, but to the policy outcomes they prefer. But is this the best explanation of Scalia’s vote to uphold the constitutionality of flag burning? Might Justice Scalia and Citizen Scalia vote differently if it came to a question of the current constitutionality of flag burning, and the question of whether to amend the Constitution to prohibit it? Again, the only political science that can tease out when a justice is deciding cases to advance a policy preference and when a justice is deciding cases based on his best reading of the Constitution will be one that doesn’t assume that all justices act to advance policy preferences. Insofar as good constitutional law is simply treated as a “legal policy” preference, then the theory simply becomes a tautology; the input and the output of the theory contain the same exact variable: justices decide cases according to how they think cases should be decided. This is, of course, no explanation at all.

I mention these two examples from political science to show how similar faulty assumptions lie at the heart of economic science (which views man as a “single-minded utility seeker”), and thus John Mueller’s Redeeming Economics: Rediscovering the Missing Element can profitably be read by many social scientists seeking a cure for what ails their disciplines. Mueller, following Gary Becker, notes that most modern economic theory assumes that “consumers derive satisfaction or ‘utility’ directly from products that they purchase in the market from business firms and that in demanding such goods, consumers seek to maximize their satisfaction.” Mueller then discusses Becker’s helpful modifications to this theory. But with or without modifications, Mueller argues that the theory is incomplete, for the choice of goods as means does not tell us whom the goods will be chosen for as ends. Insofar as economic theory addresses the issue of ends at all, it pushes it off as if it were a normative question.

But this question cannot be removed from any descriptive theory, for an adequate theory needs to provide an analysis of the ends chosen. As Mueller writes, “Neoclassical economics does not provide a coherent, empirically verifiable description of how people actually choose—rightly or wrongly—to distribute the use of their resources, whether as individual persons, as members of a family household, or as a whole society under the same government.” Insofar as contemporary economists have tried to answer the question, they “have tried to deduce final distribution from utility—in effect, to argue that the economic means determine the economic ends.” But as we have seen from the above examples in political science, this “approach relies on circular logic, and its hypotheses about final distribution are either empirically false or not falsifiable [i.e., are tautologies].”

That capitalism breeds a culture in which everyone is a self-interested utility maximizer is not a conclusion that good social science has taught us, for it’s an assumption built right into the foundation of the economic theory. So it should be no surprise that the popular presentations of the theories conclude that businessmen are greedy, self-interested, and concerned only with the bottom line: How could the science, given its starting assumptions, conclude otherwise? But whether all businessmen are greedy or not, in fact, is an empirical question. And to answer it, one will need to employ a methodology that actually considers and investigates distribution. That is, a sound philosophic anthropology reveals that “a complete description of economic behavior has always required both a ranking of persons as ends of economic activity—the distribution function—and a ranking of scarce goods as means—the utility function.”

Mueller’s discussions of Augustine’s theory of distribution are perhaps the most important contributions of Redeeming Economics. He praises the scholastic theory of economics because it can be formulated as “a set of economic equations” that is “logically complete,” “empirically verifiable,” “purely descriptive,” “valid at every level of analysis,” and, therefore, such that “the outline itself never changes in the least.” But this is possible only with the reintroduction of distribution. Augustine’s key insight was that, no matter what, “every human does, as a matter of fact, always act with some person(s) as the ultimate end or purpose of action.” While Augustine’s normative teaching about the proper ordering of loves sought to guide people to make the right choices in selecting God and other people as ultimate ends, one shouldn’t overlook the reality that all of our choices, right or wrong, place someone as the end of our actions.

Economic science goes wrong in assuming that “every human acts solely for him- or herself. That is precisely what each person is free to decide.” As Mueller argues, “each of us has not only a scale of preferences for instrumental goods as means but also a scale of preferences for persons as ends of our actions.” With this understanding in place, Mueller can develop his modified Augustinian theory of gifts, exchange, and crimes. Whereas contemporary economics reduces all human activity to exchanges, Mueller argues that we make gifts towards those we particularly love, commit crimes against those we fail to love, and make exchanges with those in between.

The crucial distinction is one between benevolence and beneficence. While we are called to love our neighbor as ourselves, we are not (because it would prove impossible) called to love our neighbor equally with ourselves. Mueller argues that, for Augustine and Aquinas, there are “two ways in which we can love our fellow man: benevolence, or goodwill, which can be extended to everyone in the world, and beneficence, or doing good, which cannot.” Because our goods are scarce resources, we cannot be beneficent with everyone; we have to prioritize certain people (ourselves, our families, our immediate neighbors) to be the objects of our economic actions. As Augustine taught, “Since you cannot do good to all, you are to pay special regard to those who, by accidents of time, or place, or circumstance, are brought into closer connection with you.” At the same time, we can be benevolent to all by respecting their wellbeing in refraining from causing harm (in economic-speak, in refraining from giving them a negative value on the distribution scale).

There is too much in the many pages of Redeeming Economics to be discussed here. In addition to his discussion of the history of economics, Mueller insightfully applies his neoscholastic economic theory to topics of personal economy (the “mother’s problem,” homicide, and the Good Samaritan), domestic economy (discussions of marriage, childbearing and rearing, lifetime family earnings and spending), and political economy (discussions of infant industry, unemployment, and inflation). The book closes with a short but insightful consideration of “divine economy” and the three different worldviews that underlie classical, neoclassical, and neoscholastic economic theories. Two of Mueller’s applied discussions merit particular attention: abortion and crime, and parenthood and population.

In 2001, John Donohue and Steven Levitt claimed that “legalized abortion appears to account for as much as 50 percent of the recent drop in crime.” Mueller writes that Donohue and Levitt’s theory followed the “economic approach to human behavior,” based on “a highly restrictive set of assumptions to reduce human behavior to the choice of means—a maximization of ‘utility’—but also gratuitously redefines utility as a synonym for pleasure.” Investigating the same crime data, Mueller proposes to use his “human approach to economic behavior” to better explain the phenomenon by considering distribution based on “preferences for persons” and utility as our “order of preference for economic goods as means for those persons.”

Donahue and Levitt make a straightforward argument: Women abort babies when the utility in aborting is higher than the utility in bringing the pregnancy to term; babies aborted now are less likely to commit crime 20 to 24 years later; and because crime is disproportionately committed by African Americans, and because African-American babies are disproportionately aborted, the first effect is magnified. Their theory, Mueller argues, does not consider why people commit crime, but relies on an “environmental” explanation that people in lower socioeconomic classes simply commit more crime. Having fewer of “them” will result in fewer crimes committed.

Mueller’s response entails both a broadening of the data examined (he goes back further in history to examine all of the 20^th century’s crime fluctuations, and not just post-Roe behavior), and a deepening of the reasons examined. He notes that the data do not quite fit the story Donahue and Levitt tell about abortion and 20-year-delayed crime rates, but that the data do fit current rates of fatherhood and current crime rates. What Donahue and Levitt failed to realize is that the same young adults who pressure their girlfriends to have abortions—or who otherwise act as absentee fathers—are the same young adults who currently commit crime. The distribution function of their actions, demonstrating a strong preference for themselves over love of their children, begins to show the psychology involved not in ranking means and utility, but in ranking persons and distribution. In other words, “those behaviors which involve raising the significance of the self relative to other persons (crime and other antisocial behavior) also should be positively correlated with one another.” Applying his thesis to what really explains the abortion data, Mueller argues that “since the vast majority of homicides are committed by men, and because not all biological fathers take responsibility for their children, we should see the largest opposite shifts in the rates of economic fatherhood and homicide,” for “the time devoted to committing crimes against others is a subset of time not devoted to helping them.” When Mueller empirically tests his theory, he finds that “over the sixty-five years for which we have data, there is a 90 percent inverse trade-off between the current homicide rate and the current rate of economic fatherhood.” He concludes: “both Augustine’s and Becker’s theories can explain the behavior of people who are selfish, but only Augustine’s can explain the behavior of people who aren’t.”

In a similar way, Mueller uses his neoscholastic economic theory to explain why people have children. Current economic thinking tries to explain fertility rates in relation to social spending by the state and to national savings, the idea being that people have kids for reasons of economic utility, and when there is great social spending and savings, children are less useful. But Mueller insists, and has the facts to show, that neoclassical economics cannot “explain anything so fundamental as fertility—the reproduction of human persons—without the element of economic theory that describes one’s preferences for persons.”

As Mueller sees it, “people have children either because they love the children for their own sakes, or else because they love themselves and expect some personal benefit from the children (or some combination of these motives).” While government social spending and national savings might relate to the second reason, they do nothing to address the first reason. As an empirical measure of this, Mueller looks to weekly worship rates—a proxy to measure one’s preference for someone other than the self—for “whether the other person is God or another human being,” the decision to worship each week “entail[s] sacrificing scarce goods that could otherwise have been used for oneself.” The data show that “the rates of weekly worship and fertility are always positively related across countries, with relatively minor variation by religious denomination.” Once “purely selfish factors are accounted for, acting on belief in God . . . makes the crucial difference as to whether people reproduce themselves. It suggests that the personal gift of time and resources involved in worship is closely systematically associated with the personal gift of having children for their own sake rather than for the pleasure and utility of the parents.”

Mueller knows that his explanation of fertility rates “is not the last word” on the matter. Rather he offers it “as a first effort in what promises to be a fruitful new program of research.” The same could be said for the entirety of Redeeming Economics. It repays reading and re-reading, and its discussions of historical, analytical, and applied topics will be invaluable for anyone working in economics, political science, and philosophy, especially those working at the intersection of the three: political economy. For those concerned with normative questions of how we ought to structure of common economic life, an adequate description of that economic life will be required. But that description can be given only by recovering a more adequate anthropology. Utility must be seen at the service of persons. Utilitarianism fails both as a prescriptive and descriptive theory. And John Mueller has helped us all to “rediscover the missing element.”


Ryan T. Anderson is Editor of Public Discourse.

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Copyright 2011 the Witherspoon Institute. All rights reserved.

A generation later, in Natural Law and Natural Rights (1980), the Oxford analytic legal philosopher John Finnis challenged the reigning orthodoxy within the legal academy that uncritically accepted legal positivism, either in its primitive Benthamite form or in the more sophisticated form proposed by Finnis’s mentor H.L.A. Hart. Finnis’s critique paralleled Strauss’s in being two-pronged, but went deeper in its identification of the grounds of our practical judgments in what Finnis called “basic human goods,” fundamental and irreducible aspects of human wellbeing and fulfillment that, as such, provide more than merely instrumental reasons for acting and whose integral directiveness offers a rational standard of moral judgment. The first prong of Finnis’s critique showed that even to attempt to perform the type of descriptive legal theory that Hart set out to do requires one to grasp focal cases of law, and thus to grasp the intelligible purposes—the human goods—that law, in the focal sense, seeks to secure, and that lawmakers must at least claim, for the sake of their own legitimacy, to be pursuing. Any adequate description, therefore, rests on getting these prior judgments right. The second prong of Finnis’s critique showed how these evaluative judgments in identifying focal cases and principles of right action are possible (hence his defense of basic human goods as first principles of practical reason).

Now, another generation has passed, and John D. Mueller’s new book, Redeeming Economics: Rediscovering the Missing Element, seeks to reorient the debates within economic theory in the way that Strauss reoriented debates in political philosophy and Finnis reoriented debates in philosophy of law. Mueller’s book is not quite on a par with the other two, for Mueller is not, strictly speaking, an academic: he is currently The Lehrman Institute Fellow in Economics at the Ethics and Public Policy Center, and has extensive experience as an economist, speechwriter (to Jack Kemp), and policy advisor (to Ronald Reagan). Redeeming Economics, however, displays the virtue of an author who possesses a breadth and depth of knowledge not only of economics but of a whole host of other topics, as well (including philosophy, theology, and political theory).

Redeeming Economics is an ambitious, wide-ranging book. Though it clocks in at 450 pages (100 of which are endnotes), it is intended for and accessible to the common educated reader. Its thesis is simple: In order to provide an adequate description of economic activity, one must take seriously the reasons actors have for their economic choices. Reducing everything to self-interest and utility is descriptively inadequate, because it fails to take seriously the real nature of economic behavior that seeks to benefit people. Though he is not primarily wrestling with questions of good and bad, right and wrong, Mueller’s critique is fundamentally akin to Strauss’s and Finnis’s in insisting that economic science attend to the salient aspects of human behavior and that only a sound philosophic anthropology can reveal which aspects are salient. Mueller knows that what he has written isn’t the last word on this topic, but an important first word, intended to provide an overarching critique of current neoclassical economics and launch us into the next phase, what Mueller dubs “neoscholastic economics.”

Neoscholastic economics will take its bearings from the economic theory first articulated by Thomas Aquinas. Unlike those who equate Aquinas with Aristotle, Mueller is clear that his is an AAA theory: “Aristotle + Augustine = Aquinas.” And in the first section of Redeeming Economics, Mueller provides readers with a history of economic theory from Aristotle to today. As Mueller tells the story, Aquinas was the first to put together a complete economic science by combining key insights from both Aristotle (on production, exchange, and political distribution) and Augustine (on personal distribution and consumption based on utility). Mueller explains:

The first revolution in economics had occurred five centuries before [Adam] Smith, when Thomas Aquinas (1225-74) set forth the basic elements of economic theory. Synthesizing the work of Aristotle (384-322 B.C.) and Augustine of Hippo (A.D. 354-430), Aquinas offered a comprehensive view of human economic actions. All such actions fall into four categories: humans produce, exchange, distribute, and consume goods (human and nonhuman). Thus the theory Aquinas outlined—known as “Scholastic” economics—had four key elements: the theory of production, which explains which goods (and how many of them) we produce; the theory of justice in exchange, which accounts for how we are compensated through the sale of goods for our contributing to their production; the theory of final distribution, which determines who will consume our goods; and finally, the theory of consumption (or utility), which explains which goods people prefer to consume.

Production, exchange, distribution, and consumption: Any adequate economic science will need to account for all four of these aspects of economic choice. And Mueller is insistent that this is true of all economic choices, across time and place, for individuals and families, corporations and nations.

The second revolution took place when Adam Smith, whom history holds up as the founder of economics, did a grave disservice to the science by eliminating from the economic equation both distribution and consumption based on utility. This incomplete economic science helps explain why classical economics did such a poor job of describing and predicting economic behavior. Neoclassical economics of the previous century or so, the third revolution in Mueller’s account, restored the utility variable, but it, too, Mueller argues, fails in its descriptive and predictive power, because it overlooks and thus reduces an irreducible variable. Only with all four variables restored, by the neoscholastic revolution Mueller hopes to spark, can economics flourish.

But before embarking on this fourth revolution, it behooves us to understand where economics went wrong. Joseph Schumpeter, the great economic historian of the 20^th century, wrote of Adam Smith in his History of Economic Analysis (1954) that “the Wealth of Nations does not contain a single analytic idea, principle or method that was entirely new in 1776.” Mueller goes a step further to say not only that Smith does not add anything to economics, but that his theory actually leaves out both distribution and utility.

The elimination of these two aspects should come as no surprise to anyone familiar with the debates in philosophy and political theory over the so-called “modernity project.” Consider how a Scholastic such as Aquinas understood various sciences. At the heart of Aquinas’s social thinking was a recognition that order exists on four irreducible planes, distinguished by how they relate to our mind and will: the order that exists in nature, independent of human thought and choice; the order that we bring into our thinking itself; the order that we bring into our thinking about what to do; and the order that we bring into our thinking about how to do it. These four orders give rise to four irreducible sciences: first, metaphysics and natural science to study what is, what exists independently of human choice; second, logic to study the relations of concepts; third, ethics and practical philosophy to study what is to be, the ends of human choice; and finally, the applied arts and sciences to study how to achieve those ends, the means.

Yet much of modern social thinking rests on the explicit rejection of this third order, and thus of this third science. Machiavelli announced the ambitions of this new political science in Chapter 15 of The Prince (1513): “Many have imagined republics and principalities that have never been seen or known to exist in truth; for it is so far from how one lives to how one should live that he who lets go of what is done for what should be done learns his ruin rather than his preservation.” In a thinly veiled assault on Plato’s Republic and Augustine’s City of God as the imagined republics and principalities that argued for how one should live, Machiavelli set out to reveal the “effectual truth” of how successful people do live. Implicit here was a reduction of political thought to the first and fourth orders. Investigate how people are (first order), and then reason about the means (fourth order), in this case, to staying in power, without any concern for how people ought to be, quite apart from how they might serve our interests (third order).

Thomas Hobbes and David Hume make this reduction even more explicit. In the Leviathan (1651), Hobbes writes that “the thoughts are to the desires, as scouts, and spies, to range abroad, and find the way to the things desired.” And in A Treatise on Human Nature (1739), Hume argues that “reason is, and ought only to be the slave of the passions, and can never pretend to any other office than to serve and obey them.” The third-order science that considered which ends one should act for has been eliminated. It is now for political science to study man’s passions as they are given (first order), and then to devise the best way to secure those ends (fourth order). If this is how one understands human action, then, of course, distribution (deciding which people should be the ends of one’s economic acts) will be eliminated from consideration.

Yet Adam Smith went even further. Smith was, of course, taught by David Hume and Francis Hutcheson (the famous Scottish Enlightenment moral sense/sentiment theorists). Mueller argues that Smith, in his quest for a Newtonian science of economics and under the influence of Stoic pantheism, went further than Hume to deny reason a role in selecting either the ends or the means. Smith thought that the sentiments fully determine human action, so that the only variables to explain are production and exchange: a streamlined science with fewer moving parts. (And, it should be noted, this theory of production and exchange logically leads to Karl Marx’s criticisms, based on Smith’s faulty “labor theory of value” of modern capitalism.)

With time, economists came to understand just how thin this theory really was and reintroduced the concept of consumption based on utility (helpfully refining the idea into one of marginal utility). This reintroduction of the Augustinian understanding of consumption based on utility corrected for the problems in both Smith and Marx. Rather than viewing the worth of objects for human consumption as intrinsic to the object (or the labor that produced the object), the theory of utility saw that an actor’s preference for an object, based in the utility it brought, explained the value in and the choice for the object. But this still left unexplained the choice of which person(s)—self, other(s)—would obtain the object. That is, it left out distribution. And rediscovering that element of economic science is at the heart of Redeeming Economics. More on that in Part II.


Ryan T. Anderson is Editor of Public Discourse.

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Copyright 2011 the Witherspoon Institute. All rights reserved.

This lazy slander is as common as it is untrue. Of course, there is much more that needs to be done, but in the decades since Roe v. Wade, pro-lifers have taken the lead in offering vital services to mothers and infants in need. Operating with little support—and often actual opposition—from agencies, foundations, and local governments, pro-lifers have relied upon a network of committed donors and volunteers to make great strides in supporting mothers and their infants. It’s time the media takes notice.

In the United States there are some 2,300 affiliates of the three largest pregnancy resource center umbrella groups, Heartbeat International, CareNet, and the National Institute of Family and Life Advocates (NIFLA). Over 1.9 million American women take advantage of these services each year. Many stay at one of the 350 residential facilities for women and children operated by pro-life groups. In New York City alone, there are twenty-two centers serving 12,000 women a year. These centers provide services including pre-natal care, STI testing, STI treatment, ultrasound, childbirth classes, labor coaching, midwife services, lactation consultation, nutrition consulting, social work, abstinence education, parenting classes, material assistance, and post-abortion counseling.

Religious groups also provide crucial services to needy mothers and infants. John Cardinal O’Connor, the late Archbishop of New York, famously pledged to assist any woman from anywhere experiencing a crisis pregnancy, and the current Archbishop of New York, Timothy Dolan, recently renewed Cardinal O’Connor’s pledge. The Catholic Church—perhaps the single most influential pro-life institution in the United States—makes the largest financial, institutional, and personnel commitments to charitable causes of any private source in the United States. These include AIDS ministry, health care, education, housing services, and care for the elderly, disabled, and immigrants. In 2004 alone, 562 Catholic hospitals treated over 85 million patients; Catholic elementary and high schools educated over 2 million students; Catholic colleges educated nearly 800,000 students; Catholic Charities served over 8.5 million different individuals. In 2007, the Catholic Campaign for Human Development awarded nine million dollars in grants to reduce poverty. And in 2009, the Catholic Legal Immigration Network spent nearly five million dollars in services for impoverished immigrants.

The Catholic Church is far from the only pro-life religious group that assists the needy. At the Manhattan Bible Church, a pro-life church in New York since 1973, Pastor Bill Devlin and his congregation run a soup kitchen that has served over a million people and a K-8 school that has educated 90,000 needy students. Pastor Devlin and other church families have adopted scores of babies, and taken in scores of pregnant women, including some who were both drug-addicted and HIV positive. The church runs a one-hundred-and-fifty-bed residential drug rehabilitation center and a prison ministry at Rikers Island. All told, the church runs some forty ministries, and all without a government dime.

No major pro-abortion group or institution has taken on a comparable commitment to vulnerable Americans. Pregnancy resource centers devote significant resources to supporting women who have already decided to have an abortion, but abortion advocates offer no similar support to women who wish to continue their pregnancies. Indeed, they often devote their resources to shutting down the services provided by pro-lifers. NARAL Pro-Choice America reports spending twenty thousand dollars on “crisis pregnancy centers” in Maryland in order to “investigate” and publicly smear such centers for demonstrating a bias for life. (One might point out that the same bias once motivated the entire medical profession.)

If pro-life Americans provide so many (often free) services to the poor and vulnerable—work easily discovered by any researcher or journalist with an Internet connection—why are they sometimes accused of caring only for life inside the womb? Quite possibly, it is the conviction of abortion advocates that “caring for the born” translates first and always into advocacy for government programs and funds. In other words, abortion advocates appear to conflate charitable works and civil society with government action. The pro-life movement does not. Rather, it takes up the work of assisting women and children and families, one fundraiser and hotline and billboard at a time. Still, the pro-life movement is not unsophisticated about the relationship between abortion rates and government policies in areas such as education, marriage, employment, housing, and taxation. The Catholic Church, for example, works with particular vigor to ensure that its social justice agenda integrates advocacy for various born, vulnerable groups, with incentives to choose life over abortion.

One of the significant ironies of accusing pro-lifers of being “anti-vulnerable,” “anti-women,” and “anti-poor” is that poor women tend to be more pro-life than their more privileged counterparts. It is especially important, therefore, to offer them options that do not simply appeal to their economic interest or personal autonomy narrowly understood, but rather that accord with their moral outlook and overall wellbeing.

Abortion advocates, however, continually argue that one public policy in particular—further increases in government-supplied birth control—can become a panacea for high abortion rates. However, there is more than a little doubt about the claimed relationship between contraception programs and abortion rates. Rather, in the altered sex and marriage markets made possible by contraception and legal abortion, more and more women engage in non-marital sex without any “shotgun marriage” guarantee in the event of pregnancy. This leads (ironically) to more non-marital pregnancies, more non-marital births, more sexually transmitted diseases, and (irony of ironies) more abortions.

Figures out just in the past few weeks show that this contraception-related increase in abortion is not limited to the United States. In Spain, legal availability of birth control and abortion has drastically increased, with some 60 percent more women reporting that they used contraception in 2007 than in 1997. Over the same period, researchers found abortion rates more than doubled. The results of government policies promoting widespread contraception are clear: more of every outcome that birth control and abortion were promised to curb, including non-marital pregnancies, births, and abortions. Not to mention sexually transmitted infection testing and treatment; is it any coincidence that Planned Parenthood serves roughly the same percentage of clients for STIs (31%) as it does for contraception (36%)?

No one doubts that birth control used in a particular instance of sexual intimacy increases a woman’s chances of avoiding pregnancy. But the social policy of widely available birth control has been accompanied by an increase of out-of-wedlock births and abortions. In New York City some 41 percent of all viable pregnancies ended in abortion in 2009 despite the fact that the city distributed 40 million free condoms during the same year.

The insistence that pro-lifers make birth control the centerpiece of a pro-life strategy has reaped a three-fold reward for abortion advocates. First, its surface logic (“birth control equals no baby”) has blinded onlookers to the historical results of birth control as a social policy. Second, pro-lifers are easily tagged as “religious zealots,” ignoring the most obvious solution to abortion for irrational, theological reasons. Third, abortion advocates can claim to be women’s best friend—by increasing sexual autonomy—despite the dubious effects of their proposed solution.

In sum then, the charge should be laid to rest once and for all that the pro-life movement is not active on behalf of women, children, and vulnerable persons generally. Those bringing the charge—the same groups that do very little personally to help women and children—should be held to account, both for their lack of real charity and for their refusal to acknowledge that their entire strategy—state supplied birth control and unlimited abortion—has backfired upon the very groups they promised to help.

While the pro-life cause has always been animated by the conviction that life begins at conception, it has never forgotten that it continues after birth. The pro-life movement’s message has been vindicated by 40 years of legalized abortion: the personal dignity, happiness, and prosperity of women, children, men, and the nation is advanced when life is cherished both before and after birth.

Helen Alvaré is associate professor at George Mason University School of Law and a senior fellow of the Witherspoon Institute. Greg Pfundstein is the executive director of the Chiaroscuro Foundation. Matthew Schmitz is the managing editor of and Ryan T. Anderson is the editor of Public Discourse.

Copyright 2011 the Witherspoon Institute. All rights reserved.

I have good news and bad news for Yoshino. The bad news is that he needs to get into these technical philosophical issues in order to show why his objections are effective, and because he does not do so, his argument is incomplete. The good news, much more important, is that if one digs into these philosophical recesses, it becomes clear that Yoshino has exposed to view a central reason why George’s argument is nearly impossible to believe.

So, having declared the need to do “fairly technical philosophical work” on Yoshino’s behalf, Koppelman rolls up his sleeves to dig. But what one finds in the “philosophical recesses” of our view, far from being (as Koppelman asserts) “nearly impossible to believe,” is the kind of principle cheerfully affirmed by the majority of analytic philosophers today—and ultimately relied on, we suspect, by Professor Koppelman himself. So the debate must return from those “recesses” to the open air—where we have posed numerous challenges, almost all of which Koppelman has repeatedly sidestepped in his comments on our article, including the latest.

Our article and replies to critics (including Koppelman) argued that the only account of marriage that makes sense of the institution’s widely acknowledged features allows for genuine marriage without children, but not without sexual complementarity. For it is sexual complementarity that makes possible the consummation of marriage as a true bodily union. The union of spouses in coitus, we showed, was deeply related to marital union’s widely recognized comprehensiveness and inherent orientation to children—facts without which norms such as permanence and monogamy cannot be accounted for. Thus, sexual complementarity (among other things) is necessary for marriage, but fertility (among other things) is not.

Koppelman’s “fairly technical philosophical” move is to reject the distinction between (a) features that a thing must have to be what it is, and (b) features that the same thing may but need not have to be what it is. He erroneously calls this “Aristotle’s essence/accident distinction.” (In fact, Aristotle did not equate necessary and essential properties.) In any event, Koppelman thinks that readers should reject this distinction wholesale, and with it therefore our view of marriage. What he offers against the distinction might charitably be called an argument from befuddlement: it is, he repeatedly says, “odd,” “weird,” and “archaic”; indeed, “nearly impossible to believe.”

That will come as a surprise to contemporary analytic philosophers, the majority of whom credit just such a distinction, affirming that things can have essential properties (quite apart from any discussion of marriage). In fact, important advances in the understanding and defense of essentialism have been made by some of today’s brightest lights in philosophy: With logical positivism now reduced to an early 20^th-century relic (and, in truth, nearly impossible to believe), such thinkers as Kit Fine of NYU, Saul Kripke of Princeton and CUNY, Hilary Putnam of Harvard, David Wiggins of Oxford, Stephen Yablo of MIT, and Alvin Plantinga of Notre Dame have embraced essentialism and contributed to a growing body of literature that explores (1) different versions of essentialism (e.g., “sortal” or “origins” essentialism); (2) competing ways of analyzing it (modally vs. non-modally); and (3) its implications for the natural sciences, personal identity, philosophy of mind, philosophy of science, philosophy of language, and much else.

Of course, by themselves these observations are no argument for the view that some things have some essential properties in a more than merely linguistic sense. Nor, needless to say, are they an argument for our view of marriage, which some supporters of essentialism share and others (including several named above) do not. But these considerations do make Koppelman’s dismissive rhetoric—“odd,” “weird,” “nearly impossible to believe”—seem less true of our approach than of Koppelman’s own somewhat amusingly overconfident dismissal of it. As for the idea that the distinction we (and most contemporary philosophers) draw is “archaic”: If historical pedigree undermines a view, then what should we make of the fact that Koppelman’s rejection of essential properties can be traced to a 14^th-century English scholastic monk, William of Ockham? The answer is clear: Nothing. Ideas should be judged on their merits.

So consider the merits of the idea that a given reality has some of its features necessarily, and not others—not just as a matter of the language we use, but as a matter of genuine fact.

• To be a sample of the kind of clear liquid found in lakes and rivers (i.e., water), a substance must be composed of H₂O molecules—though it need not boil at 100 °C (since boiling point varies by altitude).
• Any particular human being (say, Andrew Koppelman) could not have been born to different parents—though he could have gone into a different profession.
• To realize the human good of friendship with each other, two people must actively will each other’s good—though they need not be bowling partners.

None of these perfectly natural statements would make sense without the idea, attacked by Koppelman but embraced by most philosophers (both historically and currently), that some things have some essential features. Nor, again, is this merely a terminological issue. It’s not just that a human being born to different parents would have been differently named or unrecognizable as Andrew Koppelman. It’s that no one born to different parents, and thus with a completely different body, could have been the very human being that Koppelman is. Likewise, two people who do not will each other’s good are not just missing out on a label, “friendship”; they are missing out on a human good whose specific benefit or fulfillment is not available otherwise.

This is the kind of principle relied on in our argument that genuine and complete marriages have certain essential features (like sexual complementarity and a pledge of exclusivity) but that actual procreation is not one. In other words, Koppelman’s “digging” into “fairly technical philosophical” terrain will turn up a bedrock distinction common to most sensible worldviews. In fact, we imagine that Koppelman himself, like the rest of us, implicitly relies on it every day.

At points, Koppelman trades his shovel for a pickaxe, to aim at the distinction’s application specifically to marriage. But even these attempts do nothing to erode the grounds of our view.

First, Koppelman rejects our argument that marriage is inherently (not just incidentally) a sexual partnership sealed in coitus, which completes marital union to include every aspect of the spouses’ beings, including their bodies. On our view, in other words, non-marital friendships are characterized by a union of hearts and minds; but marriage, being a comprehensive union of persons, extends this unity to the bodily dimension. For our bodies are integral aspects of us as persons, not merely our extrinsic instruments. And in coitus, a man and woman’s bodies unite much as a heart and lungs unite within an individual—by coordinating together toward a single biological good (here, reproduction) of the whole (here, the whole couple).

Koppelman’s objection is that the coitus of infertile couples is no more a bodily union than any other sexual activity. But three times now he has silently passed over our reply to this: that just as a person’s stomach action retains its orientation to nourishment even when nourishment doesn’t occur (e.g., because of intestinal problems), so a man and woman’s intercourse is still coordination oriented to the single biological good of reproduction even when reproduction doesn’t occur (e.g., because of ovarian problems).

Without answering this defense of the point, Koppelman lodges a new objection that fares no better: namely, that our view would also mean that people administering and receiving CPR unite biologically. But it is clear that in this case, there is no mutual coordination toward a biological good of the parts as a whole, as there is in coitus and any form of real bodily union (e.g., among an individual’s organs, coordinated together for the life of the whole organism).

Second, Koppelman argues that nothing could be a necessary feature of marriage since marriage is nothing more than a social construct, malleable enough to include whatever sorts of unions, sealed by whatever sorts of acts, we deem most socially desirable. He thinks that our law’s longstanding practice of singling out the uniquely comprehensive unions completed and sealed by coitus can be explained away as a need for bright policy lines to prevent conception out of legal wedlock. But that answer fails to account for the 2,300-year-old philosophical tradition, originating independently of such policy considerations (and of Judaeo-Christian influence), that similarly distinguished the uniquely comprehensive unions consummated by coitus from all others. Indeed, the three great philosophers of antiquity—Socrates, Plato and Aristotle—as well as Xenophanes and the Stoic Musonius Rufus defended this view amid highly homoerotic cultures.

Especially clear is Plutarch’s statement in Erotikos that marriage is a special kind of friendship uniquely embodied in coitus (and not other acts, which Plutarch regarded as intrinsically shameful). Indeed, he called coitus a “renewal of marriage.” His insight into the value of the comprehensive union of persons uniquely embodied in marital acts also allowed Plutarch to see and explicitly affirm (in his Life of Solon) what Koppelman finds so baffling: that unlike non-coital sex, intercourse with an infertile spouse also realizes the good of marriage—something that all of the other mentioned ancient philosophers seemed to take for granted, even as they denied that other sexual acts could do the same.

The key is to see that while procreation is the biological good in virtue of which a man and woman’s intercourse unites them in mutual bodily coordination, this bodily union is an aspect of a comprehensive relationship valuable in itself and not just as a means to procreation. So the ancient philosophers saw what our legal tradition has long affirmed: marriage is a procreative relationship, but its intrinsic value remains whether or not children are born as the fruit of the spouses’ union.

Koppelman’s view has no resources to make sense of the philosophical tradition. But in attempting to explain away the parallel Western legal tradition, he does concede that the original public purpose of marriage law was not to oppress or exclude anyone, but to ensure that wherever possible children were reared by their father as well as their mother. His contention is simply that we should now expand its purposes to recognize same-sex partnerships.

Note two things about this concession.

First, it shows that when Koppelman insists that “any definition of marriage that excludes same-sex couples strikes [him] as already underinclusive,” he is simply measuring marriage law against a set of purposes that, for whatever reasons, he wishes it served, and not against the purposes that he admits it has served historically. In other words, Koppelman seems implicitly to concede that there is a rational basis for current marriage law—in which case, it passes constitutional muster. He also implicitly concedes that to recognize same-sex partnerships would be not merely to expand but to change the definition and meaning of civil marriage.

Second, while urging that we expand marriage law’s understood purposes, Koppelman says nothing to answer a consideration we raise against doing so: If the law encourages people to see marriage as an essentially emotional union that has no principled connection to organic bodily union or procreation, then marital norms (e.g., permanence, exclusivity, monogamy) will increasingly be treated as optional at best, and groundlessly restrictive at worst—at great cost to children and society generally. (After all, there is no reason that essentially emotional unions like friendships should involve pledges of permanence or exclusivity.) Koppelman also completely sidesteps our specific argument that he has no ground of principle for opposing “open marriages” and legal recognition of polyamorous sexual partnerships as marriages. That only reinforces our conclusion that no answer to this objection is possible.

Thus, two interventions in this debate which began with Koppelman’s intention to “dig” into “fairly technical” matters and illuminate the “philosophical recesses” of our view, ended up breaking no ground and exposing nothing damning or even damaging. Despite his initial projection of confidence and philosophical sophistication, Koppelman ignored almost every challenge we posed to his view. And the one distinction of ours that he chose to make the focus of his attack—deriding it as “archaic” and “nearly impossible to believe”—has turned out to be widely embraced by leading contemporary philosophers and difficult to deny on the merits. Thus, shovel in hand notwithstanding, Koppelman has struck no blows against the conjugal view of marriage or our philosophical defense of it.

Sherif Girgis is a PhD Candidate in Philosophy at Princeton University. Ryan T. Anderson is a PhD Candidate in Political Science at the University of Notre Dame. Robert P. George is McCormick Professor of Jurisprudence at Princeton University.

Copyright 2011 the Witherspoon Institute. All rights reserved.

Yoshino’s Flawed Defense

Our first reply challenged Yoshino to explain his own view of marriage, such that two men or two women could form what is truly a marital relationship. Yoshino: “I thought the answer would be intuitive: I want . . . marriage to widen to permit same-sex couples to enter it.” Translation: Yoshino wants marriage to be whatever it must be such that two men or two women could truly marry. But this is to dodge the crucial—and ultimately unavoidable—question: what is marriage? We had hoped Yoshino would offer what we had offered: a holistic defense of a view of marriage that accounts for marital norms that he wishes to retain, assuming that there are some (e.g., monogamy and sexual exclusivity).

But Yoshino sees his ad hoc, results-oriented approach as a virtue of his view because, he says, proponents of “trans-historical . . . definitions of marriage have often been time’s fools.” Since “we do not stand at the end of history today,” Yoshino thinks that “only time will reveal” what the moral ideals of “liberty, equality, and justice” require of our marriage law.

We reject this idea of history as a quasi-divine judge. We doubt that Yoshino himself believes that each generation is necessarily more enlightened than the previous one. Such a belief would play into the conservative caricature of progressivism’s alleged faith in the inevitability of moral progress. In any event, it is demonstrably false. Nor can the passage of time as such reveal new principles of justice or equality. History tells us what has happened, not what should happen. Though it might help us predict a policy’s effects on certain human goods, it cannot give us principles for evaluating those effects, or for determining the structure of those goods. But what we sought from Yoshino was his view of the normative structure (the defining norms) of the human good of marriage.

Finally, liberty, equality, and justice forbid imposing arbitrary norms. But the question of whether any norm (complementarity, permanence of commitment, monogamy) is essential to marriage and its public purposes, or irrelevant and therefore arbitrary, cannot be answered without a holistic view of the human good of marriage and the point of marriage policy. So to know what justice requires, Yoshino must first address the question that he resolutely refuses to answer, and to which no mere succession of historical events gives any hints: what is marriage?

All of this is clear from Yoshino’s only positive statement of what he thinks marriage does require: though he expects future demands for the recognition of multiple-partner unions, Yoshino would “currently . . . distinguish polygamous marriage primarily on the intuitive ground that one can give one’s full self to only one other person.” So Yoshino thinks that marriage requires a comprehensive union, and that this requires monogamy. We agree, as our article says explicitly. But history (in which monogamy is both observed and flouted) could not have yielded that conclusion. Only reasoning about what the human good requires of our natural and public institutions—moral and political philosophy—could. We have offered our reasons, according to which truly comprehensive union involves bodily union—and thus coitus, and thus sexual complementarity. Yoshino, who disagrees, refuses to make a counterproposal.

If all of this undermines even the one criterion for legal recognition (monogamy) that Yoshino embraces here, perhaps that is because he already rejected it elsewhere. In a 2006 statement entitled “Beyond Same-Sex Marriage,” some 300 self-described “lesbian, gay, bisexual, and transgender… and allied activists, scholars, educators, writers, artists, lawyers” and others declared their support for “legal recognition for a wide range of relationships, households and families,” including (among others) “committed, loving households in which there is more than one conjugal partner.” Kenji Yoshino was one of the signers.

Yoshino evidently thought then that fairness requires legally recognizing polyamorous sexual partnerships. Did he forget having publicly endorsed that idea? Did he change his mind about it? Would he square what he says now with what he said then by distinguishing legal recognition of multiple “conjugal partner” relationships from marital legal recognition, reserving the term “marriage” for partnerships of exactly two? (If so, on what basis would he withhold the term from multiple-partner households?) Or did his reply to us soften his position, and profess agnosticism about what justice requires of our law, because showing his cards would (a) cost his position broad support, and (b) vindicate our argument that eliminating sexual complementarity removes any principled grounds for monogamy?

If there are no principled grounds for marital norms, then it must be unjust to fail to recognize any relationships that are just as socially valuable as those that we do recognize. But in that case, as we argued against Koppelman, the reasons to exclude polyamorous unions grow thin indeed:

The social costs of recognizing polyamorous partnerships might include, say, increased administrative burdens for the state. But the benefits would presumably include spousal privileges, inheritance and hospital visitation rights, and in general more practical assistance to, and social acceptance of, the relationships that Americans in an estimated 500,000 polyamorous households find most personally desirable. The stigma against such people and their children would be weaker. They would feel less pressure to hide their romantic inclinations and lifestyle choices. Their economic situation could well be improved.

If it’s an unsettled question whether justice requires recognizing such unions, can we really put off answering it until the possible victims of injustice have clamored long enough? Should we really join Yoshino’s rejection of wholesale thinking about marriage, and remain content to “test such intuitions [about polyamory] if and when such debates become live national controversies”?

So much for the implausibility of what Yoshino (perhaps looking backward as well as forward) labels his “current” position: we can also show that his criticisms of our view miss their mark.

Yoshino’s Flawed Critique

Yoshino imputes to us what he labels “the common procreation argument” about marriage, which he thinks cannot account for the validity or value of marriages that do not produce children. But we denied that actual procreation was necessary for marriage, and defended as philosophically sound the historic law of marriage that has long regarded infertility as no impediment to matrimony. For marriage is no mere means to procreation, but valuable in itself. That is perfectly consistent with holding, as we do, that the distinctive contours of marriage are what they are in significant part because it is the kind of union that would be naturally fulfilled by having and rearing children together.

After all, any serious account must explain how marriage differs from other types of community—and make sense of the evident fact that the idea of marriage would never have been conceived if human beings did not reproduce sexually. The view that we defend and that our legal tradition long enshrined does both: Marriage, valuable in itself, is the kind of commitment inherently oriented to the bearing and rearing of children; it is naturally fulfilled by procreation. This orientation is related to the fact that marriage is uniquely embodied in the kind of act that is fulfilled by procreation: coitus. By coitus alone, a man and woman can be related much as the organs of a single individual are related—as parts coordinating together toward a biological good of the whole. So marriage is consummated in an act that creates in this sense a bodily union—an extension of two people’s union of hearts and minds along their bodily dimension, thus making marriage a uniquely comprehensive interpersonal union. (By contrast, friendships in general are unions of hearts and minds alone, and so are characteristically embodied in conversations and joint pursuits.) Finally, in view of its comprehensiveness and its orientation to children’s needs, only marriage inherently requires of its would-be participants pledges of permanence, exclusivity, and monogamy. (By contrast, friendships do not require a promise of permanence and are often enhanced, not betrayed, by openness to new members.)

Every single sentence about marriage in the previous paragraph applies equally to any man and woman who have made and consummated their marital commitment, regardless of fertility. After all, each such sentence is just as true of a couple on their wedding night as it is after the birth of a third child. By contrast, not one of these same sentences applies to two men, two women, partnerships of three or more, or by-design temporary or open unions. If Yoshino thinks that we offer no “principled ground” for the distinctions we make, perhaps that is because his inapt label for our view (“common procreation”) has clipped and obscured it.

Nor do we salvage the validity of childless marriages at the price of denigrating their value, as Yoshino also charges. That an orientation to procreation distinguishes marriage from other unions does not mean that procreation must be the most important aspect of a marriage, much less its sole point. Comprehensive union itself—of mind, heart and body; permanent and exclusive—is of great inherent value, and distinct from the value of general friendships (unions of hearts and minds), however deep and fulfilling in their own right. Hence infertile spouses realize an important value distinguishable in significant ways from that of other friendships.

Moreover, in agreeing that marriage is a comprehensive union of persons but denying that it includes true bodily union, Yoshino must be reducing the person to a center of consciousness and emotion, which just uses a body as an extrinsic (and thus subpersonal) instrument for achieving satisfactions or other goals. For reasons we and others have articulated in various writings, we believe that this is a serious philosophical error, one at the heart of much contemporary confusion about the meaning of sex and marriage. In truth, our bodies are integral aspects of us as human persons, so that no interpersonal union is comprehensive if it leaves out bodily union.

Note, too, that legally recognizing infertile opposite-sex unions does nothing to undermine opposite-sex parenting as a public ideal. Now Yoshino denies that opposite-sex parenting is ideal even as a rule. He points to the values of “liberty, equality, and justice.” But in light of these, do we not owe it to children to ensure that they are, wherever reasonably possible, reared by the mother and father who conceived them—that our policies privilege this arrangement as a norm?

In this connection, Yoshino mistakenly claims that we deny that adoptive parents are the real parents of the children entrusted to their loving care. The sentence in our article that Yoshino sees as “denigrating” adoption was not about, and did not mention, adoption. As its context makes clear, its (perhaps inartfully phrased) point was that every child’s having two biological parents is related to the ground for monogamy: for only two-person unions (specifically, those capable of coital consummation) can be of the procreative type—and only unions of the procreative type can be marriages. We further argued that each child would ideally know and love, and be known and loved by, her biological parents, in the security provided by their marital commitment and love for each other. We never denied that the best available approximation of this through adoption is at times necessary, and in such cases laudable. Those who adopt should enjoy the same rights, and be held to the same responsibilities, as non-adoptive parents, legally and socially. They are real parents. That as such does not make them part of a procreative type of community, or therefore capable of marrying—witness, say, an orphan being adopted by his single aunt or two cohabiting bachelor uncles.

Of course, the normative issue of which arrangements our policies should privilege as generally ideal for procreation cannot be resolved by descriptive social-scientific studies alone, but such studies would contribute importantly relevant information. What we need, however, are studies that meet the acknowledged gold standard of social-scientific research, by drawing on large, random, and representative samples observed longitudinally. But so far, none of the studies comparing children reared by same-sex couples to children reared by their married biological parents has these features (for reasons acknowledged in this literature review by a sociologist and Jonathan Rauch, a gay civil marriage proponent). Yet Yoshino treats the social science as settled.

The designers of currently available studies of same-sex parenting outcomes cannot be blamed for the unavailability to date of large, random, representative samples to track over time. But every parenting arrangement that has been examined in high-quality studies has consistently been shown less effective than parenting by married biological parents: this is true of single- and step-parenting as well as parenting by cohabiting couples. Studies also suggest that mothers and fathers foster—and their respective absences impede—children’s healthy development in different ways. It would therefore be surprising if same-sex and opposite-sex parenting were equally effective. But let the methodologically strong studies be done, and the chips fall where they may.

Finally, Yoshino implies that, despite our argument that the structure of marriage depends partly on its orientation to procreation, we advocate a view that crudely draws a circle around all opposite-sex couples (and only them). But we have consistently argued that sexual complementarity, while necessary, is not sufficient to make a marriage. For example, if a man and woman do not sincerely pledge monogamy and sexual exclusivity—norms that are (like sexual complementarity itself) connected to marriage’s orientation to procreation—then their partnership is not, as a moral matter, a true marriage; nor is a marriage complete unless it is sealed in the generative act. But none of this is—as Yoshino further suggests—a strike against our view. For it is evident that nothing in any principled way distinguishes even opposite-sex bonds without these features from the wide and varied spectrum of non-marital friendships or partnerships. (Of course, the law may ordinarily have reasons not to inquire into such things as the sincerity of spouses’ marital pledges. Similarly, even advocates of defining civil marriage as a loving romantic commitment would not want the state inquiring into a couple’s level of affection or intimacy before granting marriage licenses. And as lawyers and legal scholars know, none of this concern about invasive inquiries is unique to marriage law.)

In “What is Marriage?” we defended a coherent answer to the title question. We showed how that answer makes sense not only of the requirement of sexual complementarity, but also of other marital norms (pledges of monogamy, exclusivity, and permanence)—and of the historic legal practice under which marriages could be annulled or dissolved for non-consummation but not for infertility. We also challenged proponents of redefining civil marriage to defend marital norms (like monogamy) embraced by most on both sides. Professor Yoshino insists that whatever marriage is, it does not require sexual complementarity or bodily union in coital acts. Currently, he seems to think that it is in principle limited to two persons. But he has given no coherent account of how to square these positions. Nor, we believe, can he.

Sherif Girgis is a PhD Candidate in Philosophy at Princeton University. Ryan T. Anderson is a PhD Candidate in Political Science at the University of Notre Dame. Robert P. George is McCormick Professor of Jurisprudence at Princeton University.

Copyright 2011 the Witherspoon Institute. All rights reserved.

Deutsch’s central problem is with the following passage in our article:

In coitus, but not in other forms of sexual contact, a man and a woman’s bodies coordinate by way of their sexual organs for the common biological purpose of reproduction. They perform the first step of the complex reproductive process. Thus, their bodies become, in a strong sense, one—they are biologically united, and do not merely rub together—in coitus (and only in coitus), similarly to the way in which one’s heart, lungs, and other organs form a unity: by coordinating for the biological good of the whole. In this case, the whole is made up of the man and woman as a couple, and the biological good of that whole is their reproduction.

Deutsch follows this with an analysis:

1) Individual adults are naturally incomplete with respect to sexual reproduction.
2) Reproduction can only be begun via coitus between a man and a woman.
3) Thus, during coitus, a woman and a man’s bodies are biologically united and become one flesh.

How does #3 follow from #1 and #2? Answer: It doesn’t.

Deutsch claims that our argument is a non sequitur because there is “no non-metaphorical sense in which the spouses become ‘one flesh’” in light of the fact that “the man and the woman … remain two separate entities,” as can be confirmed by a “DNA sampling.”

As most readers will have noticed, Deutsch’s claim against us is itself a non sequitur.

Deutsch evidently assumed that a man and woman’s common biological action cannot make them biologically united at all (that is, united in any respect), unless it makes them completely so (that is, united in every respect). But this is obviously untrue. Organic unity can be genuine without being all-encompassing:  two distinct organisms can be organically united in some respects or for some purposes while remaining separate and self-sufficient in other respects or for other purposes. Whether we are talking about humans or zebras, individual members of a mammalian species are separate and self-sufficient with respect to locomotion, digestion, respiration and most other functions. With respect to reproduction, however, individual members of the species are not self-sufficient. A male or female is half of a potential mated pair whose biological (and, as such, organic) common action—or unity—in coitus characteristically (though not on every occasion) produces offspring.

Deutsch’s appeal to “DNA sampling” to “confirm” that there is “no non-metaphorical sense” in which males and females organically unite in mating is risible. Genetic identity is not what constitutes biological unity (cf. identical twins)—nor is it, as we will show, even necessary for biological unity of every meaningful sort. Elsewhere Deutsch suggests that biological unity requires being “physically joined.” But physical joining just in itself can scarcely be considered a very significant kind of bodily unity, since it may well include the “unions” of animals that are tied to each other by the tails, or whose hides have been surgically attached at a point. There would be nothing metaphysically or morally significant about these instances of “physical joining.”

The rest of Deutsch’s posting is ostensibly an effort to find such a sense in which coitus is a real bodily union. But if he were careful, he wouldn’t have had to look very far. In fact, the answer is in the very passage that he first quotes: “…they are biologically united… similarly to the way in which one’s heart, lungs, and other organs form a unity: by coordinating for the biological good of the whole.”

Thus, following Aristotle, we argued in our article—in the paragraph immediately preceding the one that Deutsch cites—that “our organs—our heart and stomach, for example—are parts of one body because they are coordinated, along with other parts, for a common biological purpose of the whole: our biological life. It follows that for two individuals to unite organically their bodies must be coordinated for some biological purpose of the whole.” This conception clearly allows for partial biological unity, in respect of coordination toward some but not other biological purposes.

Think of a biological function in humans. Now think of the parts that are inherently oriented to playing some role in serving that function and can thus be said to be coordinated together toward its fulfillment. Our claim is that there is one meaningful sense in which the parts just mentioned enjoy a biological unity, precisely in virtue of that coordination toward fulfilling a common biological function.

If the function that you thought of was locomotion, metabolism, respiration, or one of many others, then (a) the parts that you thought of are organs within a single individual; and (b) the function in question itself plays some role in serving that individual’s biological life. But if reproduction was the function you picked, then (a) the parts that you thought of are not organs in a single individual; and (b) the function in question is one that serves the biological good not of an individual, but of a male-female pair as a whole: namely, their reproduction. And coitus is the process by which such coordination toward a common biological function—such real, if limited, biological unity—is achieved.

Deutsch objects that “it’s not true that every part of our body is ‘coordinated’… for a common biological purpose… [namely] biological life,” and cites hair, skin tags, and benign tumors. But far from disproving our point, these examples support it. For it is clear that hair, skin tags, and benign tumors—though contiguous with our bodies—are not biologically united with them in just the way that, say, a heart and lungs are. To remove tumors or skin tags (or at least some of the body’s hair) has no effect on our organic functioning; that is why doing so is not mutilation. (In Deutsch’s own words, “they could all be removed at no biological cost.”) If there is still a sense in which they are parts of one’s body—because of their contiguity with it, and so on—that just shows that there are different (more and less important) senses in which two things can be biologically united. But that is no strike against our argument, since we articulated precisely which sense we meant—and a sense that is clearly more significant than the contiguity that skin tags have as much as limbs do.

Deutsch continues:

I largely agree with George that a marriage, in nearly all cases, requires a physical, sexual union to become complete. (There may be individual couples who are exceptions, but for the overwhelming majority of couples, it will not feel like a true marriage without a sexual union.)

It is not clear what Deutsch means here. If marriage is a human good with some essential features that hold regardless of the participants, then either consummation is one such essential, or it is not. If it is, then Deutsch’s second sentence is false; if it is not, then his first sentence is puzzling. If, on the other hand, Deutsch thinks that there are no essential features of marriage that hold constant across would-be spouses, then we wonder why he thinks that marriage would require even mutual commitment (much less monogamous or exclusive commitment). Why, too, would he not think that such an intrinsically malleable good would be hindered by legal recognition, which imposes certain uniform constraints on every recognized marriage?

Perhaps then Deutsch means that a certain sort of mutual pleasuring is essential to marital unity, and that this is what most (but not all) couples achieve through sex. Our article includes a short note about why pleasure cannot be another biological good in respect of which two individuals are in some sense biologically united, by sexual activities other than coitus:

Pleasure cannot play this role for several reasons. The good must be truly common and for the couple as a whole, but pleasures (and, indeed, any psychological good) are private and benefit partners, if at all, only individually. The good must be bodily, but pleasures are aspects of experience. The good must be inherently valuable, but pleasures are not as such good in themselves—witness, for example, sadistic pleasures.

Ignoring our first two points, Deutsch says of the last sentence:

[That] is a little like saying “childbirth is not as such a good in itself–witness, for example, the birth of Hitler.” For any good, one could imagine an instance of the good being used for negative purposes; yet if “can never be used for negative purposes” is the definition of good, then absolutely nothing on this mortal Earth is or ever can be good. That’s silly. In the right context (i.e., not Hitler), childbirth is a good; and in the right context, sexual pleasure is also a good.

Our point was not that sadistic pleasures are inherently good things that just happen to be used for bad purposes. First, it is a confusion to speak of sadistic pleasures being used for bad purposes. It is the other way around: sadists seek what is bad or evil for the sake of pleasure, which they typically seek for its own sake. Second, we agree (who wouldn’t?) that good things can be twisted. Our point was that in sadistic pleasures, it is not as if the pleasure itself is good, only sought by illicit means. Pleasure taken in bad things is bad. And we doubt that Deutsch would disagree. If a man took pleasure in strolling the halls of a pediatric oncology ward to watch children die of cancer, no one would we say, “Well, it’s too bad that’s what suits his fancy—but at least he got pleasure out of it.” Pleasure does not have its own value, considered as a state of mind independently of its object; it shares in the moral quality of that object. Now communities—like friendship or marriage—are built up by the pursuit of what is inherently valuable. So marriage cannot be built up by the common pursuit of pleasure just as such. Spouses must achieve some good (organic union as an embodiment of their commitment), in which the pleasure they take is then an additional perfection. That was our point.

From these misunderstandings, Deutsch rushes to his conclusion:

But at heart, “What Is Marriage” is a faith-based argument. George believes, as a matter of faith (all he has, since he lacks evidence), that there’s something called “bodily union,” a biological merger of male and female bodies, that occurs only in coitus….

But basing laws on Robert George’s faith in a mythical “bodily union” is no better than basing laws on my faith in Mork from Ork. Robert George and his fellow-travelers may have faith in magical bodily unions, but they would be morally wrong to force that faith on us through the legal system….

But now we’re treading on even more bewildering territory. Do we want a society in which people’s civil rights are decided, not by what is just, not by what is pragmatic, not by what is fair, but by a metaphor? Metaphors, unlike facts, can change arbitrarily. Suppose that George chooses to believe in a different metaphor next year — a metaphor saying that comprehensive unity can only be achieved by dog owners, for instance. Would we then be obliged to change marriage laws to exclude cat owners?

Ridicule is the last resort of desperate arguments. If Deutsch had achieved a sound understanding of our view (as Koppelman did) and then produced a valid argument against it (as Koppelman made a serious effort to do), he would have had no need of putting words into our mouths (“biological merger”) or festooning his critique with dismissive terms (“mythical,” “magical”). A sound objection would have sufficed. But a dozen sneers do not make an objection.

What Deutsch calls the protean “myth” at the heart of marriage law has been its cornerstone for centuries. Our legal tradition understood coitus and coitus alone as consummating (and thus completing) a marriage, but never accepted infertility as a ground for annulment or dissolution. Our argument—into which readers will gain little insight by reading Deutsch’s post—can make ample sense of that tradition, in a way that also accounts for other marital norms (permanence, exclusivity, monogamy). Can Deutsch? What is the non-arbitrary basis on which he would ground these norms (assuming he accepts them), while rejecting sexual complementarity as integral to marriage? Our guess: he will do no better than other advocates of redefining civil marriage have done in meeting our challenge. What argument would Deutsch make against the 300 academics and activists who signed “Beyond Gay Marriage,” or others who would eliminate the requirements of monogamy and sexual exclusivity? Or would he join them?

The common biological action of mating is no myth; it is a biological fact. Ask any zoologist (or farmer). The real question is whether human mating, precisely in virtue of the unity it effectuates, is capable of having moral significance of a certain sort. Can it embody and complete an inherently valuable, comprehensive form of relationship—historically known as marriage—that is, like mating itself, ordered to procreation? We have argued as much. And if we are right, then not only sexual complementarity, but the other structuring marital principles recognized by our legal tradition—monogamy, sexual exclusivity, the pledge of permanence—are intelligible and sound. Yet they cannot be accounted for by a sneering Barry Deutsch any more than by a commendably thoughtful and morally serious scholar like Andrew Koppelman.

Sherif Girgis is a PhD Candidate in Philosophy at Princeton University. Ryan T. Anderson is a PhD Candidate in Political Science at the University of Notre Dame. Robert P. George is McCormick Professor of Jurisprudence at Princeton University.

Copyright 2010 the Witherspoon Institute. All rights reserved.

Professor Koppelman graciously credits our article with having “done [readers] a service with [a] succinct and clear exposition” of the arguments for conjugal marriage “that is accessible to the general reader.” Noting that “the most prominent response to [our] paper, by NYU Law Professor Kenji Yoshino, doesn’t really engage with any of [our] arguments,” Koppelman writes, “Here I will try to do better.”

Koppelman has indeed contributed importantly to the debate. Besides providing an opportunity for us to defend a core premise of our view, he has forthrightly admitted—he might say, embraced—the less politically palatable implications of rejecting our position.

Against our view that marriage is a pre-political form of relationship (albeit one that the state has compelling reasons to support and regulate), Koppelman holds that marriage is merely a social and legal construction—the pure product of conventions. Relatedly, he rejects the idea, long embodied in our law and the philosophical traditions supporting it, that spouses’ coition consummates marriage by sealing their commitment with a form of bodily communion made possible by their sexual-reproductive complementarity. And he acknowledges what we and he agree is an implication of his view: that there are no principled reasons for would-be spouses to pledge or observe permanence, sexual exclusivity, or monogamy.

Koppelman’s concession on this important point is of more than merely academic interest. Consider the 2006 statement “Beyond Gay Marriage,” which endorsed “a new vision for securing governmental and private institutional recognition of diverse kinds of partnerships, households, kinship relationships and families,” including polyamorous (multiple “conjugal partner”) unions. Its 300 signatories—self-described lesbian, gay, bisexual, and transgender (LGBT) and allied activists, scholars, educators, writers, artists, lawyers, journalists, and community organizers—not only recognize that their rejection of sexual complementarity as essential to marriage abolishes any principled basis for monogamy and sexual exclusivity; they urge that the law reflect this, by extending recognition to polyamorous unions.

There is another, perhaps more surprising implication of Koppelman’s positing marriage as a pure social and legal construct: it undermines the evident views of many gay civil marriage proponents. For many on both sides of the debate argue as if marriage was not simply reducible to what the majority (through legal or social convention) says it is, but a human good with its own inherent requirements, which the state ought to recognize accordingly. For if there are no principled boundaries demarcating some intimate associations as marriages, then no principle requires holding that same-sex sexual partnerships are marriages. In that case, all it takes to justify traditional marriage law is that the non-recognition of same-sex partnerships offer some (or a net) social benefit.

Koppelman would deny that it does. But this re-invites the question: what is the net social benefit of excluding multiple-partner unions?

The social costs of recognizing polyamorous partnerships might include, say, increased administrative burdens for the state. But the benefits would presumably include spousal privileges, inheritance and hospital visitation rights, and in general more practical assistance to, and social acceptance of, the relationships that Americans in an estimated 500,000 polyamorous households find most personally desirable. The stigma against such people and their children would be weaker. They would feel less pressure to hide their romantic inclinations and lifestyle choices. Their economic situation could well be improved.

Recognizing the flimsiness of many marital norms if marriage is just a social construct, Calgary philosopher Elizabeth Brake has called for “minimal marriage,” in which “individuals can have legal marital relationships with more than one person, reciprocally or asymmetrically, themselves determining the sex and number of parties, the type of relationship involved, and which rights and responsibilities to exchange with each.” Koppelman presumably thinks it an injustice to fail to recognize relationships that are just as socially valuable as ones that we do recognize. So why isn’t Brake’s policy required in justice?

Of course, we believe that marriage is no mere social or legal construction, but a human good with certain inherent requirements that the state does not create but should recognize and support. Far from unique, marriage is in this respect like other moral realities, most notably human rights. The right not to be discriminated against based on one’s skin color, say, would exist as a moral principle governing human conduct even in the absence of positive law. Likewise, the inherent structure of the good of marriage exists, and defines the kind of commitment that would-be spouses must make if they wish to realize that good, even in the absence of marriage law. But what is marriage, so understood? That is the question to which we proposed an answer in the essay to which Koppelman responded. We turn now to his criticisms of our answer.

Bodily union: Does it matter? What does it mean?

We argued that marriage, as our law has historically recognized, is a union of persons along every dimension of their being. As such, marriage is uniquely embodied and sealed in the coition of husband and wife. Our law historically recognized that, too. For coitus alone unites spouses along the bodily dimension of their being and is, like the relationship that it seals, inherently oriented to procreation. Only such bodily union and its connection to children provide principled grounds for core marital norms (exclusivity, monogamy, a pledge of permanence) and make sense of the state’s interest in marriage over other personal bonds.

But Koppelman claims that “it is not clear that this kind of ‘organic bodily unity’ actually exists, or that even if it did, it would have the intrinsic value they attribute to it.” Now there are two ways to resist the view that the kind of bodily union possible only between a man and a woman has special value, and our article already includes replies to both.

First, someone might think that bodily union never has inherent value: emotional intimacy does, and sexual activity matters only when it serves that. Our article addresses this point:

Marriage is distinguished from every other form of friendship inasmuch as it is comprehensive. It involves a sharing of lives and resources, and a union of minds and wills… But on the conjugal view, it also includes organic bodily union. This is because the body is a real part of the person, not just his costume, vehicle, or property. Human beings are not properly understood as nonbodily persons—minds, ghosts, consciousnesses—that inhabit and use nonpersonal bodies. After all, if someone ruins your car, he vandalizes your property, but if he amputates your leg, he injures you. Because the body is an inherent part of the human person, there is a difference in kind between vandalism and violation; between destruction of property and mutilation of bodies.

Likewise, because our bodies are truly aspects of us as persons, any union of two people that did not involve organic bodily union would not be comprehensive—it would leave out an important part of each person’s being. Because persons are body-mind composites, a bodily union extends the relationship of two friends along an entirely new dimension of their being as persons. If two people want to unite in the comprehensive way proper to marriage, they must (among other things) unite organically—that is, in the bodily dimension of their being.

Second, some who see bodily union in marriage as inherently valuable and crucial may still think that any consensual sexual activity could realize it. Our article answers this view, too:

But what is it about sexual intercourse that makes it uniquely capable of creating bodily union? People’s bodies can touch and interact in all sorts of ways, so why does only sexual union make bodies in any significant sense “one flesh”?

Our organs—our heart and stomach, for example—are parts of one body because they are coordinated, along with other parts, for a common biological purpose of the whole: our biological life. It follows that for two individuals to unite organically, and thus bodily, their bodies must be coordinated for some biological purpose of the whole.

That sort of union is impossible in relation to functions such as digestion and circulation, for which the human individual is by nature sufficient. But individual adults are naturally incomplete with respect to one biological function: sexual reproduction. In coitus, but not in other forms of sexual contact, a man and a woman’s bodies coordinate by way of their sexual organs for the common biological purpose of reproduction. They perform the first step of the complex reproductive process. Thus, their bodies become, in a strong sense, one—they are biologically united, and do not merely rub together—in coitus (and only in coitus), similarly to the way in which one’s heart, lungs, and other organs form a unity: by coordinating for the biological good of the whole. In this case, the whole is made up of the man and woman as a couple, and the biological good of that whole is their reproduction.

Koppelman’s reply says nothing to address either of these points—that bodily union is necessary, or that only coitus effectuates it. He only cites a previous essay of his in which he argues that our view would exclude infertile couples. There he argued that a “sterile person’s genitals are no more suitable for generation than an unloaded gun is suitable for shooting. If someone points a gun at me and pulls the trigger, he exhibits the behavior which, as behavior, is suitable for shooting, but it still matters a lot whether the gun is loaded and whether he knows it.” But we had already responded to this objection in our new article, and his reply does not address our answer:

Natural organs and organic processes are unlike man-made objects and artificial processes, which retain their dynamism toward certain goals only so long as we use them for those goals—which in turn presupposes that we think them capable of actually realizing those goals. That is, the function of man-made objects and processes is imposed on them by the human beings who use them. Thus, a piece of metal becomes a knife—an artifact whose function is to cut—only when we intend to use it for cutting. When it is no longer capable of cutting and we no longer intend to use it for cutting, it is no longer really a knife.

The same does not hold for the union between a man and a woman’s human bodies, however, because natural organs are what they are (and thus have their natural dynamism toward certain functions) independently of what we intend to use them for and even of whether the function they serve can be brought to completion. Thus, in our example, a stomach remains a stomach—an organ whose natural function is to play a certain role in digestion—regardless of whether we intend it to be used that way and even of whether digestion will be successfully completed. Something analogous is true of sexual organs with respect to reproduction.

So bodily union matters to marriage, and only coitus achieves it (whether or not conception results). Koppelman says nothing to refute these points, or to address our answers to his previous objections to them.

He admits failing to see distinctive value in marriage so understood, and implies that few others can. On the contrary, our civilization (like others) has long recognized a human good with just these contours. Consistently and for centuries, our law (a) required coitus—and accepted no other act—for the consummation of any marriage, but (b) never treated infertility as an impediment to marriage. This cannot be ascribed to ignorance of infertility (the phenomenon was well known) or the difficulties of discovering it before a marriage: while non-consummation was treated as a ground for annulment or dissolution, infertility established after a wedding ceremony never was. Nor can this aspect of the legal tradition be ascribed to animus towards homosexuals or even the moral rejection of homosexuality: the law distinguished among possible sexual acts performed by the same legally wedded man and woman, and was settled in cases in which same-sex conduct or relationships were not at issue.

The only way to account for this longstanding legal practice is to posit something much like our view: people grasped (and in fact many still grasp) that comprehensive interpersonal union—permanent, exclusive, and sealed by coitus—is (a) valuable in itself and (b) distinguishable in principle from non-marital friendships and indeed every other inherently valuable human good.

Koppelman must find these features of historic marriage law to be baffling. Not seeing anything special in coitus or the kind of bodily union (and, therefore, comprehensive interpersonal union) that it makes possible, and unable to appeal to irrational motivations (like homophobia) or mundane explanations (like ignorance), he must find our legal tradition’s distinction between infertile opposite-sex couples and same-sex couples simply unintelligible. But it is perfectly intelligible the moment one recognizes that marriage is a distinctive form of relationship at once (1) inherently oriented to procreation, and (2) valuable in itself, and not as a mere means to procreation.

Just a legal convention?

In rejecting our argument, Koppelman also denies that marriage is a human good with certain inherent requirements that the state has strong reasons to recognize and reinforce. With admirable directness, he writes that marriage is “just a construct that has developed over time, and that therefore can be changed by human beings if that seems best.” To illustrate the point, he asks us to imagine a proposal to change one of the rules of chess:

I don’t think that this question can be resolved by trying to figure out what the essence of Chess is. Chess hasn’t got an essence. Doubtless the present game of chess was developed through just such fiddling; perhaps someone once thought that the drunken reel of the knight was hostile to the essence of Chess. The question is what sort of chess rules are likely, under the circumstances, to best realize the good of play.

Similarly, Koppelman suggests, there is no “essence” to marriage. For him, presumably, marriage laws are just so many contingent specifications of the highly varied good of intimacy.

Recall the fallacy in Koppelman’s objection to our view of infertile couples’ bodily union: that from the fact that guns (artifacts) lose their dynamism toward killing when they can no longer cause death, it would follow that our reproductive organs (natural objects) lose their orientation toward procreation when they can no longer cause conception. A similar fallacy would be needed to complete Koppelman’s argument up to this point: that from the fact that some social practices like chess are pure constructs, it would follow that that marriage is, too. But marriage isn’t a pure construct, any more than human rights are mere constructs. Both are moral realities that the state has good reasons to recognize and support.

But Koppelman has more to say. He seems to suggest that the concept of an independent basic good with certain pre-legal requirements is “barely comprehensible.” We can dispel this impression with another example.

Consider friendship. As with marriage, the particulars of friendship vary widely by time and place. But also like marriage, friendship is a human reality, a distinctive human good, with certain essential features independent of our social or linguistic practices. For example, it essentially involves each person’s actively willing the other’s good, for the other’s sake. And again like marriage, friendship (the human reality, not our use of the word) grounds certain moral privileges and obligations between its participants and even between the friends and others who might interact with them. So friendship, like marriage, is not just a social construct.

If we said that John and Joe, who just exploited each other, were not “real friends,” we would not just mean that a certain word did not apply to their bond, or that society failed to treat that bond as it does certain others. We would primarily mean that John and Joe were missing out on a distinctive, inherently valuable reality—a human good, for which other goods are no substitute—because of a failure to meet its inherent requirements, which are not purely socially constructed. Similarly, a relationship is not a marriage just because we speak and act as if it is, nor is a relationship not a marriage just because we fail to do so.

So it makes sense to speak of human goods with internal requirements that don’t just depend on linguistic or social conventions. And marriage between a man and a woman, we argue, is one of these goods. Koppelman gives no good argument for thinking that marriage is not, and people’s longstanding practices and understandings of marriage strongly suggest that it is. Koppelman cites shifting attitudes on these issues, confident that history is on his side. But we are confident that when Americans understand the implications of conceiving marriage as a mere social construct and legal convention, they will see the wisdom of preserving it as the conjugal union of husband and wife—and be reinforced in the view that it is so inherently.


Sherif Girgis is a PhD Candidate in Philosophy at Princeton University. Ryan T. Anderson is a PhD Candidate in Political Science at the University of Notre Dame. Robert P. George is McCormick Professor of Jurisprudence at Princeton University.

Copyright 2010 the Witherspoon Institute. All rights reserved.

Kenji Yoshino of NYU Law School, a prominent and influential gay rights legal scholar, has posted on Slate a response to our article under the title “The Best Argument Against Gay Marriage,” proposing to show “why it fails.” Although we are glad that our efforts have attracted the critical attention of an important advocate of redefining marriage, Professor Yoshino’s response is long on rhetoric designed to stigmatize a position he opposes, and short on arguments that might actually cast doubt on its soundness.

Indeed, Yoshino’s posting brings to mind points developed in a recent paper by Yoshino’s colleague at NYU, Professor Jeremy Waldron—one of the world’s most eminent legal philosophers. Waldron observes that it “infuriat[es]” many of his fellow liberals that some intellectuals remain determined, in Waldron’s words, “to actually argue on matters that many secular liberals think should be beyond argument, matters that we think should be determined by shared sentiment or conviction.” In particular, Waldron laments, “many who are convinced by the gay rights position are upset” that others “refuse to take the liberal position for granted.”

The central argument of our article is that equality and justice are indeed crucial to the debate over civil marriage law, but that to settle it—to determine what equality and justice demand—one must answer the question: what is marriage? So this is what the debate is ultimately about. In making our case for conjugal marriage, we consider the nature of human embodiedness; how this makes comprehensive interpersonal union sealed in conjugal acts possible; and how such union and its intrinsic connection to children give marriage its distinctive norms of monogamy, exclusivity, and permanence.

Our article offers detailed responses to the most significant objections to our view: that it has no principled grounds for recognizing infertile couples’ marriages, ignores the needs of same-sex attracted people, is morally similar to support for anti-miscegenation laws, assumes the mutability of sexual desire, relies on religious belief, or fails to show the concrete harm in redefining civil marriage.

We also show that those who would redefine civil marriage, to eliminate sexual complementarity as an essential element, can give no principled account of why marriage should be (1) a sexual partnership as opposed to a partnership distinguished by exclusivity with respect to other activities (including non-sexual relationships, as between cohabiting adult brothers); or (2) an exclusive union of only two persons (rather than three or more in a polyamorous arrangement). Nor can they give robust reasons for making marriage (3) a legally recognized and regulated relationship in the first place (since, after all, we don’t legally recognize or closely regulate most other forms of friendships).

We were explicit in framing these as challenges to proponents of gay civil marriage. And if anyone is capable of meeting them, surely it is Professor Yoshino. So his decision to pass over those challenges in perfect silence confirms and reinforces our belief (also amply defended in our article) that only the conjugal view can answer them.

If even that much of our article’s argument is right, then the case against conjugal marriage laws as it is now being made in the courts collapses—and Yoshino knows it. If the logic of recognizing same-sex partnerships as marriages undermines the rational basis of the very idea of marriage as a sexually exclusive and monogamous union, then all but the most extreme sexual liberationists will draw back from his position. And if the same argument for radically reforming marriage policy also undercuts the point of legally regulating marriage at all, then it is self-defeating.

Instead of addressing these points, Yoshino grossly misrepresents two analogies we made as if they were identities. He thus represents us as holding what we do not hold and neither said nor implied (e.g., that infertile couples are just like losers in a baseball game; or that adoptive parents are not real parents).

But this exchange would be fruitless if we responded in kind. Instead, we will attempt to answer the concrete objections that seemed to motivate Professor Yoshino’s essay.

At one point, Yoshino concedes that we have a “serious point,” but he distorts it in a manner that works to the advantage of his own critique: “They are contending that sexual activity has been privileged over other kinds of bonding activities in determining who gets to marry.” Notice the question-begging implication of the phrase “who gets to marry.” Yoshino assumes (and assumes that we assume) that the institution of marriage inherently has nothing to do with sexual complementarity, and that we are merely supporting a historical tendency to “privilege” certain activities in determining who gets access to marriage (seen as a gender-neutral institution) under the law.

But as the very title of our article reveals, our goal is to show that the debate over civil marriage’s definition is ultimately about what marriage is, considered as a pre-legal reality that the state has good reasons to track (and that it hurts the common good to obscure). We offer and defend an answer according to which bonds between two men or two women—like those among three or more—simply lack the features essential to marriage: what are denied legal recognition in these cases are not marriages in the relevant sense. To miss or misrepresent these points is to fail to engage our argument at all.

We give a coherent account of marriage as inherently a sexual partnership, one shaped by norms of monogamy and sexual exclusivity. We contend that any view of marriage that would include same-sex partnerships cannot defend these norms as a matter of principle rather than sentiment or preference, and we challenge revisionists like Yoshino to show—by arguments—otherwise. If Yoshino could have mustered effective arguments, he would have. But rather than propose an answer to the question What is marriage? he assumes an answer that he does not defend or even articulate, and uses it to impute to us groundless aggression: we are, he claims, “declaring war” on people’s marriages; our arguments “demean” and “denigrate” those who cannot have biological children of their own.

Then has Yoshino “declared war” on the (according to Newsweek) 500,000 polyamorous U.S. households, by failing to support a policy that would ratify their romantic commitments as civil marriages? By this standard, no policy that proposed standards for which arrangements could be legally recognized as marriages—in other words, no marriage policy, period—would pass muster.

Professor Yoshino’s rhetoric is thus, to all appearances, designed to exploit caricatures of conservatives as mean-spirited bigots out to thwart those not like themselves. But our argument is either successful or not. If it is successful, pejorative labeling cannot harm it; if it is unsuccessful, a clear explanation of its flaws—for example, by showing that it rests on a false premise or a fallacious inference—gives people all the reason they require for rejecting it.

Yoshino directs much of his scorn at an analogy we use to defend our view (and the view historically embodied in our law) that marriages, being comprehensive interpersonal unions, are consummated and uniquely embodied in coitus—in acts that extend spouses’ union of hearts and minds along the biological dimension of their beings, much as various organs unite to form one body: by allowing them to coordinate together toward a biological function (in this case, reproduction) of the whole (in this case, the couple as a unit).

Like any analogy, the analogy of ours that Yoshino criticizes was meant to illustrate a limited point: how a community can derive its structure and defining norms from a certain end, even though it is valuable in itself and not merely as a means to that end. Here’s how we put it:

A baseball team has its characteristic structure largely because of its orientation to winning games; it involves developing and sharing one’s athletic skills in the way best suited for honorably winning (among other things, with assiduous practice and good sportsmanship). But such development and sharing are possible and inherently valuable for teammates even when they lose their games.

Just so, marriage has its characteristic structure largely because of its orientation to procreation; it involves developing and sharing one’s body and whole self in the way best suited for honorable parenthood—among other things, permanently and exclusively. But such development and sharing, including the bodily union of the generative act, are possible and inherently valuable for spouses even when they do not conceive children.

Now law professors, like philosophers, are familiar enough with analogies to see that they break down: that is what makes them analogies and not equations, as we make clear in our article just a few sentences after drawing this analogy. One clear difference between marriage and a sport is that the latter is a competitive activity in which having winners and losers is inherent to the practice. Marriage is not. So our point was not to relegate spouses without biological children, or marital acts that (like all spouses’ acts most of the time) do not cause conception, to the status of “losers” (who are then “denigrated” or “demeaned”).

Professor Yoshino dismisses (without quite rehearsing) another one of our arguments—that only the conjugal view can account for the deep connection between marriage and children—on the ground that this argument relies on studies asserting the superiority of biological parenting without comparing it to same-sex parenting. But we never denied that there are not yet high-quality studies comparing opposite-sex to same-sex (or, for that matter, polyamorous) parenting. Here is what we did say about the connection between marriage understood as a conjugal union, and children:

We learn something about a relationship from the way it is sealed or embodied in certain activities. Most generically, ordinary friendships center on a union of minds and wills, by which each person comes to know and seek the other’s good; thus, friendships are sealed in conversations and common pursuits. Similarly, scholarly relationships are sealed or embodied in joint inquiry, investigation, discovery, and dissemination; sports communities, in practices and games.

If there is some conceptual connection between children and marriage, therefore, we can expect a correlative connection between children and the way that marriages are sealed. That connection is obvious if the conjugal view of marriage is correct. Marriage is a comprehensive union of two sexually complementary persons who seal (consummate or complete) their relationship by the generative act—by the kind of activity that is by its nature fulfilled by the conception of a child. So marriage itself is oriented to and fulfilled by the bearing, rearing, and education of children. The procreative-type act distinctively seals or completes a procreative-type union.

[…]

Given the marital relationship’s natural orientation to children, it is not surprising that, according to the best available sociological evidence, children fare best on virtually every indicator of wellbeing when reared by their wedded biological parents. Studies that control for other relevant factors, including poverty and even genetics, suggest that children reared in intact homes fare best on the following indices.

We cite some evidence suggesting that mothers and fathers tend to bring different strengths to the parenting enterprise. But we think that everyone in this debate should support rigorous studies designed to compare directly various parenting arrangements, and executed by teams of sociologists that disagree on the moral questions about sex and marriage, so that all are pre-committed to the results. We also expect, however, that few would take the sociological results as decisive on the central issue (what is marriage?), just as we did not in our article. But this raises a question: Does Yoshino deny that children deserve to be raised, wherever possible, by a mother and father—that this is worth promoting as an ideal?

Finally, having ignored our central arguments, made unwarranted linguistic associations, indulged in pejorative labeling, and studiously ignored every challenge we pose, Yoshino ends with a resounding declaration of victory: Even the best argument available against gay civil marriage fails, because it “denies” marriage to same-sex partners only by “denigrating” and “demeaning” the marriages of many opposite-sex couples. But Yoshino would be warranted in declaring victory only if he had given good reasons for rejecting our actual arguments, and provided his own answer to the central question of what marriage is. He did neither.


Robert P. George is McCormick Professor of Jurisprudence at Princeton University. Ryan T. Anderson is a PhD Candidate in Political Science at the University of Notre Dame. Sherif Girgis is a PhD Candidate in Philosophy at Princeton University.

Copyright 2010 the Witherspoon Institute. All rights reserved.

Obama’s policy is bad ethics because it creates further incentives for the destruction of human beings in their very earliest stage of life. When President Bush became the first president ever to fund embryonic stem-cell research, he set a clear moral line: the government would not be complicit in encouraging additional embryo destruction. His executive order allowed funding on embryonic stem-cell lines derived from embryos that had already been destroyed, but excluded funding of research using stem cells from embryos destroyed after August 9, 2001 (the date of his announced policy).

Some pro-lifers thought that even this policy fell short of full respect for human life, but Bush was attempting to make the best of a bad situation: for embryos that had already been destroyed, funds would be made available for research that tried to salvage some value out of their destruction. But Bush resolutely refused (twice exercising the veto) to incentivize future embryo destruction by funding it with tax dollars. His reasoning was clear: Science itself tells us that a human embryo is a whole living member of the species homo sapiens, a human being at the very beginning of life. And sound principles of political justice tell us that all human beings deserve the protection of the law. While political will was lacking for legal protections, Bush sought at least to keep the government—and tax-paying citizens—free from complicity in embryo killing. Obama’s policy is bad ethics precisely because it implicates the American taxpayer in an unjust practice.

Obama’s policy is bad science because embryo destruction is no longer necessary for the types of stem cells doctors seek. First, as the L.A. Times noted earlier this month, adult stem cells are already being used to treat patients suffering from seventy-three different ailments. The count for embryonic stem cells is zero. In fact, therapies from embryonic stem cells haven’t even cleared stage-one clinical trials. Second, and even more noteworthy, scientists can now create stem cells with all the same properties as those derived from embryos without killing—or even using—embryos at all. (When this scientific breakthrough was first announced in November 2007, I wrote an article for The Weekly Standard entitled “The End of the Stem-Cell Wars.” Alas, a better title would have been, “What Should Be the End of the Stem-Cell Wars.”) In some respects, these induced pluripotent stem cells (iPSCs) appear to be medically superior to embryonic stem cells: cheaper to produce, easier to work with, and, most importantly, patient-specific—a crucial factor for any future medicinal use.

As anyone familiar with organ transplants knows, immune rejection is a major hurdle to any form of regenerative medicine. Induced pluripotent stem cells clear this hurdle because they can be created from a patient’s own skin cells to have his exact DNA sequence. For the same to be true of embryonic stem cells, they would have to be created from an embryo produced by human cloning—an unethical, unsafe, and so far unsuccessful procedure. In creating economic incentives for research that shows little or no medical promise (especially compared to the ethical alternatives), Obama’s policy is bad science.

Obama’s policy is bad politics because it needlessly perpetuates a stem-cell war where an easy peace is available. While public opinion on stem cells is notoriously difficult to gauge, after the November 2007 breakthrough only the staunchest of ideologues were clamoring for public funding of embryo destruction. Certainly by 2009, the issue had lost most of its political salience, entirely dropping from the front pages of our newspapers. Once an ethically legitimate alternative to embryonic stem-cell research was developed, the public and the media lost interest.

If Obama really wanted to resolve one front of the culture wars and show respect for pro-lifers, as he claimed, he would have refused to make citizens complicit in embryo killing by simply continuing the Bush policies. Instead, beholden to the radical fringe of his party, he chose to make a show of repudiating the Bush years. Not only was this needlessly harmful to our political culture; it may also have harmed Obama’s political self-interest: he certainly didn’t gain himself new supporters by wasting tax dollars on unethical and unnecessary research. In both of these ways, Obama’s policy is bad politics.

Now comes news that Obama’s policy is bad law. Earlier this week Chief Judge Royce Lamberth ruled that the funding guidelines issued by the National Institutes of Health (NIH) pursuant to Obama’s executive order violate the Dickey-Wicker Amendment. This Amendment, in effect since 1996, prohibits the federal funding of “research in which a human embryo or embryos are destroyed, discarded or knowingly subjected to risk of injury or death.” Judge Lamberth’s ruling dismissed the so-called “use-derivation” distinction (by which some would defend Obama’s policies) as mere book-keeping:

This prohibition encompasses all “research in which” an embryo is destroyed, not just the “piece of research” in which the embryo is destroyed. Had Congress intended to limit the Dickey-Wicker to only those discrete acts that result in the destruction of an embryo, like the derivation of ESCs, or to research on the embryo itself, Congress could have written the statute that way. Congress, however, has not written the statute that way, and this Court is bound to apply the law as it is written.

It shouldn’t be surprising that Judge Lamberth finds the “use-derivation” distinction unconvincing. President Clinton’s Bioethics Commission actually reached the same conclusion: “we believe that this [distinction] is a misrepresentation of the new field of human stem cell research.” Because the Commission supported embryo-destructive research, it urged that the Dickey-Wicker Amendment be overturned. But so long as the Amendment remains valid law, Judge Lamberth is obliged to rule according to its language. Unless Congress overturns the law, Obama’s stem-cell policy appears to be bad law.

Yet Clinton’s Bioethics Commission, if it still existed, might no longer support overturning Dickey-Wicker. As Joseph Bottum and I noted in an article in First Things, “Stem Cells: A Political History,” Congress first passed the Dickey-Wicker Amendment in 1996 to prevent Clinton from authorizing federal funds for embryo-destructive research related to fertility treatments. It wasn’t until 1999 that his Bioethics Commission concluded that embryonic stem-cell research was a legitimate reason for embryo destruction, and thus favored overturning Dickey-Wicker. But, the Commission concluded:

The derivation of stem cells from embryos remaining following infertility treatments is justifiable only if no less morally problematic alternatives are available for advancing the research. … The claim that there are alternatives to using stem cells derived from embryos is not, at the present time, supported scientifically. We recognize, however, that this is a matter that must be revisited continually as science advances.

Given the recent scientific advancements with induced pluripotent stem cells, could anyone plausibly suggest that “no less morally problematic” alternative exists? If Obama refuses to follow Bush’s prudent policy, at the very least he should follow that of Clinton’s Commission.

It is unclear whether Judge Lamberth’s decision, a temporary injunction, will be upheld upon full review and appeal. It is worth noting that his ruling suggests that Bush’s policy of embryonic stem-cell funding was illegal as well. While Clinton’s Bioethics Commission found the “use-derivation” to be morally irrelevant, the general counsel in Clinton’s Department of Health and Human Services found it to be legally valid. But Clinton left office before any funding was ever actually approved and thus left the decision to his successor. Bush sought to honor the spirit, if not, perhaps, the letter, of Dickey-Wicker by providing funding for embryonic stem-cell research without incentivizing further embryo destruction. Obama’s policy, clearly trying to skirt both the spirit and the letter of the law, provides fresh streams of funding for embryo-destructive research, so long as the destruction itself is privately funded. Judge Lamberth had no patience for this argument.

Nor should we.

Bad ethics, bad science, bad politics, and bad law. Normally it takes only three strikes to be out. But not even this fourth will mark the death knell for this deadly science: while the ruling temporarily halts the federal funding of embryo-destructive stem-cell research, it does nothing to prevent the destruction of human embryos in privately funded research. There is no law forbidding embryo killing, and there never has been. And despite what some excitable commentators have said, there has never been a ban on embryonic stem-cell research. Yet this injunction is a step toward restoring taxpayer-supported scientific research to its morally upright place.


Ryan T. Anderson is Editor of Public Discourse: Ethics, Law, and the Common Good.

Copyright 2010 the Witherspoon Institute. All rights reserved.

New York Times columnist Paul Krugman blamed the oil spill in part on “futuristic technology” without which “BP couldn’t have drilled the Deepwater Horizon well in the first place.” He went on to blame the “anti-environmentalists” who have rolled back environmental protection policies, and concluded that “the environment won’t take care of itself, that unless carefully watched and regulated, modern technology and industry can all too easily inflict horrific damage on the planet.” The implication, of course, is that big government is to do the watching and the regulating—even more than it already does. And in his column the following week Krugman triumphantly proclaimed that “what really needs to change is our whole attitude toward government.”

E. J. Dionne in the Washington Post declared the problem to be that “BP was trusted to know what it was doing with complicated equipment that, it would appear, it either didn’t understand very well or was willing to use recklessly.” And he quickly posited a statist solution as well:

Everyone is a capitalist until a private company blunders. Then everyone starts talking like a socialist, presuming that the government can put things right because they see it as being just as big and powerful as its Tea Party critics claim it is. But the truth is that we have disempowered government and handed vast responsibilities over to a private sector that will never see protecting the public interest as its primary task. The sludge in the gulf is, finally, the product of our own contradictions.

Eliminating the contradictions, therefore, entails empowering government which, supposedly, will protect the public interest.

Religious leaders got in on the act, too. The managing editor of Christianity Today engaged in a jeremiad directed at more or less everyone:

Woe to you, O consumers, who drive when you could walk, who lust for goods that must be flown and shipped from far away in oil-consuming ships of land and sea and air, whose way of life must be preserved no matter the cost to my planet or to those whose lives depend on its health. Woe to you, O producers, who pile greed upon greed, who drill and pump and ship and refine black gold with little thought of tomorrow, and sometimes not even today.

Meanwhile, the Dean of the Southern Baptist Theological Seminary directed his fire more directly at the free market, arguing that just as Roe sparked Evangelical concern about abortion, so too the oil spill should cause them to care about the environment. And apparently caring about the environment must entail a governmental solution:

Because we believe in free markets, we’ve acted as though this means we should trust corporations to protect the natural resources and habitats. But a laissez-faire view of government regulation of corporations is akin to the youth minister who lets the teenage girl and boy sleep in the same sleeping bag at church camp because he ‘believes in young people.’

Where to begin? What we’re seeing is an animus directed toward modern technology and industry, an unmodulated suspicion of the private sector’s motives, an unexamined belief that markets have failed, all coupled with an uncritical (and nearly unthinking) faith that, in the final analysis, only government and extensive regulation will save us from ourselves and protect Mother Nature.

But the history of environmental progress tells a different story. And the lessons of this story ought not to be obscured by this tragic event. First, governmental attempts to protect the environment often have been inefficient, ineffective, and even counterproductive. Second, economic growth—and the affordable energy and market economies that allows for such growth—is largely responsible for the environmental gains we have witnessed over the past decades. And third, property rights and the market itself—not the supposedly angelic intentions and intelligence of government officials—best protect the environment.

The road to hell is paved with good intentions, and perhaps the best-known governmental misstep—still in full force—when it comes to environmental policy is the Endangered Species Act. Signed into law in 1973, the act was meant to protect species on the verge of extinction as “a consequence of economic growth and development untempered by adequate concern and conservation.” The law has had some good effects, but in certain respects the remedy was worse than the disease. Instead of bringing economic growth and development into harmony with concern for and conservation of endangered species, the act gave some an economic incentive to kill and destroy the habitats of the very animals it sought to protect.

“Shoot, shovel, and shut-up” best captures the attitude of some ranchers, farmers, harvesters, and other land-owners who stand to lose all access to their land should an endangered animal be discovered on it. If an endangered species is discovered on private property, governmental officials can tell the owners what they may and may not do with the land—imposing criminal sanctions if they fail to comply. This can greatly decrease the value of the land, but the government does not offer any economic recompense.

As a result, land-owners know that if they spot an endangered animal they should get rid of their problem by getting rid of the animal before the government finds out—“shoot, shovel, and shut-up.” This same logic also provides the incentive for land-owners to manage their properties in such a way (by clearing undergrowth, limiting the size of forests, etc.) so as to prevent them from providing habitat for endangered species.

Imagine how many more endangered species would be discovered and protected if there were an economic incentive to doing so. What if conservation groups paid land-owners to purchase the properties where these species were discovered? Barring that, what if the government compensated land-owners, thus implementing a policy that makes sense by providing the proper economic incentives. No one suggests getting rid of the Endangered Species Act, only reforming it to make use of market-based solutions.

Among governmental attempts to protect the environment, the Endangered Species Act is not unique in failing to grapple with the problem of scarcity and thus ignoring economic incentives. Nor is it alone in assuming greater knowledge on the part of bureaucrats than human beings can possibly have. The simple fact of the matter is that scarcity—in this example, land—drives our economic activity. And when the environmental good to be protected comes at no cost to the regulator, then no price extracted from the land-owner will be deemed too high. Determining, then, which goals to set (what level of emission, how many species to protect, how many acres of land to freeze, etc.) and by which dates becomes rather arbitrary—and certainly not optimally efficient. Allowing the price mechanism of the market to work even for environmental benefits provides a better solution.

If governmental regulation—which varies from country to country—does not fully explain recent improvements in environmental conditions, then what does explain the marked environmental gains that much of the industrialized world has experienced over the past decades? It’s the economy, stupid. And economic growth in particular. One of the most important discoveries in environmental economics was the Environmental Kuznets Curve. Many environmentalists once claimed that economic growth hurts the environment and produces a race to the bottom as countries compete against one another to bring out the maximum bang for the buck at the expense of Mother Nature. But in 1991 the economists Gene Grossman and Alan Krueger discovered that the relationship was not linear, but arced. Picture the relationship between environmental harms and per-capita income as an upside-down U. Initially, as incomes increase so too do environmental problems as society makes greater use of natural resources and emits more pollutants. But after incomes reach a certain critical inflexion point, critical environmental indicators begin to improve as society finds more efficient and effective ways to produce goods. Rather than a race to the bottom, economic growth produces a race to the top.

Economists have found this general pattern to hold for a host of environmental indicators across time and national borders. In fact, they can pinpoint the exact dollar amount where an increase in wealth will start to lead to better environmental conditions. It should be no wonder, then, that developed countries today enjoy better environmental conditions than they did a century ago, or that developed countries have better environmental health than developing countries. The key for developing countries is to find a way to shift the Environmental Kuznets Curves down and to the left. In other words, to reach that inflexion point sooner and with lower environmental costs. Likewise, the key for all countries is to find a way to keep pushing them along the curve in the direction of progress—for there is no guarantee that things will move along the curve in the right direction. But doing these things will require “futuristic technologies” and the fuels and market economies that generate economic growth. Rather than spurning innovation, inexpensive energy, or the free markets that incentivize these developments, those truly concerned with the environment should embrace these factors as the keys to future environmental wellbeing.

Though it may seem counter-intuitive to some, property rights and the market itself can be harnessed in the cause of environmental protection. The economists Bruce Yandle, Madhusudan Bhattarai, and Maya Vijayaraghavan have found that countries where property rights and the rule of law are secured produce the desired shift in and movement along their Environmental Kuznets Curve:

When scarce aspects of the environment are defined as property . . . the community moves rapidly in the race to improve environmental life. The pace of this progress is determined partly by the extent to which environmental assets are protected by private property rights. Thus, the Environmental Kuznets Curve is a proxy for a property rights model that begins with a commons and ends with private property rights.

It should come as no surprise, then, that some of the worst polluters in the world have been state-run economies, such as those of the Communist world.

But property rights can also be used to create markets in environmental protection. Consider three examples. A factory releases polluted water into a local stream. In an ideal world, industry wouldn’t pollute. But in the actual world, industry generates some pollution as an externality to production. The question, then, is how best to control this externality. Typical governmental solutions decree a certain standard over a particular time table—command and control. But what if the town-members owned the local stream and thus could exert their property rights against the factory? They could then charge the factory for every part per billion of whatever pollutant it releases to yield a concentration they find acceptable and thus provide the factory with continued incentives to further reduce their negative externalities. This requires no omniscient or omnibenevolent regulator. As Yandle, Madhusudan, and Bhattarai explain:

As ‘propertyness’ expands—and private property is the most incentive-enriched form—individuals have a greater incentive to manage, to conserve, and to accumulate wealth that can be traded or passed on to future generations. Under such circumstances, what might be viewed as a waste stream affecting the commons, or no-man’s-land, is seen as an invasion of property. Those who impose uninvited costs are held accountable.

Beyond regulating pollutants, however, property rights and markets can be used to protect fragile ecosystems and endangered species. The problem of overfishing is a well-documented tragedy of the commons. But if our rivers and oceans weren’t commons, but were owned, their owners would have economic incentives to ensure that the fish-stock remains healthy—for what economic value is there in an ocean with no fish? Rather than a state licenser trying to set daily catch limits, an owner will seek to maximize the long-term value of his property. Lastly, conservationists concerned with protecting the environment can bear the economic costs of doing so directly by purchasing fragile ecosystems.

What does any of this have to do with the Gulf oil spill? Partly it should serve as a reminder that the spill isn’t the final word on markets and the environment. Beyond that, however, it should restrain the knee-jerk impulses to castigate markets and oil, and to call for potentially harmful governmental regulation. Affordable energy and market economies drive environmental wellbeing, while much governmental regulation can be counter-productive. The critical consideration, then, is what sort of governmental response is appropriate. If anything, these lessons should prompt policy makers to seek market-based solutions to prevent future disasters. The Obama administration announced a temporary ban on all future off-shore oil drilling, a ban some members of his party want to make permanent. But America needs oil no matter what, and as Steve Hayward pointed out, shipping oil across the oceans has proven to be ecologically much more dangerous than off-shore drilling.

Undoubtedly BP would have had better safety mechanisms in place—known how to use their equipment and not been reckless, in the words of Dionne—if they were economically liable not only for the full costs of the cleanup but for the property rights they would be violating if the Gulf were not a giant commons. As it stands, however, a 1990 law passed by Congress limits the economic damages that can be collected after an oil spill to $75 million. Democrats in Congress now are trying to raise this to $10 billion. BP has a net worth of around $250 billion, and if all of that was on the line one can imagine how much more careful they would have been. Not relying on the good intentions of business or the wisdom and benevolence of government, but instead relying on economic incentives is the key. It’s not that market economies failed us in the Gulf, but that they were never put to work in the first place.


Ryan T. Anderson is Editor of Public Discourse: Ethics, Law, and the Common Good.

Copyright 2010 the Witherspoon Institute. All rights reserved.

George: It’s about sex. Those seeking to redefine marriage began by insisting that what they were fundamentally interested in was gaining needed benefits for same-sex domestic partners. Legal recognition of same-sex partnerships was necessary, they said, so that partners could visit each other in hospitals, extend employer-provided health insurance and other benefits to each other, and so forth. Some people who said this were, I’m sure, being sincere. Most, however, were not telling the truth. Their goal was to win official approbation for sodomy and other forms of sexual conduct that historically have been condemned as immoral and discouraged or even banned as a matter of law and public policy. The clear evidence for this is the refusal of most same-sex “marriage” activists to accept civil unions and domestic partnership programs under which the benefits of marriage are extended, but which do not use the label “marriage” or (and this is very important) predicate these benefits on the existence or presumption of a sexual relationship between the partners. So, it is not really about benefits. It is about sex. The idea that is antithetical to those who are seeking to redefine marriage is that there is something uniquely good and morally upright about the chaste sexual union of husband and wife—something that is absent in sodomitical acts and in other forms sexual behavior that have been traditionally—and in my view correctly—regarded as intrinsically non-marital and, as such, immoral.

PD: The movement for legal recognition of homosexual partnerships as marriages has been astonishingly successful. Twenty years ago, virtually nobody supported the idea or even contemplated it. Now it is the law in six states and may soon become the law in several others. Can you comment on your opponents’ strategy?

George: It goes without saying that I profoundly disagree with those who seek to redefine marriage in order to treat same-sex partners as spouses. Yet, I admire their determination, political savvy, and willingness to contribute time and enormous amounts of money to their effort. Defenders of marriage can and should learn from them.

An important point to notice is that the advocates of redefining marriage have a national strategy. That strategy involves the use of courts as well as legislatures. In state courts of last resort on which liberal judicial activists constitute a majority, they have gained swift and comparatively inexpensive victories. This has happened in Massachusetts, Connecticut, and Iowa. Even where they have not won total victories in the courts, they have made progress in several states by persuading liberal activist judges to impose civil unions or domestic partnership schemes which provide same-sex partners with the benefits of marriage and do so precisely on the basis of the existence or presumption that the partners are in an “intimate” (i.e., sexual) relationship with each other. In other words, these schemes honor homosexual conduct (and, in effect, treat the partners as married) by excluding from eligibility other domestic partners (such as elderly sisters who share living quarters and expenses and look after each other) who have needs identical to those of same-sex sexual partners but who are not “intimate” with each other. Where activist courts have done this, they have set things up for the final step which advocates of redefining marriage hope will be the re-labeling of the civil unions or domestic partnership schemes as “marriages.” In some cases, they hope, this will be done by the courts themselves; in others, by state legislatures.

PD: It seems clear that elite opinion these days is virtually unanimous in supporting the redefinition of marriage. That view is now the unquestioned orthodoxy in Hollywood and among mainstream journalists, college and university professors, and the like. Many young people embrace it. How did that happen?

George: The movement to redefine marriage is part of a larger movement to entrench and extend the sexual revolution that got into full-swing in the mid-1960s. This movement wields extraordinary cultural power. Its hegemony in the elite sector of the culture enables its proponents to transmit its ideological tenets through television shows, movies, newspapers and magazines, popular music, colleges and universities, high schools, middle schools, and, increasingly, even elementary schools. Many people today, especially younger people, take these tenets for granted. They usually go unquestioned. I find in talking to students that when I raise questions about their assumptions about the legitimacy of non-marital sexual cohabitation, their first surprise is the recognition that they were making assumptions; their second surprise is that there are grounds for questioning those assumptions. Of course, only a fraction of college students ever encounter professors who question these assumptions.

PD: Surely the cultural power you mention is the most powerful weapon in the armory of advocates of same-sex marriage. How do they deploy their power?

George: Very shrewdly! They use their cultural power to enforce assumptions instead of advancing arguments or engaging the counterarguments made by defenders of the conjugal conception of marriage as the union of husband and wife. First, they use cultural power to create the impression that the legal recognition of same-sex partnerships as marriages is something inevitable. The idea here is to sap their opponents’ will to defend conjugal marriage by encouraging people to believe that it is a lost cause. The re-definition of marriage is coming, they claim, so there is no point in fighting. After all, it is supported by the celebrities and all the beautiful people, by the professoriate and the rest of the intellectual class, by the mainstream media, by the leadership of the major professional associations and civic and philanthropic organizations. It has already won the day among those occupying the commanding heights of culture. So it’s just a matter of time. You might as well get on the winning side of history.

Of course, this overlooks the fact that every time the issue is put to the people, even in deep blue states such as California and Wisconsin, conjugal marriage wins and same-sex “marriage” loses. In fact, polling often shows greater support for the re-definition of marriage prior to campaigns in which the issue is tested than at the end of such campaigns after the competing sides have made their arguments and the people render their decisions. And this is despite the fact that the advocates of re-defining marriage are extremely well-funded and well-organized and enjoy the overwhelming support of the cultural establishment. So people who oppose redefining marriage should not let themselves be railroaded by those on the other side to believe that their cause is lost and that same-sex “marriage” is inevitable. It isn’t. Indeed, even in states that have redefined marriage, whether by judicial imposition or legislative action, territory can be reclaimed. Supporters of conjugal marriage in Hawaii enacted a state constitutional amendment to undo a state Supreme Court decision redefining marriage in that state. If supporters of conjugal marriage remain united and disciplined, they will do essentially the same thing soon in Maine where marriage was redefined by the state legislature.

Sometimes people who claim that same-sex “marriage” is inevitable point to polling data showing strong support among young people for redefining marriage. “It’s a generational thing,” they say. As the generations roll on, same sex “marriage” will come to be regarded as uncontroversial and even natural. People will wonder why anyone ever opposed it and what all the fuss was about. The support of so many young people for regarding same-sex partnerships as marriages isn’t surprising, given the cultural power of the movement for sexual liberalism; but I seriously doubt that it makes the redefinition of marriage inevitable. Young people grow up. Most will marry and have children. They will perceive the ways in which moms and dads complement each other, especially (though not exclusively) in child rearing, and the ways their children benefit from paternal and maternal complementarity. Their vision of marriage and sexuality as having everything to do with feelings and romance will fade. They will learn something about love as an act of the will, and not merely a species of affection; and their understanding of what marriage actually is and why it exists will, in many cases, be deeply enriched. I do not claim that the experience of growing up, marrying, and bringing up children will lead all young people or even most who today say they favor the redefinition of marriage to change their minds; obviously, lots of married grown-ups with children today hold liberal views about sex. But I suspect that it will have a significant impact.

Another and far more insidious and brutal way in which many advocates of sexual liberalism deploy cultural power in the cause of redefining marriage is by depicting their opponents as bigots. Across the country, they have pursued a strategy of intimidation against anyone who dares to dissent from their position in a public way. Their appalling treatment of Carrie Prejean is merely one example. Their relentless personal attacks on her were designed to send a clear message to others who aspire to succeed in any area of public life, from beauty pageants to careers in journalism and politics: “If you oppose us, if you have the temerity to express support for the conjugal conception of marriage, we will smear you as a rube and a bigot, make your life hell, and do our best to ruin you.”

After losing the Proposition 8 battle in California, the campaign of intimidation went into full swing. Anyone who contributed money to the Prop 8 effort or played any identifiable role in supporting it was targeted for intimidation. They were depicted as agents of intolerance and enemies of equality. Pressure was put on their employers to fire or discipline them. (I speak from personal experience here: the president of Princeton University, where I am a member of the faculty, was deluged with letters demanding action against me.) Boycotts were launched against their businesses. The Church of Jesus Christ of Latter Day Saints (LDS) and its members, who were, as always, generous and active supporters of conjugal marriage, were made a particular target because they were perceived as an especially vulnerable religious minority. The LDS faithful were harassed, their church services were disrupted, and a grotesquely libelous and bigoted video ad depicting Mormon missionaries as home invaders was run against them.

PD: Will the campaign of intimidation work?

George: Campaigns of intimidation succeed only if the victims of such campaigns permit themselves to be intimidated. They fizzle when people refuse to alter their behavior out of fear. As anyone who has ever confronted a school-yard bully knows, bullies are cowards. When their victims stand up to them, they fold like accordions. My advice to supporters of marriage who are targets of intimidation is this: make clear to the bullies that if they seek to intimidate you, your response will be to ratchet up your support of marriage by, for example, increasing your financial contributions to the pro-marriage cause, devoting more time to making phone calls to family members, friends, and members of your religious community, and doing other grassroots work on behalf of marriage. That is what I have personally done. Just as the campaign of intimidation will fail if we refuse to be intimidated, it will backfire if we decide to make it backfire by redoubling our pro-marriage efforts in the face of it.

In the words of a prominent politician who says that though he supports civil unions he opposes same-sex “marriage”: Yes, we can!

Ryan T. Anderson is editor of Public Discourse. Robert P. George is McCormick Professor of Jurisprudence and Director of the James Madison Program in American Ideals and Institutions at Princeton University. He has served on the President’s Council on Bioethics and as a presidential appointee to the United States Commission on Civil Rights. He serves as Chairman of the Board for the National Organization for Marriage and sits on the editorial board of Public Discourse.

Copyright 2009 the Witherspoon Institute. All rights reserved. ]]> http://www.thepublicdiscourse.com/2009/07/381/feed 0 http://www.thepublicdiscourse.com/2009/02/84 http://www.thepublicdiscourse.com/2009/02/84#comments Tue, 24 Feb 2009 05:00:01 +0000 Ryan T. Anderson publicdiscourse_2009.02.24.001.pdart In their op-ed in the New York Times this past Sunday, Jonathan Rauch and David Blankenhorn suggest a compromise for our national marriage debate. Written by men with two very different perspectives on the issue, their proposal represents a praiseworthy effort to advance a difficult national discussion. As supporters of the traditional conception of marriage, we are part of their intended audience. But the compromise that they propose is not one that we could endorse. Sharing their goal of finding a workable modus vivendi for a divided country, we would like to suggest an alternative way forward. It will no doubt require concessions from both sides, but it should not present insurmountable difficulties for either.

Rauch and Blankenhorn’s proposal is straightforward: The federal government would offer civil unions (including most, if not all, marital benefits) to same-sex couples that have entered a civil union under their state’s law. That is what the supporters of same-sex ‘marriage’ (“revisionists”) get out of the bargain. At the same time, the federal government would enact legislation to protect religious organizations from being forced to acknowledge same-sex unions. And it would recognize only those civil unions that are licensed in states that also offer religious-conscience exemptions. That is what the supporters of traditional marriage (“traditionalists”) get. (We must note that Rauch and Blankenhorn do not specify the scope of the religious liberty protections that would be put in place and how religious liberty rights would be preserved in the face of assaults in the name of anti-discrimination principles.)

But as we see it, this proposal grants too much to revisionists and too little to traditionalists. Revisionists get the substantive (if not linguistic) treatment of homosexual unions as marriages; traditionalists get conscience protection (of unspecified scope). But traditionalists’ primary concern is not simply to secure an enclave of personal liberty to regard marriage as they see fit. Rather, it is to promote a healthy culture of marriage understood as a public good that also fulfills spouses and the larger communities of which they are members.

As a community of husband and wife founded on a bodily union whose natural fulfillment is the conception of a child, marriage not only fulfills human beings as embodied, sexually complementary persons; it is also oriented to the bearing and rearing of children. Because those children are society’s youngest and most dependent citizens, the public has an interest in healthy marriages. So legally and socially enforcing marital norms makes sense. By attaching a father to his children—and to his children’s mother—exclusively and for life, marriage serves society’s interests by securing for children the love and care of both mother and father. A well-ordered society thus supports marriage as an institution that fulfills the adults who choose to enter it and serves the children who may come as its fruit.

The Rauch-Blankenhorn compromise, though, does little to promote traditional marriage, even as it establishes a parallel institution. It treats same-sex unions (in fact, if not in name) as if they were marriages by making their legal recognition depend on the presumption that these relationships are or may be sexual. It thus enshrines a substantive, controversial principle that traditionalists could not endorse: namely, that there is no moral difference between the sexual communion of husband and wife and homosexual activity—or, therefore, between the relationships built on them.

But even people who hold differing views on marriage could agree that there is no special reason to extend recognition only to romantic same-sex unions. If hospital visitation rights and Social Security survivor benefits are appropriate for two cohabiting men who have demonstrated long-term commitment and care, does it matter whether they are sexually involved with each other? Wouldn’t those benefits just as well serve, say, two elderly, codependent brothers?

That brings us to our alternative proposal: The revisionists would agree to oppose the repeal of the Defense of Marriage Act (DOMA), thus ensuring that federal law retains the traditional definition of marriage as the union of husband and wife, and states retain the right to preserve that definition in their law. In return, traditionalists would agree to support federal civil unions offering most or all marital benefits. But, as Princeton’s Robert P. George once proposed for New Jersey civil unions, unions recognized by the federal government would be available to any two adults who commit to sharing domestic responsibilities, whether or not their relationship is sexual. Available only to people otherwise ineligible to marry each other (say, because of consanguinity), these unions would neither introduce a rival “marriage-lite” option nor treat same-sex unions as marriages. Their purpose would be to protect adult domestic partners who have pledged themselves to a mutually binding relationship of care. What (if anything) goes on in the bedroom would have nothing to do with these unions’ goals or, thus, eligibility requirements.

This proposal will, no doubt, meet with resistance on both sides of the marriage divide. Traditionalists will regret any move that appears to capitulate on the distinctiveness of marital relationships by granting same-sex couplings similar status, even if we would make recognition available to presumptively non-sexual relationships to avoid equating gay unions with marriage. (We ourselves do not favor civil-union schemes of any type, but we are prepared to accept them as part of an honorable compromise among reasonable people of goodwill.) At the same time, revisionists will have to compromise by supporting DOMA, the current Clinton-era federal law that retains a traditional definition of marriage for federal purposes while leaving each state free to define marriage as it sees fit, regardless of what other states do.

But we believe that for both sides, the benefits could outweigh the drawbacks. First, this approach would avoid the hornet’s nest of church-state issues engaged by the Rauch-Blankenhorn proposal. Since neither the presumption nor the legal possibility of sex would be a condition for recognition, homosexual activity would not be incentivized or institutionally normalized. Thus, traditional religious communities would not have to rule out support for our proposal as an implicit endorsement of homosexual activity. And with renewed support for DOMA, they would be free not to promote or treat same-sex unions as marriages. As a result, no special religious-conscience protections would be necessary.

For traditionalists, though, there is another worry. Two state courts have already used existing state civil-union laws as part of their rationale for insisting that the legislature enact same-sex ‘marriage,’ on the ground that “separate but equal” institutions are unjust. If, under the Rauch-Blankenhorn proposal, we enacted same-sex civil unions identical in their structure and purposes to marriage, courts could again use these as a steppingstone to same-sex ‘marriage.’ The benefit of our proposal is that it avoids this possible breach of the compromise by reaffirming DOMA and establishing civil unions that differ in substance, not only in name, from marriages.

Our proposal would still meet the needs of same-sex partners—based not on sex (which is irrelevant to their relationship’s social value), but on shared domestic responsibilities, which really can ground mutual obligations. It would provide a practical compromise that need not offend either side’s nonnegotiable principles. And it would lower the emotional temperature without chilling debate, which would continue at the state level, perhaps now more fruitfully.

Ryan T. Anderson is editor of Public Discourse. Sherif Girgis is a 2008 Rhodes Scholar studying moral, legal and political philosophy at Oxford University.

Copyright 2009 the Witherspoon Institute. All rights reserved.

Most students arrive at college knowing few, if any, of their classmates. Navigating the maze of social expectations and the ensuing climbing of social ladders in a community of strangers, students are forced to ask themselves questions: what type of a person am I; what type do I want to become; and with what type do I want to become friends? For many, this explicit self-examination and social-selection—choosing which finite group of people to befriend from a seemingly limitless pool of possibilities—is a first-time experience. In grade school, junior high, and high school, such choices weren’t quite as necessary—there were certain cliques and people just naturally fell into place. Get to college and you get to reinvent yourself—you have to define yourself one way or another.

No longer living under their parents’ roof, no longer in a supportive school, neighborhood, or church community, students no longer have external supports encouraging them to strive to meet the demands of ethical living—and holding them accountable when they fail. Instead, they find themselves subjected to new forms of pressure: a campus culture that demands conformity as the price of social acceptance, a professoriate that preaches new ethical dogmas, and administrators whose policies recognize no values but legality, liability, and physical health. It’s easy to see how otherwise virtuous students can begin to go astray—and how those already set on a bad path from high school have little hope of reforming themselves.

Yet most students arrive at college completely unaware of the patterns of life that await them. The fact is that many unsuspecting freshmen innocently join sports teams, enter into Greek life, and otherwise expect to lead active social lives, but have little idea of what sexual expectations are awaiting. Once seduced into the campus culture, they find it hard to break free. Even if dissatisfied and unfulfilled, they assume the problem is with them, not the culture. And for those who resist it from the get-go, it’s unclear what the alternative is.

Apart from some religious campuses and religious enclaves on secular campuses, the late teens and early twenties are a bit of a wandering. Sex is to be expected, but with no expectation of commitment, never mind marriage. Those desiring an alternative have no example to look to, no role-models to emulate. Gone are the days of courtship. Gone are the days of dating as an explicit preparation for marriage. Gone are the days of using one’s late adolescence and early adulthood to form the habits, the stable dispositions, the virtues required for healthy male-female relationships—both friendships and marriage. Instead, exploitation looms large. And most marriages fail.

But it only gets worse. Campus officials in lecture halls and administrative offices, rather than challenging debased campus culture, actually aid and abet it. “Abstinence education?” That’s a scientifically disproven method of avoiding pregnancy and disease. A pill and a latex sheath is all you need. “Chastity?” Hardly a virtue, the best moral philosophy and clinical psychology tell us that it’s a vice—an unhealthy attitude of repressing sexual desire, hating one’s body, and viewing sex as dirty. Courtship, dating, marriage, and then sex? All you need are consenting adults (in any number or pairings) to have good sex. And marriage is an outdated ideal anyway.

Most won’t buy that last argument—they still long for a marital relationship, of some sort, at some point. But they don’t know how to get there or what to do now. And anyone entering the secular academy holding anything resembling traditional Judeo-Christian views about sex, marriage, and the human family had better be prepared to meet the challenging questions coming his or her way. Why not pornography and masturbation as an alternative outlet to rape? Why not some pre-marital sex and cohabitation as a means of better getting to know one another, to see if you can live together before the wedding vows, to see if you’re sexually compatible before the wedding night? And even if not as preparation for marriage, why not hook-up just as a sign of temporary affection, and, well, because it’s fun, enjoyable, pleasurable?

Yet it’s not just the hook-up culture. If you think men and women are equal in dignity yet distinct and complementary, bringing unique and special gifts to bear on all aspects of life, expect to be called a sexist. If you think mothering and fathering are different, “parenting” in the abstract doesn’t exist as such, expect to be met with hostility. And if you’re at an Ivy League University and intend on being a mom first and foremost, expect to be told that you’re going to waste your education.

But the worst of all university dogmas to reject is the goodness and worth of the homosexual lifestyle. You think two men or two women can’t legitimately enter into a loving and committed relationship? Well, you’re no better than the bigots who opposed interracial marriage. You think a homosexual orientation is intrinsically disordered and homosexual acts are objectively immoral? Can you say “homophobia”? And good luck if you’re someone who experiences same-sex attractions but doesn’t desire to be gay. You will be labeled as self-loathing.

From liberal dogmas on homosexuality to liberationist agendas on sex, feminism and marriage, from the social pressures put on guys and girls to be sexually active to the resulting pornography, masturbation, alcohol, and body-image problems—college campuses aren’t a pretty sight.

After my own four years as an undergraduate at Princeton, the problem was readily apparent to me, and a potential remedy seemed worth trying: rather than cowering away from the liberal orthodoxy on human sexuality, why don’t we subject it to intense, critical, rational scrutiny, expose it as intellectually wanting, and build a social network to oppose it?

February 2005 saw the launch of a new student group at Princeton, the Elizabeth Anscombe Society, named for the famed Cambridge philosophy professor, star student and successor of Ludwig Wittgenstein, and intellectual defender of traditional sexual ethics. The Anscombe Society set for itself a lofty mission:

We aim to foster an atmosphere where sex is dignified, respectful, and beautiful; where human relationships are affirming and supportive; where motherhood is not put at odds with feminism; and where no one is objectified, instrumentalized, or demeaned. We aim to increase the level of respect among members of the university community who disagree on these issues as we explore our common understandings as well as our differences. Lastly, we hope to provide those students who strive to understand, live, and love their commitment to chastity and ‘traditional’ sexual and familial ethics with the support they need to make their time at Princeton the best it can be.

The students who formed the Anscombe Society were tired of being subjected to a dehumanizing campus culture and hoped to point to an alternative, more excellent way. They were tired of the one-sided presentation of academic arguments related to marriage and family life—biased syllabi inside the classroom and monolithic student groups outside the classroom—and so they hoped to balance the intellectual conversation. Lastly, they were tired of an administration that absurdly claimed to be morally neutral when it came to matters of sexuality while consistently promoting liberal and liberationist sexual policies. They were determined to hold the administration accountable and seek change.

To achieve these ends, the Anscombe Society followed a three-pronged approach.

First and foremost, as a group at an academic institution and as heirs of Anscombe’s legacy, the Anscombe Society was about ideas—the give and take of reasons, the making and countering of arguments. Too often the academy has its own orthodoxy on issues of sexuality, and the prevailing orthodoxies are treated as immune from challenge. In classrooms, administrative offices, student groups, and student publications, an unquestionable dogma had been established. The Anscombe Society, through guest lecturers, newspaper op-eds, and discussion groups, provided serious and respectful academic responses and counter-arguments. The scholars they brought to campus to give public lectures made the intellectual case for a traditional conception of human sexuality and the human family from a multi- and inter-disciplinary perspective that drew on outstanding scholarly works of philosophy, theology, ethics, biology, medicine, psychiatry, psychology, economics, and sociology. They created an academic database on their website with the best articles from these same disciplines.

Now, the practical reality on most college campuses is that the main attacks on traditional sexual morality come from the constant onslaught of same-sex marriage advocates and feminists. Just from the need to play defense, these became central issues of response. For a student arriving on campus with basically sound intuitions about these issues—that there’s something to the fact that we come as male and female, something about our sexual differentiation that matters, and something about male and female forming husbands and wives to become fathers and mothers that mattered—but who couldn’t articulate a robust response to the campus LGBT and feminist groups or their ethics and politics professors, the Anscombe Society offered much-needed intellectual support. These students aren’t bigots. These students aren’t misogynists. But those are the charges you’d get if you voiced traditional thoughts on these issues on many elite secular college campuses today.

As the defense of traditional marriage was made, it quickly became apparent that the argument only runs as a conclusion from the underlying principle—virtue—of chastity. And so the Anscombe Society quickly began shifting from just a response to same-sex marriage and anti-feminine feminism to a whole-hearted proposal of chaste relationships as the most fulfilling. The Anscombe Society was committed to presenting the fullness of truth when it came to the intellectual case for the human family. (With one notable exception, the group abstained from taking a position on the issue of contraception.) Intellectual arguments—that was the first prong.

Second, but equally important given the social realities on college campuses, the Anscombe Society set out to form a supportive community. If you’re one of the few who is personally committed to living a chaste life, you can often feel quite alone on a college campus. Don’t get me wrong; it’s not as if everyone is having sex all the time. But it changes the way you approach considering even the possibility of dating at college if you think that all of your potential suitors will eventually get to the point where they’re expecting sexual favors from you. As a result, many chaste students just withdraw. Part of it is that they simply don’t know who the other like-minded students are; part of it is that they think their ideals are outdated on campus, so they never speak up about them—and other like-minded students do the same. And so they never know how many of them are really out there. The Anscombe Society wanted to bring this closeted community out into the open—to get people to meet and know each other, and to provide alternative social activities for those students who didn’t quite enjoy the usual weekend scene of drunken debauchery. One of the best ideas they had was holding a reception for students sponsored by the faculty who affirmed the virtue of chastity and traditional marriage. Robert George, a professor in Princeton’s Politics department, took the lead in hosting the event. The first year there were eight faculty co-hosts. This past year, just four years later, there were just under twenty—even among the professoriate they don’t know how many of them are out there.

The third task was to provide assistance to those students who needed help in meeting the ethical goals they had set for themselves. This proved to be too ambitious, demanding, and technical for a mere student group. Addictions to pornography, body-image problems, same-sex attractions, usually require professional assistance. Not surprisingly, that’s why Princeton has an LGBT Center, a Women’s Center, and various other special centers with full-time staff people to meet the needs of students. Nothing like that exists for students taking the other side of the moral divide on these questions. At Princeton, the Anscombe Society is negotiating establishment of such a center right now.

Predictably, a group like this starting at an Ivy League university made waves. At first it was treated as a novelty. Then some people were threatened by the existence of the group; others were shocked that Princeton would allow a group that held “homophobic” and “anti-woman” views. But within the first couple of months the media started paying attention. Reports began to run in the New York Times, on Jay Leno, and in various social conservative publications and TV shows. The most unusual thing reporters noted about the group was that it wasn’t religious—the students thought reason was on their side.

Along with the media attention came interest from students at other campuses who wanted to start up similar groups. We readily assisted them. Over time it became clear that this assistance couldn’t continue on an informal level, and we organized a 501c3 non-profit group to help provide material support for the groups, and two years ago we hired a full-time employee to launch a national organization called the Love and Fidelity Network that would begin planting similar groups on university campuses in order to create a national network. This fall the Love and Fidelity Network held their first annual conference. A hundred students from twenty schools—including Harvard, Yale, Princeton, Brown, Dartmouth, Columbia, and Cornell—attended. America’s leading scholars on these issues made presentations.

All of that said, there are important lessons to be learned about starting an Anscombe Society. There are pitfalls and mistakes to avoid, based on how similar groups at other campuses have been launched or what a previous model looked like prior to the advent of Anscombe at Princeton.

1. Avoid anything that is too touchy-feely, too cutsey, too first-person personal, confessional, or self-referential. This is to be a serious group of serious ideas.

2. Avoid anything resembling chastity pledges, vows, or rings.

3. Do not sacrifice integrity to numbers. Softening your positions on various controversial issues in an attempt to drive up membership numbers defeats the entire purpose of a group like this. The goal isn’t to be popular; the goal is to provide a robust account of the more excellent way.

4. Be religion-friendly but do not be founded on religious premises or arguments. The purpose of a group like the Anscombe Society is to explain how traditional conceptions of the family and the role of sex within the family are more
humanly fulfilling. Focusing on the human sciences—philosophy, sociology, psychology, medicine, biology, law, economics, political theory, etc.—should suffice.

5. Remember the doctrine of the mean: the virtuous positions lies between two vices on either extreme. As such, don’t overreact. Don’t respond to campus culture by going too far in the other direction and returning us to aspects of a previous age that have rightly been left behind. Consider three examples:

a. Sticking with the above: you don’t need to be secularist or anti-religion. There are good theological reasons for the traditional family—and you can include theological reasons as one among many. For example, a panel on religious reasons from across the traditions (Jewish, Christian, Muslim, Buddhist, etc.) would be effective.

b. Speaking truth in love on the issue of homosexuality is very difficult. There is the temptation to water-down the truth or to express it in a non-loving way. Anti-gay bigotry is real. It is to be avoided.

c. Forcing women back into the home, barefoot, pregnant, and in the kitchen is not the proper response to the Ivy League professor who looks at you incredulously when you tell her that the most important thing in your life is the desire to be a good mom. Finding creative ways to merge your vocation as mother and vocation as scholar, lawyer, doctor, etc. is the way to go. Modern work schedules and professional life were largely formed around gender arrangements from a time long-ago, and they need not be retained. This is the work for the new feminism.

6. Preaching to the choir is not the same as intellectual engagement with campus culture. There is a time and a place for building up the base and equipping the students with basically sound dispositions with solid argumentation. There is also a need to be provocative and shake other students out of their complacent acceptance of liberal dogma. Finding ways to do this and to meet people where they are is key. The goal is securing intellectual and moral conversion.

7. The focus should be on marriage, not chastity. If people ask, “what’s the Anscombe Society all about,” the answer they should get is: “promoting stable and healthy marriages.” Chastity is the virtue that fosters this—both before and during, both inside and outside of marriage. Emphasize the end goal—the good—that you seek to promote.

The future for groups like these is bright. In response to debased campus culture coupled with overreaching on the part of administrators and professors, students are beginning to respond systematically—and they’re having an impact. I don’t foresee the basic situation changing in the near-term. We’ll continue to have basically decent kids come to college with basically sound intuitions, and then they’ll be bombarded with alternative messages. The need is to equip them with arguments to know that their basic gut instinct about Adam and Steve is correct; that wanting to have a family and be a mom and be educated is OK. The need is to create alternative environments to counter the cultural pressures that can lead passion to override reason, to form communities of virtue.

But meeting this challenge will not be easy. Survey data on the next generation shows views on the family and sexuality that are quite at odds with the vision of Elizabeth Anscombe. To persuade this generation of the truths Anscombe defended, we’ll need a new generation of scholars, from all the academic disciplines, willing to turn their scholarship toward defending the human family and the principles of morality that protect it and the virtues that sustain it. Given our academic setting, it’s fair to encourage all students, especially graduate students, to consider devoting their research to these issues. And professors shouldn’t be afraid to speak out. Elizabeth Anscombe certainly wasn’t.

Ryan T. Anderson is editor of Public Discourse: Ethics, Law, and the Common Good. This essay is adapted from a paper presented at the annual conference of the Center for Ethics and Culture at the University of Notre Dame.

Copyright 2009 the Witherspoon Institute. All rights reserved.

The Irrelevant

Kmiec observes that voting for a candidate need not imply support of all his positions. He also notes that neither presidential candidate’s policy ”guarantees absolute legal protection to human life” and that overturning Roe v. Wade would not directly save the 1.2 million American lives killed by abortion each year.

Of course, neither Archbishop Chaput nor anyone else has denied these points, which are irrelevant. Catholics, as well as others, know better than to seek panaceas in any policy or saviors in any leader this side of paradise. We doubt that Archbishop Chaput expects abortion or any other crime to cease before the world does. The real question is whether society has an obligation in the meantime to protect the unborn against the crime of feticide, or instead to sanction it, widen its availability, and even fund it while purporting to address its deeper causes. McCain supports the former, while Obama supports the latter. It is true that overturning Roe would not completely restore justice to the unborn, but it would remove a grossly unjust and otherwise insurmountable obstacle to their legal protection, something that ethical principles—and Church teaching—require.

The False

Protection in Law

Kmiec denies this, insisting that his disagreement with Chaput ”is not over the essence of Church instruction which gives primacy to the promotion of human life, but rather, the preferred means of implementing it.” But this is patently false.

A fundamental principle of Catholic social teaching—and any sound political philosophy—is that all members of the human family possess inherent and equal dignity, and deserve the protection of the law. This applies regardless of sex, race, or creed, but also regardless of age, size, stage of development, or level of dependency. Chaput affirms this principle. Kmiec equivocates—at best. Obama denies it.

Indeed, Obama’s record shows that he denies it more forcefully than any major politician in American history. Princeton legal philosopher Robert P. George has spelled it all out: Obama opposes the Hyde Amendment, which restricts taxpayer funding of abortions in the U.S., and the Mexico City policy, which bars the use of federal taxes for abortions overseas. He has promised to sign the Freedom of Choice Act (FOCA), which abortion-rights advocates themselves say would ‘’sweep away hundreds of anti-abortion laws [and] policies,” including parental-involvement and notification requirements, mandatory pre-abortion counseling and ultra-sounds, late-term abortion restrictions, and even conscience protections for health-care providers.

Obama opposed the Supreme Court’s decision to uphold a ban on partial-birth abortion and has promised to appoint only pro-Roe justices to the Supreme Court, calling abortion a constitutional right essential to women’s equality. As a state senator, he even opposed legislation (which the U.S. Senate passed in identical form by a 98-0 vote) to protect children who are born alive after failed abortions.

Addressing Root Causes

Kmiec maintains that Obama endorses ”alternative social and cultural support for expectant mothers.” As a matter of rhetoric, this might be true; as a matter of record, it too is demonstrably false. Obama has not endorsed the Pregnant Women Support Act, a bill sponsored by Democrats for Life aimed simply at making it easier for women to choose alternatives to abortion. Obama has even opposed this bill’s extension of health insurance to unborn children and its provision that women considering abortion be informed of possible health risks and the gestational age of their child. He also favors stripping federal funding from pro-life crisis pregnancy centers that provide counseling and financial support for thousands of women.

Kmiec also claims that more lives would be saved under Obama’s policies than under McCain’s. Unsurprisingly, this is belied by the evidence.

First, a President Obama would likely sign into law a bill he co-sponsored as senator that would sanction the mass production by cloning of embryonic human beings for research and effectively require their subsequent destruction. This bill alone—which McCain opposes—would multiply the killing of tiny human beings on an industrial scale.

Ignoring this, Kmiec focuses on abortions, claiming that ”empirical study confirms abortion reduction through the Obama cultural and economic assistance course of action.” He asserts—but provides no reference to show—that generous social welfare programs ”have significant impact in the reduction of abortion.”

In fact, precisely the opposite is true. As political scientist Michael J. New has demonstrated, such programs have been shown to have next to no effect at all. But pro-life legislation—limited after Roe to modest measures like informed-consent and parental notification laws and public-funding restrictions—have dramatically reduced abortion rates. Obama would eliminate all of these laws. After examining the empirical evidence, Dr. New concludes:

The number of abortions has fallen in 12 out of the past 14 years and the total number of abortions has declined by 21 percent since 1990. These gains are largely due to pro-life political victories at the federal level in the 1980s and at the state level in the 1990s which have made it easier to pass pro-life legislation.

Indeed, NARAL Pro-Choice America has lamented that just the denial of public funds for abortion ”forces about half the women who would otherwise have abortions to carry unintended pregnancies to term.” In other words, NARAL estimates that Obama’s policy of public funding could double abortion rates. If Kmiec has reliable evidence to the contrary, let him produce it.

The Fallacious

Roe Shouldn’t Go?

Kmiec faults Archbishop Chaput for suggesting that our vote in the presidential election should be guided by each candidate’s likely Supreme Court appointments. Kmiec argues that this legal-judicial pro-life approach has not worked in the past and relies on uncertainties about the timing and number of upcoming Court vacancies.

This particular set of claims is a hybrid of falsehoods and fallacies. But let us isolate the latter. Never mind that abortion-rights activists fear a McCain presidency because they see as clearly as anyone—except, apparently, Doug Kmiec—that it could mean a fifth vote to overturn Roe. Never mind that the four justices that think Roe was wrongly decided were appointed by Republican presidents.

It is clear that Kmiec’s argument that we should abandon the legal recourse because it has not yet been perfectly effective is a non sequitur. For if our forbears had accepted this logic, then the pro-slavery Supreme Court case of Dred Scott v. Sanford would never have been nullified by the Civil War constitutional amendments abolishing slavery and extending to all persons in the United States the right to the equal protection of the laws. And the pro-segregation case of Plessy v. Ferguson would never have given way to Brown v. Board of Education. Politicians and voters would have been admonished to fight instead the root causes of slavery or segregation, surrendering hope of changing the law of the land on either matter.

Proportionate Reasons?

But we can isolate a still deeper fallacy underlying Kmiec’s central thesis about the justifiability of voting for a pro-choice candidate. Put aside for a moment all of Kmiec’s falsehoods—about the extent of his disagreement with Church teachings, Obama’s putative support for alternative ways to reduce abortion, the purported effectiveness of those alternatives, the supposed ineffectiveness of legal remedies that McCain endorses, and whether Obama’s policies would really reduce the number of sanctioned killings of nascent human beings. In fact, assume against the evidence that Kmiec is right about all of these matters of contingent fact.

What about his argument that Church teaching—including Pope Benedict’s stated views on the matter—would leave room for a principled defense of a vote for Obama? Is Kmiec right to claim that there can be reasons to vote for a pro-choice candidate over a pro-life one that are proportionate to the possibly unintended harms of doing so?

Notre Dame legal scholar Gerard Bradley provides some helpful thought experiments to guide us in applying the Golden Rule as a proportionality test: What if it were not unborn babies being denied legal protections, but some other class of people? If 1.2 million American women a year were being killed by abusive husbands, he asks, would we vote for a candidate who was ”pro-choice” about the ”private” matter of lethal domestic violence but favored addressing its root causes (say, with anger-management classes and education)?

Or suppose some candidate favored protecting a “right” to kill hundreds of thousands of mentally handicapped or infirm people each year. Even if we thought his views superior to his opponent’s on issues like foreign policy, the economy, and health care, would we be justified in voting for him?

Given Obama’s record, we can even strengthen the analogies: What would we think of a candidate who favored financially supporting legalized domestic abuse or extermination of the unwanted?

Of course, some would object that the cases are different because unborn human beings do not enjoy the same moral status as the rest of us. But this would be to deny the principle of basic human equality that Kmiec claims to accept and that defines his intended audience, faithful Catholics and other pro-lifers. So every pro-life citizen should see the radical unsoundness of his argument that there are proportionate reasons to accept the publicly funded and sanctioned killing of unborn human beings when another candidate would remove obstacles to their legal protection.

Professor Kmiec’s response to Archbishop Chaput is a textbook study in shoddy reasoning. He has placed red herrings, baseless factual claims, and glaring non sequiturs in the service of a conclusion whose logic would be laughable if it did not threaten countless innocent lives: that the most pro-abortion politician in American history would be a blessing for the unborn. Barack Obama offers the unborn no hope to believe in but much change to deplore. Doug Kmiec offers Barack Obama cover for his assaults on the sanctity of human life.

Ryan T. Anderson is editor of Public Discourse. Sherif Girgis is a 2008 Rhodes Scholar studying moral, legal and political philosophy at Oxford University.

Copyright 2008 the Witherspoon Institute. All rights reserved.

We are not a Journal. We are not a Blog. Our aim is to provide a venue where readers can find out what our associated scholars are thinking about or working on—whether in their own academic scholarship or in informed commentary on contemporary events. Our hope is that by benefiting from these scholars’ perspectives, readers will be better equipped to form their own.

We call it Public Discourse: Ethics, Law and the Common Good for three simple reasons. First, the topics we cover all center on public life. Second, we approach these topics using methods of discourse that are inherently public, open and accessible to all fellow citizens. Third, we contend that at the heart of our public debates are ethical questions—questions about good and bad, right and wrong, just and unjust. As to our approach, we rely on neither revelation, emotivism, nor majoritarianism. Rather we aim to address these questions rationally through critical reflection on man’s nature, his personal and communal flourishing, and the ethical principles that should guide his conduct.

Aristotle taught that the central question of political life is how we ought to order our lives together. This is an inherently ethical question. Whatever the pressing question of the day may be—debates surrounding economic policy, biotechnology, international relations, marriage and the family, constitutional law and religious liberty—they all entail ethical positions. Any judgment, for example, about which taxation policies work best assumes an answer to the question: best for what end? Does this end contribute to human well-being? Do the means detract from our well-being? The same is true of any new biotechnology. Evaluating its desirability necessarily involves a consideration of the ends it will serve as well as the means it will require. Will they promote authentic human flourishing? Do they respect the dignity of the person? When you stop to think about it, these same questions can—and should—be asked about most any contested question of our public life today. Certainly, these issues also entail technical questions: questions about empirical facts and the expected outcomes of each proposal. But at its core, the question of whether the effects of competing proposals are desirable is a moral one: Which among competing courses of action best serve the common good—the flourishing of individuals and the communities they form? These are the questions that Public Discourse aims to address.

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To best serve these ends, Public Discourse publishes several different types of pieces. We’ll run short essays by Witherspoon scholars reflecting on the burning issues of the day. We’ll also run short essay-length abstracts of their scholarly articles—making the key arguments of these papers available to expert and layman alike, and providing access to the full—length article for those who wish to wrestle with the argument in its entirety. From time to time, we will also highlight the research of outside scholars as it relates to the vision of Public Discourse and the Witherspoon Institute.

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Hadley Arkes – Political Science, Amherst College
Gerard V. Bradley – Law, University of Notre Dame Law School
Jean Bethke Elshtain – Government, Georgetown University; Divinity, University of Chicago
Thomas D’Andrea – Philosophy, Cambridge University
Robert P. George – Politics, Princeton University
John Haldane – Philosophy, University of Saint Andrews
Kevin Jackson – Business, Fordham University Business School
Harold James – Economic History, Princeton University
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Robert Koons – Philosophy, University of Texas
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W. Bradford Wilcox – Sociology, University of Virginia

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Ryan T. Anderson is the editor of Public Discourse.