Slippery Slopes to Nowhere
I’ve gotten a lot of grief for my calling Eugene Volokh a significant opponent of same-sex marriage (with some over-the-years context in the comments, here). I’d actually considered taking down the post — it seems to add more heat than light — but now that it’s gotten two links from Andrew Sullivan, well, that one’s gonna live forever in the archives. And maybe it should, even if I might have expressed myself more clearly from the get-go.
Today, as Jon Rowe notes, Volokh is back to talking once again about how maybe we’re on a slippery slope to incest, thanks perhaps to same-sex marriage. (But Volokh supports same-sex marriage, mind you, and he’s shocked — shocked! — that certain people have used his provocative, serious-minded questions as an excuse for anti-gay bigotry.)
I’m essentially unconcerned about slippery slopes. Consider Frank Easterbrook, writing in The University of Chicago Law Review (Winter, 1992), with reference to a slippery slope of years gone by: If we approve the U.S. Constitution, perhaps one day we might get… paper money. Egads! Easterbrook writes:
At any instant some laws will be unthinkable. The jurisprudence of horribles is based on that fact. Yet the political climate changes; what is too horrible to contemplate in 1787 comes to pass during the Civil War. By the time the bottom of the slippery slope is reached, society no longer views the result as horrible. The exercise — whether it involves pointing a finger at paper money, or at the regulation of a farmer’s baking wheat into bread, or at some rule that outrages contemporary thought — is no more than a truism. It gets its entire emotional punch by ignoring the possibility of cultural change.
Hypothetical horribles start from the belief that a legislature has done what no reasonable person could want. Such a supposition is possible only if the political process has collapsed… Once you introduce the possibility that the laws look horrible only because the writer has assumed away the possibility of cultural change, it is harder to justify the assumption that the law is a product of political collapse and correspondingly hard to justify tinkering… now… in order to maintain discretion to deal with a horror that may never come to pass (and, if it does, won’t be viewed as horrible).
The fear of slippery slopes is not the fear of a legislative or judicial process leading by its own wicked logic to the abandonment of common sense. It’s the fear of cultural change. Or rather, the fear that the future will not always agree with you. Less charitably, it’s the fear that you might just be plumb wrong on a lot of things that you would find highly embarrassing to reconsider.
But why, one might ask, should we be afraid of where logic takes us? Shouldn’t we be grateful for the trip? At some point, actually being right needs to count for more than our wish to be thought right-thinking people. When we reach that point, we need to surrender some of our preconceptions — even about sex, if it comes to that.
Actually, especially about sex, because this is surely one topic where we are collectively less likely to be right and yet more likely to wish to be thought right-thinking people. Our very chances of getting laid depend on it, and that’s ample cause for bias.
Lastly, and to discourage the incest-liberalizers, sometimes the culture rather dramatically fails to change. After all, just last century the United States fought off a ferocious attempt to re-normalize polygamy. This was despite an enormous slippery-slope precedent behind it, including religious liberty, divorce, married women’s property laws, and the widespread contemporary embrace of new religious and communal ways of life. If that didn’t do it, I’m not sure what else it would take.