[lbo-talk] Re: biz ethics/slavery/groups/constitutional rights

andie nachgeborenen andie_nachgeborenen at yahoo.com
Wed Aug 25 14:44:38 PDT 2004


Well, BM, you are confusing Rawls and my ideal of constitutional liberal democracy with the actual existing system, which realizes it very imperfectly, as both of us, in different ways, insist. It is no objection to CLD to say, America doesn't have it, or as much as it should. Rather, that is a reason to advocate liberalism and fight to realize it. A lot of people on this list hear "liberal" and read "apologist for the existing order," the way the right hears "liberal" and reads "unpatriotic atheist terrorist commie pinko fag feminazi abortionist." Both are mistakes, though the right may be closer to the truth on this. Real liberals are real radicals. We support free speech, gay and women's and other civil rights -- basically most of the things you want, probably. Not terrorism, though.

As you know, although it is no reason for complacency, we are doing better on protections for your own favorite minority. Lawrence v. Texas and Roemer v. Evans, decided in the last decade, basically made anti-gay legislation unsonstitutional. Lots of jurisdictions have anti-discrimination laws and regs that expressly protect gays from discrimination on account of sexual orientation. hate crime legislation, enforced by those dreadful prosecutors Carrol and Bill hate so much, has offered some symbolic and real protection against the worst violence done by lunatic bigots. Even many conservatives -- like Dick Cheney -- are being brought around on gay marriage. And over the last 30 years, gays have gone from a hunted hidden subculture to a huge out-in-the-open marketing group. That's not progress? Give me a break.

I should also say that the whole point of the constitutional protections for discrete and insular minorities is that anti-minority legislation has to pass by a lot more than a supermajority -- basically it requires a constitutional amendment. But of course the Constitution has to be interpreted by someone, and in our society that is the judiciary. Which has its pros and cons.

I am still unclear about your idea of nondomination. I think that properly understood that might be agreeable to Rawls and anyway to most liberals. Most of us do not think that noninterference is all that we should struggle for if that means that minorities are brutalized and discriminated against. That is why we work for civil rights legislation. Some liberal legal scholars, like Lawrence Tribe of Harvard Law School, have argued that the US Constitution, properly understood, embodies a nondomination principle.

Utilitarianism is the idea that the right thing to do is to minimize net suffering or maximize net happiness, different ways of saying the same thing -- maybe. I don't know much about Buddhism, but from what you say the ideas seem at least loosely related.

But, as Rawls emphasizes, you can't base the constitution of society on your particular conception of the good, even if it seems obvious to you that reduction of overall suffering is the right thing to do, it's not obvious to others. Me, for example. Likewise, you cannot base the fundamental rules of society on a controversial metaphysical view about the nature of the self. That is something about which reasonable people must be free to differ, and will always disagree about. The basis of a free society must be much more superficial. If you are, as you say, pragmatic, that should be obvious, although it is a deep point.

jks

jks wrote:


> More on all this later, but if BM's only substantive addition to procedural
correctness is civil liberties protections, his "middle way" is the constitutional liberal democracy espoused by Rawls and me.

No it is not, since I do not believe in the liberal definition of freedom as "non-interference." I believe in freedom as the freedom from domination, and freedom from domination is clearly one thing queers do not enjoy in this society.


> And I want to emphasize that this is a form of procedural correctness --
the point (underlined by John Hart Ely in his book Democracy and Distrust) is that domination, understood as you define it, upsets the conditions for democratic deliberation and harms procedural correctness.

And that harm is going on right now in this country. Queer freedom is dependent upon (in the words of the Glorious Bird) "the kindness of strangers" (and there is nothing stranger than the ways of heterosexuals). Liberal democracy as now implemented does not protect minorities.


> The problem with your Buddhist or utilitarian pain-reducing idea, incidentally,
is that not everyone agrees that reducing pain is a good thing, and the question even among those who do is what is the proper distribution.

I advocate for the reduction of suffering, which is more than pain. There is a difference between the two concepts. A nice quote: "Everything the human race has done adn thought is concerned with the assuagement of pain." - Albert Einstein. My concepts are Buddhist and pragmatic.

Also, what does utilitarian mean?


> As for the first, the right thinks that welfare moms, criminals, poor people,
pregnant women who don't want the babies, and unbelievers deserve to suffer. You disagree, but how does one adjudicate this dispute?

So long as the suffering inflicted is limited to those who have been deemed to deserve it. See below for more on this.


> As for the second, I am not a Buddhist or a utilitarian, and I don't think that
reducing overall pain is always right. I think that it's just that war criminals, unusually vicious exploiters, crooks who steal from the public trough, and indeed violent hoodlums be made to suffer pain (in some cases death -- I am not a death penalty abolitionist, except situationally) whether or not it deters anyone from misbehavior and even if it increases the overall amount of pain in the world. So again, how do you decide, except by a fair procedure, what to do?

I think that is fine so long as the pain inflicted is limited to the person/self targeted. But here we come back to the issue of self. The Western misperception of self as a clearly demarcated being allows the imposition of suffering since it is thought (mistakenly) that this pain/suffering can be limited to specified persons. But if it cannot be so limited (due to the nature of reality), you need not only a fair procedure, but also a moral system that determines how much ancillary suffering is permissible.


> The important point here is that the binding force of procedurally correct law
is a matter of degree. Our laws have more such force than those of antebellum America because our procedures (including protections for minorities) are better.

The procedures are better, but they still result in domination. The interests of minorities are still regularly brushed aside. If you want to have a better procedure, maybe laws that would restrict the liberties of minorities should have to be passed by a supermajority. In this way, democracy continues (Miles will be happy), while majoritarian mob rule is avoided.

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