Presuppositional Constitutionalism

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Tim Kowal

Tim Kowal is a husband, father, and attorney in Orange County, California, Vice President of the Orange County Federalist Society, commissioner on the OC Human Relations Commission, and Treasurer of Huntington Beach Tomorrow. The views expressed on this blog are his own. You can follow this blog via RSS, Facebook, or Twitter. Email is welcome at timkowal at gmail.com.

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  1. Avatar Patrick Cahalan
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    says:

    I need to read through this again. I had to blaze through it (early, early call tomorrow to drive the rest of the family to the airport).

    I have some questions but I bet others will get to them before I do. I have a question about this paragraph (and I think it is the weakest one of a pretty good post):

    “With this in mind, we can begin to understand why certain political principle facts must be objectively true. That all men are created equal is one such principle. I must assume all men are of the same nature as I am. Otherwise, I would have no intelligible basis for moral objection or approval of the actions of another. I would have no intelligible basis for purporting to communicate or transact or reason with others. It is only by assuming that others are of the same nature as I am that I can intelligibly and reasonably enter into relationships with them. If I do not assume this fact, all my social interactions are betrayed and irrational and meaningless—I may as well be talking to a plant or a bar of soap or any other thing that is not of a nature equal to my own. ”

    Now, one can certainly argue that there are intelligible reasons to communicate with, or enter into a relationship with, someone you don’t regard as equal. It will be (of course) a particular kind of communication or relationship, however. The trouble, of course, is what exactly we’re terming “equality”.

    Without going down into the philosophical weeds, though, I’ll certainly grant that this is an underlying principle of the American constitutional framework. So, my question: is it required that we acknowledge *all* of the underlying principles, or can we reasonably say that some of them (one of them? any of them?) are not precisely necessary in order to have a workable constitution, on a reasonable grounding?Report

    • Avatar Will H. in reply to Patrick Cahalan
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      says:

      I caught that too; particularly this portion:
      That all men are created equal is one such principle. I must assume all men are of the same nature as I am. Otherwise, I would have no intelligible basis for moral objection or approval of the actions of another.

      I answer the issue through basic corollaries of instrumentation theory, and will set that out in a separate comment below.

      For now, let’s say that at issue is not the inherent equality of all men, but specifically of their relation to the law. The statement is true within its context.Report

      • Avatar Roger in reply to Will H.
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        says:

        Will,
        I agree. The equality is that effective rules are consistent. We treat people as equals under law because otherwise they would not rationally consent to the rules.Report

    • Avatar Tim Kowal in reply to Patrick Cahalan
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      says:

      Pat,

      I don’t know if there’s a list of what “all of the underlying principles” are. I’ve tackled equality, life, liberty, and property here. I’d have to think some more about what principles are necessary and sufficient for a “workable constitution.”

      There may be some lack of clarity of what precisely is meant by “equality.” We are referring here to equality of kind, not of degree. Not every man is moral in the same degree, but we must assume they all are essentially moral, else we could not reasonably purport to hold him to account for his actions. Not every man reasons equally well, but if it was not part of his basic nature to reason, we could not purport to promulgate or enforce laws since we could not assume he can understand them or bring himself to comport with their requirements. Imagine trying to enforce a “no dogs at the beach” law against dogs by reading them Miranda rights and locking them up in jail. That only sounds absurd because we must assume that all dogs are of a certain nature and all humans are of a different nature.

      In this light, I don’t think there are intelligible, nonarbitrary reasons to assume another human being is not equal in terms of having a basic nature as a moral and rational being.Report

      • Avatar Fnord in reply to Tim Kowal
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        says:

        Would you enforce a “no dogs on the beach” rule against a small child by arresting them and reading them Miranda rights? I certainly hope not. Treating a young child the same as an adult would be almost as absurd as treating a dog the same way.

        Even a dog could be taught to stay off the beach, if one used appropriate techniques for training dogs. To borrow your examples, a plant or a bar of soap could not.Report

        • Avatar Tim Kowal in reply to Fnord
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          says:

          Just to be clear, I understand “no dogs” laws typically subject violators to a fine, not imprisonment. I was being hyperbolic. That said, when we talk about human nature, we are talking about healthy adults. Children have a moral capacity as well, of course, but as it is still developing, certain allowances are made. In the law, children are subjected to liability consistent with the “reasonable child” standard. A five-year old can be held liable battery if the court determines a reasonable five-year-old knows that the act is wrong.Report

          • Avatar Fnord in reply to Tim Kowal
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            says:

            Which rather undermines your point that you have to assume equality to relate sensibly with others.Report

            • Avatar Tim Kowal in reply to Fnord
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              says:

              Not at all. Again, these are differences in degree, not kind. It takes some development for a child to understand mathematical concepts, for example. But that does not mean that, along the way, he adheres to some other concept that concludes 10 times 10 is 90, and then later in his development 95, and then later 105, until finally 100. Instead, he is learning the same system, but must do so in steps. An imperfect system is not a different system. A child is still equal in his nature. When we relate to children, we put things in more basic terms, but we do not put them in wholly other or contradictory terms. The child’s nature is not different, it is simply is not perfected until he reaches adulthood.Report

              • Avatar Fnord in reply to Tim Kowal
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                says:

                And yet, as I also noted, you COULD train dogs themselves to keep off the beach, if you chose to do so and addressed them in a way dogs understand. And, indeed, many people seem to have meaningful relationships with dogs. Quite different from their relationships with humans, of course, but to suppose that a dog trainer “may as well be speaking to a plant or a bar of soap” is as absurd as supposing they should attempt to train the dog as if it were a human.Report

              • Avatar Tim Kowal in reply to Fnord
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                says:

                Fnord,

                I did not intend to hinge my entire argument on the force of an off-the-cuff metaphor. At any rate, I did not mean to suggest that dogs could not be trained, which is quite besides the point. My point was that laws are always promulgated such that beings of a particular nature—i.e., human beings—can comprehend and comport themselves with them. Laws are never promulgated with the supposition that canines should comprehend and comport themselves with them. Whatever we are capable of training dogs to do is not at issue. We are talking about the presuppositions that underlie constitution-making and law-making. In that respect, we necessarily presuppose that human beings are of an equal nature, and that they are not equal to other kinds of beings.Report

              • Avatar Fnord in reply to Tim Kowal
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                says:

                That’s true, of course, but hardly anything a positivist would disagree with.

                Your original post claimed that the only way to have meaningful interactions with other people is to assume that those people are equal in kind. Which is wrong in two ways:

                1) It’s demonstrably possible to have meaningful interactions with beings that are clearly NOT equal in kind, like the interactions between humans and dogs.
                2) No assumption is necessary. It’s perfectly possible to determine empirically (once you’ve dealt with Cartesian doubt) that humans are similar to each other, to the degree necessary to enact laws and otherwise allow humans to function together in society. It’s likewise possible to determine empirically how children of various ages are similar to and different from adults, and thus how laws should treat them. Indeed, it’s possible to determine empirically how to best control the behavior of dogs to allow them to function together with humans in society.Report

              • Avatar Tim Kowal in reply to Fnord
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                says:

                Fnord,

                It’s possible my formulation was not precise. Granted, we can have some kind of limited though meaningful interaction with dogs or other beasts. But even this requires presuppositions about the nature of dogs or other beasts. That is, that dogs have a certain nature such that they can be trained, using certain methods, to do certain things. We generalize about dogs the same way we do about humans. The further generalizations about man’s nature are necessary to sustain moral knowledge and promulgate and enforce laws that require the use of reason, etc.

                As to your second point, Cartesian doubt demonstrates why empiricism is useless without certain presuppositions about reality. It is no good to skip over it as if the problem could be solved some other way. To date, it has not.Report

              • Avatar Fnord in reply to Fnord
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                says:

                Perhaps you have a different definition of “presupposition” than I do. Because it seems to me that no presuppositions about the nature of dogs is needed. We learn to interact with dogs by observing how dogs act and react to different things, including ourselves and other people. Yes, we generalize between different dogs, but we generalize based upon other observations that dogs tend to act in ways similar to each other.

                And, indeed, we learn to interact with humans in the same way: by observing how humans act, react, and interact.

                It’s true that we need to make some presuppositions about reality to overcome Cartesian doubt (that the evidence of our senses is accurate). But those assumptions are the same for all objects perceived by our senses: humans, dogs, rocks; we must assume that our perception of them implies their existence, in order to make reality intelligible. There’s no need to make additional presuppositions about human nature. It is possible to do so; it may even be desirable to do so. But it is not necessary to make reality or human interaction intelligible.Report

              • Avatar Tom Van Dyke in reply to Fnord
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                says:

                To cut to the chase, eating a dog is not unthinkable. We hope the idea of eating a baby is.

                This may sound like glib stuff, but it’s actually the way to start at the beginning, pre-Socratic as it were. That we should not and do not eat each other for food is indeed the sort of thing Kowal uses as a presupposition, a self-evident universal moral truth.

                Would you train a human being as you would an animal? Work a human being as you would an animal? And if not, why not? Up the ladder we go.Report

              • Avatar Fnord in reply to Fnord
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                says:

                Well, I’ll take you at your word Mr. Van Dyke, and suppose that you’re not being glib, and feel that a serious discussion of human cannibalism would be productive.

                I suggest, to start, you read up on the case of Dudley and Stephens, from 1874, and consider why the felt compelled to act in a way you feel is forbidden by “self-evident universal moral truth”, why they where convicted, and why, despite a conviction on a charge of murder, they received all of six months imprisonment instead of a life sentence or execution.Report

              • Avatar Stillwater in reply to Fnord
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                says:

                TVD, I guess my problem with the ‘we don’t eat humans’ presupposition is what that sentence means? Does it mean humans have never eaten other people? That the presupposition that we oughtn’t to? That’s a priori determinable?

                I mean, people in various societies used to eat each other and it was apparently more prevalent the further back you go in time. Do we just exclude that evidence because it doesn’t fit with the theory?Report

              • Avatar Tom Van Dyke in reply to Fnord
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                says:

                Messrs. Fnord and Stillwater: Why not make your point instead of…this?

                There are lifeboat rules, there are historical exceptions, and then there are tigers and polar bears that eat their young. It should not be all thrown into an undifferentiated soup.

                If either of you has a point, I very much should like to hear it. In the meantime, I’ll stick with “we don’t eat babies,” unglibly. If this is not a suitable point to begin, please suggest another.Report

              • Avatar Fnord in reply to Fnord
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                says:

                So it’s “a self-evident universal moral truth” that comes with caveats and exceptions?

                My point, Mr. Van Dyke, is that your “self-evident universal moral truth” is neither self-evident nor universal. Nor, for that matter, are Mr. Kowal’s (not even the assumptions needed to overcome Cartesian doubt are self-evident, merely necessary).Report

              • Avatar Tim Kowal in reply to Fnord
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                says:

                Is anything self-evident? (A serious question.)Report

              • Avatar Jaybird in reply to Fnord
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                says:

                I am.

                Well, from here, anyway.Report

              • Avatar Tom Van Dyke in reply to Fnord
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                says:

                I invested the good-faith time in you, Mr. Fnord, to track down your murdering cannibals Dudley & Stephens [1874]. I do not think it amounts to an argument. That they were originally condemned to death is an argument, though, in favor of Mr. Kowal’s.

                I repeat,

                In the meantime, I’ll stick with “we don’t eat babies,” unglibly. If this is not a suitable point to begin [with], please suggest another.

                Mine was from fiction, Star Trek, Conscience of the King. Very freaking relevant what with our fictional Death Panels and all.

                The revolution is successful. But survival depends on drastic measures. Your continued existence represents a threat to the well-being of society. Your lives mean slow death to the more valued members of the colony. Therefore, I have no alternative but to sentence you to death. Your execution is so ordered, signed Kodos, Governor of Tarsus IV.

                [Damn, what happened to our HTML coder, where you could stick a photo or an easy link into the replies?]

                http://en.memory-alpha.org/wiki/KodosReport

              • Avatar Fnord in reply to Fnord
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                says:

                Mr. Kowal:
                “Is anything self-evident?”
                One’s own existence, I think, and a few facts about oneself. Which is not very much; not even enough, on its own, to overcome Cartesian doubt.

                Mr. Van Dyke:
                Do YOU have a point? Or would you rather bask is self-satisfaction over men in a situation far more dire than you’ve ever been in, ever will be in, or apparently even care to think about, since your rejoinder is, as you say, fictional.

                Their original sentence was commuted, and that commutation is as much a part of the law as the rest of the trial. It is an illustration, then, that other principles that “don’t eat people” are involved.

                Perhaps you would have decided that case different, had you been emperor of Britain at the time. As I don’t harbor any delusions about universal or self-evident moral principles, I can’t say that your decision would be irrational. After all, there’s nothing preventing you from constructing a moral system based on nothing more than an unconnected collection of bare assertions. I can merely note it as evidence about what sort of being you are, to use in further interactions with you.Report

              • Avatar Fnord in reply to Tim Kowal
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                says:

                Also, that’s a pretty weak version of “all men are equal”. If a king can permissibly rule his (adult) subjects with the same thoroughness as a parent rules a young child, your conception of natural law is a rather poor bulwark against tyranny.Report

              • Avatar Tim Kowal in reply to Fnord
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                says:

                I don’t see how that follows at all from what I’ve said.Report

              • Avatar Fnord in reply to Tim Kowal
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                says:

                Perhaps you have more to say, that would rule it out. But it seems to me that the basis of your natural law is that people must assume their fellows are equal in kind, but not always equal in degree. You go on to clarify that children and adults are equal in kind, but not in degree. So the (quite extensive) ability for a parent to impinge on the actions of a child is justified by a “mere” difference of degree.Report

              • Avatar Tim Kowal in reply to Fnord
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                says:

                We can make intelligible distinctions between children and adults the way we can’t between adults generally.Report

              • Avatar Fnord in reply to Fnord
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                says:

                Of course we can. Because we don’t need to make assumptions human nature and “differences in kind” versus “differences in degree” in order to make human interaction intelligible.Report

              • Avatar James Vonder Haar in reply to Fnord
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                says:

                How can you say that it’s impossible to make intelligible distinctions between commoners and aristocrats? Feudalistic societies seemed to at least work out a consistent manner of determining which “equals” were fit for ruling and which were fit to be ruled. Suggesting that you could not sniff out this fundamental difference in blood would sound to them like suggesting there is no difference in the sexes to you- an absurd denial of objective reality.Report

              • Avatar Tim Kowal in reply to Fnord
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                says:

                James,

                Do you take the position that there is an intelligible basis for subjecting two persons to different moral standards on the basis that one is an aristocrat and the other a commoner? Note that intelligibility is not the same as “the idea worked for a time for some people.”

                And for the record, I do not believe that human beings can intelligibly be put to different moral standards based on gender. Do you?Report

      • Avatar Patrick Cahalan in reply to Tim Kowal
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        says:

        > I don’t know if there’s a list of what “all of the underlying
        > principles” are.

        Me, either.

        > I’ve tackled equality, life, liberty, and property here. I’d
        > have to think some more about what principles are necessary
        > and sufficient for a “workable constitution.”

        Me, too. I suspect the liberal application of good scotch will be useful in this endeavor.

        > There may be some lack of clarity of what precisely is meant by
        > “equality.” We are referring here to equality of kind, not of degree.

        Oh, no, I got that. I mean, I understand the natural law reasoning behind equality of humankind. And while historically we’ve had some troubles with that one, I can accept the idea that this has been a process of greater understanding as time goes on, rather than a functional problem with the idea (although I’m not entirely unsympathetic to that alternative explanation, either).

        That is to say, we started off with “equals”== landowners, then gentry, then back to landowners, then bourgeois, then all males, then *white* males, then all males again (in theory), and then all adults (in theory). There’s been a couple of backsteps in there, but the progression has been towards assuming equality in the essence of value of persons.

        > Not every man is moral in the same degree, but we
        > must assume they all are essentially moral, else we
        > could not reasonably purport to hold him to
        > account for his actions.

        This part I have trouble with. I assume rather the converse: that most persons are at *best* moral (more likely than not *less* moral than moreso)… but this holds no particular weight for me when it comes to holding them to account.

        There’s a break between holding someone to account with reason and holding someone to account with moral judgment. I can look at a sociopath and say, “This entity is fundamentally broken in such a way that my moral judgment precludes giving them the status of personhood, but I cannot use this as a determinative judgment. I cannot truly assess whether they are, in fact, *evil* as opposed to amoral, even supposing that I had absolute confidence of my assessment of their sociopathy. I cannot, therefore, say with determination whether their actions are in fact motivated by evil or motivated by a lack of moral awareness. It is not my place, therefore, to pass a moral judgment on their actions; however, I certainly am within rights to pass a judgment of reason upon their actions. These are not acceptable actions for a member of our society, and as a measure of self-preservation our collective has the right to incarcerate this entity indefinitely.

        If we *must* have moral judgment to hold people to any account, we are assuming that every person is in a state of moral awareness, always. I don’t think that’s supportable.Report

        • Avatar Tim Kowal in reply to Patrick Cahalan
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          says:

          I think this became clear by the end, but just in case there is confusion for any other readers: when I say that man is essentially a moral being, I mean only that he has the capacity for making moral judgments. I am not saying that he is essentially demonstrates good morals.

          You are right to draw a distinction between a moral man in the general case and a “sociopath.” I would say that the sociopath is a “defective” person in that he lacks one of the basic components that defines human beings. This analysis (which you began and which I don’t have time to more fully lay out here) leads to the conclusion, I think, that moral wrongs both (a) need to be punished for their intrinsic evil, and (b) need to be prevented for their extrinsic harms. In the case of the sociopath, we have to look more carefully to determine to what extend (a) is justified.

          If we *must* have moral judgment to hold people to any account, we are assuming that every person is in a state of moral awareness, always. I don’t think that’s supportable.

          I don’t think we have to assume we are in a state of constant moral awareness. Again, we are not only moral creatures, we are reasonable creatures. It is reasonable that we might, from time to time, inadvertently trespass on another’s property, take a thing that does not belong to us, etc. Through the exercise of our reason, we would consider such mitigating factors in determining moral blameworthiness. But the fact that we are not in a constant state of moral awareness (whatever else that might mean) does not detract from the fact that we are essentially moral creatures.Report

  2. Avatar Brandon Berg
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    says:

    There is an express mechanism for ruling laws unconstitutional. Specifically, the Supreme Court has the authority to decide all cases arising under federal law or the Constitution. When they declare a law unconstitutional, they’re essentially preemptively ruling in favor of any legal challenge to the government’s attempts to enforce it.Report

    • Avatar Tim Kowal in reply to Brandon Berg
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      says:

      But this is not express in the Constitution. This was part of John Marshall’s assertion of the Supreme Court’s power as a coequal institution of government. It is indeed consistent with reason and with a reasonable construction of the Constitution, but my point was that the Constitution did not need to flesh out what the rules of reason require. It presupposes we already know what they are. My point is, what else might we say the Constitution presupposes we already know?Report

      • Avatar Tom Van Dyke in reply to Tim Kowal
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        says:

        TK: my point was that the Constitution did not need to flesh out what the rules of reason require. It presupposes we already know what they are. My point is, what else might we say the Constitution presupposes we already know?

        1) “the right to have rights”
        2) the answer to the question “by what right does one man rule another?”

        Aquinas starts there, circa 1250 CE. It’s a proper foundational question, and the answer proceeds directly from the proposition that all men are created equal. Otherwise, the answer is indeed via inequality: the strongest, the loudest, the handsomest, the best swordsman, the one with the best family connections.Report

  3. Avatar Murali
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    says:

    Tim, not all objectors to Natural Law are thoroughgoing empiricists. The biggest problem I have with natural law theory is its insistance that the various traqnscendental truths are truths about Man’s nature.

    So, saying that it is Man’s nature to seek truth is wrong. It is in some people’s nature to seek truth and it is a lot of other people’s natures to think comfortable thoughts. If there are fundamental moral truths, then they must transcend the particular features about what our motivations happen to be. Now, of course this does not mean that human nature is irrelevant. Rather, the most fundamental ought, when applied to situations involving humans, produces more concrete and action guiding directives. When applied to vulcans, things may be slightly different as vulcan natures may be different in certain relevant senses.

    Let us grant that the formula of universal law is the fundamental moral imperative: Act only on the maxim that you can at the same time will to be a universal law. Maybe vulcans are characteristically capable of willing different kinds of things as universal laws than humans. So human nature is important in some sense. That however doesnt mean that moral truths (especially the fundamental ones) are truths about human nature. Rather human nature, like any other contingent fact can play a part in filliing in the situation in order to more clearly denote what course of action is morally appropriate. It may just be that absent such information, what is required by morality is indeterminate absent furthe specific information about the situation.

    As with Pat Cahalan, I also think that all people are created equal is doing a lot of work. This is especially because it is not clear what dimensions they are supposed to be equal along. Some people are smarter, some are kinder some are stronger, some are more saintly etc. Maybe all you mean is that all people fall equally under the moral law. But whether or the moral law applies to an entity is either binary, in which case the equality that is being spoken of is trivial, or admits of degrees, in which case more needs to be said about how much the moral law applies and in virtue of what is it that the moral law applies to an equal degree to everybody. Maybe it applies less or partially to young children or intellectually disabled people?Report

    • Avatar Tim Kowal in reply to Murali
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      says:

      So, saying that it is Man’s nature to seek truth is wrong. It is in some people’s nature to seek truth and it is a lot of other people’s natures to think comfortable thoughts.

      We don’t actually think this way. Were I to assume that, at the core of your nature, you prioritize comfort over truth, I would just as soon offer this further explanation to you as I would offer it to my cat. I must assume you are a particular sort of being to account for the fact that I seek to communicate these particular sorts of ideas with you in this particular manner. I must assume that all men prioritize knowing what is true above knowing merely what is comfortable. Some may improvidently resist the truth for the sake of comfort, but his desire for truth cannot be suppressed indefinitely or without injury.Report

      • Avatar Murali in reply to Tim Kowal
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        says:

        I must assume you are a particular sort of being to account for the fact that I seek to communicate these particular sorts of ideas with you in this particular manner.

        Not entirely. There are some things, which I will do in an academic paper, I will never do in a blog post. Similarly there are certain things I will do in a blog post I will never do in a paper. (at least I shouldn’t) The reason is because in academic papers, my readers are more explicitly presumed to be concerned about the truth of some particular matter. If you notice, the blog posts in which I am most successful (in terms of engaging and persuading the reader) are not my most academic ones, but those that are cognisant of the fact that people can prefer comfortable over true beliefs. My most successful posts are those in which I successfully get people to feel uncomforable about their current false belief sets.Report

  4. Avatar Will H.
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    says:

    To me, Cartesian doubt is rather foolish and unjustified, failing to take into account some very basic operations. It amazes me the number of high intellects which can be tripped up over such faulty propositions for such an extended period of time.
    One of the basic errors of instrumentation is the loss of mechanical transference. For an instrument to measure anything, it is necessary that it produce output which conforms to the human senses.
    For example, if I sit in a room in total darkness, I see nothing. If that room is suddenly filled with a high level of non-ionizing radiation, I still see nothing. In order to detect that radiation, I need something which will conform to the human senses.
    The loss of mechanical transference stipulates that some degree of error will occur in thus conforming. It also implies that an objective reality does in fact exist; however, it may only be detected within a certain range of error. That doesn’t mean that it’s false; not at all. It means that there are natural limitations on subject data.
    This in turn demonstrates the truth of this statement:
    Experience informs us only of what is, or has been, not of what must be.
    As truth derived from the senses will necessarily fall within a range of error, our knowledge base will forever be incomplete.
    And so, I take issue with this statement:
    Moral and logical laws are not self-enforcing like physical laws are.
    No, I firmly believe that they are; however, they too are subject to various forces, the perception of which is subject to its own range of error.Report

    • Avatar Tim Kowal in reply to Will H.
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      says:

      Will,

      Cartesian doubt demonstrates the problem of whether we can have any empirical knowledge at all, not merely whether our senses are accurate. Think The Matrix. We might be mistaken whether the grocery store is 100 yards away or 110 yards away. But if we are in the Matrix, there is no grocery store at all.

      It’s not a range of error problem. It’s an epistemological problem.Report

      • Avatar Will H. in reply to Tim Kowal
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        says:

        But that’s precisely the point, Tim.
        What you describe is an issue of depth, whereas sight is measured by color and shape. Depth is a body of knowledge not inherent in that collection of colored shapes. It’s a direct application of knowledge.
        For a thing to be measured, there must first be a thing and then a measurement. That there is a measurement implies that there is a measurer. The measurer measures things accordingly relative to himself.
        Bringing the Matrix into it is the same as considering colorblindness. It doesn’t alter the fact that something is measurable. It only affects the applicable range of the subject data.Report

  5. Avatar Roger
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    says:

    Tim,

    Awesome post, man. You have made your case extremely well.

    However, I am still not persuaded yet. I need to organize my questions and rebuttals though, if you don’t mind…..Report

    • Avatar Roger in reply to Roger
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      says:

      Tim,

      “Natural reasoning, then, begins with the project of ascertaining those facts about reality that must be true in order to get the knowledge project off the ground.  This is not to say that we can stipulate such facts arbitrarily.  This is where religion and metaphysics come into play to provide a coherent set of transcendental facts.  Which religion or metaphysical theory is most appealing can be left to the individual as far as the natural reasoning project goes. ”

      Are you saying we can’t choose them arbitrarily, but as long as it meets certain metaphysical standards (such a coherence) that we can start with different natural facts? Won’t this lead to multiple natural rights?

      “Now that we have established the necessity of truths that do not depend for their validity on experience or feelings or a consensus, the skeptic has no ground to deny the existence of morals.  That is, the skeptic acknowledges the existence of transcendental presuppositions to acquire one kind of knowledge.  The skeptic cannot arbitrarily deny the existence of other presuppositions to acquire a different kind of knowledge, moral knowledge, which is equally important to man’s understanding of his reality.”

      This skeptic agrees reluctantly, but only with the assertion that morals are like STRATEGIES or TACTICs. They are ways that human beings can objectively coordinate our actions to accomplish various goals. Is this acceptable?

      “With this in mind, we can begin to understand why certain political principle facts must be objectively true.  That all men are created equal is one such principle.  I must assume all men are of the same nature as I am.  Otherwise, I would have no intelligible basis for moral objection or approval of the actions of another. ”

      By “must be objectively true” your argument seems to be that this assumption is necessary to make the rest of your natural rights moral reasoning coherent. in other words, I read this as this is an assumption you make to tie down all the loose ends of your arbitrary leap to believing natural rights. In what way are people created equal? Equal height? Weight? IQ? Values? Please clarify.

      “It is only by assuming that others are of the same nature as I am that I can intelligibly and reasonably enter into relationships with them.”

      Disagree.  To have a rational, meaningful relationship with someone you need to have understanding of how they will act and react. They don’t need to be identical to you. I can even have a relationship with a dog. Or do you define relationship as different than me?

      “If all men are qualitatively equal, then no one man can impinge on another’s reasonable actions without justification.  Man need not give any account to any other for growing, gathering, catching, or producing the necessities of his life and flourishing so long as his activity does not impinge on another’s ability to do the same.  Inversely, man must gain consent or offer reasons amounting to a justification before taking the property of another.  A principle (if it could be called that) of “might makes right” would lay waste to man’s precommitment to reason and reason’s injunction not to act arbitrarily.  Natural physical strength is, as far as man is concerned, arbitrary and thus cannot in reason provide a justification for altering relationships between man and property.”

      I just don’t follow the logical leaps here. Why must a man get consent to take another’s property? Why is violence arbitrary and what do you mean by arbitrary? Why is theft without reasons illogical?

      ” We share a common nature, and common faculties.  Some of our ideas comport with our nature and faculties, and others do not.  It is my firm belief that we can more effectively vet those ideas than we often do.”

      We share much in common, but are not identical. Understanding what these things are in common is extremely useful, and important for designing good rules and in some cases calling them rights. But calling them so doesn’t change their true nature, which is useful rules or conduct between people.  Report

      • Avatar Tim Kowal in reply to Roger
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        says:

        Are you saying we can’t choose them arbitrarily, but as long as it meets certain metaphysical standards (such a coherence) that we can start with different natural facts? Won’t this lead to multiple natural rights?

        To some degree, I think this is possible. But probably only as to certain kinds of rights or laws. For example, I think we would have to reject the Hindu principle that all things are essentially one, since it undermines the necessary principle of differentiation among kinds. But sharia law, for example, regards interest on loans as a violation of the natural law, while Christian and Jewish natural law does not. These are differences that nonetheless arguably can philosophically coexist in the same political system.

        This skeptic agrees reluctantly, but only with the assertion that morals are like STRATEGIES or TACTICs. They are ways that human beings can objectively coordinate our actions to accomplish various goals. Is this acceptable?

        I think you are thinking of particular morals, and/or about the motivations for holding or asserting those morals. I am here talking more generally about the existence of a moral nature, the possibility of moral reasoning and moral knowledge. Also, morals are not means to an end. The discussion of “accomplishing various goals” is wrapped up in the idea of telos or the purpose of man’s nature. One of his purposes is to seek understanding of his moral nature and comport himself with moral laws. It cannot also be his nature to subvert the moral law to achieve some other ends.

        I clarified the distinction between equality in degree and equality in kind in my response to Pat, above.

        Why must a man get consent to take another’s property? Why is violence arbitrary and what do you mean by arbitrary? Why is theft without reasons illogical?

        It is man’s nature to seek to sustain his own life, e.g., by growing, gathering, capturing, producing things in the world. Because of the importance of man’s own life and the necessary role things in the world play to this end, it can be said that man has a special relationship with these things. It cannot be said in reason that there would be no significance to my coming along and taking those things that you have grown, gathered, captured, produced without offering some justification or obtaining your consent.

        Not all violence is arbitrary. Violence without justification is arbitrary. Again, if we observe that all men share a basic reasoning and moral nature, it would be inconsistent with that nature to do violence to another without some justification. This is part of what it means to be a moral nature, such that were we to deny it we would forfeit the possibility of having any moral knowledge, and by consequence deny an important part of our own nature.Report

        • Avatar Roger in reply to Tim Kowal
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          says:

          “I think you are thinking of particular morals, and/or about the motivations for holding or asserting those morals. I am here talking more generally about the existence of a moral nature, the possibility of moral reasoning and moral knowledge. Also, morals are not means to an end. The discussion of “accomplishing various goals” is wrapped up in the idea of telos or the purpose of man’s nature. One of his purposes is to seek understanding of his moral nature and comport himself with moral laws. It cannot also be his nature to subvert the moral law to achieve some other ends.”

          I do agree that humans have the evolved capacity to reason morally. The reason they evolved this capacity is because humans can solve more problems together than apart. However, groups of humans can create problems for each other, not just solutions. We evolved moral instincts, intuition and reasoning to allow us to coordinate our activities in ways that create more solutions than problems.  Morals are clearly a means to the end. That is why they evolved, and continues to be why they benefit us. Are you denying or dismissing evolution? Where do you assume this moral nature came from? A Platonic realm?

          “Not all violence is arbitrary. Violence without justification is arbitrary. Again, if we observe that all men share a basic reasoning and moral nature, it would be inconsistent with that nature to do violence to another without some justification. This is part of what it means to be a moral nature, such that were we to deny it we would forfeit the possibility of having any moral knowledge, and by consequence deny an important part of our own nature.”

          So the Mongol hordes were inconsistent with their moral nature. It seems you have painted a coherent theory that pleases you. Even as the Mongol horde rapes, tortures and kills you, at least you can be intellectually consistent. I see it all as a make believe set of coherent intellectual castles. I may be wrong of course. Report

          • Avatar Tim Kowal in reply to Roger
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            says:

            Roger,

            As you probably guessed, we have different reasons for our respective claims about man’s moral capacity. For the purposes of this project, that’s perfectly fine. I opted not to delve too deeply into a comparative analysis as to the respective systems that would hold such claims together, as I don’t think it is particularly relevant to the topic of political/constitutional presuppositions.

            As I understand, however, you deny that man’s moral “intuition” amounts to a moral “nature.” Instead, I understand you as saying that this intuition is a product of evolution that allows humans to “solve more problems together than apart.” Respectfully, I think you are just re-labeling the question. That is, what I call morality you might call something else, like “solving problems.” What else is meant by solving problems other than “to do good”? We still have to account for why there are certain things that have moral content, or that are “problems” that must be solved.

            I’m not sure I understand your point about the Mongols. Yes, I believe that, as humans, they had a moral nature, and to the extent they engaged in arbitrary or unreasonable violence, they acted inconsistently with that nature. On this basis, my claim that their actions were morally blameworthy is an intelligible moral claim, as opposed to an arbitrary and meaningless assertion of my personal taste or opinion.Report

            • Avatar Tom Van Dyke in reply to Tim Kowal
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              says:

              I had the same thought this weekend, Tim. Anyone who would feed his dog [or save it from drowning] rather feed or save a stranger’s child has violated a moral law that needs no explanation.

              So too, absent an inherent equality among men, there’s no reason to be just to each other except for some abstract hope of reciprocity—but that will often be unrequited. Hobbes’ war of all against all is no mere fiction, even Jesus was betrayed. Expected reciprocity is a fool’s game in the end.

              Now in the olden [classical Greek and Roman] scheme of virtue, “magnanimity” was the thing. To be just accrued to one’s own greatness, but had nothing essentially to do with the other guy. [Machiavelli complained that this greatness had mutated into mere “Christian charity,” and he was right.]

              But shorn of Christian charity and imago Dei, or even magnanimity, the modern account of rights has little to recommend it except a Barney the Dinosaur sort of thing. Thing is, when push comes to shove, Barney’s the first one down, the useful idiot.Report

              • Avatar Tim Kowal in reply to Tom Van Dyke
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                says:

                Anyone who would feed his dog [or save it from drowning] rather feed or save a stranger’s child has violated a moral law that needs no explanation.

                Perhaps it should need no explanation. Whether because of the tradition of skepticism or something else, it seems to me we have to give an account for our first principles, those ideas that comprise the fine line separating man from philosophical absurdity.Report

              • Avatar Tom Van Dyke in reply to Tim Kowal
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                says:

                Aye, Tim. I wanted to illustrate the absurdity that such things might need explaining. The reason you feed the child rather than the dog is the same reason you are just to the next man.

                And of course, that only gets us started on justice, and does not even yet contemplate love, charity and mercy…Report

            • Avatar Roger in reply to Tim Kowal
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              says:

              Tim and Tom,

              I apologize for being so argumentative. I just don’t Get It. I understand that you can build an intellectual, rational foundation justifying morality for those that choose to agree with your premises. Several such systems have been built, and yours is a fine example.

              I DO get that a society can be built up from these rational foundations, and that this can be a good thing. Shared moral visions are powerful things, and can help explain the breakthroughs of the enlightenment societies such as the US.

              They just come across to me as good stories. Logically consistent, well grounded stories. Stories that make our instrumental oughts seem sacred and thus more powerful and thus more effective. Very useful fictions.

              Tim, I agree that we solve problems to do good, that is to change the world to match our preferences or desires. The reason some of these have moral content is that morality concerns the realm of problems that have social content. Humans are a social species, and we have evolved moral intuitions and feelings to help direct our behavior among fellow humans.

              Thus the source of our moral nature is easily explained by evolution. However we are not just arguing over labels. An evolved moral nature adds explanatory content to the discussion.

              The reason I bring up the Mongol hordes is because they don’t care about rational grounding. They just want to plunder and rape. They will laugh as we blame them. It is almost as if they kill us and we say, “Well at least we took the intellectual high ground.”

              The reason Mongols should be good, cooperative people is because they are rational, and we can construct institutions that reward moral behavior and penalize immoral behavior. Once we construct such a system, the Mongols will rationally realize that their destructiveness is counterproductive not just to others but to those that they care about as well. We need to pursue positive sum institutions which lead to cooperative problem solving and which minimize destructive zeo sum interactions. Some will adopt these moral institutions and protocols because they are altruists, some because they are utilitarians, some because they are rationally self focused. The point is that we can achieve more as a species and individually with moral institutions and protocols.Report

  6. Avatar Citizen
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    says:

    One of the most ironic suppositions embedded in the constitution is that the people have a right to a democracy. Of the people, by the people and for the people hasn’t been specific enough for the Federalists.

    Corruption continues to ablate anything built of reason and science. People be region are nearly tribal to their regions. They flourish or suffer of their own moral capital on a local level.

    Dillon’s Rule was an implement to try and bring federal morality to the local municipalities. As cities were having problems in Dillons time. This was unfortunate in that it flipped the power scales. Instead of having a bottom up we the people govern the nation it changed to we the government will have reign over state, county government, and eventually to every man.

    About the last echo of democracy came from Cooley that stated in general that local government is a matter of absolute right. This was not specifically enumerated in the Bill of Rights, but Cooley fleshed it out and most Federalists will acknowledge it as being covered under the 9th Amendment. Its a hell of a thing to try to logically defend democracy with the constitution. The great thing about localism is typically the enforcement agents are local also so there is a quantity of temperance in executing Federal law. This doesn’t neccesarily comfort most of us. How much legislation is required to make criminals of every citizen?

    There are still many standing laws that cut away the usefullness of property. Property tax nearly cancels the purist definition of ownership. Ablate it one step further and there is a standing law against people using there own resources for there own purpose. Wickard v. Filburn truly killed the usefulness of property and ownership.Report

  7. Avatar Stillwater
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    says:

    Man, this essay is dense… I really don’t know where to begin.

    First, I’m not persuaded Kant won the day v Hume on causation. What Hume did was show that constant conjunction was the best anyone could hope for with respect to the analysis of causation, and that the a priori Principle of Sufficient Reason (as it’s called) was unjustified. So he wasn’t arguing against a rational justification of the belief in causation (that B follows from A), but a rationalistic justification of causation (the B necessarily follows from A, and we can know this a priori). (It’s a little too far afield to go into all that stuff.)

    By similar reasoning, I’m not persuaded that there are any substantive transcendental truth. Certainly in my view the PoSR isn’t one of them. But what about values and rights? Above you wrote

    Man must find what he needs for sustenance and flourishing in nature, and thus is of central importance to his worldview constructed through reason. At the outset, then, we cannot say that man is presuppositionally neutral in this respect. Man necessarily has some natural, pre-empirical relationship with property.

    My criticism here might seem trivial, but you included the word ‘property’ your analysis of the foundations of the right to property. That’s circular, but I don’t think it’s a trivial circularity, or one easily dismissed. People in the state of nature (yes, let’s go back that far) eat from trees and plants not because they have a right to, but because they want to stay alive. If they grow some corn, they don’t have a right to it, they will just eat it. If someone comes along and takes it, the person will be pissed, and maybe wish there was an institution to prevent just that type of behavior. So in the state of nature, there is no property, and hence there is no right to property. There’s possession. There’s actions. But there are no rights.

    Based on what we have already seen, we can begin to understand what that relationship is. If all men are qualitatively equal, then no one man can impinge on another’s reasonable actions without justification. Man need not give any account to any other for growing, gathering, catching, or producing the necessities of his life and flourishing so long as his activity does not impinge on another’s ability to do the same. Inversely, man must gain consent or offer reasons amounting to a justification before taking the property of another.

    Again, what might seem like a nitpick: you’ve included ‘property’ in your analysis of the right to property, so it’s circular. In the situation you’re describing, people have relationships to things (not property) and it’s only because of the agreements reasonable people make, and codify to some extent and enforce, that the concept of property, and the accompanying right to things, comes into existence.

    A principle (if it could be called that) of “might makes right” would lay waste to man’s precommitment to reason and reason’s injunction not to act arbitrarily. Natural physical strength is, as far as man is concerned, arbitrary and thus cannot in reason provide a justification for altering relationships between man and property.

    Again, in this, the analysis uses ‘property’. But as yet, there is no property, merely things. Further, it is the desire to have a right to property which compels people to create a rule (with conditions like you’ve outlined) under which he has a legitimate claim to that thing, and one which can be enforced via a third party, that grants him the right to property.

    I mean, a reasonable person could yell about property rights till he’s blue in the face, and the bandit will still just walk away with his crops and cash. Until there is an institutional structure under which that claim means anything, it seems to me might is justified in doing whatever it wants.Report

    • Avatar Stillwater in reply to Stillwater
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      says:

      Btw, this comment doesn’t address lots of other things in your essay, just the parts about natural rights. I’m still working my way thru it, to be honest, trying to piece it all together. There’s lots or really good stuff in there. I just wanted to focus on the issue of property initially since we’d discussed it a bit earlier.Report

    • Avatar Tim Kowal in reply to Stillwater
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      says:

      Stillwater,

      The point of discussing Hume is that, while Descartes invoked God—i.e., something transcendental to the world—to rescue him from absolute skepticism, Hume, an atheist, refused to do so. Provided one refuses to stipulate to transcendental presuppositions to make reality intelligible, we will never resolve Cartesian doubt. Hume’s worldview made it impossible to sustain any generalizations about the relationships of phenomena. At any rate, yes, it’s more an illustration than the main event as far as this piece is concerned.

      I found myself reflexively writing “property” in my formulation of its natural law justification, and editing it out for something more general like “objects” or “things in the world.” But I obviously didn’t catch them all. Thus, I should have written: “Man necessarily has some natural, pre-empirical relationship with possessions.”

      You say: If someone comes along and takes it, the person will be pissed, and maybe wish there was an institution to prevent just that type of behavior.

      If you acknowledge this much, you’ve acknowledged at least my first premise of the natural right to property. That is, man by his nature has a special, moral relationship with those possessions he has made, found, grown, or captured. The second premise is that all mean are equal in nature. Thus, as a human with a special, moral relationship with possessions I have made, found, grown or captured, I understand that you are also a rational being with a special, moral relationship with possessions that you have made, found, grown, or captured. Accordingly, I must give a justification or gain your consent before I take possessions you have made, found, grown, or captured, and which I have not made, found, grown, or captured. Force is devoid of the justification our moral reason requires of us. The shorthand and for this relationship and the requirements imposed by reason and our nature is called a right.Report

  8. Avatar James Vonder Haar
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    says:

    ” It should be clear by now, however, that the empirical model itself has already forced the skeptic to concede the existence of certain non-empirical, presuppositional truths. Now that we have established the necessity of truths that do not depend for their validity on experience or feelings or a consensus, the skeptic has no ground to deny the existence of morals.”

    This is striking rhetorical slight of hand- disingenuous and entirely without persuasive merit once one strips away its eloquent presentation. Not every provisional leap is equal in merit or plausibility. The axiom “All right angles are equal to one another” is significantly less quarrelsome than the axiom “If a straight line falling on two straight lines make the interior angles on the same side less than two right angles, the two straight lines, if produced indefinitely, meet on that side on which are the angles less than the two right angles.” Not only is it possible to construct a geometry by rejecting the latter, while so far as I know it is impossible to do so by rejecting the former, one is also immediately obvious in a way that the other is not. Arguing for the fundamental truth of Euclidean geometry because one accepts the necessity of axioms makes no sense, and likewise, trying to get one to jump from the assumptions of empiricism to the assumptions of moral realism simply on the basis that one jump has already been made will persuade no one, for good reason.

    To put it more succinctly, the leap of faith to trust in the senses no more necessitates a leap to faith to moral realism than belief in Yahweh necessitates belief in Thor. I even happen to agree with you on this point at least- I’m a moral realist, if not a natural law advocate- but this is just a sloppy, sloppy argument.Report

    • Avatar Tim Kowal in reply to James Vonder Haar
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      says:

      James,

      I’ll concede that the last clause could use some more precision, as follows: “… the skeptic cannot deny the existence of morals merely on the basis that morals transcend empirical reality.” In other words, since the empiricist must rely on transcendental claims to get the empiricist project off the ground, it would be arbitrary and unreasonable to deny the moralist the same reliance to get the moral project off the ground.

      I would have been equally willing to make the concession even without the accusations of using “disingenuous” “sleight of hand.”Report

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