Overturning "Roe": The Incoherence of Original Intent, The Vindication of Original Meaning

The U.S. Supreme Court has now publicly issued its decision in Dobbs v. Jackson Women's Health Organization, which overturns its decision in Roe v. Wade (1973), and thus revokes the right of women to choose abortion during the early stages of a pregnancy.  Justice Alito wrote the majority opinion, with the concurrence of Justices Thomas, Gorsuch, Kavanaugh, Barrett, and Roberts.  Breyer, Sotomayor, and Kagan dissented.  

This is an amazing victory for the conservative legal movement as led by the Federalist Society, which has now successfully packed the Court with conservative judges.  But this decision in Dobbs also displays the incoherence in the conservative jurisprudential principle of "original intent," and in so doing, it vindicates the jurisprudence of "original meaning" or "living originalism."

In this post, I continue with some themes from previous posts on constitutional originalism, the abortion debate, and the earlier version of Alito's opinion that was leaked to the press in May (here, here, here, here, and here).

This is a stunning decision because this is the first time in American history that the Supreme Court has rescinded a constitutional right by allowing state governments to coercively deny what was previously recognized as a constitutionally protected individual right.  The Court is also suggesting--particularly in Justice Thomas's concurring opinion--that the Court might soon rescind other constitutional rights concerning contraception, homosexuality, and same-sex marriage.

I will identify four points of incoherence in the Dobbs decision.  I will also suggest how the U.S. Congress could overturn this decision.

THE NINTH AMENDMENT

Alito repeatedly declares that "the Constitution makes no reference to abortion" (1, 5, 14).  Since women's right to abortion during the early stages of pregnancy is not specifically enumerated in the Constitution, Alito argues, it should not be recognized as a constitutional right unless this right can be shown to be "deeply rooted in this Nation's history and tradition" and "implicit in the concept of ordered liberty"--the standard set in Washington v. Glucksberg (1997) (5, 13, 36).

This reluctance to recognize unenumerated rights in the Constitution ignores the Ninth Amendment: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."  In the Roe decision, the judges said that the abortion right could be founded in the Ninth Amendment, even though they favored the Fourteenth Amendment as a better textual foundation.  Although Alito mentions this, he otherwise says nothing about the Ninth Amendment; and he makes no attempt to refute the idea that the abortion right could be one of those many rights "retained by the people" and thus protected by the Constitution (9-10).

Originalist judges like Alito profess to abide by the entire text of the Constitution.  But then they contradict themselves when they ignore or even scorn the text of the Ninth Amendment.  This is what I see as the first point of incoherence in Alito's opinion.

Robert Bork expressed the scorn for the Ninth Amendment common among conservative judges in his 1987 testimony to Congress considering his nomination to the Supreme Court:

"I do not think you can use the Ninth Amendment unless you know something of what it means.  For example, if you had an amendment that says 'Congress shall make no' and then there is an inkblot, and you cannot read the rest of it, and that is the only copy you have, I do not think the court can make up what might be under the inkblot."

So conservative judges must dismiss the Ninth Amendment as a meaningless inkblot in the Constitution!

And yet there is a good argument for the suggestion in Roe that the abortion right could be one of those unenumerated rights that were "retained by the people."  At the time of the American founding, American law depended on the English common law; and the common law did not prohibit or regulate abortion in early pregnancy, because it was assumed that a fetus had no separate existence from a pregnant woman until the woman felt the fetus moving, which was called "quickening," and which could occur as early as the 15th week of the pregnancy and as late as the 25th week.  

One can see this common law principle in William Blackstone's Commentaries on the Laws of England, first published in 1765, which was the legal text most widely read in America.  In his chapter on "the rights of persons," Blackstone identifies the "right of personal security" as "a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation."  He then explains: "Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother's womb.  For if a woman is quick with child, and by a potion, or otherwise, killeth it in her womb; or if any one beat her, whereby the child dieth in her body, and she is delivered of a dead child; this, though not murder, was by the ancient law homicide or manslaughter" (1765, I:125).

Notice that the right to life of the fetus begins at the point of quickening, so that if the mother aborts the fetus before this point, this is not murder.  Thus does the common law balance the right to life of the fetus against the right of the mother to abort as part of her bodily liberty.  The Roe decision set up a similar balance between the two rights, except that the critical point for Roe was viability rather than quickening.

Although Alito quotes from Blackstone, he never quotes the passage above, because he doesn't want to admit that the common law identified quickening as the point at which the fetus's right to life emerges.

Mississippi's "Gestational Age Act" that was at issue in Dobbs prohibits abortion after 15 weeks of pregnancy.  This coincides with the earliest point of "quickening."  Therefore, the Court could have decided that a 15-week cutoff point was close to the old common law standard, and that this could be upheld without totally overturning Roe.  As Justice Roberts argued in his opinion, 15 weeks would leave women with plenty of time to decide about abortion.  Most women know their pregnant by the 6th week.  And most abortions occur in the first trimester of pregnancy.  As many of the critics of Roe have said, the standard of viability is vague and arbitrary.  But the Court could have overruled the viability standard while still upholding women's right to choose abortion before the 15th week.  The majority in Dobbs rejected Roberts' proposal because they were determined to engage in conservative judicial activism.

WHY THE SILENCE ABOUT NOTE 19 OF GLUCKSBERG?

The second example of incoherence that I see in Alito's opinion is that he both affirms and denies the decision in the Glucksberg case.  On the one hand, he relies on the claim in Glucksberg that the only unenumerated constitutional rights are those that are "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," and then he says that the abortion right in Roe clearly does not satisfy this standard (727).  On the other hand, he is totally silent about footnote 19 of this opinion, in which there is a list of eight decisions that correctly identify unenumerated individual rights that are "deeply rooted in our history and traditions," and Roe is one of them.  The footnote cites Roe as "stating that at the founding and throughout the 19th century, 'a woman enjoyed a substantially broader right to terminate a pregnancy,'" which endorses the common law rule of quickening as allowing an abortion right in early pregnancy.

In the oral arguments before the Court in the Dobbs case, one of the lawyers pointed out this contradiction to Alito--that he was suggesting that overturning Roe could be justified by the Glucksberg standard, even though footnote 19 upheld Roe.  In the oral arguments, Alito said nothing in reply to this objection.  In his written opinion, he says nothing about footnote 19.  This silence is a remarkable illustration of Alito's evasive deceptiveness.

ORIGINAL INTENT OR ORIGINAL MEANING?

The list of eight decisions in footnote 19 includes some where the Court found unenumerated constitutional rights in the original meaning of the14th Amendment, even though there was no clear evidence that these rights were part of the original intent or the original expected application of the framers and ratifiers of that amendment in 1868.  For example, Loving v. Virginia (1967) is on the list, as holding that "the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness."  This decision struck down as unconstitutional state laws requiring racial endogamy--that is, prohibiting mixed-race marriages.  There is no persuasive evidence that those in the Congress who framed and voted for the 14th Amendment and those in the states who ratified that amendment in 1868 understood the amendment as prohibiting the states from making mixed-race marriages illegal.

Originalist conservatives who insist on adhering strictly to the "original intent" of those who framed or ratified the constitutional text should say that Loving was an incorrect decision that should be overturned.  They do not say this, however, because they know that Loving is generally accepted as a correct decision.  I see this as a third point of incoherence in conservative originalism.

To avoid this kind of contradiction in their position, conservatives should say that we must adhere not to the "original intent" of the constitutional framers and ratifiers, but to the "original meaning" of the constitutional text itself.  Even though the framers and ratifiers of the 14th Amendment did not expect a decision like Loving, we can argue that the meaning of the text and principles of that amendment can properly be interpreted as prohibiting state laws making mix-race marriages illegal.

In the same way, we could say that even if securing women's abortion right in early pregnancy was not part of the original intent or original expected application of those who framed and ratified the 14th Amendment in 1868, we can make a good argument that the original meaning of the amendment can be interpreted as supporting this as a constitutional right.

Similarly, Alito endorses Brown v. Board of Education in its overturning the "separate but equal" doctrine that allowed the States to maintain racially segregated school (40).  But he makes no attempt to show that this was the original intent of those who framed and ratified the 14th Amendment in 1868.  In fact, there is plenty of evidence that this was not their original intent.  So, again, Alito must contradict himself--both affirming and denying original intent as his standard for constitutional jurisprudence.

WILL THE CONSERVATIVE COURT RESCIND OTHER CONSTITUTIONAL RIGHTS?

Another contradiction in Alito's opinion is that he says that his reasoning in overturning the abortion right in Roe will not support the overturning of other constitutional rights--such as contraception (Griswold), homosexual liberty (Lawrence), or same-sex marriage (Obergefell).  But then he does not explain how the holdings in these cases could be justified as part of the original intent of those who framed and ratified the 14th Amendment, and therefore he leaves his reader suspecting that overturning these decisions might be the next step for the conservative judicial activists on the Court.

Indeed, Justice Thomas suggests this in his opinion when he says that "in future cases, we should reconsider all of this Court's substantive due process precedents, including Griswold, Lawrence, and Obergefell" (3).  Now, Thomas does say that after "overruling these demonstrably erroneous decisions," the Court could consider "whether any of the rights announced in this Court's substantive due process cases are 'privileges or immunities of citizens of the United States' protected by the Fourteenth Amendment."  (Significantly, Thomas does not include the Loving decision upholding the constitutional right to interracial marriage as one of the decisions the Court needs to "reconsider"--presumably because he has a personal interest in protecting that decision!)

I agree with Thomas that the "privileges or immunities" clause is a more plausible ground for unenumerated individual rights than the "due process" clause.  But this will work only if one moves from original intent to original meaning, which Thomas, Alito, and most of the originalists refuse to do.

HOW CONGRESS COULD OVERTURN THIS DECISION

Alito and the majority in Dobbs say that their decision turns the moral debate over abortion rights away from the courts to the American people as represented in their state legislatures.  But in saying that, they ignore the possibility provided by the Constitution that the popular rejection of the Court's decision in this case could be expressed in congressional legislation overturning this decision.

Section 5 of the 14th Amendment declares: "The Congress shall have power to enforce by appropriate legislation, the provisions of this article."  If the majority of those in the Congress believe that the Court's overturning of Roe is a mistaken interpretation of the original meaning of the 14th Amendment, they can pass legislation to correct that misinterpretation and declare that this amendment does protect women's right to decide on abortion early in a pregnancy.

This is as it should be, because the Supreme Court is not the only interpreter of the Constitution.  Often the original meaning of a constitutional text is unclear, and in that case, we must have a moral and legal debate over its meaning.  This calls for a deliberative process in which the people can ask their congressional representatives to correct the mistakes of the Court.

We see that happening right now.  The Dobbs decision has provoked a political upheaval in the United States.  If the Congress does not soon overturn this decision, many voters in the mid-term elections will demand that those politicians running for election promise "to enforce by appropriate legislation" the original meaning of the 14th Amendment as protecting abortion rights.  The Trump Republicans will have to persuade the voters to accept the Court's decision by electing representatives pledged to support the decision in Dobbs.

In this way, the people and their representatives will decide the debate over constitutional jurisprudence as to whether we should look to the original intent of the constitutional texts or their original meaning.

The Three Waves of Adam Smith's Darwinian Liberal Moral Theory

 In the middle of July, I will be in Bogota, Columbia, for the 2022 Conference of the International Adam Smith Society.  I will present a paper entitled "The Three Waves of Adam Smith's Darwinian Liberal Moral Theory."  Here is a short summary of a long paper:

          I have argued that we should see Charles Darwin, Edward Westermarck, and Edward O. Wilson as the three waves of Adam Smith’s Darwinian liberal theory, because each of them initiated a new turn in the evolutionary moral psychology that has confirmed and deepened Smith’s liberal theory of the moral sentiments.

          I have identified this as a liberal moral theory for three reasons.  It assumes a liberal individualism that recognizes the natural separateness of individuals and the moral claims that individuals make.  It asserts the liberal no-harm principle of justice as a “negative virtue” that hinders individuals from any unprovoked harming of others.  And it employs the liberal idea of society as a largely self-regulating and spontaneous order arising from the social interaction of individuals seeking to satisfy their individual desires.

          I have defended this as an empiricist moral anthropology that arises from the coevolution of human nature, human culture, and human judgment.  This revives an ancient Greek liberal evolutionary tradition that is set against the traditional Platonic idea that moral order must conform to some transcendentalist moral cosmology of a cosmic God, a cosmic Reason, or a cosmic Nature. 

In The Theory of Moral Sentiments, Smith did often invoke the transcendentalist moral cosmology of a moral divinity enforcing a divine moral law through eternal rewards and punishments.  But as Smith made clear in his praise of Hume as “a perfectly wise and virtuous man,” Smith was an esoteric writer whose public teaching of religious morality had concealed from most of his readers his philosophic teaching that irreligious skeptics like Hume could be wise and virtuous.

I have shown how evolutionary moral psychology supports Smith’s theory of moral sentiments through seven ideas:  the four grounds of evolutionary morality, the evolutionary roots of morality in primates, the expression of the instinctive moral sentiments in human children, the moral psychology of the impartial spectator in evolutionary game theory, the evolutionary science of the universal moral rule condemning incest, the evolutionary morals of markets, and the evolutionary history of trade as expressing the natural human “propensity to truck, barter, and exchange.”

I have replied to the two most common objections to evolutionary ethics.  One objection is that evolutionary moral psychology is ultimately nihilistic in promoting the idea that morality is a fictional creation of the human mind that does not conform to any eternal reality of moral facts inscribed in the cosmic order of the world.  My response to this objection has been to argue that while an evolutionary sentimentalist morality is created by the human mind, that does not make morality arbitrary or fictional.  The human morality of the natural moral sentiments is real:  although it is not an eternal reality, it is an enduring reality that will endure for as long as our evolved human nature endures. 

The second objection is that evolutionary ethics commits the “naturalistic fallacy” by assuming that moral values can be inferred from natural facts.  My reply has been to argue that there is no fallacy in understanding moral judgments to be factual judgments about the species-typical pattern of moral sentiments in specified circumstances:  it is natural for human beings that certain moral feelings of approbation or disapprobation tend to be aroused by certain facts, and the experience of such feelings is the only ground for our moral judgments.

          From all of this, we can see that a Darwinian liberal theory of the Smithian moral sentiments offers us one way of understanding our human place in nature.  We are neither mindless machines nor disembodied spirits.  We are animals.  As animals, shaped by our natural evolutionary history as primates, we display the animate powers of nature for movement, desire, and awareness.  We move to satisfy our desires in the light of our awareness of the world.  We are a unique species of animal, but our distinctively human traits—such as symbolic speech, practical deliberation, and conceptual thought—are emergent elaborations of powers shared in some form with other animals.  Our powers for habituation and learning allow us to alter our natural environments, but even these powers are emergent extensions of the behavioral flexibility shown by other animals.  So even if the natural world was not made for us, we were made for it, because we are adapted to live in it.  We have not been thrown into nature from some place far away.  We come from nature.  It is our home.

The Biological Science of Race and Human Biodiversity Cannot Justify Payton Gendron's Mass Murder of Blacks in Buffalo

                                                                        Payton Gendron

On May 14th, Payton Gendron used an assault weapon to kill 10 Black men and women in a grocery store in Buffalo, New York.  He has been arrested and charged with murder, including charges of violating "hate crime" laws.  He has pled not guilty.  He has published on the internet a 180-page manifesto justifying his mass shooting.

Gendron is 18 years old.  He will turn 19 on June 20.  He has lived his whole life in the Southern Tier of New York State, with both of his parents and two brothers.  It seems to be a stable, middle-class family.  His parents are engineers.  He graduated near the top of his class in high school.  He is enrolled in college with a major in Engineering Science.  He has no history of mental disability.  The writing of his manifesto shows remarkable intelligence.

To explain how he became radicalized, Gendron says that in the summer of 2020, he became bored with being confined to his home by the pandemic.  He started surfing the internet, and he became fascinated with Brenton Harrison Tarrant, the Australian who murdered 51 people at two mosques in Christchurch, New Zealand, on March 14, 2019.  His reading of Tarrant's manifesto started him on his research into problems with nonwhite immigrants in White countries.

I was interested in Gendron's manifesto because much of his argument is based on extensive research into the biological science of race and human biodiversity.  Some people have said that this shows how dangerous biological studies of race can be because they can promote murderous racism.  One of the scientists whose work Gendron cites--Michael Woodley--has come under fire with some people arguing that he should be fired from his academic position in Belgium.  

Woodley is only one of dozens of scientists cited by Gendron, which includes J. Philippe Rushton and the science journalist Nicholas Wade.  I have written a series of posts on Wade.  In February, I wrote a post on Rushton, E. O. Wilson, and the biological study of race.  At the end of that post, there are links to a series of 10 posts in which I argue that the biological reality of race and racial differences is compatible with the Lockean liberal principle of human equality of rights.  I also argue against the ethnic nationalism of people like Frank Salter, who roots his reasoning in evolutionary psychology.  All of my reasoning in those posts would apply to Gendron's manifesto.  All of this is in support of my Darwinian Lockean Liberalism.

Here is Gendron's explanation for why he carried out the shooting in Buffalo:

Why did you decide to carry out the attack? 

To show to the replacers that as long as the White man lives, our land will never be theirs and they will never be safe from us. 

To directly reduce immigration rates to European lands by intimidating and physically removing the replacers themselves. 

To intimidate the replacers already living on our lands to emigrate back to their home countries. 

To agitate the political enemies of my people into action, to cause them to overextend their own hand and experience the eventual and inevitable backlash as a result. 

To incite violence, retaliation and further divide between the European people and the replacers currently occupying European soil. 

To show the effect of direct action, lighting a path forward for those that wish to follow. A path for those that wish to free their ancestors lands from the replacers grasp and to be a beacon for those that wish to create a lasting culture, to tell them they are not alone. 

To create an atmosphere of fear and change in which drastic, powerful and revolutionary action can occur. 

To add momentum to the pendulum swings of history, further destabilizing and polarizing Western society in order to eventually destroy the current nihilistic, hedonistic, individualistic insanity that has taken control of Western thought. 

Most of all it was to spread awareness to my fellow Whites about the real problems the West is facing, and to encourage further attacks that will eventually start the war that will save the Western world, save the White race and allow for humanity to progress into more advanced civilizations (4).

Gendron's justification for doing this is based on five main ideas in his manifesto:  white supremacy, ethnic nationalism, replacement theory, anti-semitism, and inegalitarianism. I will be citing the page numbers of the pdf file.

White supremacy.  Gendron identifies himself as a white supremacist, because he believes that "the White race is superior in the brain to all other races," and because of this intellectual superiority, the White race is responsible for the success of modern Western European culture (7).  He defines the "White race" as those who are both ethnically (genetically) and culturally European (9, 54, 175).  

As proof that the Whites are "superior in the brain," he cites the studies of IQ distributions for Black and White populations that show two overlapping bell curves, with the average for Whites being about one standard deviation (or about 15 IQ points) higher than the average for Blacks.  He presents scientific research suggesting that this is a genetic difference between the White and Black races as subspecies of the same human species (14-18).  He concedes that since the races can interbreed, the races are mixed, and so the boundaries between the races are somewhat fuzzy.  But still he can identify the Black race as including all of those who are descendants of Sub-Saharan Africans.  Most African-Americans fit in this category, although he would exclude those that are 87.5% or higher of another race.

The average superiority of the White race includes not just IQ but other kinds of human biodiversity--much of which might be based on IQ differences.   As compared with Whites, Blacks are on average more aggressive, more violent, more likely to commit crimes, more narcissistic, more likely to be imprisoned, and more likely to cheat on their spouses (17-21).  For all of this, he cites the scientific research in behavioral genetics.

There are many problems with Gendron's arguments for White supremacy.  I will point to two.  First, those famous overlapping bell curves in the distribution of Black and White IQ distributions (14) are significant in their being overlapping bell curves, which means that while there is an average difference between the races as groups, it is not true that every White individual has a higher IQ than every Black individual.  Many Black individuals are superior in IQ to many White individuals.

To assert White supremacy, Gendron must assume that we will always identify people as group members not as individuals.  He never justifies this, except to denigrate "individualism" as morally corrupt.  But what's morally corrupt about saying that fairness demands that we should treat people as what they are as individuals rather than as members of some group?  Would Gendron say that we must treat low-IQ Whites as if they were high-IQ because they belong to a race that on average has a higher IQ than other races?

The second problem is that the scientific studies of racial differences in average IQ do not claim that the White race is superior on average to all other races.  The East Asians (Japanese, Korean, and Eastern Chinese) are superior on average to Whites.  So why doesn't Gendron promote East Asian supremacy?

In fact, he has one short section of his manifesto on the superiority of East Asians (53).  He writes: "I think that East Asians are quite admirable.  The average East Asian tends to perform better in academics than the average White, which of course leads to more skilled and higher-paying jobs.  This is all due to superior traditional values and genetics.  However, they do not belong in White civilizations.  To preserve our cultures and people we must be physically separated."  This contradicts his claim that "the White race is superior in the brain to all other races" (7).

Ethnic nationalism.  To escape this self-contradiction, Gendron could say that he's not defending the superiority of the White race to all other races, but that he's defending ethnic nationalism.  He does in fact identify himself as an ethnic nationalist (4, 6-7, 10, 55, 166, 169).  And even though I haven't noticed any reference to Frank Salter in his manifesto, Gendron often suggests that he proposing something like Salter's ethnic nationalism, which would say that all human beings have a natural desire for ethnic identity that cannot be satisfied in a multiethnic society, and every healthy society must satisfy that desire for homogeneous ethnic identity.  So even though the East Asians are naturally superior to the Whites, it's best that they be physically separated in different countries.  This is what Salter calls "universal nationalism":  every ethnic group has an equal right to live in its own homeland and exclude all other ethnic groups from that homeland.  I have written some posts (here and here) against Salter's reasoning.  I agree that there is a natural evolved instinct for tribalism--for distinguishing in-groups and out-groups--but I don't see any evidence that this must be expressed as a natural desire for ethnic identity in an ethnically homogeneous society.  

Salter identifies various “ethnic states” in the modern world, but he admits that “no state yet developed has reliably kept its promise as an adaptive ethnic group strategy," which includes “the best known modern ethnic state”—Nazi Germany.   The reason for this, I would say, is that human beings do not have a natural desire for an "adaptive ethnic group strategy," and they are happy to live in multiethnic liberal societies.

Replacement theory.  Gendron's answer to me is that no, human beings are not happy in multiethnic societies, because they really do want to live in an ethnically homogeneous society that conforms to their ethnic identity.  That's what Gendron himself wants.  He's White, so he wants to live in a predominately White society.  His desire has been frustrated only because of the "Great Replacement" conspiracy.  Some global elites--mostly Jews--have promoted free immigration so that nonwhites can replace the White race in Europe and North America.  This replacement is a form of genocide because it is aimed as extinguishing the White race.

The ultimate problem here, according to Gendron, is the low fertility rates for White Europeans as compared with the high fertility rates for nonwhite immigrants.  In the long run, the White race will go extinct if fertility rates remain below "replacement" rates.  Remarkably, Gendron admits that he sees no way to raise those White fertility rates.  But, in the short run, he wants to kill or deport the "replacers"--the nonwhite immigrants with high fertility rates.  Like Salter, Gendron seems to admit that no state has succeeded in an "adaptive ethnic group strategy."

Antisemitism.  Apparently, that failure of ethnic nationalism has come from the influence of the Jewish elites who have promoted the liberal globalism that subverts nationalism.  A good part of Gendron's manifesto is devoted to his hatred for Jews as the advocates of liberalism and libertarianism (34).

This is remarkable because Gendron admits that Jews are "ethnically White" and "racially White" (26).  So why doesn't White supremacy include the Jews?  The problem with the Jews, according to Gendron, is not their ethnic or racial identity but their religion (26-30).  Their Jewish religious heritage separates them from the Christian culture of the White Europeans.  At this point, one might expect Gendron to identify himself as a Christiani white supremacist.  But he cannot do that because he says that he is not a Christian: "No.  I do not ask God for salvation by faith, nor do I confess my sins to Him.  I personally believe there is no afterlife.  I do however believe in and practice Christian values" (7).  So is he saying that White identity does not require Christianity, but it does require "Christian values"?

There is another problem with Gendron's anti-semitism.  Many of the scientific studies of the biology of IQ that Gendron cites indicate that the Jews--and particularly Ashkenazi Jews--have the highest average IQ of any racial or ethnic group tested: with average IQ of around 115.  Gendron has one short section of his manifesto that denies this (36).  But the skimpy evidence he presents is not clear.

Inegalitarianism.  Perhaps the most fundamental assumption in Gendron's manifesto is that human beings cannot have equal rights if they are not biologically identical (158, 165).  "No two different things can ever truly be equal, especially humans.  There is no one person equal to any other, not identical twins, not countrymen, not workers within a class group and certainly not those of differing races."  "Diversity is anathema to equality.  One cannot exist with the other."

This ignores the fact that no liberal theorist of human equality of rights has ever asserted that this means that all human beings are the same.  Natural differences in the average propensities and traits of the human races is compatible with the Lockean liberal principle of equal liberty.  Lockean equality means not that all people are identical--in intelligence or in many other respects--but that all people are similar in resisting exploitation by others, so that no human being is good enough to govern any other human being without that person's consent.  Equal liberty requires not equality of outcome, but equality of opportunity in the pursuit of happiness.  In a society of equal liberty, those individuals who are naturally more intelligent or talented than others will reap the benefits of those superior traits, but those superior individuals will have no right to exploit those of lesser abilities.  In such a society, everyone can find valued places for themselves.

Adam Smith on the Death of His Friend David Hume: How Smith Revealed Himself to be a Skeptic and the Last Esoteric Writer

                                                          David Hume's Tomb in Edinburgh

The best objection to my claim that Adam Smith proposed a liberal moral anthropology that does not depend on a transcendent moral theology is that Smith sometimes invoked God as the ultimate enforcer of the moral law by punishing the bad and rewarding the good in the afterlife.  In some previous posts (here, here, and here), I have answered this objection by arguing that Smith shared the atheism or skepticism of his best friend David Hume, but that to avoid persecution, Smith engaged in esoteric writing to hide his skepticism from his Christian readers.

The best evidence for this is in Smith's letter on the death of Hume--the Letter to William Strahan of November 9, 1776--in which he publicly and explicitly endorsed Hume's skepticism by praising him as a wise and virtuous man, indicating that religious belief was not indispensable for morality, and suggesting that he no longer saw the necessity for esoteric writing, because he lived in a society that was liberal enough to tolerate freedom of thought and speech for philosophers like Hume and himself.  He thus became the last esoteric writer and signaled the success of the liberal Enlightenment in making esoteric writing unnecessary and undesirable.  (On Smith's esotericism, see Klein 2021 and Klein and Merrill 2021.)

Previously (here, and here), I have written about the Straussian account of how philosophers have had to employ esoteric writing to protect themselves from persecution.  But I have also noted that Leo Strauss and the Straussians contradict themselves on this when they concede that the success of the liberal Enlightenment--beginning around 1800--has freed philosophers and scientists from the need for esoteric writing.  I have also argued (here) that contrary to the Straussians, the philosophic friendship of Adam Smith and David Hume shows how a liberal commercial society promotes freedom for the philosophic life.

Now I want to indicate how Smith's Letter to Strahan confirms all of this.  My thinking about this has been stimulated by my reading of Dennis Rasmussen's The Infidel and the Professor: David Hume, Adam Smith, and the Friendship that Shaped Modern Thought (Princeton University Press, 2017).

By January of 1776, Hume's health had become so poor that he foresaw that he would have only a few months to live.  His symptoms indicate that he was probably suffering from ulcerative colitis and colon cancer.  He drew up his will, and he named Smith as his literary executor.  He asked that Smith oversee the posthumous publication of his Dialogues Concerning Natural Religion.  Hume had worked on the Dialogues since the early 1750s, and he made a few final changes in 1776.  Smith refused to carry out his friend's request, saying that he did not want the book to be published during his lifetime.  Some scholars have wondered whether Smith's denial of his friend's dying wish tarnished their friendship.

The primary theme of the Dialogues is debating two arguments for the existence of God.  First, there's the argument from design--that the order of the world implies the existence of God as the supremely wise, powerful, and benevolent designer.  Second, there's the argument for a first cause--that everything in the world must have a cause, and if we trace back the string of causes, we must arrive at the First Cause of the universe, which must be God.  One of the leading characters in the dialogue--Philo--is a skeptic who presents seemingly devastating refutations of these arguments, although at the very end of the book, Philo seems to accept a very limited version of the arguments from design and first cause as suggesting that "the cause or causes of order in the universe probably bear some remote analogy to human intelligence."  But this "remote analogy to human intelligence" doesn't look like the Biblical God, so this appears to be some kind of Deism (Hume, Writings on Religion, edited by Antony Flew [La Salle, IL: Open Court, 1992], 291).  

Philo suggests that this debate reaches an impasse in the problem of ultimate explanation--that all explanation depends on some ultimate reality that cannot itself be explained.  All explanation presupposes the observable order of nature as the final ground of explanation.  To the question of why nature exists or why it has the order that it does, there are only two possible answers.  We can say this is a brute fact of our experience: that's just the way it is!  Or we can move beyond nature to nature's God as the cause of nature, but then we cannot explain what caused God, or why God is the way He is.  Thus, it seems that in looking for ultimate explanation, we must stop somewhere with something that is unexplained--either an uncaused or self-caused nature or an uncaused or self-caused God.  Why is there something rather than nothing?  Well, why not?  We might say that God caused something to come out of nothing.  But this is nonsensical, because surely God is something not nothing!  (Hume, Writings on Religion, 57, 103, 222-24, 241-42).  (I have written about this in some previous posts, and I have written about Hume's religion.)

When this book was finally published in 1779, three years after Hume's death, it was widely condemned for promoting atheism and thus denying the religious beliefs in immortality in the afterlife with divine rewards and punishments that provide the essential support for morality.  One reviewer warned that according to Hume's teaching, "the wicked are set free from every restraint but that of the laws; the virtuous are robbed of their most substantial comforts; every generous ardor of the human mind is damped; the world we live in is a fatherless world; we are chained down to a life full of wretchedness and misery; and we have no hope beyond the grave" (quoted in Rasmussen, 193).

Anticipating that Hume's book would provoke this kind of popular denunciation explains why Smith did not want to be associated with its publication.  Smith said that he was "uneasy about the clamour which I foresee [the Dialogues] will excite." He said that the Dialogues "tho' finely written I could have wished had remained in Manuscript to be communicated only to a few people" (quoted in CAS, 211).  After all, even Hume must have seen this problem, because he refused to have this book published during his lifetime, to avoid the "clamour" its publication would excite, while circulating the manuscript privately among a few of his friends.

After Smith refused to publish the book, Hume asked William Strahan, his publisher, to take on the work of seeing it through to publication after Hume's death.  Hume changed his will to give the manuscript of the Dialogues to Strahan, but he also stipulated that if Strahan did not have the book published within two and a half years of Hume's death, the manuscript would be passed to Hume's nephew, David, who would have the duty of having it published.  Hume wrote to Strahan that "I often regretted that a Piece, for which I had a particular Partiality, should run any hazard of being suppressed after my Decease."

As an extra security, Hume asked Smith to hold a copy of the manuscript for safe keeping: "It will bind you to nothing, but will serve as a Security."  He also observed to Smith: "On revising them (which I have not done these 15 Years) I find that nothing can be more cautiously and more artfully written.  You had certainly forgotten them."  That Hume saw his text as "cautiously" and "artfully written" probably indicates that Hume thought that having Philo accept a Deistic theology at the end of the book was enough to soften the harshness of Philo's skepticism for Christian readers.

Philo concedes that "the whole of Natural Theology" might be reduced to one simple proposition: "That the cause or causes of order in the universe probably bear some remote analogy to human intelligence" (Writings on Religion, 291).  But the reader should note that this "remote analogy to human intelligence" must be very remote, because Philo has pointed out that all intelligent designers (human and animal) of our experience are embodied intelligences (230).  We have had no direct experience of how a disembodied divine intelligence designs a universe.  This is the sophistical equivocation at the foundation of all "intelligent design theory"--the equivocation in "intelligent design" that infers divine intelligent design (of which we have no experience) from our experience of human intelligent design.  I have written about this as the problem in Stephen Meyer's intelligent design argument.

Apparently, Smith did not think that Hume's Philo was "artful" enough to hide Hume's teaching from readers who would see it as blasphemous atheism or at least skepticism.  Strahan must have agreed with Smith, because after Hume's death Strahan decided he could not supervise the publication of the book.  So the manuscript was passed to Hume's nephew, who had it published in 1779.  And just as Smith foresaw, it provoked a "clamour."

Some scholars have said that since Smith was a Christian or at least a believer in a natural theology in which God is the "Author of Nature," he must have been offended by Hume's skepticism, and for that reason Smith refused to supervise the publication of the Dialogues.  But that cannot be true, because if it were true, there would be no way to explain the deep intellectual friendship of Smith and Hume and the fact that Smith never expressed any disagreement with Hume's views of religion.  Moreover, Smith's Letter to Strahan is his most emphatic public endorsement of Hume's life as a skeptical philosopher.

Hume's reputation for being an infidel who denied the immortality of the soul, the eternal afterlife, and divine providence made his declining health and approaching death a matter of general curiosity, because religious believers assumed that he would become so anxiously fearful of death and eternal judgment that he would be forced to repent of his infidelity and ask for divine forgiveness.  Hume was aware of this, and he was determined to show that a skeptic could face death with calm equanimity.  

In the last eight months of his life, up to his death on August 25, 1776, at the age of 65, he had jovial conversations and parties with his friends, he played his favorite card game whist, he traveled around England, and he worked on revising his collected writings.  He also wrote a short autobiography My Own Life that he wanted published after his death as the preface of his collected works that would be his final message to his readers.  In all of this, he wanted to show the world that a philosophical skeptic could live and die well.

Smith offered to reinforce this message by composing a letter to Strahan that would give an account of Hume's last days that would be published after his death along with Hume's My Own Life.  Smith asked Hume's permission to do this.  In Hume's final letter of his life, written two days before his death, he gave Smith "entire liberty" to write whatever he wished about Hume's life.  His last words in that letter were "Adieu My dearest Friend" (CAS, 208).

In a letter to Alexander Wedderburn, on August 14, eleven days before Hume's death, Smith wrote: "Poor David Hume is dying very fast, but with great cheerfulness and good humour and with more real resignation to the necessary course of things, than any Whining Christian ever dyed with pretended resignation to the will of God."  He added: "Since we must lose our friend, the most agreable thing that can happen is that he dyes as a man of sense ought to do" (CAS, 203-204).

Smith seemed to have liked the word "whining" as describing Christians.  In his sixth and last edition of The Theory of Moral Sentiments, published only weeks before his death on July 17, 1790, Smith added some references to "whining" Christians, references that had not appeared in the previous editions.  He identified "those whining and melancholy moralists, who are perpetually reproaching us with our happiness," and he mentioned Pascal as an example (TMS, 139, 283).  

After Hume's death, Smith wrote his Letter to William Strahan, with the date November 9, 1776, which began: "It is with a real, though a very melancholy pleasure, that I sit down to give you some account of the behavior of our late excellent friend, Mr. Hume, during his last illness" (CAS, 217-221).  The theme of friendship begins with this first sentence.  Hume is described as engaged in frequent conversations with his friends.  The word "friend" appears 17 times in this six-page letter.

Even as his symptoms became violently painful, and as the approach of death became ever more certain, Hume is said to have "submitted with the utmost cheerfulness, and the most perfect complacency and resignation."  After he returned to Edinburgh from a trip to England, Hume's "cheerfulness never abated, and he continued to divert himself, as usual, with correcting his own works for a new edition, with reading books of amusement, with the conversation of his friends; and, sometimes in the evening, with a party at his favourite game of whist."

Smith relates that Hume had been rereading Lucian, an ancient Greek writer who satirized ancient superstitions and religious practices.  He had read Lucian's account of Charon, the Greek mythic ferryman of Hades who carried souls of the newly deceased across the river Styx to the world of the dead.  Hume said he was imagining what excuses he could give Charon to delay his transport to Hades.  One excuse was "Have a little patience, good Charon, I have been endeavouring to open the eyes of the Public.  If I live a few years longer, I may have the satisfaction of seeing the downfall of some of the prevailing systems of superstition."  But Charon would retort: "You loitering rogue, that will not happen these many hundred years.  Do you fancy I will grant you a lease for so long a term?  Get into the boat this instant, you lazy loitering rogue."

Actually, Smith toned down Hume's attack on religion in this story.  In his letter to Alexander Wedderburn of August 14, 1776, Smith recounted Hume's story this way: "at last I thought I might say, Good Charon, I have been endeavouring to open the eyes of people; have a little patience only till I have the pleasure of seeing the churches shut up, and the Clergy sent about their business; but Charon would reply, O you loitering rogue; that wont happen these two hundred years; do you fancy I will give you a lease for so long a time?  Get in the boat this instant" (CAS, 204).

Was this Hume's jocular way of suggesting that the Humean Enlightenment of the people, so that the churches would be shut up would take at least 200 years to succeed?  Has that prediction proven true, at least in many parts of Europe today, where most of the churches are either shut up or mostly empty?

The last paragraph of Smith's Letter to Strahan was elegant, perhaps one of the best passages in all of Smith's published writing:

"Thus died our most excellent, and never to be forgotten friend; concerning whose philosophical opinions men will, no doubt, judge variously, every one approving or condemning them, according as they happen to coincide or disagree with his own; but concerning whose character and conduct there can scarce be a difference of opinion.  His temper, indeed, seemed to be more happily balanced, if I may be allowed such an expression, than that perhaps of any other man I have ever known.  Even in the lowest state of his fortune, his great and necessary frugality never hindered him from exercising, upon proper occasions, acts both of charity and generosity.  It was a frugality founded, not upon avarice, but upon the love of independency.  The extreme gentleness of his nature never weakened either the firmness of his mind, or the steadiness of his resolutions.  His constant pleasantry was the genuine effusion of good-nature and good-humour, tempered with delicacy and modesty, and without even the slightest tincture of malignity, so frequently the disagreeale source of what is called wit in other men.  It never was the meaning of his raillery to mortify; and therefore, far from offending, it seldom failed to please and delight, even those who were the objects of it.  To his friends, who were frequently the objects of it, there was not perhaps any one of all his great and amiable qualities, which contributed more to endear his conversation.  And that gaiety of temper, so agreeable in society, but which is so often accompanied with frivolous and superficial qualities, was in him certainly attended with the most severe application, the most extensive learning, the greatest depth of thought, and a capacity in every respect the most comprehensive.  Upon the whole, I have always considered him, both in his lifetime and since his death, as approaching as nearly to the idea of a perfectly wise and virtuous man, as perhaps the nature of human frailty will permit."

Rasmussen says that last sentence was "one of the most fateful sentences he ever wrote" (220).  There is an echo here of the last sentence of Plato's Phaedo in which Phaedo finishes his eulogy for Socrates after his death: "Such, Echecrates, was the end of our friend, a man who, we may fairly state, was of all those we know in our time the most virtuous, and on the whole the wisest and most just" (118).  Like Hume, Socrates was accused of atheism and skepticism.  But unlike Hume, Socrates died not from natural causes but from being sentenced to death by the Athenian Assembly.  (Despite the execution of Socrates in Athens, I have written about the argument that Athens was remarkably liberal in the freedom of thought and speech that it gave to philosophers.)

In this last sentence of his letter, saying that Hume conformed to "the idea of a perfectly wise and virtuous man," Smith identified him as achieving what Smith had understood to be the peak of human perfection in the moral and intellectual virtues (see TMS, 246-48; LJ, 338-39).  This was Smith's public challenge to the claim of religious believers that religious belief was indispensable for moral conduct--that one could not be good without God--and that a skeptic like Hume could not possibly live a good life or face death without fear of eternal damnation.  

This was also a clear indication that when Smith spoke in The Theory of Moral Sentiments of how religious belief in God, immortality, and eternal judgment supported morality, he was writing esoterically to hide his true teaching that while religious belief might enforce morality among many people, it was not necessary for "wise and virtuous men" like Hume.

Here then in his Letter to Strahan, Smith was no longer writing esoterically, perhaps because he thought that the liberalism of the modern commercial society in Scotland at the end of the eighteenth century was reaching the point where there could be freedom of thought and expression for philosophers without their fearing persecution.

Nevertheless, the Letter to Strahan, and particularly the last sentence, did provoke widespread public denunciation of Smith.  For example, John Ramsey of Ochtertyre wrote that the Letter to Strahan "gave very great offence, and made [Smith] henceforth be regarded as an avowed skeptic, to the no small regret of many who revered his character and admired his writings" (Rasmussen 223).  Smith was denounced by some of the most prominent people of his day, such as Samuel Johnson and John Wesley (the founder of the Methodist movement).  They all argued that an atheist or skeptic like Hume could not possibly be truly virtuous and free of guilt in facing death; and therefore they accused Smith of lying because surely Hume could not have lived and died well as Smith claimed--surely Hume in his last days must have felt anguish, fear, and remorse as he faced the eternal judgment of God in the afterlife, although he might have hidden this from those who visited him.

Later, in a letter he wrote in 1780, Smith said: "A single, and as, I thought a very harmless Sheet of paper, which I happened to Write concerning the death of our late friend Mr Hume, brought upon me ten times more abuse than the very violent attack I had made [in The Wealth of Nations] upon the whole commercial system of Great Britain" (CAS, 251).

Even if he was troubled by this "abuse," Smith never answered any of his critics, probably because he knew that he was living in a new liberal era of history in which philosophers who wrote openly in favor of skepticism might be criticized, but they would not be coercively persecuted.  

Later, in 19th century Victorian England, as the new liberalism of Charles Darwin and his friends gained influence, the freedom to publicly debate the most controversial topics--including reason versus revelation--became ever more pervasive, as English culture moved from "confessional values" to "liberal values."  That reason/revelation debate manifested the same problem of ultimate explanation identified by Philo in Hume's Dialogues Concerning Natural Religion: the proponents of reason assumed the uniformity of nature, while the proponents of revelation assumed the reality of supernatural miracles, and thus both sides begged the question at issue: Is the ultimate ground of explanation uncaused nature or uncaused God?  (I have written about this here and here.)

I have written about death and immortality here, here, here, here, here, here, and here.

REFERENCES

Klein, Daniel, and Thomas W. Merrill. 2021. "Adam Smith, David Hume, Liberalism, and Esotericism." Journal of Economic Behavior and Organization 184: 712-716.

Klein, Daniel. 2021. "Reading Between the Lines in Adam Smith." AdamSmithWorks, April 7.  www.adamsmithworks.org/documents/daniel-klein-reading-between-the-lines-adam-smith.

Rasmussen, Dennis. 2017. The Infidel and the Professor: David Hume, Adam Smith, and the Friendship that Shaped Modern Thought. Princeton, NJ: Princeton University Press.

Smith, Adam. 1987. The Correspondence of Adam Smith. Indianapolis, IN: Liberty Fund.

The Darwinian Liberalism of Adam Smith and Edward Westermarck: Another Reply to Antti Lepisto

 Six years ago, Antti Lepisto published a paper criticizing my argument that Edward Westermarck's ethics supported what I called Darwinian conservatism (Lepisto 2017).  At that time, I wrote a reply.  Recently, while writing my paper on "The Three Waves of Adam Smith's Sociobiological Morality of Liberalism," in which I identify Westermarck as the "second wave," I have reread Lepisto's paper; and I decided I should write a second reply.

As I have often said, what I call Darwin conservatism is a very liberal conservatism, because it combines both the Smithian liberal and Burkean traditionalist strands of conservative political thought in affirming the common element of both--the idea of spontaneous order.  Classical liberals follow Smith in stressing the spontaneous order of morality and markets, while traditionalists stress the spontaneous order of customary practices.  Both sides see spontaneous order as the only way in which social order can be achieved in a manner that is compatible with individual liberty.  A Darwinian science explains how that spontaneous order of social life could have emerged through biological and cultural evolution.  Westermarck develops that Darwinian science of social order in his moral theory as confirming Smith's theory of moral sentiments.

The new Darwinian social science supports the fundamental idea running through all of Smith's writing--the evolution of unintended order--and in doing that, it supports Smithian liberalism, or what Smith calls "the system of natural liberty," which allows "every man to pursue his own interest his own way, upon the liberal plan of equality, liberty, and justice" (WN, 664, 687).  

That the evolution of unintended order is the unifying theme of all of Smith's writing has been well stated by James Otteson.  He argues that Smith applies a "market model" to explain the origin, development, and maintenance of all extended human institutions as unintended orders.  What he calls "unintended order" is what Michael Polanyi and Friedich Hayek call "spontaneous order" and what Vernon Smith and others call "emergent order."  Otteson defines "unintended order" as "a self-enforcing, orderly institution created unintentionally by the free exchanges of individuals who desire to satisfy their own individual wants" (270). 

An unintended order is contrasted with an intentional order that has been rationally designed by some mind or group of minds for a deliberately planned purpose.  The contrast between these two kinds of order underlies a fundamental debate in social theory between the constructivists and the evolutionists: between those who think that a good social order must be deliberately and rationally designed for some foreseeable end-state and those who think a good social order arises through a process of free exchanges between individuals acting for individual ends with no overall end in mind.  Since the success of unintended order depends on individual liberty constrained only by rules of justice protecting life, liberty, and property, the idea of unintended order is the fundamental idea of classical liberalism in the Smithian tradition.

Westermarck's intellectual project--particularly, in The Origin and Development of the Moral Ideas (1906)--was to provide an empirical test of this Smithian theory of morality as a spontaneous order emerging from the evolution of the moral sentiments.  Westermarck began one of his earliest writings in this way: "That the various predicates of moral judgments are ultimately based on emotions of either indignation or approval seems to me to be a fact which ethical intellectualists have in vain attempted to deny."  That one sentence states the main idea of Westermarck's account of morality.  After thus stating this idea, he immediately identified it as derived from Smith, and he indicated that he wanted to develop a Darwinian theory of morality that would confirm this idea: "A comprehensive study of the moral ideas of various nations and in various ages confirms the ingenious hypothesis set forth by Adam Smith, that resentment and gratitude belong to the root-principles of the moral consciousness--a circumstance all the more satisfactory to the student of psychical origins as anger towards an ill-doer and friendliness towards a well-doer are mental facts easily explicable as results of natural selection" (1900, 184-85).  

Otto Pipatti (2019) has provided a good account of the Smithian roots of Westermarck's moral theory. In one of Westermarck's unpublished lectures on Smith quoted by Pipatti, he said: "I recognize with gratitude that of all moral philosophers or moral psychologists there is none from whom I have learned anything like as much as from Adam Smith" (122).

Amazingly, Lepisto does not attempt to refute my claim that what we see here is Westermarck defending a Darwinian science of morality that will confirm Smith's liberal understanding of how moral order evolves spontaneously as an unintended order from the moral sentiments of evolved human nature.  Lepisto writes: "I will here leave open the question of whether one should call Westermarck a 'spontaneous order theorist' on the basis of his notion of moral norms as arising from emotions rather than from reason alone" (206).  But in doing that, he refuses to challenge my main point!

That Westermarck did indeed embrace Smith's "liberal plan of equality, liberty, and justice" is especially clear when he affirms the truth "as Adam Smith observes, that 'we may often fulfil all the rules of justice by sitting still and doing nothing,' and that the man who barely refrains from violating the person or estate or reputation of his neighbours so far does justice to them" (ER, 131).  Smith calls this the "negative virtue" of justice that "only hinders us from hurting our neighbour."  This negative virtue of justice can be "extorted by force."  By contrast, the virtue of beneficence "is always free, it cannot be extorted by force, the mere want of it exposes to no punishment; because the mere want of beneficence tends to do no real positive evil."

Smith explains the emotional basis for this distinction between justice and beneficence: "Resentment seems to have been given us by nature for defence, and for defence only.  It is the safeguard of justice and the security of innocence.  It prompts us to beat off the mischief which is attempted to be done to us, and to retaliate that which is already done. . . . But the mere want of the beneficent virtues, though it may disappoint us of the good which might reasonably be expected, neither does, nor attempts to do, any mischief from which we can have occasion to defend ourselves" (TMS, 78-82).

This liberal principle of justice as a negative virtue that leaves people free from coercion as long as they do not harm others was restated by John Stuart Mill in On Liberty, and Westermarck agreed with this:

"Some degree of reflection should lead to the thought that antipathies are no sufficient ground for interfering with other individuals' liberty of action either by punishing them or subjecting them to moral censure.  Nobody has more vehemently denounced such interference than Stuart Mill.  He insisted on 'liberty of tastes and pursuits; of framing the plan of our life to suit our own character; of doing as we like, subject to such consequences as may follow: without impediment from our fellow creatures, so long as what we do does not harm them, even though they should think our conduct foolish, perverse, or wrong'" (ER, 258-59).

For me, this is all part of Westermarck's Smithian and Darwinian liberalism.  But then Lepisto argues that Westermarck does not actually support three elements of my argument.

First, he denies my argument that Westermarck's Smithian and Darwinian moral theory of the moral sentiments conforms to what I have called "Darwinian natural right."  He says this cannot be so since Westermarck identified himself as a moral relativist.  

My argument, however, is that Darwinian morality is relative to the biological nature of the human species, in that it is grounded in a moral anthropology, but not in a moral cosmology.  Contrary to the claims of philosophers like Immanuel Kant, morality cannot be rooted in any objective cosmic truth--a Cosmic Reason, Cosmic Nature, or Cosmic God.  But morality still has a species-specific truth in being grounded in the evolved moral psychology of the human species, and therefore morality is true for as long as the human species endures.  Here I agree with Westermarck in rejecting Kantian rationalism and embracing the moral sentimentalism of David Hume and Adam Smith as understood by a Darwinian science of human nature.

Second, Lepisto doubts that Westermarck supports my defense of human marriage and family life as rooted in evolved human nature, because Westermarck often took a "liberalizing" or reformist position on marriage and family life, as in his arguing for liberalizing marriage and family law to make divorce easier.  Westermarck was also one of the first people to argue for tolerating homosexuality.

One should note, however, that Lepisto agrees that "Arnhart and others are right to assert that Westermarck saw marriage and the family as rooted in biological instincts" (206).  If that is true, I have argued, then we can rely on those biological instincts to preserve heterosexual marriage and parental care while liberalizing the marriage laws to allow for divorce, same-sex marriage, and homosexual adoption of children.  We might even privatize marriage as a purely contractual relationship without any governmental licensing of marriages.  We might also recognize, as Westermarck did, that animal homosexuality is natural, so that it is natural for some human beings to be moved by homosexual desires that need not threaten heterosexual marriage.  (I have written about this here, here, here, and here.)

Third, Lepisto says that "Westermarck did not draw similar libertarian-leaning, pro-civil society, and antigovernmental political conclusions from his moral theory," as I have (206-207).  In particular, Lepisto doubts that Westermarck would have agreed with the libertarian questioning of the modern welfare state.

In assuming that I totally reject the modern welfare state, Lepisto is silent about what I have written about "Nordic Social Democracy as the Capitalist Welfare State."  There I argue that a Smithian liberal could support the sort of capitalist welfare states that one sees in the Nordic social democracies and elsewhere.  As measured by various rankings of "human freedom," these countries have the highest levels of individual liberty in the world, because their limited welfare-state policies leave plenty of room for the liberal spontaneous orders of morality and markets (Arnhart 2016, 420-24).

REFERENCES

Arnhart, Larry. 2016. Political Questions: Political Philosophy from Plato to Pinker. Long Grove, IL: Waveland Press.

Lepisto, Antti. 2017. "Darwinian Conservatives and Westermarck's Ethics: A Political Dimension of the Late Twentieth-Century Westermarckian Renaissance." In Olli Lagerspetz, Jan Antfolk, Ylva Gustafsson, and Camilla Kronqvist, eds., Evolution, Human Behavior, and Morality, 194-208.  London: Routledge.

Otteson, James. 2002. Adam Smith's Marketplace of Life. Cambridge: Cambridge University Press.

Pipatti, Otto. 2019. Morality Made Visible: Edward Westermarck's Moral and Social Theory. London: Routledge.

Smith, Adam. 1981. An Inquiry into the Nature and Causes of the Wealth of Nations. Indianapolis, IN: Liberty Fund.

Smith, Adam. 1982. The Theory of Moral Sentiments. Indianapolis, IN: Liberty Fund.

Westermarck, Edward. 1900. "Remarks on the Predicates of Moral Judgments." Mind 34: 184-204.

Westermarck, Edward. 1906. The Origin and Development of the Moral Ideas. 2 vols. New York: Macmillan.

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

The Darwinian Evolution of the Natural Right to Keep and Bear Arms: District of Columbia v. Heller (2008)

 "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

That's the Second Amendment to the U. S. Constitution.  Remarkably, for over two hundred years since the ratification of that amendment in 1791, the U.S. Supreme Court said very little about the interpretation of that amendment.  Then, in 2008, the Court issued its landmark decision in District of Columbia v. Heller (2008) interpreting that amendment as protecting the individual's right to keep and bear arms, unconnected to service in a militia.

The District of Columbia had a law banning handgun possession and requiring that lawfully owned rifles and shotguns in homes be kept unloaded and disassembled or bound by a trigger lock.  Dick Heller was a D.C. special policeman with a license to carry a handgun during his work, but he was refused a license to keep a handgun at home for self-defense.  By a 5 to 4 decision, the Court ruled that this violated Heller's constitutional right to keep and bear arms for self-defense.  Justice Antonin Scalia wrote the opinion for the majority, which included Chief Justice John Roberts and Associate Justices Anthony Kennedy, Clarence Thomas, and Samuel Alito.  Associate Justices John Paul Stevens and Stephen Breyer wrote dissenting opinions joined by Associate Justices David Souter and Ruth Bader Ginsburg.

The first ten amendments to the Constitution ("The Bill of Rights") have been understood as originally applying only to the national government and not to the states.  Since the District of Columbia is a federal enclave under the authority of the U.S. Congress, the Court could apply the Second Amendment to the District.  Two years later, however, the Court in McDonald v. City of Chicago (2010) found that the Second Amendment was incorporated by the Due Process Clause of the Fourteenth Amendment against the states.

Interpreting the Heller decision has been a fundamental issue in the current debate over gun laws and gun violence in America.  Progressives who want stricter gun control laws criticize the Heller decision for mistakenly asserting an absolute individual right to gun ownership that has promoted horrific gun violence.  Conservatives who oppose stricter gun control praise the Heller decision for upholding the constitutional right to own guns.

In my reading of Heller, I will make three points.  First, I will argue that Scalia's opinion is a persuasive interpretation of the Second Amendment as protecting gun ownership as part of an individual right of self-defense rooted in Anglo-American legal traditions.

My second point is that the right to keep and bear arms can be understood as a natural right that has emerged from the Darwinian evolution of what John Locke called "the executive power of the law of nature"--the individual's natural right to defend himself against those who use or threaten to use force to deny his life or liberty.

My third point is that the progressives and the conservatives are both mistaken in their reading of Scalia's opinion as declaring that stricter gun control laws would be unconstitutional.  This is mistaken because Scalia clearly indicates that the right protected by the Second Amendment is limited in ways that allow legislators to formulate gun control policies to manage the problem of gun violence.

AN INDIVIDUAL RIGHT

According to Justice Stevens, in his dissenting opinion, the meaning of "the right of the people to keep and bear Arms" in the Second Amendment must be interpreted in the light of the opening language of the Amendment--"A well regulated Militia, being necessary to the security of a free State."  This must mean that the Amendment "protects the right to keep and bear arms for certain military purposes, but that it does not curtail the Legislature's power to regulate the nonmilitary use and ownership of weapons." Therefore, "there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution" (Stevens, slip opinion, 2).

Against this reading, Scalia argues that while the "prefatory clause" announces a purpose ("a well regulated Militia"), this does not limit the scope of the "operative clause" ("the right of the people to keep and bear Arms").  The terminology of the "right of the people" appears elsewhere in the Bill of Rights (the First, Fourth, and Ninth Amendments), and each time this means individual rights, not rights exercised only in some collective body.  The membership of state militias was limited to males of a certain age physically able to fight for the common defense.  But "the people" refers to all individuals who are citizens of the community.

Moreover, Scalia notes that nine state constitutional provisions written in the early years of the nation protected a right of citizens to "bear arms in defense of themselves and the state" or to "bear arms in defense of himself and the state" (Scalia, slip opinion, 11, 29-30).  Clearly, the right to "bear arms" was independent of military service.

During the constitutional ratification debates, the Antifederalists warned that the Congress's power over the state militias could be used to abolish the militias or to create a "select militia" and a standing army, so that the people could then be disarmed, which had been attempted by the Stuart monarchs in England.  The Federalists denied that the Congress had such power, but in the Bill of Rights, they codified the Second Amendment as a way of reassuring the Antifederalists.  That explains why they specified a "well regulated Militia" as a purpose for arming the people.  But the "right of the people to keep and bear Arms" is not limited to this purpose.  It is also necessary for individual self-defense.

AN ANGLO-AMERICAN RIGHT

In the English Bill of Rights of 1689, it is declared "That the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law."  Scalia identifies this as the predecessor to the Second Amendment (19-20).  The Catholic King James II had ordered the disarming of his Protestant opponents.  When he was overthrown in the Glorious Revolution of 1688, Englishmen obtained an assurance from William and Mary, in the Declaration of Right in February of 1689, which was codified as statute in December of 1689, that Protestants would never be disarmed.  (When John Locke published his Two Treatises of Government for the first time in the fall of 1689, one motivation was probably to support the codification of the Bill of Rights.)

Even though this right to be armed is limited to Protestants, it is clearly an individual right that does not depend on serving in a militia.  And it was understood to be one of the fundamental rights of Englishmen.

As Scalia indicates, George III had attempted to disarm the most rebellious colonists in the 1760's and 1770's.  Scalia quotes from a newspaper article in New York in April of 1769 asserting that "it is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defense" (21).

A NATURAL RIGHT

As in this newspaper article, it was common for the American colonists to assume that the English Bill of Rights was a legal codification of "natural rights" that included the natural right to be armed for self-defense.  Such rights existed prior to and independent of any governmental legislation.

Scalia quotes many cases of people identifying the individual right to be armed as a natural right.  This is notable because Scalia is a legal positivist who rejects the idea that judges should recognize natural rights or natural law (Scalia, slip opinion, 12, 20, 33, 39, 47).

A typical example of this is William Blackstone's affirmation of "the natural right of resistance and self-preservation," which includes "the right of having and using arms for self-preservation and defence."  Similarly, St. George Tucker, in his edition of Blackstone's Commentaries, speaks of the "right of self-preservation" as allowing a citizen to "repel force by force" when "the intervention of society in his behalf, may be too late to prevent an injury."

To explain how this natural right to self-defense and self-preservation might be part of our evolved human nature, we might consider Paul Bingham's theory of human social evolution as driven by the uniquely human capacity for using weapons to kill members of their species from a distance and thus enforce cooperation among non-kin.  Every other unique feature of humans--such as language, abstract reasoning, and morality--is simply an effect of this cause, Bingham argues.  Moreover, this theory can explain the emergence of modern liberal democracy as arising from the democratization of access to coercive violence that comes from the widespread availability of cheap gunpowder handguns.  Previously, I have written a series of posts on this here, here, and here.

Although Bingham says nothing about Locke or Lockean liberalism, I have argued that Bingham's theory of human evolution shows the evolutionary origin of Lockean liberalism:  the capacity for killing at a distance allowed our human ancestors to punish other humans who refused to be cooperative by exercising what Locke called "the executive power of the law of nature"--the natural propensity to punish those who attack us with coercive violence or the threat of violence.

A LIMITED RIGHT

This Lockean right to punish is limited, however, in that everyone has an equal right not to be harmed by violence or the threat of violence, unless someone has committed some offense that justifies punishment.  For that reason, while people have a natural right to be armed for self-defense or for resistance to tyranny, they do not have a natural right to keep and bear the most dangerous weapons in circumstances that are likely to risk harming innocent people.

Scalia explicitly recognizes these limits:

"Like most rights, the right secured by the Second Amendment is not unlimited.  From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. . . . nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms" (54-55).

Scalia also recognizes "the problem of handgun violence in this country," and he insists that the Constitution leaves governments "a variety of tools for combatting that problem, including some measures regulating handguns," although the Second Amendment "takes certain policy choices off the table," including "the absolute prohibition of handguns held and used for self-defense in the home" (64).

Shortly before he died, John Paul Stevens, in his autobiography, said that he persuaded Anthony Kennedy to insist on inserting this language into Scalia's opinion to clarify the limits of the constitutional right to keep and bear arms.

Scalia's opinion in Heller thus leaves open the possibility that lawmakers could require expanded background checks for the sale of all guns and perhaps prohibit the sale of assault-style weapons.  It is not clear how effective such laws would be.  There was a federal assault weapons ban for ten years--from 1994 to 2004.  Some scholars have said that the rate of mass shootings increased dramatically after the end of this ban.  President Biden recently pointed to this as evidence for renewing an assault weapons ban.  But some scholars say the evidence is not conclusive.

Sometime before the end of this month, the Supreme Court will issue a new decision in a case about the gun-control laws in New York State, which could either reaffirm or modify the decision in Heller.