Might Makes Right

If it's rightly understood, it's really true that might makes right.

That's one of the recurrent themes in my writing for this blog.  As I work on the 4th edition of my book Political Questions: Political Philosophy from Plato to Pinker, I have been rereading some of my blog posts over the past seven years to help me think about how Darwinian science illuminates the debates in the history of political philosophy.  As I have done that, I've noticed that Darwinism seems to support one of the fundamental claims of classical liberalism:  natural rights emerge in human history as those conditions for human life that cannot be denied without eventually provoking a natural human tendency to violent resistance against exploitation.

Asserting that might makes right is usually interpreted to mean that life is governed by brute force and not by any sense of right and wrong.  This can suggest a kind of nihilism that is often associated with Darwinism by its critics:  Doesn't the "survival of the fittest" mean that there is no natural standard of right in human evolution, because it's all determined ultimately by the rule of the stronger over the weaker?  Doesn't this indicate that there's a clear line "from Darwin to Hitler"?

But this fails to see how the Darwinian account of moral evolution depends on the natural propensity to exploitative dominance being checked by the natural propensity to resist exploitation, so that even the strongest tyrant is vulnerable to the vengeful retaliation of his victims.

Thomas Hobbes captured this thought in his description of the state of nature as a state of equality in which all can defend themselves with violence.  "Nature has made men so equal in the faculties of body, and mind; as that though there be found one man sometimes manifestly stronger in body, or of quicker mind than another; yet when all is reckoned together, the difference between man, and man, is not so considerable, as that one man can thereupon claim to himself any benefit, to which another may not pretend, as well as he.  For as to the strength of body, the weakest has strength enough to kill the strongest, either by secret machination, or by confederacy with others, that are in the same danger with himself" (Leviathan, chap. 13).

Notice that Hobbes is not saying that all human beings are absolutely equal, which would be obviously false.  Even in a primitive state of nature, some people will be naturally stronger than others in their bodies or minds.  But there is a rough equality in that even the strongest can be brought down by the weaker ones who have been provoked into attack.  Machiavelli emphasizes this point when he warns that even the most powerful princes can be assassinated if they are hated by the people.

Locke points to this when he speaks about the "executive power of the law of nature" (ST, 13).  This "executive power" is the power of everyone to defend lives and property against aggressors, and to punish transgressors in any way that reason and conscience dictate as required for reparation and restraint, which includes the power to kill murderers.  The first "great law of nature" stated in the Bible is "who so sheddeth man's blood, by man shall his blood be shed" (ST, 11; Genesis 9:6).

The problem, of course, is that the vigilantism of the state of nature easily collapses into perpetual feuding, and then people will consent to establish formal governments and the rule of law.  To do that, people must give up their executive power to the government, which then might become even more oppressive than any individual in the state of nature.  But if the people feel oppressed, they can take back their natural executive power in an "appeal to Heaven" in war.

Hobbes and Locke were not just speculating about this.  They had seen the English Civil War.  They had seen that Roundheads can defeat Cavaliers, and that kings can be beheaded.  Locke had plotted with the Whigs in assassination conspiracies directed against the King.

Hobbes and Locke had also studied carefully the reports about the foraging societies of New World, which Hobbes and Locke used as the basis for their depictions of the state of nature.

In tracing political history as a history of warfare going back to the original state of nature of hunting-gathering bands, Hobbes and Locke initiated a tradition of political thought that would be continued by Darwinians studying moral and political history as evolution by group selection.

Darwinians can understand modern liberal regimes as a revival of the "egalitarian hierarchy" (Chris Boehm) that existed among foraging bands, in which the natural desire of the few for dominance was checked by the natural desire of the many to resist dominance, except that now, in modern liberal regimes, the freedom of foraging societies has been combined with the civilzation of modern commercial societies.

Eventually, human social and political evolution has brought a general decline in violence (as Steven Pinker has shown).  But that decline in violence can never bring perpetual peace (contrary to the utopian pacifism of people like Herbert Spencer), because the enforcement of the liberal norm of voluntary cooperation will always depend on the threat or use of force against those who would violate that norm.

These points are elaborated in a previous post, which includes links to many other pertinent posts.

An especially pertinent post is the one on Thomas Aquinas, Harriet Beecher Stowe, and the "Christian Uncle Tom problem."  Against the teaching of the Sermon on the Mount, Darwinian natural right rests on the idea that morality is rooted in the evolved dispositions of animals to feel anger against those that threaten them, and that this naturally evolved animal inclination to ward off attacks is the deepest root of that sense of injustice that underlies all human morality.  Vengeance is a virtue, perhaps even the fundamental virtue.

Part 3 of "The Evolution of Human Progress Through the Liberal Enlightenment"

5. WHAT IS THE ULTIMATE CAUSE OF HUMAN PROGRESS?

Readers of Bailey and Tupy's book can see suggestions about four possible causes of human progress.  Two are explicitly stated by them--inclusive institutions and bourgeois ideas.  Two others are implied--the military success of liberal regimes and the evolved natural desire for freedom.  All four causes jointly contribute to the convergent evolution of liberal free-market democracies as the best social order.

Inclusive institutions.  At the beginning of their book (3), Bailey and Tupy embrace the argument of Daron Acemoglu and James Robinson in their 2012 book--Why Nations Fail: The Origins of Power, Prosperity, and Poverty--which turns on the contrast between "inclusive institutions" and "extractive institutions."  Acemoglu and Robinson have adopted the institutionalist theory of Douglass North and his colleagues in Violence and Social Orders (2009).  And the contrast between inclusive and extractive institutions corresponds to the contrast made by North and his colleagues between "open access societies" and "limited access societies."  (I have written about Violence and Social Orders here.)

Since the Neolithic Agricultural Revolution and the establishment of bureaucratic states, most societies have had extractive institutions through which a few ruling elites extract resources from the multitude of people excluded from power.  Only in the last 300 years, have a few societies--beginning in Great Britain and in North America--developed inclusive economic and political institutions that distribute economic and political power widely.  Inclusive institutions such as property rights, the rule of law, free markets, and political freedom create incentives for innovation through evolution by "creative destruction"--economic and political entrepreneurs who innovate in profitable ways succeed, and those who do not fail.  These inclusive institutions have created the conditions for all the great improvements in human well-being--the progressive global trends--that Bailey and Tupy present in their book.

According to Acemoglu and Robinson, the Glorious Revolution of 1688 in Great Britain created the world's first inclusive institutions, which became the turning point in human history towards modern liberal social orders.  In the Glorious Revolution, King James II was forced off the throne by the Whig revolutionaries, who then invited William and Mary to take the throne under the condition that they accept Parliament's Declaration of Rights, which ended divine right monarchy and established the supremacy of Parliament as representing a broad coalition of economic and political groups.  This liberal Whig movement was supported by a coalition of merchants, industrialists, the gentry, and diverse political groups.  New merchants and businessmen wanted free markets that allowed for innovative creative destruction in ways that would benefit them.  Eventually, this led to the Industrial Revolution, beginning in the 18th century, and then to the Great Enrichment, beginning in the 19th century.

North and his colleagues emphasize the importance for the new open access orders of the general laws of incorporation enacted in Great Britain and the United States in the 1840s and 1850s.  These laws allowed citizens to form corporations with legally stipulated rights and duties through procedures for registration and minimal conditions impersonally applied.  What previously was an elite privilege was openly available based on impersonal standards for registration as a corporation.  This created open entry to forming economic, social, and political organizations that were free to compete with one another.

In this way, inclusive or open access institutions allow creative political, economic, and social destruction through competition, in which successful enterprises proliferate and failed enterprises are eliminated.  Society secures open access to organizations as vehicles for political, economic, and social entrepreneurs to compete in implementing their ideas.  Such free competition in social experimentation allows a social order to achieve adaptive efficiency in responding to new and unpredictable challenges.

Bourgeois ideas.  Even if Acemoglu, Robinson, and North are right about the importance of inclusive or open access institutions as the necessary conditions for the modern liberal social order, we might still wonder whether Deirdre McCloskey is right in arguing that this is not sufficient to explain the uniqueness of the Great Enrichment, which required an intellectual change in ideas.  The triumph of liberalism required a rhetorical change in moral ideas so that a bourgeois way of life--a commercial way of life--could be seen as virtuous.  Bailey and Tupy apparently accept this point when they endorse McCloskey's point about the need for "major ideological shifts" (3-4).

In their account of the Glorious Revolution of 1688 as initiating the turn to inclusive institutions, Acemoglu and Robinson rely on Steven Pincus' history--1688: The First Modern Revolution--which argues that this political revolution was a revolutionary transformation that prepared the way for the Industrial Revolution.  But Acemoglu and Robinson ignore Pincus' stress on the importance of the Whig ideas of John Locke and other writers in driving the revolutionary resistance to the Stuart monarchy and in shaping the Glorious Revolution into a modern revolution that established a "bourgeois culture."  What McCloskey identifies as bourgeois ideas are actually the Lockean ideas of natural human liberty and equality--the moral ideas that constitute and sustain the inclusive institutions that have promoted modern human progress.  (I have written about this here and here.)

Might makes right.  Because of his involvement in conspiracies for violent revolution, Locke was forced to flee to Holland to avoid being beheaded by the King, like Algernon Sydney and other radical Whig theorists.  Locke saw appeals to natural right as ultimately appeals to the force of arms--the "appeal to Heaven"--so that disagreements over right are settled by conspiratorial violence and military conflict.  Contrary to the common belief that the Glorious Revolution was a bloodless revolution, there were many violent clashes in the revolution; and the revolution would have failed if the military forces of James II had defeated the military forces of William II.

Acemoglu and Robinson recognize this point, and they note that even as late as 1746 the revolution could have been overturned by the Jacobite rising if the army of Charles Edward Stuart had not been defeated at the battle of Culloden in Scotland.  This shows, they observe, that the history of inclusive institutions has often been decided by the contingencies of warfare.

Bailey and Tupy also seem to recognize this when they note that "confrontations between extractive and inclusive regimes, such as World War II and the Cold War, have generally been won by the latter," because "liberal free-market democracies are resilient in ways that enable them to forestall or rise above the kinds of shocks that destroy brittle extractive regimes" (4).  Do they mean to suggest here that liberal regimes will always prevail in military conflicts with illiberal regimes?  If Hitler had not committed the blunder of attacking the Soviet Union in June of 1941, which forced the German armies to fight on two fronts--western and eastern--is it possible that Nazi Germany might have won the war and thus turned the tide of history towards illiberal regimes?

Or can the assertion of natural rights in Lockean liberalism be grounded in the natural human propensity to forceful resistance to oppression and tyranny, so that it really is true that might makes right?  (I have written about this here, here, and here.)

The evolved natural desire for freedom.  If inclusive institutions have caused the global human progress surveyed by Bailey and Tupy, and if "inclusive institutions are similar to one another in their respect for individual liberty" (3), then the ultimate cause of this progress would seem to be liberty.  That this is so can be confirmed by the fact that the "Human Freedom Index" correlates with all of the progressive trends towards increasing human well-being: the free societies tend to be the societies were human life is flourishing.  (I have written about the "Human Freedom Index" here.)

The universal appeal of freedom is perhaps most clearly manifested in what Francis Fukuyama in 1989 called "the end of history."  History as the human search for the fully satisfying social order has come to an end, he suggested, because with the defeat of fascism and Nazism in World War II and the fall of the Soviet Union in 1989, liberal democracy remains with no serious challenger, and most of the people in the world today agree in principle that liberal democracy is the final form of government.  Bailey and Tupy see this as Trend 8--"Democracy on the March."  The proportion of countries with autocratic governments has declined, while the proportion with democratic governments has risen.

One possible explanation for this is offered by Spinoza in The Theological-Political Treatise, perhaps the first full defense of modern liberal democracy.  He declared that the democratic state is "the most natural state," because it approaches most nearly the equal liberty of human beings in the state of nature.

Darwinian evolutionary psychology can confirm this by showing that the social life of our hunter-gatherer ancestors manifests the individual liberty and equality that liberal theorists have attributed to the state of nature.  And therefore the liberal conception of government as instituted among men to secure the individual rights that first arose in the state of nature might indeed be "the most natural state."

Foragers assert their individual autonomy and liberty in resisting the attempts of anyone to establish dominance over them.  So the liberal ideas of equal liberty and dignity for all individuals and resistance to the sort of dominance hierarchies established in agrarian states (with extractive or limited access institutions) can be understood as appealing to the original liberalism of the state of nature.

This kind of Darwinian liberal thinking is suggested in the writings of people like Alexandra Maryanski, Jonathan Turner, Paul Rubin, Christopher Boehm, and Christian Welzel.

Strauss, Slavery, and Darwinian Natural Right

        
     Ant slave rebellion?  Enslaved ants destroying a pupa of the slave-making colony


In Natural Right and History, Strauss doesn't give many examples of natural right.  But one example that appears repeatedly is slavery (23, 103-104, 118, 121, 159).  In speaking about conventionalism, Strauss observes: "what is natural comes into being and exists without violence.  All violence applied to a being makes that being do something which goes against its grain, i.e., against its nature. . . . the unnatural character of slavery seems to be obvious: it goes against any man's grain to be made a slave or to be treated as a slave" (103).  The unnatural character of slavery might be an illustration of natural right that can be defended against the relativism of both historicism and positivism.

The historicist relativist would point out that slavery has been practiced for thousands of years in many societies, which shows that our moral judgment of slavery is historically determined by the prevailing opinions of our time and place, and thus there is no natural standard for judging slavery as right or wrong.  After all, even philosophers like Aristotle defended slavery as natural, because that was the common opinion in the ancient Greek world.  And so later defenders of slavery, like the slaveholders of the American South, could cite Aristotle as supporting their position (Thomas R. R. Cobb, An Inquiry into the Law of Negro Slavery, 1858, 17).

Strauss responds to this by arguing that it is untrue that Aristotle could not have conceived of the injustice of slavery, because in fact he did (23).  Most slavery in the ancient Greek world was based on the convention that people taken prisoner in war and not ransomed can be enslaved.  Such slavery is merely conventional, not natural (104).  By making the distinction between natural and conventional slavery in The Politics, Aristotle conveys an exoteric teaching that slavery is natural, which appears to conform to prevailing opinions; but he also conveys an esoteric teaching to his careful readers who will notice that by Aristotle's standards slavery as actually practiced in ancient Greece is purely conventional and not natural.

When the Spanish conquerors of the New World enslaved the Indians in the sixteenth century, this provoked a debate in Spain over the justice of this enslavement.  Juan Gines de Sepulveda appealed to Aristotle in arguing that the American Indians were natural slaves.  But then Bartolome de Las Casas condemned the enslavement as contrary to natural right.   Las Casas argued that by Aristotle's standard of natural slavery, the only natural slaves would be those few individuals who are born mentally deformed without the normal human nature of rational and political animals; and by this standard, the American Indians were clearly not natural slaves.  Their enslavement was merely conventional, because they had been defeated in war.  To treat them as natural slaves was contrary to their nature as human beings.  This argument by Las Casas can be seen today as one of the first statements of the modern conception of human rights--that all human beings have natural rights by virtue of their universal human nature.

This example of natural right does not depend on a cosmic teleology that has been refuted by modern science.  This example of natural right depends only on the immanent teleology of human nature, which can be supported by modern biological science.  As Strauss says, "however indifferent to moral distinctions the cosmic order may be thought to be, human nature, as distinguished from nature in general, may very well be the basis of such distinctions" (94).  If we can "distinguish between those human desires and inclinations which are natural and those which originate in conventions," then we can judge natural right as that which conforms to natural human desires and inclinations.  If Darwin was right that an evolved moral sense is part of our evolved human nature, and that our moral sense condemns slavery, then we might see slavery as contrary to Darwinian natural right.  We can see that slavery frustrates the natural human desires of the slave, especially the desire to be free from exploitation.

But then the positivist relativist (like Max Weber) might object that in trying to draw moral conclusions from our knowledge of human nature, we are violating the distinction between facts and values, or between the is and the ought, because we fail to see the fallacy in deriving moral values from natural facts (NRH, 38-48).  As historians or scientists, we can describe the facts of human slavery: that slavery has been practiced for thousands of  years, that this has satisfied the natural desire of masters for dominating and exploiting their slaves, and that this has frustrated the natural desire of slaves to be free from exploitation.  But judging whether this is right or wrong is not a factual judgment but a moral judgment. 

Slave masters will say that slavery is right because it satisfies their natural desires.  Slaves will say that slavery is wrong because it frustrates their natural desires.  To say that one side is right and the other wrong is not an objective judgment of fact but a subjective judgment of value.  Scientific knowledge must be value-free, because while we can have an empirical and rational knowledge of facts, we cannot have any genuine knowledge of values.  The values of human beings are arbitrary preferences that conflict with one another, and there is no rational way to say that one set of values is better than another.  Reason cannot tell us that anti-slavery values are better than proslavery values.

The idea of Darwinian natural right is mistaken, therefore, because it fallaciously infers moral values from natural facts.  Darwin was vehement in his condemnation of slavery, and much of his book on human evolution--The Descent of Man--was written to refute the proslavery argument that the human races were separate species, that some species were naturally inferior, morally and intellectually, to others, and that these inferior species were naturally adapted for slavery (Desmond and Moore 2009). 

But the positivist relativist will suggest that Darwin was wrong if he thought that his personal value judgment condemning slavery could be grounded in his natural science.  After all, Darwin in The Origin of Species recognized that slavery was a naturally evolved adaptation for some ant species that have a "slave-making instinct," which shows that slavery can arise by natural evolution.  In the first edition of The Origin of Species, Darwin wrote that this ant instinct for making slaves was "extraordinary and odious" (1859, 220).  In the second edition of his book, he struck out the word "odious."  Perhaps he did this because he realized that this word was only an expression of his moral emotions--his hatred of slavery--and not a scientific description of the facts.

The proslavery American southerner Thomas Cobb pointed to ant slavery as a natural fact showing that slavery conforms to the law of nature.  "It is a fact, well known to entomologists," Cobb observed, "that the red ant will issue in regular battle array, to conquer and subjugate the black or negro ant, as he is called by entomologists," and "that these negro slaves perform all the labor of the communities into which they are thus brought, with a patience and an aptitude almost incredible" (8-9).

Some religious believers will argue that this shows how a Darwinian science of nature and human nature cannot provide any standard of right and wrong for judging that slavery is wrong, because our knowledge of right and wrong depends on a religiously informed cosmic teleology like that suggested in the Declaration of Independence.  If it is self-evident that all men are created equal and endowed by their Creator with the rights to life, liberty, and the pursuit of happiness, then we can see that slavery is wrong because it violates God's law in denying the equal dignity of all human beings as created in God's image.  That's the argument of John Hare, Carson Holloway, and Benjamin Wiker.  The positivist relativist would see this as a religious value judgment that cannot be derived from our empirical knowledge of the facts of nature.

Strauss objects to this positivist fact-value distinction by insisting that a value-free social science is impossible, because the social phenomena studied by the social scientist are "constituted by value judgments," and all social scientists must strive to make "objective value judgments" about the social phenomena they study (NRH, 53-57).  So, for example, a military historian studying the actions of statesmen and generals must necessarily make value judgments in which he judges whether these actions were successful or mistaken.  A general who loses a battle because of a blunder in some tactical maneuver must be judged to be a bad general, because he has not correctly chosen the right means for achieving his ends.  All human actions are purposeful--aimed at some end--and so we can judge the success or failure of those actions in achieving their ends. 

We don't need a cosmic teleology for our value judgment here, because we have an immanent teleology of human action.  Strauss explains: "It is impossible to understand phenomena of this kind without being aware of the standard of judgment that is inherent in the situation and accepted as a matter of course by the actors themselves; and it is impossible not to make use of that standard by actually evaluating" (54).

As opposed to nonliving things, all living organisms have standards of value inherent in their nature as the kind of organism that they are.  To live, every animal must act, either consciously or unconsciously, to achieve the goals set by its nature.  An animal either succeeds or fails in this, and its relative success or failure will decide whether it lives or dies, and whether its life is satisfying or not.  This not true for inanimate entities.  We might explain a thunderstorm, for instance, as a physical and chemical system that sustains itself for a period of time and then dissipates, but we could not properly speak of its relative success or failure in achieving its goals.  In all animal behavior, by contrast, there are natural goals, which are standards of achievement that we can identify as values or goods.  If we define value or good in relational terms as whatever satisfies a desire, then all animals have values, because they all have natural desires that they strive to satisfy as they gather information about their world.  This includes human beings, who are unique only in the complexity of their desires and the complexity of the information they gather to satisfy their desires (Binswanger 1990, 1992; Herrick 1956; Polanyi and Prosch 1975).

If Darwin is right about human evolution, human beings have evolved to be social animals, who desire the praise of those around them and fear their blame.  They have evolved to have a natural desire for justice as reciprocity in their social life, so that they are naturally inclined to feel love and gratitude in return for benefits conferred on them, they are inclined to feel anger and hatred in return for injuries inflicted on them, and they are inclined to feel guilt and shame when they violate their reciprocal obligations to others.  If this is so, then we can expect that slave masters will feel the injustice of their exploitation of their slaves, and they will try to hide that injustice by pretending that slavery is good for the slaves.  So, when Harriet Beecher Stowe's Uncle Tom's Cabin was published in 1852, it's depiction of the brutal exploitation of slaves by masters was denied by many defenders of slavery as a false account.

In fact, Abraham Lincoln argued, anyone with "ordinary perceptions of right and wrong" can see the injustice of slavery, because anyone can see how it frustrates the natural human desire to be free from exploitation.  Even in the American South, Lincoln observed, slave-traders are despised: it is considered improper for a gentleman to shake hands with them, because the buying and selling of human beings as property elicits a feeling of disgust (1953, 2:264-65).  What Lincoln called "ordinary perceptions of right and wrong" might correspond to what Strauss called "those simple experiences regarding right and wrong which are at the bottom of the philosophic contention that there is a natural right" (NRH, 31-32, 105).

But then the critics of Darwinian natural right will say that what we see here is a conflict between evolved natural desires with no standard beyond those desires to resolve the conflict.  The slave masters' desire to exploit their slaves is opposed to their desires for reciprocity and sympathy.  But there is no standard here for determining that one desire is better than the other.  The slave masters are free to suppress their sense of the injustice of slavery by deceiving themselves and others to believe that slavery is actually just.

Some of the critics will argue that the standard we need for recognizing the injustice of slavery is a transcendent standard that goes beyond evolved human nature--a religiously-informed cosmic teleology by which we can see that slavery violates God's moral law.  But if this is an appeal to the Biblical God, then it's not obvious that this gives us a clear and reliable standard for judging slavery, because Christian defenders of slavery have cited the Bible as supporting slavery (Cobb 1857; Ross 1857). 

That's why the American Civil War became a theological crisis: the theological dispute between proslavery Christians and anti-slavery Christians was settled by force of arms (Noll 2006).  Lincoln pointed to this in his Second Inaugural Address:  "Both sides read the same Bible and pray to the same God, and each invokes His aid against the other."

Some readers of Strauss would object to the assumption here that Strauss views the injustice of slavery as a good example of natural right.  In Natural Right and History, when Strauss speaks of the injustice of slavery, it's not always clear that he is speaking for himself.  At times, Strauss seems to intimate that if there is natural right, the only clear principle of natural right is the supremacy of the philosophic life of those few who can live it as the only naturally good life (NRH, 36, 74-79, 110, 112-13, 115, 126-27, 143, 151-52, 156).

Leo Strauss Endorsed "Might Makes Right" in World War Two

Over the years, I have written a series of posts claiming that the assertion of natural rights in Lockean liberalism depends on the forceful resistance to oppression and tyranny, which suggests that it really is true that might makes right.  Natural rights emerge in history as those conditions for human life that cannot be denied without eventually provoking the natural human tendency of individuals to rebellion against exploitation.  Thus it is that individuals assert what Locke called "the executive power of the law of nature" in punishing those who violate their natural rights.

For this reason, the history of Lockean liberalism has often turned on the history of warfare--both revolutionary and international warfare--and the history of weaponry.  So, for example, the Declaration of Independence was not just a declaration of Lockean principles but also a declaration of war, so that the success of those principles depended on the fortunes of war.  Similarly, the American debate over the justice of slavery was settled by the bloodiest war in American history.  And the establishment of the liberal international order after World War Two depended on the defeat of Nazi Germany in the war.

Some of my posts on this line of reasoning can be found here, here, here, here, here, here, here, here, and here.

Recently, in reading for the first time a lecture by Leo Strauss delivered in 1943, I was interested by some of his remarks suggesting that he might have agreed with me about this.  It was delivered at a public session on "The Re-education of Axis Countries Concerning the Jews" at the annual meeting of the Conference on Jewish Relations, November 7, 1943, at the New School for Social Research in New York.  Strauss never published this in his lifetime.  It was published for the first time in 2007 in The Review of Politics (vol. 69, pp. 530-38).  It can be found online.

Here's the long paragraph that caught my attention:

"When we speak of re-education, we imply that the wrong education, which is to be replaced by a second education, by a re-education, is of crucial political importance.  We are apt to imply that the root of the difficulties is some sort of education, of indoctrination, viz. the Nazi indoctrination.  Is this really the case?  And how is it the case?  We must beware of taking the Nazi doctrines, their Rassenkunde [racial anthropology] and their geopolitics and what not, too seriously.  What was important, what did influence the Germans, what educated the Germans were not those pedantic follies by themselves, but the prospect opened up by Nazi rearmament, by Nazi diplomacy, and by Nazi arms, of the solution of all German problems by a short and decisive war.  And, after the hope of a short victorious war was shattered by the Spitfires, the prospect of the solution of all German problems by a new Hubertusberg peace on a planetary scale was destroyed. [The editor notes that "the Treaty of Hubertusburg at the end of the Seven Years War in 1763 established Prussia's place as a great European power."]  If we disregard the German high school teacher, if we consider the mass of the Germans, we shall find, I believe, that what guided their outlook, and hence their actions, was merely the crucial implication of the Nazi doctrine, viz. the implication that the needs of the German people as interpreted by the most efficient man in the land are the supreme law, not subject to any higher consideration.  To put it bluntly, the Nazi education consisted in this: that they convinced a substantial part of the German people that large scale and efficiently prepared and perpetrated crime pays.  I remember the argument of German students in the early 1920s: a country whose policies are not fettered by moral considerations is, other things being equal, twice as strong as a country whose policies are fettered by moral considerations.  For 50% of all possible ways and means are rejected, as immoral, by the moralistic countries, whereas all ways and means are open to the unscrupulous country.  It is evident that this doctrine is subject to the test of sense-experience and, hence, that the Nazi doctrine is a force only as long as Nazi strategy is successful.  The victory of the Anglo-Saxon-Russian combination, if followed by a just and stern and stable peace, will be the refutation of the Nazi doctrine, and thus will uproot Nazi education.  The re-education of Germany will not take place in classrooms: it is taking place right now in the open air on the banks of the Dnieper and among the ruins of the German cities. [The editor notes that "the Red Army crossed the Dnieper in early October 1943 and took Kiev November 6."]  It will be consummated by a meeting of British-American and of Russian tanks in Unter den Linden, and by the harmonious cooperation of the Western and Eastern occupying forces in bringing to trial the war criminals.  [Unter den Linden is a boulevard in the heart of Berlin.]  No proof is as convincing, as educating, as the demonstration ad oculos:  once the greatest German blockheads, impervious to any rational argument and to any feeling of mercy, will have seen with their own eyes that no brutality however cunning, no cruelty however shameless can dispense them from the necessity of relying on their victims' pity--once they have seen this, the decisive part of the re-educational process will have come to a successful conclusion" (532).

So Strauss thought that any talk about the need for "re-educating" the Germans was mistaken if this implied that the pretended theoretical doctrines of the Nazis should be taken seriously, because these theoretical doctrines were nothing more than "pedantic follies."  The only Nazi doctrine that was persuasive with the Germans was the claim that Nazi arms would win a short and decisive war that would give Germany global dominance that would solve all German problems and satisfy all the needs of the German people.  And this would all be possible because the Nazi leaders--under "the most efficient man in the land"--would be Machiavellian in being unconstrained by any moral considerations and consequently free to use all of the brutal means necessary for fighting a successful war.  The "moralistic countries" would be defeated by an utterly immoral country.  The Nazis would thus prove the Nazi doctrine "that large scale and efficiently prepared and perpetrated crime pays."

That Nazi doctrine is "subject to the test of sense-experience," because we can see with our own eyes whether immoral warfare is victorious or not on the battlefield.  And so the defeat of the Nazis in World War Two is "the refutation of the Nazi doctrine."  This began when "the hope of a short victorious war was shattered by the Spitfires."  The Spitfire was a single-seat fighter aircraft used by the British Royal Air Force throughout World War Two.  The Spitfire was perceived as crucial during the Battle of Britain (from July to October of 1940) for blunting the attack of Germany's air force, the Luftwaffe, and thus saving Great Britain from German conquest.  From that point, seeing that Great Britain could not be conquered, the Germans knew--by their own eyes--that they would be fighting a long and costly war.

Then, by the middle of 1943, the Germans were in full retreat on the Eastern Front, falling back from the attack of the Red Army; and the British and Americans had opened a Southern Front by invading Sicily (in July of 1943) and then advancing through Italy.  Strauss points to the Battle of the Dneiper River, which was being fought as he spoke.  This was one of the biggest military campaigns of the war, involving almost four million troops.  The German troops had retreated from Russia to the Dneiper River, one of the major rivers of Europe, which divided the Ukraine in half between the west bank and the east bank.  Beginning on August 26, the Red Army launched a campaign to take the eastern bank and then cross to the western bank.  As the Red Army moved through the villages, cities, and countryside where the Germans had brutally killed and tortured innocent people, the Red Army soldiers became ever more aroused to vengeful retaliation to punish the Germans for their brutality.  By December 23, six weeks after Strauss's lecture, they had succeeded in taking complete control of the river.  This explains Strauss's remark that "the re-education of Germany will not take place in classrooms: it is taking place right now in the open air on the banks of the Dnieper."

Strauss then foresaw that this re-education of Germany would be consummated by a meeting of Allied tanks in Berlin, and then the Western and Eastern occupying forces would bring the German leaders to trial for war crimes.  He was anticipating what became the Nuremberg war crimes trials that began in November of 1945, acting under international law and the laws of war.  Adolf Hitler and Joseph Goebbels escaped this punishment by committing suicide in the spring of 1945 before they could be captured.  This would prove the Nazi doctrine wrong by proving that "large scale and efficiently prepared and perpetrated crime" does not pay.  But this lesson in the legal rule of just punishment had to be preceded by the lesson taught by the meeting of Allied tanks in Berlin.

Notice that to refute the Nazi doctrine of the immoral rule of the stronger over the weaker, Strauss suggests, we cannot appeal to some transcendent standard of right set by God, Nature, or Reason.  Rather, we must appeal to "the test of sense-experience" by seeing that "moralistic countries" can defeat immoral countries in war as an exercise of "the executive power of the law of nature."

Natural Right and Biology: Marc Hauser on The Moral Instinct

As Leo Strauss showed in Natural Right and History, one can view the entire history of political philosophy as turning on the question of whether there is any natural right. Some people would say there is no natural right, because all right is determined by custom or convention, and what is customarily right or wrong varies radically across different societies and across history. Others would say that despite this variation in customary standards of right, there are some principles of right by nature that are universal, because they are rooted in a universal human nature. As Strauss indicates, in the central section of his book (156-63), Aristotle would seem to be the best exponent of natural right, and yet Aristotle's teaching is unclear. According to Aristotle, in Book 5 of the Nicomachean Ethics, there is something that is right by nature, and yet "all is changeable." How can there be a universal standard of natural right if all conceptions of right are changeable according to variable moral traditions?

Aristotle was a biologist who studied human beings as moral and political animals. One way of explaining his account of natural right is to say that for him natural right is a universal biological propensity of the human species that is diversely expressed in the variable circumstances of individual habituation and social learning. All social animals have natural instincts for social learning. Social life emerges as a joint product of nature and nurture. Just as human beings have a natural instinct for learning language, but the specific languages they learn will depend on their social circumstances, so too do human beings have a natural instinct for judging right and wrong, but the specific content of their moral rules will depend on their social learning.

I have developed this Aristotelian biology of morality and politics in Darwinian Natural Right: The Biological Ethics of Human Nature (1998), and I have argued there that modern Darwinian science supports this Aristotelian understanding of natural right.

Although Marc Hauser shows no knowledge of Aristotle or the history of political philosophy, Hauser's Moral Minds: How Nature Designed Our Universal Sense of Right and Wrong (2006) provides support for my argument. He surveys the recent research on the biological evolution of morality. He concludes that morality is grounded in biology in a manner similar to the biological grounding of language. Human beings are born with a natural capacity for learning language, which Noam Chomsky has explicated as an innate universal grammar, but the specific content of language varies across different languages within the broad constraints of universal grammar. Similarly, Hauser argues, human beings are born with a natural capacity for learning morality, which depends on a universal moral grammar that belongs to the human species as a product of evolutionary history, but the specific expression of that morality will vary across different moral systems within the constraints set by the innate moral instinct.

Last January, The New York Times Magazine published an article by Steven Pinker on "The Moral Instinct," which surveys the reasoning of Hauser and others on the biological roots of morality. I wrote a post on Pinker's article.

Although I generally agree with Hauser's argumentation, I find some of his reasoning vague and confusing. Here I will indicate a few points where I find it hard to follow what he is saying.

In my book Political Questions: Political Philosophy from Plato to Rawls, I noted that John Rawls often appealed to conceptions of human nature rooted in evolutionary biology. In particular, he argued that the very capacity for any sense of justice requires a psychological disposition for reciprocity that must have been shaped by human evolutionary history. He also suggested that we might see this innate propensity to morality as analogous to language as understood by Chomsky: there might be an innate moral grammar underlying our moral experience. A few years ago, John Mikhail wrote a philosophy dissertation at Cornell on "Rawls' Linguistic Analogy: A Study of the 'Generative Grammar' Model of Moral Theory Described by John Rawls in A Theory of Justice." Hauser has organized his book around Mikhail's account of the Rawlsian linguistic analogy.

The problem, however, is that in arguing that the moral instincts show the judgments of a "Rawlsian creature," Hauser never explains how this supports Rawls' argument that justice is based on the principles that human beings in the "original position" would choose behind a "veil of ignorance." One of the most controversial of Rawls' principles is the "difference principle" that inequalities in economic resources are permitted only as long as they benefit the least advantaged. When Norman Frohlich and Joe Oppenheimer put some people in a laboratory setting with the rules specified by Rawls, they selected principles of justice that were not exactly as Rawls predicted. In particular, they did not embrace the difference principle. They prescribed that the worst off should not fall below a set level of income, but then they allowed all others to have whatever higher incomes they might earn by contributing more to society. When Rawls was told about this, he responded: "If the results hold up it may be that the difference principle cuts across the grain of human nature." Oddly enough, Hauser tries to save Rawls from refutation by asserting that his difference principle might be embraced by all human beings unconsciously (90-91). But then Hauser never explains how human evolution would have favored an unconscious difference principle as an innate component of the moral instinct, and in fact, he says almost nothing about the difference principle as a fundamental principle of moral judgment.

What Hauser says about the "Rawlsian creature" depends on his contrast with the "Humean creature" and the "Kantian creature." But his cartoonish depictions bear little resemblance to their philosophic proponents. Hauser quotes Hume's famous declaration that "reason is, and ought only to be the slave of the passions." But he does not notice the context of this remark that makes clear that Hume believes that reason can direct but not motivate action. Hume writes: "Reason and judgment may, indeed, be the mediate cause of an action, by prompting, or by directing a passion." Ignoring what Hume actually says, Hauser depicts the "Humean creature" as a purely emotivist being with no need for reason at all. Thus, Hauser never considers that the "action analysis" that he attributes to the "Rawlsian creature" was a crucial part of Hume's explanation of moral judgment.

Throughout much of the book, Hauser suggests that morality can best be explained as the work of the "Rawlsian creature" rather than the "Humean creature" or the "Kantian creature." But sometimes he suggests that morality is generally a continuing struggle between all three (418). Unless I am missing something fundamental in this book, he never resolves this confusion.

To test the claims of competing positions in moral philosophy, Hauser relies on research that depends on presenting people with moral dilemmas framed in artificial scenarios--such as the famous "trolley problem." Hauser admits that these scenarios are so artificial and abstract in their distance from everyday experience that they are little more than "toy examples." And yet he insists that the scientific method requires such abstract simplifications. He admits, however, that these "artificial examples" will not be persuasive if they are not combined with "real-life cases" (34-35). He often refers to real historical cases in his book. But he never develops any of these cases beyond a few sentences. For example, he refers to the American debate over slavery. But his remarks are so brief that they cannot capture the complexity of that debate (106, 167, 187). To speak of Abraham Lincoln as a moral "visionary," as he does, misses the reality of Lincoln as a statesman exercising prudence in making compromises that rejected the extremes of the abolitionist and proslavery positions. To say that applying the scientific method to morality requires "toy examples" begs the crucial question of whether there can be a science of morality that is not a historical science of irreducible complexity and uncertainty.

Hume sought to turn moral philosophy into a natural science. But he doing that, he relied as much on historical narrative--like his History of England--as on abstract theorizing. Doesn't a science of morality require such a combination of theory and history?

As I have argued here and elsewhere, a full science of morality would have to move through three levels of study--moral nature, moral culture, and moral judgment. We need to understand the universal moral principles of human nature as they interact with the variable cultural traditions of moral history. And we need to understand how individual moral judgments--like Lincoln deliberating about the Emancipation Proclamation--manifest the peculiarities of individual agents in particular circumstances as constrained by universal moral nature and specific moral traditions. Occasionally, Hauser recognizes this, as when he remarks: "What we need is a better sense of what real people do in real situations in real cultures" (131). But, unfortunately, in this book, we rarely see real people in real situations in real cultures.

If Hauser had devoted more attention to real historical cases, he might have clarified how exactly the universal moral instincts constrain particular moral traditions and individual moral judgments. As it is, Hauser's book leaves us in a fog on this crucial point. This was the problem that Richard Rorty stressed in his review of Hauser's book in The New York Times.

Hauser's problem is Aristotle's problem: if there is a universal, natural standard of right, then why do judgments of right and wrong across individuals and societies show so much variation? The general answer is that this variation is not arbitrary or unlimited, because it shows recurrent patterns that manifest the universal propensities of the natural sense of justice. On the one hand, Hauser explains, the "Weak Rawlsian" would say that the human species has "the capacity to acquire morally relevant norms, but nature hasn't provided any of the relevant details" (298). On the other hand, the "Staunch Rawlsian" would say that human beings are "equipped with specific moral principles about helping and harming, genetically built into the brain and unalterable by culture." Against these two opposing extremes--cultural determinism and genetic determinism--Hauser looks for middle ground: "A Temperate Rawlsian is equipped with a suite of principles and parameters for building moral systems. These principles lack specific content, but operate over the causes and consequences of action. What gives these principles content is the local culture. Every newborn child could build a finite but large number of moral systems."

But by itself, this general answer provokes more questions than it answers. "A finite but large number of moral systems"? How large? What are the finite limits? Sometimes Hauser says the natural moral instinct sanctions only "a narrow range of possible moral systems" (420). At other times, he says it would support "any of the world's moral systems" (426). Does this mean that the universal moral grammar does not allow us to judge any specific moral system as better or worse than others? If so, then moral progress is impossible, because we have no ground for ranking moral systems. So would this mean that moral systems prohibiting slavery are no better or worse than moral systems favoring slavery?

What we need--and what Hauser does not provide--is Darwinian moral history. We need to apply the Darwinian explanation of morality to human history to see how exactly the logic of that explanation works in the complex interaction of moral nature, moral culture, and moral judgment.

Two possible examples are the cases of incest and slavery. Edward Westermarck's Darwinian account of the incest taboo is one of the best examples of Darwinian moral history, because we can see how an evolved natural propensity to avoid incest is diversely expressed in different cultures and different individuals. Although Hauser often mentions the Westermarck theory of incest, he never elaborates it as an example of how a natural moral sense constrains the moral diversity of cultures and individuals (22-23, 166, 199-200, 299, 301). A couple of my blog posts on incest can be found here and here.

I have commented on Abraham Lincoln and the slavery debate many times on this blog. In Chapter 7 of Darwinian Natural Right, I extend my argument for Darwinian natural right by applying it to the history of slavery. I begin with a comparison of ant slavery and human slavery, in which I argue that while slavery among ants and human beings manifests a natural inclination to exploitation, the uniquely human opposition to slavery shows a natural moral sense that resists exploitation. I then argue that throughout the history of the debate over slavery--from Aristotle to Hume, to Thomas Jefferson, to Charles Darwin, to Lincoln--one can see the natural moral sense expressed as a joint product of emotional capacities for feeling moral passions like sympathy and anger and rational capacities for judging moral principles like kinship and reciprocity.

Hauser looks forward to the development of a "science of morality," in which "inquiry into our moral nature will no longer be the proprietary province of the humanities and social sciences, but a shared journey with the natural sciences" (425). I agree with this aspiration towards a unification of knowledge--or "consilience" as Ed Wilson would call it--which would unite the natural sciences, the social sciences, and the humanities. Darwinian moral history would be an important part of this project. In a previous post, I have called this "Darwinian liberal education."

Darwin and the Declaration of Independence in Australia

In two weeks, I will be leaving for a trip to Australia and New Zealand.  My first stop will be Brisbane, where I will be on a panel on "Darwin and the Declaration of Independence," at the convention of the International Political Science Association.  The other members of the panel are Kenneth Blanchard (Northern State University), Jason Jividen (Saint Vincent College), and Marlene Sokolon (Concordia University, Montreal).

My paper for the panel is "The Darwinian Science of the Declaration of Independence."  This paper includes a lot of material from posts on this blog.  Here's a few excerpts from the Introduction, followed by the Table of Contents.

Political science could become a true science by becoming a biopolitical science of political animals.  This science would be both Aristotelian and Darwinian.  It would be Aristotelian in fulfilling Aristotle's original understanding of political science as the biological study of the political life of human beings and other political animals.  It would be Darwinian in employing Charles Darwin's evolutionary theory as well as modern advances in Darwinian biology to explain political behavior as shaped by genetic evolution, cultural evolution, and individual judgment.

The fundamental framework for biopolitical science is the theoretical analysis of political behavior as conforming to a nested hierarchy of three levels of evolutionary deep history--the universal history of each species of political animals, the cultural history of each group of political animals within the species, and the individual history of animals within the group.  So, for example, Jane Goodall's study of the chimpanzees of Gombe in Tanzania and Frans de Waal's study of the chimpanzees in the Arnhem Zoo in the Netherlands show these three levels of chimpanzee political science.  They see some patterns of chimpanzee political behavior that have evolved as part of the universal history of the species--such as male dominance hierarchies--which will arise in all chimpanzee groups.  But they also see distinctive social traditions in each group of chimpanzees that have arisen in their cultural history--such as patterns of making and using tools among the Gombe chimps not seen among the Arnhem chimps.  And they also see unique individuals in each group with individually distinct personalities and styles of behavior arising from inborn temperament and a life history of social experiences.

Similarly, for a biopolitical science of human politics, we must understand the universal history of the human species, the cultural history of human groups within the species, and the individual history of human agents within the groups.  To illustrate how this might be done, I have shown how a biopolitical science could deepen our understanding of one of the crucial turns in American political history--Abraham Lincoln's Emancipation Proclamation of January 1, 1863.  We can understand this as an event in the natural history of cooperation in the human species, in the cultural history of slavery in America, and in the individual history of Lincoln as a political actor in the American Civil War.

Now, in this paper, I will illustrate how this same Darwinian biopolitical framework applies to the study of the Declaration of Independence as an event in the natural history of human politics, in the cultural history of the American political founding, and in the individual history of Thomas Jefferson and the others who signed the Declaration.

This must seem strange to many people, because it is often claimed that a Darwinian science of human evolution denies the political theory of natural rights in the Declaration of Independence by denying the Declaration's appeal to God as the Creator who has endowed human beings with unalienable rights.  Darwin seemed to deny this when he wrote: "Man in his arrogance thinks himself a great work, worthy of the interposition of a deity, more humble, and I believe true, to consider him created from animals."  If human beings have been "created from animals," it might seem that they have not been specially created by God in His image and thus endowed with that moral dignity that sets them apart from other animals.  I will have to answer this objection that the Darwinian denial of the creationist political theology of the Declaration of Independence is a general denial of the idea of natural human rights.

I will organize my Darwinian analysis of the Declaration into four sections that correspond to the four parts of the document.  The first part is the first sentence, which states the purpose of the document--to show "a decent respect to the opinions of mankind" by making an argument that justifies the American colonists in declaring their independence from Great Britain.  The second part of the Declaration is the famous statement of those truths held to be self-evident that show how the right to revolution is rooted in the universal history of the human species, and this assertion of the natural right to revolution can be understood as the major premise of the Declaration's syllogism.

The third part of the document is the long list of grievances against the King that have arisen in the cultural history of the American colonists under British rule, and this claim that the "history of repeated injuries and usurpation" shows a design to establish tyranny over the Americans can be understood as the minor premise in the Declaration's syllogism.

Finally, the fourth part of the document is the statement of the 56 individual signatories--"We, therefore, the representatives of the United States"--who exercise their individual judgment in drawing the conclusion of the syllogism: "that these colonies are, and of right ought to be free and independent states."

Thus, the justifying argument promised in the first sentence is laid out in the document as a syllogism:

Major premise:  The natural history of humanity shows that human beings have a natural right to overthrow tyrannical governments.

Minor premise:  The cultural history of the American colonies shows that the British King intends to exercise tyranny over the colonies.

Conclusion:  The 56 individuals signing the Declaration can exercise their prudential judgment, acting as representatives of the American people, to affirm the conclusion that the American colonies have a right to revolt in separating from British rule.

The structure of this syllogism corresponds to the three levels of deep evolutionary history in Darwinian biopolitical science: the natural history of the political species, the cultural history of a political group within the species, and the individual history of political agents within the group.


TABLE OF CONTENTS

1  INTRODUCTION

2  THE OPINIONS OF MANKIND
    2.1  Symbolic Evolution
    2.2  Nature's God

3  THE UNIVERSAL HISTORY OF THE RIGHT TO REVOLUTION
    3.1  The State of Nature
           3.1.1  The Equal Liberty of Hunter-Gatherers
           3.1.2  Self-Ownership
           3.1.3  The Natural Law of Reputation and Punishment
           3.1.4  War and Peace in the State of Nature
    3.2  Governments Instituted by Consent of the Governed
    3.3  Revolution
           3.3.1  The History of Revolutionary Resistance
           3.3.2  Might Makes Right

4  THE CULTURAL HISTORY OF THE BRITISH KING'S INJURIES AND USURPATIONS
     4.1  Animal Culture
     4.2  The Factual Indictment
     4.3  Slavery

5  THE INDIVIDUAL HISTORY OF POLITICAL JUDGMENTS BY 56 SIGNERS
     5.1  Animal Personalities and Political Ambition
     5.2  The Love of Fame Among the Founding Brothers

6  CONCLUSION

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.

What Does "Survival of the Fittest" Mean?

In the popular mind, any reference to Darwin, Darwinism, or evolution calls up the idea of "survival of the fittest," which is generally understood to mean relentless and ruthless competition in which the strong prevail over the weak--"might makes right."  That's the main reason why Darwinian science is so often associated with a morally repugnant view of life.

This is a mistake.  But to see why requires a long story.

The story starts in 1864 with the publication of Herbert Spencer's Principles of Biology.  Spencer was trying to reconcile his theory of evolution by the inheritance of acquired traits with Darwin's theory of evolution by natural selection.  Darwin accepted Spencer's Lamarckian theory of evolution--the inheritance of acquired traits.  But Darwin's distinctive idea was to emphasize natural selection as the main mechanism of evolution: if certain heritable traits increase or decrease the chances of survival and reproduction in the struggle for life, then those traits that favor survival and reproduction will increase in frequency over generations, and thus organisms will become more adapted to their environments, and over a long period of time the differences between varieties of a species can become so great that the varieties become new species. 

Although by 1864 Spencer had accepted Darwin's idea of natural selection, Spencer still insisted that the most complex forms of adaptation would require a Lamarckian process:  an organism would adopt new habits in response to a changing environment, and as these habits produced heritable changes in the organism, the organism would become better adapted to its environment.  In writing about Darwin's theory of natural selection, Spencer coined the phrase "survival of the fittest," a phrase that Darwin had never used.

By 1864, four editions of Darwin's Origin of Species had been published.  Darwin had used the phrase "natural selection" as a metaphorical expression suggesting a likeness to "artificial selection."  Just as human breeders of domesticated plants and animals select those heritable traits that they preferred, and thus plants and animals became adapted through selective breeding for human purposes, so nature could select those heritable variations in plants and animals that enhanced the chances for survival and reproduction, and thus organisms would become adapted to their environments through natural selection.

On July 2nd, 1866, Alfred Russel Wallace wrote to Darwin, telling him that many readers of the Origin were confused by his use of the expression "natural selection."  By personifying Nature as "selecting" or "preferring" some forms of life, and by comparing natural selection to the selective activity of plant and animal breeders, Darwin was leading many readers to assume that evolution requires direction by an intelligent agent to some purpose, and thus they were misunderstanding Darwin's metaphor as if it were literal.  Wallace suggested that Darwin could avoid this confusion by adopting Spencer's term "survival of the fittest" as a substitute for "natural selection."

Three days later, Darwin wrote back to Wallace.  Darwin recognized the problem indicated by Wallace, and he promised to start using Spencer's phrase.  But he still preferred the term "natural selection" because it could be easily used as a noun governing a verb, and because it emphasized the connection between natural and artificial selection that was important for Darwin's argument.

In 1868, Darwin's book The Variation of Animals and Plants Under Domestication was published, and the phrase "survival of the fittest" was used six times.  Then, in the fifth edition of Origin, Darwin inserted this phrase in thirteen places.  But instead of deleting "natural selection," as Wallace had recommended, Darwin inserted "survival of the fittest" as a synonymous phrase.  So, for example, the title of Chapter 4 of Origin was changed from "Natural Selection" to "Natural Selection; or the Survival of the Fittest."  He also added some remarks to explain and defend his use of the term "natural selection."

In the Introduction to Variation, he wrote:

This preservation, during the battle for life, of varieties which possess any advantage in structure, constitution, or instinct, I have called Natural Selection; and Mr. Herbert Spencer has well expressed the same idea by the Survival of the Fittest.  The term "natural selection" is in some respects a bad one, as it seems to imply conscious choice; but this will be disregarded after a little familiarity.  No one objects to chemists speaking of "elective affinity"; and certainly an acid has no more choice in combining with a base, than the conditions of life have in determining whether or not a new form be selected or preserved.  The term is so far a good one as it brings into connection the production of domestic races by man's power of selection, and the natural preservation of varieties and species in a state of nature.  For brevity sake I sometimes speak of natural selection as an intelligent power; in the same way as astronomers speak of the attraction of gravity as ruling the movements of the planets, or as agriculturalists speak of man making domestic races by his power of selection.  In the one case, as in the other, selection does nothing without variability, and this depends in some manner on the action of the surrounding circumstances on the organism.  I have, also, often personified the word Nature; for I have found it difficult to avoid this ambiguity; but I mean by nature only the aggregate action and product of many natural laws,--and by laws only the ascertained sequence of events.  (I, 6-7)

One sees here a conflict in Darwin's rhetorical style of writing.  On the one hand, he tells the reader to disregard his metaphorical personification of Nature as implying "conscious choice" or "intelligent power," because nature should be understood as "only the aggregate action and product of many natural laws."  On the other hand, he refuses to give up his personification of Nature, apparently because he senses that this engages the mind of the reader through the poetic imagery of Nature as a person.

The anthropomorphic image of Nature as a woman (Mother Nature?) is often vivid in The Origin of Species.   For instance, Darwin writes:

     As man can produce and certainly has produced a great result by his methodical and unconscious means of selection, what may not nature effect?  Man can act only on external and visible characters: nature cares nothing for appearances, except in so far as they may be useful to any being.  She can act on every internal organ, on every shade of constitutional difference, on the whole machinery of life.  Man selects only for his own good; Nature only for that of the being which she tends. . . . Can we wonder, then, that nature's productions should be far "truer" in character than man's productions; that they should be infinitely better adapted to the most complex conditions of life, and should plainly bear the stamp of far higher workmanship?

     It may be said that natural selection is daily and hourly scrutinizing, throughout the world, every variation, even the slightest; rejecting that which is bad, preserving and adding up all that is good; silently and insenibly working, whenever and wherever opportunity offers, at the improvement of each organic being in relation to its organic and inorganic conditions of life. . . .

      Although natural selection can act only through and for the good of each being, yet characters and structures, which we are apt to consider as of very trifling importance, may thus be acted on. . . . (1859, 83-84)

This passage comes from the first edition.  In the sixth edition, Darwin inserted "metaphorically" after "It may" in the second paragraph.  So when Darwin is criticized for personifying Nature as an intelligent designer showing "higher workmanship," he can respond by saying this is only a metaphor that should not be taken literally. 

But isn't this a bit disingenuous?  He wants to evoke in the reader's mind--perhaps unconsciously--the intuitive sense that nature is governed by a wise and benevolent designer.  (Today, some evolutionary theorists would say that this is an evolved tendency of the human mind to project anthropomorphic mental agency onto the cosmos.)  But if Darwin is questioned about this, he will answer that we should disregard his metaphorical language and recognize that nature is "only the action and aggregate product of many natural laws."

Darwin depicts natural selection here as preserving the good and rejecting the bad, as acting "for the good of each being."  But what's the standard here of good and bad?

In the paragraph immediately preceding the paragraph from Variation quoted above,  Darwin speaks of the Struggle for Existence, and he writes: "It has truly been said that all nature is at war; the strongest ultimately prevail, the weakest fail; and we know that myriads of forms have disappeared from the face of the earth."  So the strong prevail over the weak?  So does this mean that interpreting the "survival of the fittest" as the rule of the stronger is really correct, and thus Darwinism ultimately promotes immoralism or nihilism?

In The Origin of Species, Darwin says nothing about morality.  In this book, the "good of each being" seems to be nothing more than being well adapted for survival and reproduction, and in the competition for survival and reproduction, the strong will prevail over the weak.  But in The Descent of Man, Darwin offers his evolutionary theory of morality as unique to human beings.  The naturally evolved moral sense of human beings allows us to sympathize with the victims of injustice and to feel resentment against those who exploit them.

As I have indicated in some previous posts, Darwin saw how the Europeans exploited native people in South America, Australia, and New Zealand.  He could see how the Europeans were using their power to extinguish native peoples, and he could imagine that this illustrated the long evolutionary history of tribal warfare as a factor in human evolution.  But he could also condemn this as unjust and try to elicit moral emotions that would motivate moral reform.  The best example of this was his opposition to slavery.

Darwin could be a moral realist.  As a realist, he could recognize the dark side of evolutionary history in which tribal warfare seemed to mean that "might makes right."  But as a moralist, he could condemn unjust violence and exploitation to elicit moral reform so that "right makes might."  Unfortunately, the popular understanding of Darwinism often saw Darwin's realism but not his moralism.

Similarly, Spencer was accused of promoting "survival of the fittest" understood as a crude endorsement of selfish greed and immoral power-seeking.  In his essay "Mr. Martineau on Evolution," Spencer explained that "survival of the fittest" does not mean "survival of the better" or "survival of the superior."  "Survival of the fittest" means the survival of those who are adapted to the conditions of life in which they are placed.  This does not mean that they are superior or better in any sense, and certainly not in any moral sense.

The most common mistake in the popular caricature of Spencer is that for him "survival of the fittest" required that no charity should be extended to the poor or the disabled, so that the "unfit" should perish.  That this is not true is clear if one reads Spencer's Principles of Ethics, which concludes with 18 chapters on the ethics of altruism, sympathy, and beneficence.  He opposed coercive state-enforced charity.  But he saw voluntary charity as a moral obligation properly enforced by private and public moral sentiments.

Spencer was more utopian than Darwin in that Spencer foresaw that inevitably the cooperative dispositions of human beings would become so well developed that they would cooperate with one another spontaneously without any need for formal law or government.  Human history would find its end in perfect anarchy.  Spencer's mistake was not in being a moral nihilist, but in being a moral utopian.

Darwin did not embrace Spencer's utopian anarchism.  Actually, Darwin was always a bit ambivalent about Spencer.  He saw philosophic genius in Spencer.  But he also thought he was inclined to vague, abstract speculation that was not constrained by a careful observation of facts.  Darwin's disdain for Spencer comes through most clearly in his correspondence with J. D. Hooker in 1862-1866 and in his Autobiography, where he wrote:

Herbert Spencer's conversation seemed to me very interesting, but I did not like him particularly, and did not feel that I could easily have become intimate with him.  I think that he was extremely egotistical.  After reading any of his books, I generally feel enthusiastic admiration for his transcendent talents, and have often wondered whether in the distant future he would rank with such great men as Descartes, Leibnitz, etc., about whom, however, I know very little.  Nevertheless I am not conscious of having profited in my own work by Spencer's writings.  His deductive manner of treating every subject is whole opposed to my frame of mind.  His conclusions never convince me: and over and over again I have said to myself, after reading one of his discussions,--"Here would be a fine subject for half-a-dozen years' work."  His fundamental generalizations (which have been compared in importance by some persons with Newton's laws!)--which I daresay may be very valuable under a philosophical point of view, are of such a nature that they do not seem to me to be of any strictly scientific use.  They partake more of the nature of definitions than of laws of nature.  They do not aid one in prediciting what will happen in any particular case.  Anyhow they have not been of any use to me. (ed. Nora Barlow, 1959, pp. 108-109)

Darwin's correspondence is conventiently available at the Darwin Correspondence Project.

Robert Richards has written a good short paper on comparing Darwin and Spencer.  Unfortunately, Richards is so determined to build up Spencer's reputation that he plays down Darwin's scorn for Spencer.

Some of my posts on related themes can be found here, here, here, here, here, here, and here.