Monday, October 05, 2015

Ryan Anderson's Self-Contradictory and Unconstitutional Argument Against Same-Sex Marriage

"The government should not be in the business of affirming our love lives but should leave consenting adults free to live and love as they choose."

That's what Ryan Anderson says in his new book--Truth Overruled: The Future of Marriage and Religious Freedom (Regnery Publishing, 2015)--which is a critique of the Supreme Court's decision in Obergefell v. Hodges declaring that same-sex marriage is a constitutional right.

This remark by Anderson suggests that he would agree with my argument that marriage should be privatized in that marriage would be a purely private contract, and government would no longer issue marriage licenses.  But then he contradicts this by arguing that government should give marriage licenses only to opposite-sex couples.  Not only does he contradict himself, he also contradicts the equal protection clause of the Fourteenth Amendment of the Constitution by denying same-sex couples the "equal protection of the laws."

Here's the whole passage in which the above sentence appears (34-35):

“Defining marriage as the union of a husband and a wife does not violate anyone’s liberty.  If the government rightly recognizes, protects, and promotes marriage as the ideal institution for childbearing and childrearing, adults remain perfectly free to make choices about their relationships.  A redefinition by the state of the unique institution of marriage is not necessary for citizens to live in another relationship of their choosing.  As we’ll see in chapter 3, Justice Clarence Thomas devotes his entire dissenting opinion in Obergefell to making this point."

“The government should not be in the business of affirming our love lives but should leave consenting adults free to live and love as they choose. Despite the increasingly heated rhetoric from the advocates of ‘marriage equality,’ there was no ban on same-sex marriage in the decade before Obergefell anywhere in the United States.  In all fifty states, two persons of the same sex could live together, join a religious community that would bless their relationship, and choose from a multitude of employers that offered them the same benefits available to married couples.  Chief Justice Roberts highlighted this in his dissent: ‘[T]he marriage laws at issue here involve no governmental intrusion.  They create no crime and impose no punishment.  Same-sex couples remain free to live together, to engage in intimate conduct, and to raise their families as they see fit.’ No government license or sanction was necessary for any of this.’”

Thus, Anderson supports freedom for same-sex couples to marry and care for their children, despite his claim that this is harmful to children (62, 72, 90-91, 104, 125, 155)!!  For Anderson, the choice of same-sex couples to marry and care for children is a purely private decision that belongs within the constitutionally protected realm of liberty (34, 125).

Anderson's only point of disagreement with the privatization of marriage position is that he wants there to be governmental marriage licensing to perform the “teaching function” of teaching that children have the right to live with both their biological father and biological mother, and that the absence of either or both of the biological parents is harmful to children (39-41, 125, 160-62).  According to Anderson, the law teaches this when it issues marriage licenses to opposite-sex couples and denies marriage licenses to same-sex couples.  The marriages of same-sex couples are legally permitted, as a constitutional liberty, but they are not legally recognized with a marriage license.

But in those states where marriage licenses were denied to same-sex couples, this was not the lesson the law was teaching!  When opposite sex couples wanted to create a family in which the children would not be living with their biological father and mother, these states would give them a marriage license.  But when same-sex couples wanted to do this, these states denied them a marriage license.  This violates the equal protection clause because it’s a legal discrimination that has no rational relationship to the needs of children.

 Anderson ignores the “original meaning” of “equal protection."  To give marriage licenses to heterosexual couples but not to homosexual couples violates equal protection unless there is some rational justification for this distinction.  If the rational justification is that children are better off when both their biological mother and biological father care for them, then the states should prohibit same-sex couples, single parents, and stepparents from child care.  If the risk to children is as a rule no greater with a same-sex couple than with a heterosexual single parent or heterosexual stepparents, as Anderson indicates (150-162), then denying a marriage license to the same-sex couple violates equal protection because there is no rational justification for this discrimination between homosexuals and heterosexuals.  (Here I agree with William Eskridge--in his amicus curiae brief and in his recent article in the Cato Supreme Court Review--that the original meaning of equal protection would support the ruling in Obergefell but not Kennedy's reasoning for that ruling, which ignored original meaning.)

 If the rational justification for denying marriage licenses to same-sex couples but not opposite-sex couples is that the state wants to promote families in which children are under the care of both their mother and their father, then the state should establish covenant marriage laws like those in Louisiana, Arkansas, and Arizona.  Those couples with a covenant marriage license would be denied any right to a divorce except when they prove that one of the spouses is guilty of abuse, abandonment, or adultery.  And, indeed, Anderson says that this has always been the best marriage law for promoting “real marriage” (39-41).  Couples might be free to choose a marriage license that allowed for “no-fault divorce,” but the constitutional standard of equal protection would require that this kind of marriage license would have to be available for same-sex couples as well as opposite-sex couples.  State law might identify the covenant marriage license as "real marriage" and the no-fault divorce marriage license as "romantic companionship," which would teach a clear lesson about the superiority of the one over the other.

A reasonable alternative to this would be to totally privatize marriage, in that government would no longer issue marriage licenses, and marriage would become a purely private contractual arrangement.  Couples could then choose between "real marriage" contracts in which divorce would be difficult and "romantic companionship" contracts in which divorce would be easy.  In fact, Anderson accepts a legal system in which marriage has been largely privatized, because “the government should not be in the business of affirming our love lives but should leave consenting adults free to live and love as they choose.”  But then Anderson contradicts himself by saying that government should be in the business of affirming the love lives of opposite-sex couples by giving them marriage licenses that are denied to same-sex couples, even when the likelihood of harm to their children is as great for the opposite-sex couples as it is for the same-sex couples.  This is not only self-contradictory but also contradictory to the original meaning of the equal protection clause of the Fourteenth Amendment.

If "real marriage" is rooted in natural law, and thus is not an artificial creation of positive law, then such marriage will stand on its own natural ground in the natural inclinations of human beings, without any need for governmental licensing that violates the Constitution's equal protection clause.

Friday, September 25, 2015

The Natural Law of Incest: Have Aquinas's "Exceptional Cases" Become the Norm?

Towards the end of his speech before a Joint Session of Congress, Pope Francis said this:
"I will end my visit to your country in Philadelphia, where I will take part in the World Meeting of Families.  It is my wish that throughout my visit the family should be a recurrent theme.  How essential the family has been to the building of this country! And how worthy it remains of our support and encouragement! Yet I cannot hide my concern for the family, which is threatened, perhaps as never before, from within and without.  Fundamental relationships are being called into question, as is the very basis of marriage and the family.  I can only reiterate the importance and, above all, the richness and the beauty of family life."
He did not specifically identify the attacks on "fundamental relationships" and "the very basis of marriage and the family."  But considering the Catholic Church's opposition to gay marriage and its adoption of Thomas Aquinas's argument that natural law supports lifelong heterosexual and monogamous marriage as the only natural form of marriage, the Pope must be implicitly referring to the Supreme Court's Obergefell decision as the threat to marriage and the family. 

Justice Kennedy and his defenders would not agree, however, that his opinion was an attack on marriage and the family.  On the contrary, Kennedy argued, recognizing gay marriage as a constitutional right promotes the natural ends of marriage and the family--parental care of children and spousal bonding--by allowing gays to satisfy those natural ends for themselves.

So which position is correct?

A crucial turning point in this debate came in Lawrence v. Texas (2003), when Justice Kennedy once again wrote the majority opinion, and in this case, he struck down as unconstitutional the state laws punishing homosexuality as a crime.  In his dissenting opinion, Justice Scalia warned that this "decrees the end of all morals legislation," which would lead in a few years to legalizing gay marriage and even incest as constitutional rights.  Obergefell confirmed Scalia's prediction about gay marriage.  And one can see evidence in the law reviews and in general discussion that the logic of Kennedy's reasoning is pushing towards making incest a constitutional right.  One can see this, for example, in a widely cited law review article--"Inbred Obscurity: Improving Incest Laws in the Shadow of the 'Sexual Family,'" Harvard Law Review 119 (June 2006): 2464-2495--a Note written by a Harvard Law School student.

As I have suggested in some previous posts, this debate turns on some empirically falsifiable predictions.  If Aquinas, the Pope, the Catholic Church, and all the defenders of traditional marriage law are correct, then we must predict that legalizing gay marriage and incest will destroy family life, and we will see that happen over the next few decades.  In particular, children will suffer from the lack of proper parental care and the emotionally explosive consequences of legalized incest.  But if the advocates of gay marriage and legalized incest are correct, then we must predict that family life will endure and even flourish, and children will prosper.  It's one of the great experiments in social history.

Consider the argument of the Harvard Law Review article.  The author proposes that the incest laws in the United States could be improved if they were based on the norm that sex between consenting adults that does not harm others should be protected as within a private realm of liberty, but sex is to be prohibited between those in a "natural dependency relationship," because those who are dependent on caretakers are presumed to be unable to consent to sex with their caretakers due to the coercive character of the authority of the caretakers.

By contrast to this proposed reform, the present laws of incest are said to rest on "outmoded norms" (2481, 2485) that create confusion and obscurity in the law.  The present laws of incest depend on four norms.  First, sexual conduct is permissible only in heterosexual monogamous marriages.  Second, marriage is the core of the family.  Third, marriage-based families are morally and legally superior to families not based on marriage.  Fourth, sex in the family--other than within a marriage--is prohibited (2466). 

These norms contradict the movement of American law towards protecting consensual sexual relations among adults as an exercise of liberty.  Previously, state laws punished fornication, adultery, cohabitation, and homosexuality.  But now all of those laws have been largely set aside.  So it's hard to see the rationale for prohibiting consensual sexual conduct between adults who are relatives.

All fifty states have some prohibitions of incest--either through criminal punishment or through marital prohibitions.  In most states, incest is punished with prison sentences, even life-time imprisonment in a few states.  A few states, however, have no criminal penalties for incest between consenting adults (for example, Rhode Island and New Jersey).  Ohio's criminal statute punishes only parental figures.  All fifty states have some prohibitions on marriages between certain relatives (either biological relatives or in-laws).  The primary variation among the states is in whether one can marry a first cousin or an in-law.  Cousin marriages are permitted in 19 states.  In the nineteenth century, cousin marriages were permitted in all the states.  (All of the European nations permit cousin marriages.)

To illustrate the confusion and obfuscation in American incest law, the author of the Harvard Law Review article points to five cases.  In In re May's Estate (NY, 1953), a New York court had to decide whether an uncle and a niece who had legally married in Rhode Island had a valid marriage in New York.  The marriage had lasted for 32 years, until the wife's death, and resulted in six children.  The court said this marriage "was not offensive to the public sense of morality to a degree regarded generally with abhorrence and thus was not within the inhibitions of natural law."  The Court also observed that this marriage was "between persons of the Jewish faith whose kinship was not in the direct ascending or descending line of consanguinity and who were not brother and sister."  The author criticizes this reasoning by observing that there was no consideration of whether anyone had been harmed by this marriage, and that the appeal to "natural law" was based on "a subjective weighing of family norms"--that is, the norm against sex among family members versus the norm for protecting the family created by the Mays.

The author is silent, however, about the Westermarck effect--that human beings are naturally evolved to avoid incest with those with whom they have been reared from an early age, and thus that people generally feel more moral repugnance to sex within the nuclear family (sexual conduct with one's parents, one's children, or one's siblings) that outside the nuclear family.  If this is correct, then the marriage of uncle and niece might be judged with little abhorrence. 

Moreover, while the author denigrates the appeal to natural law in this case, the author's own appeal to the "natural dependency relationship" seems to implicitly appeal to the natural law principle that children are by nature dependent on parental care.

In the case of Israel v. Allen (Colo., 1978), the Colorado Supreme Court struck down as unconstitutional an incest statute that prohibited the marriage of adoptive siblings.  A couple's parents had married when their children were teenagers, and the husband adopted his stepdaughter.  The two stepchildren wanted to marry, and the proposed marriage was approved by the whole family.  In upholding their right to marry, the court noted that biologically unrelated people are less likely to produce children with genetic problems.  The court also noted that the adoptive stepchildren had never lived together in the same household.  For these reasons, their marriage would not arouse "natural repugnance" or "moral condemnation."  The argument for the state was that such marriages could disrupt "family harmony."  But the court observed that since the marriage was supported by all members of the family, prohibiting it would bring "family discord." 

The author of the Harvard Law Review article argues that a simpler and clearer rationale for the court's decision would be that these adoptive stepchildren were consenting adults whose marriage would harm no one.

In the case of Rhodes v. McAfee (Tenn., 1970), a court declared invalid a fourteen-year marriage between a man and his former stepdaughter that resulted in three children.  The husband had died, and the effect of the decision was to deprive the widow of her homestead and dower rights.  The stepdaughter had lived with her mother and her stepfather prior to their divorce.  For the court, this illustrated how allowing such marriages between stepfathers and stepdaughters promotes "discord and disharmony in the family."

But as the author indicates, protecting the harmony of the first family creates disorder in the second family, because the wife in the second family has been deprived of her legal rights to inheritance.  The author concedes that in allowing stepfathers to marry their stepdaughters, "sexual jealousies could potentially damage the harmony of family life in general" (2480).  But the ultimate cause of this problem is the move of the law to no-fault divorce.  Moreover, the common law tort for "alienation of affections" has been largely abolished, and so people cannot be punished for interfering with a marriage relationship.  To assume that the law must protect "family harmony" rests on the "outdated norm" that marriage is life-long, and so divorce and remarriage are rarely permitted.

In the case of Tiffany Nicole M. (Wisc., 1997), the court upheld a Wisconsin statute that the incestuous relationship of a parent could justify termination of parental rights and applied this statute to an illegal marriage of siblings who had produced three children.  The court declared that this statute served "the welfare of children, preservation of family, and maintenance of an ordered society."  The author of the Harvard Law Review article points out, however, that it seems contradictory to invoke "preservation of family" to justify destroying a family--the family of these illegally married parents and their three children.  The court cited no evidence that these parents were bad parents and that their children were suffering from abuse or neglect.  The court simply declared that this family could not be a true family, because "the fundamentally disordered circumstances in which the child of an incestuous relationship will be raised" create "a home that mocks even the most rudimentary conception of family."  And yet there is no proof that this family really was "disordered."

In the case of State v. Buck (Oregon, 1988), a stepfather had been convicted of sexual incest with his adult stepdaughter.  The court upheld the conviction with an argument that implied that incest statutes can properly protect marriage-based families as superior to sexual conduct outside of marriage: "Marrying the natural or adoptive parent of a child creates the relationship that the statutory proscription against incest is intended to protect.  The different treatment accorded to those who fit within that relationship . . . is closely and rationally related to the legitimate governmental purpose of protection of the family."  The court did not show--and saw no need to show--that the stepdaughter was coerced or was in any way harmed by this sexual relationship with her stepfather.  By implication, therefore, the government was justified in punishing this sexual conduct because it was outside of marriage and a threat to a marriage-based family.  But this contradicts the movement of American law towards allowing sex outside of marriage and allowing families to form without being based on marriage.

We might think, however, that at least in the cases where sexual conduct is between closely related biological kin, the law can properly prohibit or punish this because of the increased risk of genetic deformities.   The problem with this is that justifying the prohibition or punishment of incest because of its genetic risks suggests the coercive eugenics that was once legally enforced but now abolished.  American law no longer denies people their right to reproduce based on the claim that they are "unfit" to reproduce because of the risk of genetic defects.  In fact, all reproductive activity runs some risk of producing genetically defective offspring.  If people are to be left free to judge whether reproduction is too risky or not, then must not incestuous couples be given the same freedom?  This allows for voluntary eugenics, in that people can be genetically tested before they reproduce, and then refrain from reproducing if they judge the risk to be too great.

The author of the Harvard Law Review article proposes an improved standard for incest laws.  Families should be defined as based not on marriage but on relationships of "natural dependency," in which sex is prohibited, because it would be assumed that dependents are not in a position to consent to sex with their caretakers.  Marriage would no longer be a legally licensed status, but marriage-like relationships could be enforced through contract law.  Thus, marriage would be totally privatized in that sexual intimacy would belong to a private realm of liberty for consenting adults; and this would include the freedom for adult relatives to engage in sexual conduct with one another as long as they are not in a relationship of dependency.

The author favors the standard set in Ohio law that punishes as "sexual battery" any sexual conduct with another where the offender is "the other person's natural or adoptive parent, or a stepparent, or guardian, custodian, or person in loco parentis of the other person."  Notice that biological siblings and stepsiblings are not included, presumably because they do not generally have the authority of caretakers over dependents, although if a biological sibling or stepsibling were exercising such custodial authority over another sibling, then presumably sexual conduct between them would be prohibited.

In 2009, in Ohio, a stepfather had consensual sex with his 22-year-old stepdaughter.  He argued that this was not sexual battery under Ohio law because the law obviously did not apply to a stepfather's consensual sex with a stepdaughter over 18.  The Ohio Supreme Court ruled, however, that the statute did not have any language about consent or age creating an exemption from the law of sexual battery.  And thus, by implication, a stepfather was assumed to have a coercive authority over a stepdaughter even after the stepdaughter became an adult.  The author of the Harvard Law Review article does not consider this case, but the author would seem to disagree with the court, because the author's assumption seems to be that once they have reached the age of maturity, children normally have the freedom of consenting adults (with the possible except of those who are mentally disabled?).

While apparently dismissing natural law as an inadequate standard for incest law, the author actually appeals, at least implicitly, to natural law.  The "natural dependency relationship" in which sex is prohibited secures the natural end of parental care for children who cannot survive or flourish without such care. 

According to Aquinas, that is the primary natural end that is secured by a monogamous marriage in which both mothers and fathers care for children.  Aquinas concedes, however, that there are "exceptional cases" where marriage is not necessary to provide proper parental care.  A rich unmarried woman might care properly for her children (SCG, III, ch. 122, sec. 7).  And an unmarried man who conceives a child through fornication might care properly for his children (ST, II-II, q. 154, a. 2).

The author of the Harvard Law Review article seems to say, however, that in the economic and social conditions of America today, such "exceptional cases" have become the norm.  The "natural dependency relationship" can satisfy the natural end of parental care, as long as parents or parental surrogates are prohibited from sexual conduct with their dependents, but without any necessity for a marital union of two parents.

According to Aquinas, the secondary natural end of marriage is spousal bonding.  The author suggests that in the conditions of today marital spousal bonding is not necessary for parental care, and therefore the law does not need to enforce marriage as a special status.  But even so, the natural inclination to spousal bonding in a marriage can be achieved through the voluntary choices of individuals and enforced through contract law, but without any need for marriage licensing by the government.

My first post on incest includes links to all of my other posts on incest.

I have argued in defense of Justice Kennedy's opinion in the Obergefell case in some posts last July and August.

Monday, September 21, 2015

The Theistic Evolutionism of Pope Francis

Since the trip of Pope Francis to Cuba and the United States has stirred a lot of discussion of his thinking, this might be a good time to look back at my post last year on the Pope's theistic evolutionism, which denies the claim of the Intelligent Design Theorists and the Scientific Creationists that God (or The Intelligent Designer) is either unable or unwilling to use the natural evolutionary process to carry out His will.

Friday, September 18, 2015

Empirical Evidence for Thomistic Natural Law in the Pursuit of Happiness

One of the readings for my course this semester on "Natural Right and Law" is Thomas Aquinas's "Treatise on Law" in the Summa Theologica.  Thomas agrees with Aristotle that the end of all human action is happiness.  Natural law is about how we pursue happiness by satisfying our natural inclinations.  So, for example, marriage naturally contributes to our happiness by securing two natural ends--the parental care of children and the spousal bonding of husband and wife in a household.  These natural ends are achieved most fully, Thomas argues, in a heterosexual life-long monogamous marriage.

Some of my students disagree with this argument, because they think that sexual partners can be perfectly happy without being married, and that children can be raised by a single parent.  So marriage is not necessary for either parental care or sexual partnership. 

Thomas agrees that it is possible for a wealthy mother to rear children properly without any help from the father, and it is also possible for a man to generate a child through fornication and then care for that child (Summa Theologica, II-II, q. 154, a. 2; Summa Contra Gentiles, III, chap. 122, sec. 7).  But Thomas thinks these are exceptional cases, because generally for most people monogamous marriage is the best way to secure parental care and spousal love, and thus promote the happiness that comes from satisfying those natural human desires.

As I thought about our class discussions, it occurred to me that Thomas's argument about marriage might be empirically testable.  I reread Charles Murray's Coming Apart: The State of White America, 1960-2010 (Crown Forum, 2012), and I made some copies for my students of some of the figures in the book that present evidence for how marriage contributes to happiness. 

Like Thomas, Murray agrees with Aristotle's claim about happiness as the end of all human action, and he believes that the American founders were successful in framing a government that would secure the conditions for people at all levels of American society to pursue their happiness.  Murray worries, however, that over the past 60 years, there has been a radical divergence between a new upper class and a new lower class, so that those in the lower class are failing in their pursuit of happiness. 

Up to the 1960s, there was no great cultural distance between upper and lower classes.  In fact, when people were asked in surveys to identify their class, 95% of the people said they were either "working class" or "middle class."  But then, beginning in the late 1960s, lots of different social indicators began to show trendlines towards a growing separation of the upper class from the lower class. 

One of those trendlines was in marriage.  Most of those in the upper class continue the American tradition of strong marriages with both parents caring for the children.  In 1960, those in the lower class showed the same pattern of strong marriages, but since then, marriage has declined steeply in the lower class.  Moreover, this trend in marriage is associated with a trend in reported happiness.  In 1960, most people in both the upper class and the lower class reported themselves as being "very happy."  In 2010, this was still true for the upper class; but many of those in the lower class were reporting themselves to be "not very happy." 

So it seems that in 1960, Americans in both the upper class and the lower class agreed with Thomas in seeing marriage as a critical condition for happiness; but now while those in the upper class continue to agree with Thomas about this, many of those in the lower class now agree with those of my students who think Thomas was wrong, because they think marriage is not a natural condition for happiness.

In his analysis and presentation of the data, Murray distinguishes between "Belmont" as the upper class and "Fishtown" as the lower class.  Belmont is a suburb of Boston that is known as one of the wealthiest and most upper class communities in America.  Fishtown is a neighborhood of Philadelphia that is known as a working class area.  Not only does Murray look at these real communities, he also identifies a fictional Belmont and a fictional Fishtown.  In fictional Belmont, Murray puts all those Americans who have a bachelor's or graduate degree and work in some high-status professional or managerial position, or are married to such a person.  In fictional Fishtown, Murray puts all those Americans who have no more that a high school diploma and whose occupation is some low-status job.

Here is how Murray presents the data on the connection between marriage and happiness.  Looking only at white Americans ages 30-49, Murray shows that in 1960, 95% of Belmont was married, and 85% of Fishtown was married.  So the marriage rate was a little lower for Fishtown, but not by much.  But since 1960, the gap has widened.  In 2010, 85% of Belmont was married, but only 49% of Fishtown was married (Figure 8-3).  In 1960, the divorce rate for Belmont was almost zero, and the divorce rate for Fishtown was about 4%.  In 2010, the divorce rate had risen to 7% for Belmont and 35% for Fishtown (Figure 8-5)

Looking at the percentage of children living with both biological parents when the mother's age is 40, Murray shows that in 1960 97% of the children in Belmont and 95% of the children in Fishtown were living with both parents.  In 2010, the percentage had dropped a little to 94% in Belmont, but it had dropped steeply to 27% in Fishtown (Figure 16.2).

So when we say that in America since 1960 the marriage rate has dropped, and the rates of divorce and single-parent families have increased, this is true mostly for the lower class, and much less so for the upper class.

How is this connected to happiness?  Under the influence of Aristotle, Murray defines happiness as lasting, deep, and justified satisfaction with life as a whole, the kind of satisfaction an old person might feel in looking back over a whole life well-lived (253-55).  He thinks there are three general requirements for the kinds of accomplishments that give us such deep satisfaction.  First, the source of the satisfaction must be something important, which excludes some passing pleasure from something trivial.  Second, the source of the satisfaction must require some effort over an extended period of time, which excludes accomplishments that come easily to us.  Third, we have to be personally responsible for the accomplishment, so that we can rightly take pride in it as something that would not have happened without us.

There aren't may activities that satisfy these three requirements--importance, effort, and responsibility.  "Having been a good parent qualifies.  Being part of a good marriage qualifies.  Having done your job well qualifies.  Having been a faithful adherent of one of the great religions qualifies.  Having been a good neighbor and good friend to those whose lives intersected with yours qualifies" (255).  Murray suggests that such accomplishments that make us happy fall into four major domains of life--family, vocation, community, and faith.  (All of these activities can be found on my list of 20 natural desires.)

Murray can then make testable predictions that happy people will tend to be those with accomplishments in these four areas of life.  A sample of white Americans ages 30-49 were asked from 1990-2008, How happy are you?  31% said they were "very happy."  59% said they were "pretty happy."  10% said they were "not too happy" (Figure 15.1).  From his analysis of these surveys, Murray can show that "very happy" tends to correlate with accomplishments in the four areas he has identified as important for happiness--family, vocation, faith, and community.

Of those who reported being "very happy," 40% were currently married, 16% were separated, 17% were divorced, 22% were widowed, and 9% were never married (Figure 15.2).  Having a very happy marriage and being satisfied with one's work are together the two most important factors for happiness.  But social trust and religion are also somewhat important.  Among American white people aged 30-49 who are unmarried, dissatisfied with their work, with no religious beliefs, and living in neighborhoods with little social trust, the probability that they will report being "very happy" is only 10%.  For those with a satisfying job and a happy marriage, the probability is 55%.  High social trust and religious activity raises the probability to 76% (Figure 15.6).

Murray shows that this explains the differences between the white Americans in Belmont and those in Fishtown in their self-reported happiness.  In 1970, 50% of those in Belmont and 35% of those in Fishtown reported that they were "very happy."  In 2010, this gap had widened steeply--40% of those in Belmont and only 17% of those in Fishtown (Figure 15.8).

Murray also shows, however, that this gap narrows or even disappears as the people in Belmont and Fishtown become similar in their achievements.  Among those with high work satisfaction and good marriages, 45% of those in Belmont and 30% of those in Fishtown report being "very happy."  Among those who also report high social trust and weekly religious worship, the difference totally disappears--both in Belmont and in Fishtown, 60% of these people report being "very happy" (15.7).

This is emphasized by Murray because it shows that there is no barrier to happiness for those with a low level of education and income in a low-status job.  The people in Fishtown can be very happy if they are married, if they find satisfaction in their work, if they live in places where neighbors help one another, and if they are active religious believers.

When I presented this to my students as empirical evidence that Thomas was right--particularly about the connection of marriage to happiness--some of them responded with two criticisms.  One criticism was that correlation was not necessarily causation, and so we could imagine that people with happy dispositions are more likely to get married, and therefore it's not that marriage causes happiness, but that happiness causes marriage.

But if happiness is not caused by marriage, or by the other kinds of accomplishments Murray identifies, then what does cause happiness?  Is happiness just a product of innate temperament that does not arise from any accomplishment in life?

If happiness were just a product of a fixed innate temperament, it would be hard to explain the steep drop in self-reported happiness in Fishtown from 1960 to 2010.  Why has the proportion of people in Fishtown with happy temperaments declined so drastically in correlation with a drastic decline in rates of marriage and of the other three factors associated with happiness?

The second criticism of my claim that Murray's evidence supported Thomas's argument for marriage as a natural condition for happiness was that the growing gap between Belmont and Fishtown could be best explained as an effect of the growing gap in economic inequality.  The people in Belmont are so much richer than the people in Fishtown that it is easier for the people in Belmont to find the economic resources necessary for supporting families and the other factors for happiness.

Murray does survey the evidence for growing inequality as one of prime factors separating the upper class from the lower class, and he worries about it (49-52).  But as I have indicated, Murray also shows that it is possible for low-income and low-status people in Fishtown to achieve the same happiness as those in Belmont when the natural conditions for happiness are satisfied.  If that is so, then the growing gap between Belmont and Fishtown cannot be explained as purely the product of the growing gap in wealth.

Some of my other posts on Murray's arguments can be found here, here, here, and here.

Sunday, September 13, 2015

Biopolitics is Better than Genopolitics: Political Evolution in Six Dimensions

Beginning in the 1970s, a small group of political scientists joined an intellectual movement called "biopolitics" or "politics and the life sciences" (Blank et al. 2014).  They had a grand vision of turning the mainstream of the discipline of political science towards a political science rooted in biological science.  Thirty years later, some of the leaders of this movement (such as Albert Somit and Steven Peterson) lamented that the movement had largely failed, because most political scientists still showed little or no interest in the biological study of politics. 

But then, sometime around 2004, there seemed to be growing interest in biological explanations of political behavior.  One of the most prominent signs of this was the publication in 2005 in the American Political Science Review of Alford, Funk, and Hibbing's article--"Are Political Orientations Genetically Transmitted?"  Their answer to the question in their title was yes, political orientations towards liberalism or conservatism are genetically transmitted. Through the methodology of behavior genetics, using the study of twins, they concluded that about 50% of the variance in ideology is explained by genes.  This article provoked widespread public discussion--including a prominent story in The New York Times--and it become one of the most downloaded articles ever published in the American Political Science Review. This was followed by more articles advancing what was called "genopolitics." One of the most provocative of these articles was by Fowler and Dawes, published in 2008 in the Journal of Politics, which claimed in its title that "Two Genes Predict Voter Turnout."  This was the first time that researchers had identified particular genes as linked to some political behavior.

Those in the biopolitics movement were ambivalent about this new development.  On the one hand, they were happy to see that applying biological science to political behavior had suddenly become a hot research project among political scientists.  And yet, on the other hand, they were offended that those engaged in this new research--Hibbling, Fowler, and their colleagues--gave little or no recognition to the older biopolitics movement.  Hibbing, Fowler, and the others seemed to disdain the older biopolitics as purely speculative theorizing rather than truly empirical science.  Some of those in the biopolitics movement responded by pointing out that there was plenty of empirical research in the older biopolitics (Johnson 2011).

Moreover, as I have argued in many posts over the years, the behavioral genopolitics of Hibbing et al. shows a serious limitation in that it depends upon simplifying models that cannot explain or predict the emergent complexity of political animals, due to the individuality, contingency, and historicity of their behavior.  When Evan Charney published his critique in 2008 of Alford, Funk, and Hibbing's article and his critique in 2012 of Fowler and Dawes's article, I agreed with him.

In May of 2013, the American Political Science Review published three articles on this debate.  Fowler and Dawes wrote a defense of their article against Charney's criticisms.  Deppe et al. wrote a report on their attempt to replicate the results of Fowler and Dawes.  Charney and English wrote a response.  These articles provide substantial empirical confirmation for Charney's critique of genopolitics.  They also support the conclusion that the older biopolitics movement is correct in arguing for a complex interactive biopolitical framework that is superior to the simplifying models of genopolitics.

According to Fowler and Dawes in 2008, the two genes that predict voter turnout are the MAOA gene and the 5HTT gene.  They found that the allele of the MAOA gene promoting efficient metabolism of serotonin was directly associated with voter turnout, and that the allele of the 5HTT gene promoting efficient metabolism of serotonin favored voter turnout only when the individuals with this allele frequently attended religious services.

In their article of 2013, Fowler and Dawes report their attempt to replicate their earlier findings.  This is important because consistent replication of findings is a fundamental standard for good empirical science, and Fowler and Dawes admit that Charney is right in pointing out that the results of candidate gene association (CGA) studies have generally failed to show consistent replication.  Indeed, they admit in this article that they have failed to replicate their earlier association of the MAOA gene with voter turnout, and consequently they conclude that this was a spurious association.  And yet, they also claim that they have replicated the association between turnout and an interaction between the 5HTT gene and church attendance.

Remarkably, Fowler and Dawes now suggest that their 2008 article in the Journal of Politics should never have been published, because they had not yet replicated their results in that article.  Is this their retraction of that article?

Deppe et al. attempted to replicate (through analyzing a new data set) the results of Fowler and Dawes concerning the 5HTT gene.  They found that if they stayed with the original model of Fowler and Dawes, they replicated their conclusion that the combination of the 5HTT gene and church attendance may foster self-reported political participation.  But they also found that if they modified the model to make it better (following the suggestions of Charney), they could not replicate Fowler and Dawes' results.  For example, Fowler and Dawes had originally measured voter turnout by looking at how people answered the question "Did you vote in the presidential election of 2000?"  Charney pointed out that political scientists have noticed that people often report more political participation than is really true.  When Deppe et al. substituted actual voting frequency for self-reported voting, the association between 5HTT and voting disappeared completely.  As Charney and English indicate, this new research confirms all of their original criticisms of the earlier article by Fowler and Dawes.

The fundamental problem, Charney and English indicate, is "the simplistic model of the genome and the genotype-phenotype relationship on which genopolitics relies," because such a simplistic model cannot capture the emergent complexity of political behavior as the product of many interacting causes and levels of analysis (393).  Fowler and Dawes admit that their simple models cannot fully explain the complexity of what they are studying (2012, 363, 369-70).  Deppe et al. admit the same point (376-77, 380-81).

By contrast, the explanatory models for political life proposed by proponents of biopolitics are far more complex than the simple models of genopolitics: genes are there in the biopolitical models, but the genes have no effect on their own, because they interact with many other factors at many different levels of analysis (see, for example, Losco 2014, 41, 60, 63).

I suggest that a biopolitical science of political animals would have to move through at least six dimensions of political evolution:
     1. genetic evolution
     2. epigenetic evolution
     3. the behavioral evolution of culture
     4. the symbolic evolution of culture
     5. ecological evolution
     6. the individual life history and judgment of political agents

Some of my posts on these various levels of political evolution can be found here, here, here, here, here, here, here, here, here, here, here, and here.

Some of my posts criticizing genopolitics can be found here, here, here, here, here, here, and here.


Alford, J. R., C. Funk, J. Hibbing. 2005. "Are Political Orientations Genetically Transmitted?"  American Political Science Review 99:153-167

Blank, R. H., S. M. Hines, O. Funke, J. Losco, and P. Stewart, eds.  2014. Politics and the Life Sciences: The State of the Discipline. Bingley, UK: Emerald Publishing.

Charney, Evan. 2008. "Genes and Ideologies." Perspectives on Politics 6:299-319.

Charney, Evan, and William English. 2012. "Candidate Genes and Political Behavior." American Political Science Review 106:1-34.

Charney, Evan, and William English. 2013. "Genopolitics and the Science of Genetics." American Political Science Review 107:382-395.

Deppe, K. D., S. F. Stoltenberg, K. B. Smith, and J. R. Hibbing. 2013. "Candidate Genes and Voter Turnout: Evidence on the Role of 5-HTTLPR." American Political Science Review 107:375-381.

Fowler, J. H., and C. Dawes. 2008. "Two Genes Predict Voter Turnout." Journal of Politics 70:579-594.

Fowler, J. H., and C. Dawes. 2013. "In Defense of Genopolitics." American Political Science Review 107:362-374.

Johnson, Gary. 2011. "Politics and the Life Sciences." Politics and the Life Sciences 30:43-64.

Losco, Joseph. 2014. "Biology and Political Theory." In Blank, et al., eds., Politics and the Life Sciences, 35-65.

Somit, Albert, and Steven Peterson. 2000. "Review Article: Biopolitics After Three Decades--A Balance Sheet." British Journal of Political Science 28:559-571.

Friday, September 11, 2015

Another Kantian Critic of Darwinian Natural Right

I have written many posts responding to the Kantian critics of Darwinian ethics and politics (from Frances Cobbe to John Hare).  Recently, I noticed that Mika LaVaque-Manty (a political scientist at the University of Michigan) has written a Kantian critique of Darwinian natural right--"Nature's New Constraints? Political Theory and the Life Sciences Boom."  It's hard to respond to LaVaque-Manty, however, because his criticism of my argument consists of only two paragraphs.  Moreover, his general argument in this paper is so vague that it's difficult to interpret what he's saying.

He says that the "main arguments" in his paper are "motivated by the philosophy of Immanuel Kant," and that "Kant's willingness to shake his theoretical fist at an indifferent nature has earned an almost unequivocal rejection" by biological philosophers like me (5-6).  He never explains, however, why that rejection of Kant as refuted by biological science is wrong.  In Darwinian Natural Right, I have argued that Kant's moral rationalism--that moral judgment must be based on purely a priori reasoning without any moral emotions or desires--has been shown by neuroscience to be false, because the only people who might act without moral emotions are psychopaths.  Oddly, LaVaque-Manty is silent about this argument.

Here's his first paragraph about me:
"The reining in, even when it is reductionist in its orientation, need not follow Pinker's blueprint.  For example, political theorist Larry Arnhart has offered a sophisticated theory in which he interprets Aristotle's philosophy as not only consistent with evolutionary theory, but as the best way to think about human action and politics, given the truth of evolutionary theory (Arnhart 1998).  This is no mean feat, as his Aristotelianism has much premodern baggage which is on its face incompatible with not just evolutionary theory, but modern science in general: strong teleology and normative natural law, for example.  What makes Arnhart's a reductionist approach, however, is what he holds constant: he interprets Aristotle in light of modern evolutionary theory" (12).
This paragraph is strange in two respects.  First, he asserts that I argue for reductionism, even though I explicitly argue against reductionism and in favor of emergence (see Darwinian Natural Right, 102, 246-248).  Second, he suggests that my defense of teleology is "incompatible" with evolutionary science and modern science generally, even though his second paragraph about me suggests that my account of teleology really is compatible with evolutionary science.

Here's the second paragraph:
"But this [the claim that all teleological thinking is denied by modern science] is just one possible conclusion.  One possibility would be to 'deflate' teleology in a way that makes it compatible with evolutionary theory.  Larry Arnhart's Aristotelian naturalism, which I discussed above, is an example of this: he offers an interpretation of teleology that strips the scientifically implausible aspects and simply understands the natural end of an entity as the thing that is good for its survival.  What he calls the 'goal-directed character' of organisms, which Darwinism accepts, is all Aristotelian naturalism requires (Arnhart 1998, 11).  This is a perfectly legitimate strategy, but it isn't the only way to make our penchant for teleology meaningful" (26).
So if my Darwinian account of teleology is "a perfect legitimate strategy," does that mean that he thinks it's correct?

In the last three paragraphs of his paper, he suggests an alternative--Kantian--way to think about teleology.  We should see "nature as our benevolent stepmother."  And what does that mean?  I have no idea.

As a parenthetical comment on LaVaque-Manty's paper, I would also come to William Connolly's defense.  He quotes him as writing: "And today, several neuroscientists conclude that the lower region of the breast, while not as complex as the brain system in the head, houses a simple cortical complex that communicates with higher brain regions to issue intense feelings of disgust, anxiety, fear, and terror."  He says that this shows that Connolly is "willing to make up facts," because this claim is not supported by "the currently available data."  He's mistaken, because there is plenty of evidence that there is lots of communication between the gut and the brain, and that there is an "enteric nervous system" that can be identified as a "second brain."  Some of this evidence is surveyed in Emerson A. Mayer, "Gut Feelings: The Emerging Biology of Gut-Brain Communication," Nature Reviews Neuroscience 12 (August 2011): 453-466.

Some of these points are elaborated in previous posts here, here, here, here, here, here, and here.

Monday, September 07, 2015

Hoppe's Libertarian History of Evolving Intelligence

Hans-Hermann Hoppe's A Short History of Man: Progress and Decline is a statement of Darwinian libertarianism in which capitalism is seen as a product of progressively evolving intelligence.  (Hoppe's book can be found at the Mises Institute website.)  He argues that the three great revolutions in social order can be explained as emerging from the genetic evolution of human intelligence. 

In the Human Revolution, about 50,000 years ago, our earliest human ancestors became hunter-gatherers when the genetic evolution of the primate brain gave them the capacity for language.  In the Neolithic Revolution, about 11,000 years ago, genetically evolved increases in intelligence allowed some of our human ancestors to invent agriculture.  In the Industrial Revolution, beginning around 1800 in Great Britain, further genetically evolved increases in intelligence allowed for the explosion in inventive productivity that led to the massive increases in per capita income and in human population of the past 200 years.

This is a history of progress, and yet, as Hoppe's subtitle indicates, it's also a history of decline, in that the invention of the modern State as a centralized monopoly power for legislation and taxation over a territory creates an exploitative governmental authority that attacks property rights and thus reduces individual freedom and productivity.  The invention of the State is, Hoppe declares, an "intellectual error" (18).  But Hoppe never gives a coherent explanation for how the evolution of increasing intelligence leads to this great intellectual error.  He sometimes suggests that the intellectual elites are those who invented the State to use it to exploit the less intelligent people.  If so, then it's not clear that the evolution of superior intelligence always serves the common good.

Hoppe presents his history as based on "Austro-Libertarianism," in that he embraces the economics of Ludwig von Mises and the ethics of Murray Rothbard.  He rejects Mises, however, in rejecting the limited-government liberalism of Mises in favor of Rothbard's anarcho-capitalism.  And he corrects both Mises and Rothbard, who thought that the Industrial Revolution required only the institutional protection of private property rights, because Hoppe (following the argument of Gregory Clark) thinks that protecting private property was not sufficient, and that the critical change leading to the Industrial Revolution was the genetic evolution of intelligence leading to an explosion in inventive thinking and low time preference (deferred gratification).

With the evolved capacity for language somewhere around 50,000 years ago, our hunter-gatherer ancestors could cooperate more effectively, and they could more easily teach and learn from one another, which explains the archaeological evidence for improvements in their prehistoric tool kit and the complexity of their artistic symbolism.  Their productivity was limited, however, because hunter-gatherers live an essentially parasitic life-style, in that they merely appropriate what nature provides them--by gathering wild plants and hunting wild animals--without controlling nature to produce new goods.

As the human population of foragers grew, they would find that there was not enough food for all.  When this happened, Hoppe argues, they had three choices.  They could fight over the scarce resources.  Or they could migrate to uninhabited areas.  Or they could invent new productive technologies.  They engaged in all three, but their capacity for invention was limited to simple tools for hunting and gathering.

It took at least 40,000 years of genetic evolution of human intelligence before some human beings were intelligent enough to invent herding and farming.  It takes a lot of intelligence and foresight to figure out that instead of capturing and eating whatever plants and animals happen to be immediately available to us, we would be better off to manipulate the growth of plants and animals so that we can harvest domesticated plants and animals sometime in the future.  But once human beings learned how to do that and also had the self-control to defer their gratifications to the future, they were able to settle into agrarian communities and to produce enough food to sustain growing populations. The greater intelligence required for agrarian societies should be evident in the cognitively challenging literacy, numeracy, and monetary calculation shown in such societies.  But throughout the history of agrarian communities, population growth fell into a Malthusian trap, in which shortages of food forced a drop in population, and per capita income could not grow.

Sometime around 1800, beginning in the Dutch Republic and Great Britain, for the first time in human history, there began a massive growth in both population and per capita income.  World human population grew from around 800 million in 1800 to over 7 trillion today.  Per capita income grew to over 12 to 18 times today what it was in 1800.  The institutional protection of private property is a necessary condition for this, as Mises and Rothbard saw, but it was not sufficient, because such institutions of private property have existed throughout history in many parts of the world.  The Industrial Revolution could not occur until the breeding of intelligence over thousands of years reached a critical threshold around 1800 in a few parts of the world to make possible an unprecedented explosion in human inventiveness.

Much of this is persuasive to me.  But at some critical points, Hoppe's argument is either implausible or incoherent.

First of all, Hoppe agrees with Karl Marx, Frederick Engels, and Lewis H. Morgan that our prehistoric hunting-gathering ancestors did not live in families with pair-bonded couples.  Instead, they were utterly promiscuous in practicing "group marriage," in which anyone could have sexual intercourse with anyone else (59-65, 77-78).  Marriage and the family were cultural inventions of agrarian societies.  Remarkably, Hoppe quotes from Engels and Morgan without even mentioning the critique of this view by Charles Darwin and Edward Westermarck.  Nor does Hoppe mention the evidence indicating that hunter-gatherers are not utterly promiscuous, and that, in fact, pair-bonding of husband and wife is the distinctively human trait in evolution.

Similarly, just as Hoppe endorses the Marx/Engels/Morgan thesis while remaining silent about the criticisms of their view, he also endorses Gregory Clark's thesis about the genetic evolution of the Industrial Revolution while passing over the criticisms in silence.  Moreover, Hoppe does not note that Clark is vague about his argument, in that he never specifies the genetic basis for the intelligence and psychic propensities that he attributes to the British in 1800.  How exactly were the British genetically different?  He never says.  Is it possible that the difference was not genetic but a cultural difference in ideas--in that the British had been persuaded (by Locke, Smith, and others) to adopt the "bourgeois virtues," as Deirdre McCloskey has argued?  Hoppe is silent about all of this.

Moreover, in stressing the genetic basis of intelligence, Hoppe is also silent about all of the evidence for the environmental factors shaping intelligence.  He never mentions, much less explains, the Flynn effect--the steady increase in average IQ scores over the last 100 years in the United States and elsewhere.

Hoppe defends early medieval monarchy as superior to modern liberal democracy.  But then he never explains how this is compatible with the fact that liberal democracy is correlated with the Industrial Revolution and with increasing intelligence.

Throughout much of his argument, Hoppe assumes that increasing intelligence brings better social order that benefits everyone.  But then when he criticizes liberal democracy, he says that the more intelligent people will use the liberal democratic state to exploit others and benefit themselves.  He writes:
"While the redistribution from rich to poor will always play a prominent role and is indeed a permanent feature and mainstay of democracy, it would be na├»ve to assume that it will be the sole or even the predominant form of redistribution.  After all, the rich and the poor are usually rich or poor for a reason.  The rich are characteristically bright and industrious, and the poor typically dull, lazy, or both.  It is not very likely that dullards, even if they make up a majority, will systematically outsmart and enrich themselves at the expense of a minority of bright and energetic individuals.  Rather, most redistribution will take place within the group of the non-poor, and it will actually be frequently the better off who succeed in having themselves subsidized by the poor" (121).
So now it seems that far from being more inventive and productive, the more intelligent people invented the modern State so that they could be intelligent parasites (see also 19, 114-15, 132).

Hoppe's alternative to the State is a "private law society," in which law would be provided by private profit-making security and adjudication firms that would compete for clients who would pay for these services.  (A video of Hoppe's lecture on "State or Private Law Society" can be found here, the written text here.) Hoppe does not provide any historical examples of a "private law society."  Some anarcho-capitalists have pointed to medieval Iceland as an example of anarcho-capitalism.  But it's not clear whether this was a case of anarchy without government or whether it was rather a case of decentralized government.

Hoppe's "private law society" sounds like Gustave de Molinari's proposal for "The Production of Security."  But Molinari said that he was not an anarchist but a governmentalist.  This points to the central obscurity in anarchist thought.  Sometimes anarchists seem to be arguing for no government at all.  But at other times, it seems that anarchists are arguing for stateless government--there is government, but it is highly decentralized.  That seems to be where Hoppe ends up at the end of his book.

Some of these points are elaborated in other posts here, here, here, herehere, here, here, here, and here.