The Natural Desire for In-Group Loyalty Denies Animal Rights: Frans de Waal on the Biological Ethics of Animal Emotions

I have defended an evolutionary theory of morality as rooted in the moral emotions of evolved human nature.  In stressing the importance of the moral sentiments for moral psychology, this evolutionary theory belongs to the philosophic tradition of sentimentalist ethics that includes David Hume, Adam Smith, Edward Westermarck, Edward Wilson, and Frans de Waal--a tradition that is set against the Platonic and Kantian tradition of rationalist ethics.

I have written previously about how de Waal's version of this evolutionary theory recognizes both the continuity and discontinuity in the moral psychology of animals (de Waal 2006).  According to de Waal, the moral sentiments constitute the first level of morality--the emotional building blocks of morality that include empathy, reciprocity, retribution, a sense of fairness, and reconciliation to resolve conflicts and restore harmonious relationships.  These moral sentiments can be seen in some form in many species of nonhuman animals.

De Waal identifies social pressure as the second level of morality.  Through social praise and blame, individuals are habituated to conform to the social rules of their group that maintain the good order of the community.  These rules are enforced through reward, punishment, and reputation.  In these ways, morality serves as a social contract for a cooperative society.  Some of this can be seen in some nonhuman animals.  For example, high-ranking males in chimpanzee groups engage in "policing behavior"--these males break up fights among others, and their intervention seems to be remarkably evenhanded.  Nevertheless, the human morality of social pressure goes beyond the morality of other animals in that human beings can formulate social rules that are more abstract and systematic than is the case for other animals.  Much of this abstract rulemaking depends on the human capacity for language.

Finally, judgment and reasoning constitute a third level of morality, and this is uniquely human.  De Waal observes: "I know of no parallels in animals for moral reasoning" (2006, 174). We are like other social animals in that we care about our reputations--how we appear in the eyes of others--so that we want to be praised and not blamed by others.  But we can also use our distinctly human capacity for abstraction and imagination to see ourselves mirrored in the eyes of an imagined "impartial spectator" (as Adam Smith called it), so that we want to do what is praiseworthy, regardless of whether we are actually praised by anyone.  We care not only about our real reputation but also about our imaginary reputation.  From this we develop an internal sense of self-esteem or conscience, so that even when other people do not punish us for our bad conduct, we punish ourselves by feeling guilt or shame.  Those few human beings who never feel guilt or shame are psychopaths who have no conscience because they do not feel the moral emotions.  (I have written about psychopaths as "moral strangers.")  There is no evidence for anything like conscience or the impartial spectator in nonhuman animals.  (I have written about Smith's concept of the "impartial spectator.")

And yet even if nonhuman animals do not show the full range of human morality, these animals do show some of the moral emotions; and therefore, de Waal argues, these nonhuman animals do deserve to be treated with some moral respect.  But then we might wonder whether these animals have equal rights.  Are we morally obligated to give equal consideration to the interests of all sentient beings, as Peter Singer has argued?  Must we see the immorality not only in racism and sexism but also speciesism?

Recently, de Waal and Kristin Andrews have surveyed the evidence from affective neuroscience suggesting that many animals, even invertebrates, experience emotions of pleasure and pain that should give them some moral standing (de Waal and Andrews 2022).  Through emotions and felt experience (sentience), organisms judge experiences as attractive or aversive, and these physical and mental states of attraction or aversion prepare the organism for adaptive action.

So, for example, since there is increasing evidence that lobsters are sentient and experience emotions of pleasure and pain, de Waal claims, it is wrong for human beings to kill them by boiling them.  Either we shouldn't kill them at all, or there should find some ethical way to kill them.

But then de Waal recognizes that Singer's argument for equal animal rights fails because it's morally impossible for human beings to give equal consideration to the interests of all sentient beings.  This is impossible because there is an evolved natural desire for in-group loyalty.  This belongs to my list of the twenty natural desires.  

There is an expanding circle of human moral concern that begins with each individual being concerned for himself and then extends first to the individual's family and friends and beyond that to the community, tribe, or nation, and beyond that to some humanitarian feeling for distant strangers who might be brought to one's attention, and then finally to all life forms.  But typically, the moral emotions of sympathy become weaker as they are extended farther out on the expanding circle (de Waal 2006, 163-66).

Loyalty is a moral duty in that we expect people to care more for those close to them than to distant strangers or to nonhuman animals.  Inevitably, there are conflicts of interest within and between species.  So that moral systems are inherently biased towards the in-group.  For that reason, the moral sentimentalists like Adam Smith, Edward Westermarck, and de Waal, who speak of the impartiality required for moral sentiments recognize that this cannot be an absolute impartiality but only an apparent impartiality.  After all, if human beings were absolutely impartial, they would not care for themselves, for other human beings, or for other animals, because nothing would really matter.

That we should feel some sympathy for other animals, particularly for those animals that are close to us or that elicit our parental care, is an expression of our morality.  We know that one sign that a child might grow up to be a psychopath is that he is unusually cruel in his treatment of animals.  And it is mostly a he, because most psychopaths are male.

But still most of us agree that it is right to kill animals for food and other products, and that it is right to use animals for painful medical experiments necessary for developing drugs and therapies for human beings and for the scientific understanding of mammalian physiology and neurology.  We should feel some concern for minimizing animal suffering.  But we feel much more concern for minimizing human suffering.

As Westermarck observed, "absolute impartiality . . . would concede to all sentient creatures equal rights," but "impartiality . . . is not absolute, only relative, that is, impartiality within certain limits" (1900, 185).  Our sympathy for nonhuman animals is limited by our partiality for human beings.  "Humanity to animals" does require "that we ought to pay some regard to their feelings," Westermarck suggested, but this does not mean "that they should be regarded equally with the feelings of men" (1932, 213).

Even our sympathy for other human beings is limited by our in-group loyalty.  In war, fighting for one's country against the enemy is a moral duty.  Betraying one's country is treason.  But still, it can be a moral duty to refuse to fight in an unjust war.

REFERENCES

de Waal, Frans. 2006. Primates and Philosophers: How Morality Evolved, edited by Stephen Macedo and Josiah Ober. Princeton, NJ: Princeton University Press.

de Waal, Frans, and Kristin Andrews. 2022. "The Question of Animal Emotions." Science 375: 1351-52.

Westermarck, Edward. 1900. "Remarks on the Predicates of Moral Judgment." Mind 9: 184-204.

Westermarck, Edward. 1932. Ethical Relativity. London: Kegan Paul, Trench, Trubner and Company.

The Esoteric Atheism of Adam Smith's Impartial Spectator

 In July, 11-13, I will be in Bogota, Columbia, for a conference of the International Adam Smith Society.  I will present a paper on "The Three Waves of Adam Smith's Sociobiological Morality of Liberalism."

Adam Smith needed Charles Darwin, I will argue, because beginning with his book The Descent of Man in 1871, Darwin showed how evolutionary biology could support Smith's theory of moral sentiments.

Smith also needed Edward Westermarck.  Because beginning with his book The Origin and Development of the Moral Ideas in 1906, Westermarck elaborated this Smithian and Darwinian account of the biology of the moral sentiments, particularly in explaining the evolutionary psychology of the moral universals such as the incest taboo.

Smith also needed Edward O. Wilson.  Because beginning with his book Sociobiology in 1975, Wilson showed how the growing biological science of social behavior could deepen the empirical science of morality supporting a Smithian theory of moral sentiments, which has become, over the past fifty years, a new intellectual movement for studying evolutionary morality.

These are the three waves of Adam Smith's sociobiological morality.

This is a liberal morality because it rests on the fundamental idea of liberalism that society is a largely self-regulating unintended order--a largely self-enforcing spontaneous order that emerges from the social interactions of individuals seeking to satisfy their individual desires.  Smith elaborates this liberal view of morality in his Theory of Moral Sentiments.  

This breaks away from the traditional Western idea that moral order must conform to a transcendental cosmic order--the moral law of a cosmic God, a cosmic Reason, or a cosmic Nature.  Instead of this transcendental moral cosmology, liberal morality is founded on an empirical moral anthropology, in which moral order arises from within human experience.  Darwinian science supports this liberal moral anthropology by showing how it arises from the coevolution of human nature, human culture, and human judgment.

One objection to my argument is that Smith's theory of moral sentiments does seem to depend on a transcendent divine law insofar as Smith often invokes God as the "Author of Nature" and the "Great Judge of the World," who will be the ultimate enforcer of the moral law by punishing the bad and rewarding the good in the afterlife.  

In answer to this objection, I have suggested in some previous posts (here and here) that there is plenty of evidence that Smith shared the atheism or skepticism of his friend David Hume, but Smith had to be more cautious than Hume in hiding this so that he could avoid persecution.

Here I will point to some of the evidence for this in what Smith says about the "impartial spectator" as the standard for moral judgment in two chapters of The Theory of Moral Sentiments-Part III, chapters 2 and 5.  I will cite the page numbers of the Liberty Fund edition of 1982, which is the sixth and final edition of Sentiments, originally published in 1790.  I will also cite the page numbers of the Liberty Fund edition of The Wealth of Nations.

If morality is rooted in our desire for a mutual sympathy of sentiments, and if we judge ourselves to be good when those around us approve of our conduct, then it would seem that morality depends on the judgment of our fellow human beings.  Sometimes, however, the social judgment of our conduct can be unfair or misinformed, and then we must appeal to a higher court--to the court of our own conscience, to our imagined impartial and well-informed spectator, who can see that our conduct is praiseworthy even when we are not actually praised by other people.

But when the imaginary praise of our conduct by the impartial spectator is contradicted by the real blame of our conduct by the actual spectators in our lives, it is hard not to be thrown into despair.  "In such cases," Smith observes, "the only effectual consolation of humbled and afflicted man lies in an appeal to a still higher tribunal, to that of the all-seeing Judge of the world, whose eye can never be deceived, and whose judgments can never be perverted" (TMS, 131).  Thus, our happiness in this life is often dependent on our belief in a life to come after death, when God will reward the good with eternal bliss and punish the bad with eternal suffering.

Immediately after speaking about this religious doctrine of eternal judgment, however, Smith observes "that the virtuous man who has the misfortune to doubt of it, cannot possibly avoid wishing most earnestly and anxiously to believe it" (TMS, 132).  The virtuous man doubts this doctrine because some of the most zealous believers in the doctrine have described a divine distribution of rewards and punishments "too frequently in direction opposition to all our moral sentiments."  For example, Christians have often asserted that all of the virtuous pagans--all of the heroes, the statesmen, the poets, the philosophers, and other benefactors of humanity in the ancient world--will be condemned to eternity in Hell.  This is contrary to our moral sentiments, to our natural sense of the praiseworthiness of such virtuous people (TMS, 133-34).

(I have written a series of posts on life after death here, here, here, here, and here.)

Elsewhere in Sentiments, Smith warns that "false notions of religion" can grossly pervert our moral sentiments (156, 170, 176).  And he observes that some thoughtful people might entertain the "suspicion of a fatherless world" (235).  In The Wealth of Nations, he laments that in the medieval Christian universities, both moral and natural philosophy were corrupted by being made subservient to Christian theology (771).  Comments like these have convinced some readers of Smith that he was not a sincere religious believer, but that he had to feign religious belief to avoid being persecuted or being offensive in a society where Christian orthodoxy was pervasive.

Smith has a chapter on "the influence and authority of the general Rules of Morality, and that they are justly regarded as the Laws of the Deity" (TMS, 161).  Notice that Smith does not say that the rules of morality truly are the laws of God, but that they are "justly regarded" as the laws of God.  He says that this "opinion" is "impressed by nature" on the minds of human beings.  He explains:

"Men are naturally led to ascribe to those mysterious beings, whatever they are, which happen, in any country, to be the objects of religious fear, all their own sentiments and passions.  They have no other, they can conceive no other to ascribe to them.  Those unknown intelligences which they imagine but see not, must necessarily be formed with some sort of resemblance to those intelligences of which they have experience. . . . They could not fail, therefore, to ascribe to those beings, for the excellence of whose nature they still conceived the highest admiration, those sentiments and qualities which are the great ornaments of humanity, and which seem to raise it to a resemblance of divine perfection, the love of virtue and beneficence, and the abhorrence of vice and injustice.  The man who was injured, called upon Jupiter to be witness of the wrong that was done to him. . . . These natural hopes and fears, and suspicions, were propagated by sympathy, and confirmed by education; and the gods were universally represented and believed to be the rewarders of humanity and mercy, and the avengers of perfidy and injustice.  And thus religion, even in its crudest form, gave a sanction to the rules of morality, long before the age of artificial reasoning and philosophy.  That the terrors of religion should thus enforce the natural sense of duty, was of too much importance to the happiness of mankind, for nature to leave it dependent upon the slowness and uncertainty of philosophical researches" (TMS, 163-64).

Here, like Hume in his Natural History of Religion, Smith explains religious belief as a natural psychological propensity for anthropomorphic projection of human mental experience onto the universe, so that human beings imagine that there are invisible spirits with minds like their own.  And since human beings have moral sentiments and passions, they imagine that these divine beings have the same moral sentiments and passions.  In this way, religion sanctions morality as divine law, and thus provides supernatural support for a natural sense of moral duty.  A philosopher like Smith might then conclude that moral rules are "justly regarded" as divine laws.  Even if he thinks this is only a noble lie, he thinks that it is good for us if most of us believe it to be true.

In some previous posts (here and here), I have shown how Darwin and modern evolutionary psychologists have confirmed this insight of Smith and Hume that  believing in God is a natural, almost inevitable, consequence of the innate propensities of the human mind as shaped by natural selection in evolutionary history. 

For Smith, religious belief is both supportive and subversive of our moral sentiments.  The religious belief that God shares our natural moral sentiments can strengthen our morality, but religious fanaticism can promote violence and intolerance that corrupt our morality.  What we need, then, Smith argues in the Wealth of Nations, is "that pure and rational religion, free from every mixture of absurdity, imposture, or fanaticism, such as wise men have in all ages of the world wished to see established" (793).  This could be achieved if government dealt equally and impartially with all religious sects, and everyone was free to choose his own religion.  There might then be a free marketplace of religions, with hundreds or thousands of different religious sects; and if no sect was allowed to use violent coercion against any others, the competition for believers would induce "philosophical good temper and moderation," such as one sees in Pennsylvania, where the Quakers have established religious liberty, and the law does not favor one sect over others.  Thus does Smith embrace John Locke's policy of religious toleration, but unlike Locke, Smith does not deny toleration for atheists.

Smith worries that the morals of some of the small religious sects might become "disagreeably rigorous and unsocial."  To avoid this, the government has two remedies.  It can secure the liberty of people to provide popular diversions through the arts--painting, poetry, music, dancing, and the theater--which had been restricted by the Calvinist churches.  The government can also promote the study of science and philosophy, at least among the middle and upper classes, because "science is the great antidote to the poison of enthusiasm and superstition" (WN, 796).  Smith foresees that in a modern commercial society, natural science would replace religious superstition in explaining the natural world (WN, 767-68).

The Russian Coup to Overthrow Putin: The Evolutionary Politics of Minimal Winning Coalitions

In an interview with the UK's Sky News, Ukraine's head of military intelligence--Major General Kyrylo Budanov--has predicted that Ukraine will win the war against the Russians, and that the turning point could come as soon as August.  He also says that he has seen evidence that a coup to overthrow Vladimir Putin is already underway.

I have been assuming that this was almost inevitable as soon as it was clear that the Russians were losing the war, because under those conditions Putin would lose his "minimal winning coalition."  A fundamental principle of biopolitical science is that the political survival of leaders depends on their having the support of a minimal winning coalition, and so once Putin loses that, he will fall from power.

No ruler can rule alone.  Even an absolute autocrat needs a small coalition of powerful people who are loyal to him, and to win and maintain that loyalty, the autocrat must buy them off with money and status.  Once an autocrat is abandoned by his loyalists, he loses power.  But as long as he has the support of that small winning coalition, he can rule successfully even when he oppresses the great majority of the people under his rule.  The private interest of his small coalition of supporters is advanced at the expense of the public interest of the people at large.  Bruce Bueno de Mesquita and Alastair Smith have written about this in various writings such as The Dictator's Handbook (2011).

A democratic leader differs from a dictatorial leader in that the democratic leader depends on a larger coalition of supporters.  Because of the large size of a winning democratic coalition, democratic leaders must persuade a large number of supporters that he will advance public policies that serve the general welfare of this big coalition.  But still this large democratic coalition is less than the whole community, and it does not have to be a majority of the citizens.

Frans de Waal has shown that this principle of minimal winning coalitions holds true not only for human politics but also for chimpanzee politics.  The natural drive of male chimps for dominance leads them to compete for rule over each chimp community.  Success in this competition depends on the exercise of strategic intelligence in which chimps must form coalitions that will support them as the alpha chimp in the hierarchy (see chapter 5 of de Waal's Chimpanzee Politics).

This suggests that the human political principle of minimal winning coalitions could be rooted in an evolutionary history of politics shared with our primate ancestors, and thus it would be grounded in our natural history as political animals.

There are reasons to believe that the modern natural history of politics shows a movement towards liberal democracy as the best regime--as the rule based on a large minimal coalition.  Bueno de Mesquita and Smith have written: "Until recently, and with very few exceptions, small-coalition systems have been the dominant form of government" (226).  But there is "hope for the future."  "Every government and every organization that relies on a small coalition eventually erodes its own productivity and entrepreneurial spirit so much that it faces the risk of collapsing under the weight of its own corruption and inefficiency.  When those crucial moments of opportunity arise, when the weight of bad governance catches up with despots, then a few changes can make all the difference" (281).  Consequently, "sooner or later every society will cross the divide between small-coalition, large selectorate misery to a large coalition that is a large proportion of the selectorate--and peace and plenty will ensue" (282).

Isn't that what we're seeing in Russia now?  The sheer weight of the corruption and inefficiency in Putin's small-coalition rule has eroded the military power of Russia, and now with the defeat of Russia in Ukraine, Putin's loyalists no longer have any self-interest in continuing to support him, and so they will betray him.

If Putin were to order a nuclear strike against Ukraine or a NATO country, and if one or more people in the chain of command refused to obey this order, that would start a coup to overthrow him.

Bueno de Mesquita and Smith are wrong, however, when they say that small-coalition systems have dominated human history until recently.  In fact, through most of human history, human beings lived in foraging bands of hunter-gatherers that were large-coalition regimes, because they were egalitarian hierarchies in which leaders were severely limited in their power by popular resistance to exploitative dominance.  It was not until about 5,000 years ago that the emergence of agrarian states based on agricultural production made it possible for leaders to rule in small-coalition regimes in which the majority of people were exploited by the ruling elite.  And even in those ancient small-coalition states (like Mesopotamia), there were frequent rebellions against despotic rule.  The emergence of modern liberal democracies over the past two or three centuries is in some ways a revival of the popular constraints on power that prevailed in ancient foraging societies.

As Bueno de Mesquita and Smith indicate, freedom is the greatest public good.  Freedom is the natural condition for human flourishing, materially and spiritually (120-21, 124-25, 180, 214, 273-74, 278-82).

Although the evolutionary path to free societies is not predetermined, because evolutionary history is an undesigned, contingent process of trial and error, the greater wealth, inventiveness, and happiness of the free society make it likely that it will eventually prevail in the evolutionary history of cultural group selection.

We are seeing that now in the struggle between Ukraine and Russia and the possible overthrow of Putin.

I have elaborated these points in some posts on minimal winning coalitions and the primate model of the chief executive rule of alpha males here and here.

The Equal Protection Clause of the 14th Amendment Supports a Constitutional Right to Abortion: Alito's Deceptive Opinion Reveals His Political Partisanship

THE EQUAL PROTECTION CLAUSE

David Mills has made some interesting comments on my post arguing for there being a constitutional right to abortion in the 14th Amendment's "equal protection" clause.  He thinks a better constitutional text for this would be the Third Amendment (on the quartering of soldiers in someone's house), which implicitly suggests a right to privacy that could include the right to have an abortion.

I thought I should respond to one of his comments in a separate post.  Here's the comment:

"The equal protection clause is just one more amendment that tries to put a round peg in a square hole. Equality implies a comparison between two similar things. In the case of a woman applying to membership with the bar she can be compared with men. In the case of homosexual couples, they can be compared with heterosexual couples.

"But in the case of pregnancy, what is the thing you would compare it to? Well nothing, unless you want to compare a fetus with a tumor, which as you point out does not have the possibility of becoming a person like a fetus does.

"So that is why I think the 3rd amendment should be looked at as by far the best amendment to support abortion. No other amendment makes as good a case for the right to privacy.

"And I really don't like the idea of abortion being a state matter. Under amendment 3, it is difficult to see how a state could whittle away the right."

For my response, I can quote the words of Jack Balkin ("Abortion and Original Meaning," 322-23):

"One might argue that, because only women can become pregnant, laws restricting abortion do not violate sex equality, because they do not treat women differently from similarly situated men.  There are no similarly situated men.  The principle of equal citizenship, however, is not limited to the requirement that laws be formally equal in this way.  The relevant question is not whether men and women are different in their capacity to bear children, but the difference that this difference should be allowed to make in terms of women's status in society and their enjoyment of basic rights of citizenship.  The text of the Fourteenth Amendment, and principles underlying the Amendment stand for the proposition that the state may not create or maintain a lower caste of citizens, impose second-class citizenship, or effect subordination of a social group through law.  When the state uses women's capacity to become pregnant as a lever to subordinate women, assign them a second class status in society, or deny them full and equal enjoyment of their rights of citizenship, it violates the equal citizenship principle.  It may not use pregnancy as a device to deny women equal citizenship or subordinate women precisely because only women can get pregnant."

So, for example, I assume that we would all agree that prohibiting women from admission to law schools and from practicing law, as was done in the 19th century, was a denial of their equal rights.  Now, in many law schools, there are as many women as men; and women have excelled in the practice of law.  

But for many of those women, their success as students and lawyers in achieving equality with men in their careers has depended on their being free to delay motherhood when it would interfere with their careers.  For many of these women, if they had been denied the right to abortion and thus forced to become mothers early in life, and forced to have many children, that would have prevented them from achieving success in the legal profession equal to that of men.  Thus, laws that criminalize abortion tend to reinforce the subordination of women to men, and in this way, they violate the Equal Protection Clause of the Fourteenth Amendment.

I have written previously about how women in a liberal society naturally desire to become a mother, but they need to balance this desire with other natural desires.  When women pursue professional careers, and they want to have children, they have to decide how to organize their lives to balance one desire with another.  In the United States, most women (80% to 90%) will become mothers before they reach the end of their reproductive lives; but many of these women decide to delay motherhood until they have become established in their professional careers.  For many of these women, the freedom to decide on abortion is an important part of their decision-making, which is taken away from them by laws forbidding abortion.

ALITO'S DECEPTION REVEALS HIS POLITICAL PARTISANSHIP

At some points in his opinion overturning Roe, Justice Samuel Alito resorts to a rhetoric of deception that shows he is writing as a political partisan advancing a policy preference rather than as a judge interpreting the law.

It is true, as he says, that the "right to abortion" is never explicitly mentioned in the Constitution.  But he admits that, of course, the Supreme Court has recognized many constitutional rights that are not explicitly enumerated in the Constitution.  The Court must do this to comply with the 9th Amendment's declaration that "the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."

The question then is how does the Court identify those rights "retained by the people" but not enumerated in the Constitution?  The answer must be that these rights can be inferred as implicit in the original meaning of the constitutional text.  But then, again, the Court looks for some help in interpreting that original meaning.

Alito's answer is to appeal to a doctrine stated in the opinion in Washington v. Glucksberg (1997).  The question in Glucksberg was whether a Washington state law criminalizing assisted-suicide for terminally ill patients was an unconstitutional violation of a person's right implicit in the Due Process Clause of the 14th Amendment to make fundamental decisions about their life and health.  The Court unanimously said no.  Their reasoning was that the Court recognized rights as implicit in the Fourteenth Amendment only when these rights were "so deeply rooted in our history and traditions, or so fundamental to our concept of constitutionally ordered liberty, that they are protected by the Fourteenth Amendment" (727).

Alito appeals to this language in Glucksberg in arguing that there is no constitutional right to abortion because it is not "deeply rooted in our history and traditions."  (See page 5 of his opinion.)

But in the oral arguments on the Dobbs case in December, when Alito made this argument, one of the lawyers pointed out to Alito that this passage in the Glucksberg opinion has a footnote--note 19 on page 727--identifying the decision in Roe v. Wade as one of the many decisions of the Court that rightly identified rights "deeply rooted in our history and traditions," because in the common law, abortion was not a crime when it was done before "quickening"--that is, before the mother felt the fetus moving in her womb.  The states that began towards the middle of the 19th century to criminalize abortion at every stage of pregnancy were violating this deeply rooted common-law tradition of allowing abortion before quickening.  (See pages 75-76 of the oral arguments.)

That note 19 in Glucksberg also identifies the right to use contraceptives (Griswold) and the right to interracial marriage (Loving v. Virginia) as examples of constitutional rights that are not explicitly enumerated in the Constitution, but which can recognized as implicit in the original meaning of the Fourteenth Amendment, just like the right to abortion.  Note 19 also quotes from Meyer v. Nebraska (1923) as saying that liberty in the 14th Amendment includes "those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men."  This would include the common law rule that abortion is not a crime when it is done before quickening.

Notice that in his opinion (page 5), Alito remains completely silent about this point--that he was distorting the decision in Glucksberg by claiming that its standard of constitutional interpretation would support overturning Roe.  This kind of deceptive distortion of the law is characteristic of a political partisan who has a policy preference against abortion rather than a judge interpreting the law.

This is one of many flaws in Alito's opinion that reveal it to be an exercise in raw political power rather than an impartial interpretation of the law.

Curtis Yarvin's Argument for Filmerian Monarchy and Against Lockean Liberalism Ignores the Empirical Evidence: The Historical Decline in Violence

Curtis Yarvin praises Sir Robert Filmer as "the baddest-ass reactionary who ever lived," and he identifies Filmer's Patriarcha as the best defense of absolutism and divine-right monarchy.  Although Filmer died in 1653, Patriarcha was not published until 1680, when it was recognized as a defense of the Stuart restored monarchy against its Whig critics.  John Locke's Two Treatises of Government were published in 1689 as a theoretical justification of the overthrow of King James II and the Stuart monarchy in the Revolution of 1688.  Locke's First Treatise was a fervent critique of Filmer's Patriarcha.  His Second Treatise laid out the political thought of Whig liberalism.

Yarvin sees 1688 as the critical turning point in history--the turn from feudal monarchy to modern liberalism.  If you want to be a true reactionary, Yarvin insists, you need to be a Jacobite arguing for the restoration of the Stuart monarchy.  

That's exactly what Yarvin proposes.  Today, the legitimate heir to the Stuart throne of England is the 27-year-old Prince Joseph Wenzel of the Royal House of Liechtenstein.  The solution to England's problems would be to put King Joseph I on the throne and allow him to rule with the absolute power once held by the Stuart monarchs.  There are two ways to do this.  Either persuade a majority of the English people that this is what needs to be done.  Or persuade the British Army to stage a military coup to bring this about.

Yarvin indicates that the persuasive argument for doing this is simple.  It's a choice between order and disorder: absolutist monarchy promotes order, while liberal democracy promotes disorder.  In Great Britain, the only way to restore order is to restore the Stuart monarchy.

But to make this persuasive, wouldn't we have to offer some empirical evidence to back it up--evidence that while absolutist monarchies have generally secured social order, liberal democracies have generally inclined to social disorder?  Yarvin almost never considers the empirical evidence.

The one possible exception is that at least twice in his writings, Yarvin refers briefly to some data about the crime rate in Great Britain.  Obviously, one measure of order or disorder in society is the rate of crime, particularly violent crime.  If Yarvin is correct, we would predict that feudal illiberal societies have low rates of violent crime, while modern liberal societies have high rates.

Here's the one short passage where Yarvin claims the empirical evidence is on his side:

"According to official statistics, between 1900 and 1992 the crime rate in Great Britain, indictable offenses per capita known to the police, increased by a favor of 46.  That's not 46%.  Oh, no.  That's 4,600%.  Many of the offenders having been imported specially, to make England brighter and more colorful.  This isn't a government.  It's a crime syndicate."

Unfortunately, Yarvin's internet link to his source is broken, so I can't see exactly what he's citing, but it's some kind of British government website with crime statistics.

His selection of data is a bit odd.  Why does he start in 1900 and stop in 1992?  It is widely known that crime rates in Western Europe and North America rose dramatically from the 1960s to the early 1990s.  But then, in the mid-1990s, crime rates dropped dramatically and reached historically low levels around 2010.

Did Yarvin stop in 1992 so that he could ignore the drop in crime rates over the past three decades?

And if he wants to find data for low crime rates under the rule of premodern absolutist monarchies, shouldn't he be looking at the historical data long before 1900?

I suspect that Yarvin doesn't do this because he doesn't want his readers to see the quantitative evidence presented by many scholars (Eisner 2003, 2014; Muchembled 2012; Pinker 2011; Sharpe 2016) that from high rates of violence and homicide in the Middle Ages, there has been a long decline in modern liberal societies, which shows that liberalism promotes moral self-command, and that people in pre-modern illiberal societies suffered from a lack of self-control. 

Some of this historical evidence is neatly presented in a graph by Max Rosser.  As you can see, the homicide rate was about 23 per 100,000 population in 1300 (King Edward I), 4.0 in 1675 (the restored Stuart monarchy), 2.0 in 1725 (the Hanoverian monarchy with Parliamentary supremacy), and 0.5 in 2015.  So the homicide rate under the Stuarts was 8 times as great as the rate today.  Does this mean that the Stuart monarchy was not a government but a crime syndicate? 

I have written about this evidence here, here, and here.

Manuel Eisner (2003, 2014) is a criminologist who has assembled the History of Homicide Database, which is the most comprehensive collection of quantitative estimates of homicidal levels from 1200 to the present.  His data show that the average estimates of homicide rates across Europe from 1200 to about 1450 converge at a rate of about 27 per 100,000 inhabitants.  This average rate then begins to decline:  20.1 (1500-1549), 12.0 (1600-1649), 5.5 (1700-1749), 3.5 (1800-1825), 2.0 (1900-1924), and 1.0 (2000-2012).  Over a period of 500 years, the peacetime criminal homicide rate in Europe fell by half every century.

Eisner's data also show that most of this decline in homicide rates was due to a fall in lethal male-to-male fighting of about 99%!

Eisner provides evidence that the best explanation for this dramatic drop in homicidal violence in Europe over the past 500 years is that there was what Norbert Elias called a "civilizing process" (Elias 2000; Linklater and Mennell 2010).  European societies went through a change by which average levels of self-control, standards of decency, and disgust for open displays of cruelty tended to increase, which arose from the move away from the incivility of the Middle Ages to the civility of European modernity.  Locke spoke about his in his book on the education of children when he advised parents to use the "law of reputation" to teach the virtues of "civility."

So why is Yarvin silent about all of this empirical evidence that premodern illiberal societies tended to promote violent disorder?  Is it because this kind of evidence would work against persuading the British people or the British Army to restore the Stuart monarchy?

REFERENCES

Eisner, Manuel. 2003. "Long-Term Historical Trends in Violent Crime." Crime and Justice 30:83-142.

Eisner, Manuel. 2014. "From Swords to Words: Does Macro-Level Change in Self-Control Predict Long-Term Variation in Levels of Homicide?" Crime and Justice 43:65-134.

Elias, Norbert. 2000. The Civilizing Process. Revised ed. Cambridge, MA: Blackwell.

Linklater, Andrew, and Stephen Mennell. 2010. "Norbert Elias, The Civilizing Process: Sociogenetic and Psychogenetic Investigations--An Overview and Assessment." History and Theory 49 (October): 384-411.

Muchembled, Robert. 2012. A History of Violence: From the End of the Middle Ages to the Present. Cambridge, MA: Polity.

Pinker, Steven. 2011. The Better Angels of Our Nature: Why Violence Has Declined. New York: Viking.

Sharpe, James. 2016. A Fiery and Furious People: A History of Violence in England. London: Random House Books.

Curtis Yarvin's Deceptive Account of the Confederate Firing on Fort Sumter, and His "Confederate Racist Fascism"

Curtis Yarvin's deceptive history of the American Civil War is part of his neoreactionary history of what he calls the Three Modern Wars.  As an illustration of his deception, I will concentrate on his explanation of the Confederate firing on Fort Sumter, which initiated the Civil War.

Yarvin identifies the Three Modern Wars as the War of Secession (the American Civil War), the First German War (World War I), and the Second German War (World War II).

Yarvin claims that these three wars share five common features.

"Feature A:  In each Modern War, we see an archaic side (anti-democratic, right-wing, reactionary, etc.) and a modern side (democratic, left-wing, revolutionary, etc.).  It is easy to see which is which: the Confederacy, Wilhelmine Germany, and Nazi Germany are archaic."

"Feature B:  In each Modern War, the archaic side initiated military activity by attacking the modern forces.  The Confederates shelled Fort Sumter, the Kaiser invaded Belgium, Hitler invaded Poland, and the Japanese bombed Hawaii, etc.  This might of course be a mere military coincidence, but I don't think it is."

"Feature C:  In each Modern War, the archaic side was substantially weaker on paper than the modern.  The Union was substantially more populous and industrially productive than the Confederacy, the Triple Entente than the Triple Alliance, the Allies than the Axis."

"Feature D:  In each Modern War, the modern side defeated the archaic, and imposed its own terms of surrender without negotiation.  The defeated political structures were thoroughly liquidated, and replaced by new structures of the victor's design."

"The conjunction of B, C, and D is especially intriguing.  If the archaics always look like they will lose the war, and indeed always do lose the war, why do they always start the war?"

"The obvious theory is that they're so evil, they just can't help it.  Perhaps this works for you, and perhaps it always will.  But we will suggest another solution to this mystery."

"Feature E:  For at least most of the duration of the Modern Wars, the modern side is the plaintiff, and the archaic side is the defendant."

"E.g.:  the North is trying to subdue the South; the South is trying not to be subdued by the North.  Victory for the Confederacy means the survival of the Confederacy.  Victory for the Union means the non-survival of the Confederacy.  The German Wars are slightly more complex, but through most of both wars, it was the Germans who made peace proposals, their enemies who rejected them."

"The combination of features E and C suggests the possibility that predation is the best metaphor with which to explain the Modern Wars.  At least, if we did not find E and C, we could exclude predation.  We do see E and C; so we must still consider predation."

But how is it possible to see the North in the Civil War as the predator, and the South as the prey?  Wasn't it the Confederates who fired the first shots on April 12, 1861, when they shelled Fort Sumter in the harbor of Charleston, South Carolina?

No, Yarvin responds, the North provoked the South into attacking Fort Sumter, and so what we see here is camouflaged predation.  Abraham Lincoln wanted war with the Confederacy in the spring of 1861, but he wanted to cleverly provoke the Confederates into firing the first shots, so that they would appear to be the aggressors, and the North would appear to be fighting in self-defense.

In support of this conclusion, Yarvin quotes a long passage from George Lunt's book The Origin of the Late War (Boston, 1865).  Lunt tells the story of how John Campbell of Alabama, a Justice of the U.S. Supreme Court, mediated negotiations between three commissioners representing the Confederacy and Union officials over terms that would avoid war.  Campbell said that in meetings with Secretary of State William Seward, Seward promised that the garrison of soldiers at Fort Sumter would be evacuated.  Campbell was shocked, therefore, when a fleet of Union ships appeared off the Charleston harbor on April 12.  The Confederates in Charleston sent a message to Montgomery, Alabama, asking for orders from Jefferson Davis.  The order was to demand the surrender of the fort, and then if the demand was refused, they should start bombardment.  When the commander at the fort--Major Robert Anderson--refused to surrender, the Confederates launched the attack.

Lunt suggests that Union leaders dispatched the ships to Charleston in order to provoke the Confederates into firing on the fort, so that they would appear to be the aggressors, and the Union would appear to be acting in self-defense.  Lunt observes: "It was generally thought at the North that the attack on Fort Sumter was a desperate, if not a treacherous deed; but it was considered at the South as the repulse of a threatened assault upon Charleston, involving an ostensible breach of faith by a responsible officer and agent of the administration."

Yarvin says that he began reading Lunt's book when he noticed that Carlyle mentioned him in a footnote.  Yarvin says: "Origin of the Late War is simply a wonderful book; it has both judgment and immediacy, detail and passion.  I recommend it highly.  If you only read one primary source on the War of Secession, this should probably be the one."

Yarvin says that this book supports "the conclusion that Lincoln, despite his speeches at the time, wanted a war and was happy to get one."  "The approach is one of camouflaged predation.  Perhaps it can be summarized as: 'kick the dog until he bites, then shoot him.'  Press your target, using blows that hurt but do not draw blood, until he finally snaps and bites back.  Then it's time for the Glock.  The resulting execution appears to the casual observer, who misses the kicks or can be persuaded not to see them, as a simple case of justified self-defense--putting down a biting dog."

Remarably, Yarvin draws this bold conclusion only from his reading of Lunt's book.  He does not refer his readers to any other historical sources.  And his story of what led to the firing on Fort Sumter is a highly simplified narrative of what in fact was a very complex story.  In his history of the Civil War, James McPherson says that Abraham Lincoln's decision about Fort Sumter is "one of the most thoroughly studied questions in American history" (Battle Cry of Freedom, 267).  

It is surprising, therefore, that Yarvin does not convey to his readers the complexity of that scholarly debate over that historical question.  Either Yarvin is ignorant of that scholarship.  Or he knows about it, but he doesn't want his readers to ponder it, for fear that this would weaken his case for the "camouflaged predation" of the North.

Fort Sumter was on an island four miles from downtown Charleston at the entrance to the bay.  At the fort, Major Robert Anderson commanded a garrison of Union soldiers.  Having seceded from the Union, the Carolinians assumed that they would soon take all of the United States property in Charleston, including the fort.  They had hundreds of militiamen in Charleston ready to forcibly take the fort if it was not voluntarily surrendered.  The fate of Fort Sumter was a big news story across the country.  Everyone knew that if the Confederates attacked the fort, that would launch the war.

On March 5, Lincoln was told by Anderson that the garrison at Fort Sumter was running out of supplies, and that within six weeks, Anderson's men would begin starving to death.  So Lincoln had six weeks to decide between three possible courses of action.  He could send ships with supplies and reinforcements that would shoot their way into the bay, but then he would be accused of starting the war, and this would divide the North and unite the South, while pushing the Upper South (including Virginia) into joining the secession.  Another possibility was that he could withdraw the garrison and surrender the fort.  This would keep the peace and probably keep the Upper South in the Union.  But this would divide the North, weaken the Republican Party, and be seen by foreign powers (such as Great Britain) as recognition of the Confederacy's independence, so that foreign governments would give diplomatic recognition to the Confederacy.  A third alternative was to stall for time, hoping that within six weeks some peaceful way could be found to keep the fort in Union hands.

Lincoln received conflicting advice from people inside and outside his administration.  Secretary of State Seward advised him to surrender Sumter, because this could keep the Upper South in the Union and strengthen the unionists in the Confederate states, who were working to bring the South back into the Union.  Seward was an ambitious rival of Lincoln's who was conniving to take the leadership of the administration away from Lincoln.  Without Lincoln's knowledge, Seward told the Confederate commissioners that Fort Sumter would be surrendered, and he leaked this news to the press.  Notice that Yarvin says nothing about this--that Seward was acting on his own without Lincoln's approval, and therefore Lincoln had never promised the Confederates that Fort Sumter would be surrendered.

On April 4, Lincoln gave the orders for a plan that no one had suggested to him.  He had come up with his own solution to the crisis--a fourth possibility--that some historians have identified as a stroke of genius.  Lincoln drafted a letter for the Secretary of War Simon Cameron to send to Major Anderson, which you can find in the Collected Works of Abraham Lincoln, vol. 4, 321-22, available online.  He told Anderson that an expedition to relieve his garrison was on its way, and that it should arrive by the 11th or the 12th: "the expedition will go forward; and, finding your flag flying, will attempt to provision you, and, in case the effort is resisted, will endeavor also to reinforce you."  Notice what this means: the garrison will be provisioned, but it will not be reinforced militarily unless the Confederates attack the fort to prevent the provisioning.

Lincoln also drafted a letter to Robert Chew signed by Cameron that was sent on April 6.  Chew was a clerk in the State Department.  This letter is in the Collected Works, vol. 4, 323-24, also available online. Chew was instructed to meet Governor Francis Pickens in Charleston and deliver to him the following message: "I am directed by the President of the United States to notify you to expect an attempt will be made to supply Fort-Sumpter with provisions only; and that, if such attempt be not resisted, no effort to throw in men, arms, or ammunition, will be made, without further notice, or in case of attack upon the Fort."  

So the Governor knew that the provisioning of the fort would be purely peaceful, unless the Confederates attacked the fort and forced the Union soldiers to fight back.  The Governor passed this message to Jefferson Davis in Montgomery and asked for instructions.  Davis called a cabinet meeting for April 9, which endorsed an order to General Pierre Beauregard, commander of the Confederate military in Charleston, instructing him to attack the fort before the relief ships arrived, if possible.  After Anderson refused Beauregard's order to surrender, Beauregard ordered the attack to begin at 4:30 a.m. on April 12.  After thirty-three hours of bombardment, during which the Union relief ships did not intervene, Anderson was forced to surrender the fort on April 14.  On April 15, Lincoln called 75,000 militiamen into national service.  The war had begun.

Notice that Yarvin says nothing about any of this.  He does not mention the letters to Anderson and Chew.  Why?  Presumably, because this would weaken his argument that Lincoln wanted to start a war by forcing the Confederates to shoot first.

From the beginning of the Civil War to the present, people have debated Lincoln's motives for his attempt to resupply Fort Sumter.  People have taken three positions.  The first is that Lincoln wanted war, and he manipulated the circumstances to force the Confederacy into firing the first shot, so that the Union would appear to be fighting in self-defense.  This is what the southerners and their apologists have said.  This is Yarvin's position.  But Yarvin is careful to remain silent about the two alternative positions that have been adopted by most historians.

One alternative is to say that Lincoln wanted to preserve the peace, but he feared that surrendering the fort would demoralize the Union and strengthen the Confederacy, particularly by persuading Great Britain to recognize the Confederacy.  So Lincoln devised his resupply plan so that the Confederates would be free to decide between peace and war.

Another only slightly different alternative is to say that Lincoln hoped the Confederates would choose peace, but he expected that they probably would choose war.  To me, this seems the most plausible explanation.

By refusing to lay out all the relevant evidence and reasoning in the historical debate over this question, Yarvin shows again that he has no interest in serious intellectual debate, because he is only a propagandist for his reactionary authoritarianism.

Yarvin defends the Confederacy because it came close to his model of the best regime as based on black slavery and authoritarian despotism.  But still he criticizes the Confederacy for not going far enough towards this authoritarian best regime.  He says that the Confederates were conservative, but not truly reactionary.  They should have been reactionaries in restoring something like Stuart monarchy and embracing Robert Filmer's argument for patriarchal order.

We should not be surprised when Yarvin tells us that he likes to "flirt" with "Confederate racist fascism."

Curtis Yarvin's Weak Arguments Against the Declaration of Independence and For Slavery

 In my previous post on Curtis Yarvin, I have said that his arguments are remarkably weak.  His favorite form of argumentation is begging the question:  he finds a writer who agrees with him, he paraphrases or quotes from that writer, and then he concludes: ah, you see, I must be right because this writer agrees with me!  I have seen the same kind of sophistical rhetoric in the work of other critics of liberalism, such as Patrick Deneen and Rod Dreher.

In doing this, Yarvin violates his own standards for fairly debating controversial questions.  For example, in his writing about the debate over the American Revolution, he observes: "If you think of Patriot v. Loyalist as a lawsuit and yourself as a juror, not only had you never heard a single word from the defense, you hadn't even really heard a proper proposition."  His readers might assume, then, that Yarvin is going to vigorously present both sides of the case, and then show how weighing the opposing arguments against one another reveals the superiority of the Loyalist position.  But instead of doing that, he carefully selects only spokesmen for the Loyalists, and he is silent about what the Patriot might say in response.

From the beginning of his essay on the American Revolution, Yarvin is vehement in his Loyalist advocacy: 

"At present you believe that, in the American Revolution, good triumphed over evil.  This is the aforementioned aggregate.  We're going to just scoop that right out with the #6 brain spoon.  As we operate, we'll replace it with the actual story of the American Rebellion--in which evil triumphed over good."

"Yup.  We're really going to do this.  You're on the table.  It's the real thing.  In the terms of the time, at present you are a Patriot and (pejoratively) a Whig.  After this initial subprocedure you will be a Loyalist and (pejoratively) a Tory.  Obviously, a challenging surgical outcome.  But hey, it's the 21st century.  If not now, when?"

HUTCHINSON'S STRICTURES 

Yarvin then calls his "first witness"--Thomas Hutchinson, a leading Loyalist.  He allows Hutchinson to speak through his 1776 pamphlet Strictures upon the Declaration of the Congress at Philadelphia--a Loyalist attack on the Declaration of Independence.  He calls other witnesses, but they are all Loyalists.  He does this even though he says that "there is no such thing as a neutral primary source," which leads us to expect that he will introduce primary sources on both sides of the debate, but he never does.

Even in his exposition of Hutchinson's Strictures, Yarvin does not tell his readers that a dozen or more scholars studying the Declaration of Independence have critically responded to Hutchinson's pamphlet.  For example, Hans Eicholz has done this in his book Harmonizing Sentiments: The Declaration of Independence and the Jeffersonian Idea of Self-Government (New York: Peter Lang, 2001), which includes a reprint of Hutchinson's whole pamphlet.

Hutchinson concentrates mostly on the longest section of the Declaration--the list of 19 grievances against the King.  Yarvin quotes Hutchinson's comment on the first grievance:

"The first in order, He has refused his assent to laws the most wholesome and necessary for the public good; is of so general a nature, that it is not possible to conjecture to what laws or to what Colonies it refers.  I remember no laws which any Colony has been restrained from passing, so as to cause any complaint of grievance, except those for issuing a fraudulent paper currency, and make it a legal tender; but this is a restraint which for many years past has been laid on Assemblies by an act of Parliament, since which such laws cannot have been offered to the King for his allowance.  I therefore believe this to be a general charge, without any particulars to support it; fit enough to be placed at the head of a list of imaginary grievances."

Yarvin does not investigate the history of this first grievance.  But what Hutchinson says is enough for Yarvin to take it as an illustration of a general point: "these Congress people are so whack-a-doodle-doo, half the time your Lordship can't even tell what they're talking about."

 Eicholz indicates that Hutchinson was probably right in identifying the King's prohibition of laws for paper money as one case contributing to the first grievance.  Some of the Patriots--such a John Adams--might have agreed that paper money was not a good idea, but there was a more general point here: while the revolutionaries agreed that the King had the constitutional power to suspend acts of colonial assemblies, they complained that the King was not impartial in exercising that power--he would suspend colonial laws in favor of British interests, but he would not veto acts of Parliament to defend American interests.  In his Summary View of the Rights of British America, Thomas Jefferson remarked: "It is now therefore the great office of his majesty to resume the exercise of his negative power, and to prevent the passage of laws by any one legislature of the empire which might bear injuriously on the rights and interests of another."

There were also complaints about the King's prohibiting colonial laws to prohibit the importation of slaves, which favored British interests in the revenue to the Crown from the slave trade.  In Jefferson's original draft of the Declaration of Independence, he included this as a separate charge against the King.  This was stricken by Congress, presumably as a concession to those Americans who benefited from the slave trade.

Yarvin does not say anything about Hutchinson's remark on the 11th grievance:

"He has kept among us, in times of peace, standing armies, without the consent of our legislatures."

"This is too nugatory to deserve any remark.  He has kept no armies among them without the consent of the Supreme Legislature.  It is begging the question, to suppose that this authority was not sufficient without the aid of their own Legislatures."

Well, yes, but isn't Hutchinson also begging the question here by assuming the point under dispute--that the British Parliament has supreme power to rule over the colonists without their consent?  Like the Tories of the Stuart monarchy, American Tories like Hutchinson assert that the people must submit to the absolute rule of the Sovereign, the only difference is that Parliament has taken the place of the King.

EQUALITY AND SLAVERY

 Another sign of Hutchinson's Tory ideology is that he passes over the Declaration's affirmation of human equality of rights as too ridiculous to deserve any comment, although he does make a snarky remark about the hypocrisy of Americans owning slaves.  

Yarvin agrees in scorning the idea of natural human equality of rights, and for that reason he cheers for the Confederacy as fighting for the good cause of natural slavery.  He agrees with Alexander Stephens in his "Cornerstone Speech" of March 21, 1861, which he delivered when he was Vice-President of the Confederacy.  He criticized Jefferson for his mistaken assumption of the equality of races.  And he declared: "Our new government is founded upon exactly the opposite idea; its foundations are laid, its corner-stone rests, upon the great truth that the negro is not equal to the white man; that slavery--subordination to the superior race--is his natural and normal condition.  This, our new government, is the first, in the history of the world, based upon this great physical, philosophical, and moral truth.  This truth has been slow in the process of its development, like all other truths in the various departments of science."  To assume that the negro is equal in every respect to the white man, and thus entitled to equal privileges and rights with the white man, Stephens insisted, is "attempting to make things equal which the Creator had made unequal."

Yarvin says that since he has seen the evidence that there are racial differences in average IQ scores, he cannot believe in "human neurological uniformity," and therefore he must agree with Stephens.  He also says that this shows that Aristotle was right in claiming that slavery was natural--that "slavery is a natural human relationship."

Yarvin also praises Thomas Carlyle--his favorite author--for his defense of slavery and his insistence that negroes will never work in place like Haiti and Jamaica if they are not compelled to work by the "beneficient whip" of their masters.

Like Carlyle, Yarvin admits that some masters mistreat their slaves in abusive ways.  But he claims that this rarely happens, because most slave masters are benevolent in their treatment of their slaves.  He dismisses the depiction of the brutality of slavery in Harriot Beecher Stowe's Uncle Tom's Cabin as "propaganda."

On all of these points, Yarvin displays his question-begging rhetoric in refusing to acknowledge or reply to any criticisms of his claims.

First, Yarvin assumes that the principle of equality of rights must depend on seeing human beings as equal or identical in all respects--particularly, "neurological uniformity."  But he is silent about the fact that all the liberal proponents of natural equal rights--from John Locke to Thomas Jefferson to Abraham Lincoln to Charles Murray--affirm natural human differences as being compatible with equality of rights.  As I have written in previous posts, the natural differences among human beings give no one the natural right to rule over others without their consent; and the natural equality of opportunity in pursuing one's happiness does not produce an equality of outcomes in life.  The natural differences between individuals, between the sexes, and between races give no one the right to despotic dominance over others.

Second, Yarvin praises Carlyle for his defense of slavery in his pamphlet Occasional Discourse on the Nigger Question. (Please excuse the N-word.)  But Yarvin is silent about the fact that Carlyle's friend John Stuart Mill wrote a pamphlet replying to Carlyle--The Negro Question.  Mill challenged Carlyle on every point.  By what authority does the master rule over the slave?  The answer, Mill suggested, must be: the law of force.

A similar point could be made about Yarvin's references to Aristotle endorsing slavery as natural.  Yarvin does not tell his readers that Aristotle distinguishes natural slavery from conventional slavery.  Natural slaves are those very few people who as adults are unable to care for themselves--perhaps those with severe mental disabilities.  Conventional slaves are those held down by force against their will--as with those who become slaves by being captured in war.  Obviously, the institution of slavery as actually practiced can only be conventional, not natural.  Yarvin is silent about all of this.

He is also silent about the factual evidence for the brutality of slavery that Stowe presented to show that her novel was not just "propaganda."  She published a book--A Key to Uncle Tom's Cabin: Original Facts and Documents--in which she provided extensive documentation to confirm her claim that the fictional story of her novel was an accurate depiction of what American slavery was like.  Now, maybe Yarvin would want to say that her evidence is not persuasive, but he would have to argue for that, which he has not done, because he never wants the burden of responding to possible criticisms of what he says.

The Congress Has the Constitutional Power to Overturn the Supreme Court's Overturning of Roe v. Wade

While the Supreme Court has recognized many constitutional rights that are not specifically enumerated in the Constitution, Justice Samuel Alito observes in his draft opinion overturning Roe v. Wade, the abortion right is unlike these other rights in that it raises a "critical moral question":  How can a mother have a right to abortion if this means killing what some people call "potential life," and others call an "unborn human being"?  (See pp. 32-33.)  If this means killing innocent human life, why isn't that murder?  Or should we say that this is not murder because terminating potential human life is not the same as killing a human person?

Alito says that in his role as a judge interpreting the Constitution, he cannot answer this moral question, because he must restrict himself to legal questions.  But, in fact, he cannot interpret the constitutional legality of the abortion right without answering this moral question.  If he were to answer the question by saying that abortion is murder, because the unborn life in a mother is a human person, then he would have to conclude that since the Constitution explicitly protects the right to life of all persons, then abortion must be unconstitutional, and state governments may not legalize abortion.  But since Alito decides that state legislatures must be free to resolve this issue for themselves, and so they can choose to legalize abortion, that must mean that Alito has decided that abortion is not murder, because the unborn life in a mother is not a human person.

Alito says: "we thus return the power to weigh those arguments to the people and their elected representatives" (34-35).  By my count, Alito uses this language of returning authority "to the people and their elected representatives" seven times (31, 35, 40, 41, 61, 65, 67).  

In referring to the people's "elected representatives," he is clearly referring to state legislators.  But why shouldn't the nationally elected representatives in the U.S. Congress decide this issue?  And why shouldn't the Congress have the power to enact legislation to overturn Alito's overturning of Roe v. Wade by declaring that the original meaning of the 14th Amendment secures a constitutional right to abortion for all women in the United States, and therefore any state law denying this right to abortion is unconstitutional?

Now, of course, the Congress could also decide to enact legislation to support Alito's decision that the 14th Amendment does not secure a right to abortion, and so state legislatures are free to either protect or deny that right.  But in either case, the Congress would be the ultimate interpreter of the 14th Amendment.

That this is the case is made clear by Section 5 of the 14th Amendment: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."  (Remarkably, this language appears for the first time in the Constitution in the three post-Civil War Amendments--13, 14, and 15.  Later, it appeared in the 19th, 23rd, 24th, and 26th amendments.)

This is a clear statement of constitutional text that empowers Congress to interpret the 14th Amendment and to decide whether the original meaning of that amendment secures the right to abortion as a constitutional right, as one of those unenumerated natural rights that are "retained by the people" (9th Amendment).

Section 5 of the 14th Amendment is a constitutional text that supports what Jack Balkin calls "living originalism."  On the one hand, if Congress asserts a constitutional right to abortion, this will have no legitimacy if the Congress cannot persuade the American people that this assertion is grounded in the original meaning of the text and principles in sections 1-4 of the 14th Amendment.  On the other hand, the Congress's interpretation of the original meaning of that text and principles is not bound by the original intent and original expected application of those who wrote and ratified the 14th Amendment in 1868.

The "living Constitution" and "originalism" are two sides of the same coin.

The Original Meaning of the 14th Amendment Supports a Constitutional Right to Abortion

The leak of a draft opinion written by Justice Samuel Alito of the Supreme Court indicates that a majority of the justices are preparing to strike down Roe v. Wade (1973) and thus deny that there is a constitutional right to abortion.  

The possibility of doing this raises three questions.  The first is a moral question:  Is it morally wrong for a mother to abort her pregnancy, because this is murder?  The second is a constitutional question:  Does the Constitution secure a mother's right to abort her pregnancy?  The third is a political question:  What are the political consequences of striking down Roe v. Wade?  In a previous post, I have answered the first and third questions.  

THE MORAL QUESTION

I have argued that the moral question can be understood in the light of the evolutionary psychology of moral judgments about the parental care of children.  The more a zygote, an embryo, a fetus, or a newborn resembles a human person, the stronger the moral claim it makes on our evolved moral feelings of care for children.  This combines reason and emotion: we must reason about the natural process of human embryology and child birth and the natural moral emotions that might be evoked by that process.  Since zygotes or embryos do not look like human persons to us, we do not feel the same moral revulsion against aborting them that we feel against killing a newborn child.  That explains why for thousands of years, abortions early in pregnancy were not punished as murder.  Even today, among the most fervent pro-life people, who profess to believe that human life begins at conception, most of them do not want women who abort early in pregnancy to be punished as pre-meditated murderers.

Notice that even in Alito's opinion, he does not say that abortion is murder, because if he had, he would have had to say that abortion is unconstitutional because it would violate the constitutional right to life of unborn persons.  Instead, he leaves this to the state governments to decide.

THE POLITICAL QUESTION

Previously, I have answered the political question by predicting that if the Supreme Court were to overturn Roe v. Wade, that would become a huge political blunder by the Republican Party, because it would outrage the majority of American voters who want to preserve the constitutional right to abortion, which then would become a political weapon for the Democrat Party to defeat the Republicans in the mid-term elections and beyond.

My prediction is now being confirmed.  Why don't we see Republican leaders celebrating the overturning of Roe?  Why aren't they saying:  You see, our Republican-appointed justices are doing exactly what we promised they would do?  No, instead, Mitch McConnell and Fox News are saying the leaking of Alito's draft opinion is a trick by some Democrat who wants to provoke public anger against Republicans!

What this shows is that Republican leaders have pretended to want to overturn Roe in order to win the votes of the minority of Americans who want that, but they have hoped this would never happen, because of the backlash it would provoke from the majority of Americans who want Roe upheld.

Gallup polls have consistently reported large majorities in favor of preserving the constitutional right of mothers to choose abortion.  In 2021, 58% of Americans opposed overturning Roe; and only 32% supported overturning it.  In 2007, it was 66% in favor and 25% opposed.  That's why McConnell and Fox News are so worried.

If the Supreme Court does finally issue Alito's majority opinion overturning Roe in June, then the Congress has the constitutional power to overturn this decision.  In Section 5 of the 14th Amendment, it is said that "the Congress shall have the power to enforce, by appropriate legislation, the provisions of this article."  This allows the Congress to pass legislation declaring that the original meaning of the 14th Amendment recognizes a constitutional right to abortion.  If Republicans prevented the passage of such legislation, the Democrats could use this against Republican candidates in the mid-term elections.

THE CONSTITUTIONAL QUESTION

I have not yet written a post on the constitutionality of the right to abortion.  But I have written one arguing that the original meaning of the 14th Amendment supports the Obergefell decision that there is a constitutional right to same-sex marriage.  I can make a similar argument for the Roe decision.

I should emphasize, however, that I agree with Alito that the Court's reasoning for its conclusion in Roe was sloppy and unpersuasive in trying to ground the right to abortion in the Due Process Clause of the 14th Amendment.  But incorrect reasoning can often support correct conclusions.  And that's what happened in Roe.  It is possible to develop some correct reasoning about the original meaning of the Equal Protection Clause and the Privileges or Immunities Clause that supports a constitutional right to abortion.  

Here my thinking has been much influenced by Jack Balkin (2005, 2007, 2011), a professor at Yale Law School who expounds what he calls "living originalism" in the interpretation of the Constitution.  He argues that the traditional opposition between the "living Constitution" approach and "originalism" is a false dichotomy because they are actually two sides of the same coin.  Asserting a constitutional right has no legitimacy if it is not grounded in the original text and principles of the Constitution.  But the original meaning of the constitutional text goes beyond the original intent and original expected application of those who wrote and ratified the text.

Like Balkin, I would ground the constitutional right to abortion in the original meaning of the text and principles of the 14th Amendment rather than the original intent and original expected application of those who drafted and adopted the 14th Amendment.  The 14th Amendment does not specifically say that there is "a constitutional right to abortion."  And there is no evidence that the framers of the 14th Amendment intended or expected that this Amendment would be interpreted as supporting a constitutional right to abortion.  But then neither did they intend or expect that the 14th Amendment would be interpreted as supporting a constitutional right to interracial marriage, as happened in Loving v. Virginia (1967).  And yet most of us would agree that the Loving decision was correct, because we can see that there is a good argument for saying that state laws prohibiting interracial marriage violate the original meaning of the 14th Amendment's text and principles.

The text of the Constitution includes both enumerated powers and rights and unenumerated powers and rights.  Some of the enumerated powers and rights are so clearly specified that there can be no debate about their original meaning.  For example, the specification that the President must be at least 35 years old is so clear that there is little controversy about it.  But some of those enumerated powers and rights are stated as general concepts that are more difficult to interpret.  For example, the original meaning of the right to the "the freedom of speech" in the First Amendment is open to some debate as to what exactly is included in "freedom of speech."

The unenumerated powers and rights are stated as abstract principles that are even more difficult to interpret.  That the Constitution protects rights that are not specifically enumerated in the Constitution is made clear in the 9th Amendment: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."  The language of "retained by the people" suggest natural rights that people have prior to government.  I have written about this in my post on how the Lockean political philosophy of the Declaration of Independence is implicit in the Constitution, particularly in the 9th and 14th amendments.  

This was made clear by Representative John Bingham in 1866 when he first proposed the 14th Amendment, and he said that this amendment would give the federal government the power "to protect by national law the privileges and immunities of all the citizens of the Republic and the inborn rights of every person within its jurisdiction whenever the same shall be abridged or denied by the unconstitutional acts of any State."  Notice that Bingham did not specify exactly what those "inborn rights" were.  Similarly, Senator Jacob Howard in 1866 said that the privileges and immunities protected by the 14th Amendment "cannot be fully defined in their entire extent and precise nature."

The original meaning of the text of the 14th Amendment is expressed in abstract principles of justice--such as "the privileges or immunities of citizens of the United States," "life, liberty, or property," and "the equal protection of the laws."  Throughout the history of the United States, Americans have participated in a continuing discussion--including ordinary citizens, elected representatives, presidents, and judges--about how to interpret the original meaning of this text and how to apply it to the changing circumstances of the times.

The original meaning of the constitutional text goes beyond the original intent and original expected application of those who framed and adopted the text.  For example, those who framed and adopted the language of "equal protection" in the 14th Amendment assumed that this would not disturb the common law coverture rules, under which married women gave up their common law rights under the principle that their legal identity was merged into their husband's.  In his 1873 concurrence in Bradwell v. Illinois, which upheld a general prohibition on women becoming members of the Illinois Bar, Justice Bradley explained: "it is true that many women are unmarried and not affected by any of the duties, complications, and incapacities arising out of the married state, but these are exceptions to the general rule.  The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother.  This is the law of the Creator.  And the rules of civil society must be adapted to the general constitution of things, and cannot be based upon exceptional cases."  But now we can see that the common law rules of coverture were mistaken in assuming that men adequately represented women's interests.  And we can see that a legal prohibition on women becoming lawyers violates the original meaning of "equal protection of the laws" in the 14th Amendment, even though this was not the original intent and original expected application of the amendment.

When the 14th Amendment was ratified in 1868, most states had laws that criminalized abortions throughout the pregnancy.  There is no evidence that anyone at the time expected that the 14th Amendment would make these laws unconstitutional.  In his dissenting opinion in Roe v. Wade, Justice Rehnquist argued that this proved that the 14th Amendment was not originally intended to establish a right to abortion.  But this conflates original intent and original meaning.

Just as today we can see that laws prohibiting interracial marriage violate the original meaning of the 14th Amendment, we can also see that laws criminalizing abortion violate the original meaning of "privileges and immunities" and "equal protection."  Laws that criminalize abortion force women against their will to submit their bodies to the strains and risks of pregnancy and childbirth, and they require women against their will to become mothers with all the responsibilities that come with motherhood.  Criminalization of abortion thus denies women the liberty to choose whether or not they want to endure a pregnancy and become mothers.

Critics of the right to abortion argue that this right denies the rights of the unborn.  But we must consider whether the unborn have constitutional rights that take precedence over the rights of the mother.  There can be no right to abortion if the unborn are constitutional persons with their own rights.

Actually, none of the justices in Roe v. Wade and none of the justices in any of the abortion cases since Roe has ever claimed that the unborn are constitutional persons.  It's hard to find any text in the Constitution that would support this.  The Fifth Amendment says that "no person . . . shall be compelled in any criminal case to be a witness against himself."  How could a zygote or a fetus be compelled to testify against itself?

Section 1 of the 14th Amendment says: "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."  Does this mean that unborn "persons" are not eligible to be citizens?  Or, more likely, does it assume that all persons are born somewhere, and those born in the United States and those born elsewhere but subsequently naturalized are citizens?

Even if the unborn are not persons, they have the potential to become persons--that is, individual human beings--and consequently the state can take some interest in protecting potential human life.  The abortion cases have allowed for this by allowing state governments to regulate and even prohibit abortions once the unborn potential for human life has become evident, particularly after the point of viability.  This allows for a balance between the mother's freedom of choice early in the pregnancy and the value of potential human life later in the pregnancy.

But this recognizes that while the mother is a person with all the constitutional rights of persons, the unborn is not a person, although we might rightly give some value to the unborn as potential persons.

REFERENCES

Balkin, Jack, ed. 2005. What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision. New York: New York University Press.

________.  2007. "Abortion and Original Meaning." Constitutional Commentary 24:291-352.

________.  2011.  Living Originalism. Cambridge: Harvard University Press.