Philosophical Defense to the Slippery Slope Argument
To follow up on Tod’s post on the matter, I asked whether the post hoc ergo propter hoc fallacy was not the ultimate refutation of the slippery slope argument?
CK MacLeod replied, “Only if you don’t believe in causality at all.”
That’s a good point. “Causation” is all about understanding. Or in legal parlance where we park the blame (or credit) of responsibility.
The 14th Amendment not only preceded the SCOTUS’ constitutional recognition of same sex marriage, but was in fact the text used for the decision. Therefore, we might reason, it’s the “cause” of the decision.
If I may continue with my legal hat on, as it relates to the theory of causation in negligence: Causation breaks down into two sub-elements: 1. “Cause in fact,” which means links in causal chain, where there are potentially countless numbers of such. And 2. “Proximate cause,” in other words, the “real” cause where we park the blame.
You prove #1 first, #2 second. Indeed you have to be #1 before you can be #2.
The 14th Amendment is, as it were, a “cause in fact” of same sex marriage. But is it a “proximate cause”? That’s the million dollar question.
If one doesn’t believe in the slippery slope or wishes to argue against it, it seems to me, post hoc ergo propter hoc is a good defense. “Not only did the 14th Amendment and the ‘Loving’ decision PRECEDE it, but they served the legal bases for the Obergefell decision; therefore they are responsible for it.”
One rejecting such logic could reply with “post hoc ergo propter hoc.”
Likewise, if in the future SCOTUS uses Obergefell as precedent for a decision recognizing a constitutional right to polygamy, the same response could be used.
On rhetorical grounds, think of the phrase “it has nothing to do with …” as a way of attempting to distinguish or deny the causality or connection. If someone wants to disconnect interracial marriage to same sex marriage, the reply is “interracial marriage has nothing to do with same sex marriage.” Likewise, “same sex marriage has nothing to do with polygamy.”
Image by peterrieke 
I don’t think that the 14th Amendment was in any real sense a cause of Obergefell. The Supreme Court has a long history of making decisions on extremely specious grounds. Obergefell happened because a majority of members of the Supreme Court wanted it to happen. If there had been no 14th Amendment, they would have found, or if necessary fabricated, another rationale.Report
That’s probably true, Brandon, but how the Court actually reaches its decisions can and sometimes does bind it in certain directions, if only by defining what hoops must be jumped through to decide things a certain way. (I’m drawing off of Stanely Fish’s argument that “the law wishes to have a formal existence. Unfortunately, I don’t have a link, but here’s a brief citation to it: https://books.google.com/books/about/The_Law_Wishes_to_Have_a_Formal_Existenc.html?id=RKk8PwAACAAJ )
Also, you seem to be assuming that the Court (or the current majority) would *want* to legalize ssm without the 14th and those precedents that relied on the 14th. There’s a historical argument we can make that says the 14th created the one of the hooks–and perhaps also created a set of expectations about equality under (state) law–that people later used to fight for civil rights laws, among which were challenges to miscegenation statutes. A more liberalized approach to marriage choice then led more people to become increasingly favorable to (or agnostic about) ssm. All of which led to creating a constituency in favor of ssm to which the Court, eventually, chose to respond favorably.
None of which answers what I take to be the criticism of the court implicit in your comment.Report
It’s possible I’m misunderstanding the point you’re making, Jon, but the examples you’re using rely on rules set by the legal system. The law says two types of “cause” have to be established in order for blame to be placed, and within those rules established by the law, a certain form of argumentation works or doesn’t.
But if we leave the realm of the law, where does that leave us? Let’s say we’re not trying affix blame or trying to create a library of legal precedent to justify a certain decision, but instead are trying to understand how and why something happened. Then the rules aren’t bounded in the same way, whether a cause is only a “cause in fact” or is a “proximate” cause has less importance. In other words, a legal forum establishes certain rules of what counts as truth or good argumentation, and those rules, and not necessarily the rules of logic as Tod and Will debated them in their posts, apply.Report
A partial answer to this might be law is a subspecies of philosophy. I’m a trained lawyer, but an armchair philosopher. So that’s the lens through which I often see things.Report
Also, perhaps I’m thinking of Eugene Volokh’s work. He’s way ahead of me in terms of acumen (I think he has an IQ of 200). But his thesis is, however “fallacious” the philosophical concept of a “slippery slope” may be, in law, where we rely on past precedents and reasoning by analogy, it’s there.
True. But does it have to be. Each time a legal decision is made, you don’t necessarily have to go down the slope. In fact, if you want to, you can go in the other direction.Report
I’m not much of a philosopher, armchair or otherwise, but at times I try to pass for a (very incompetent) armchair lawyer. Which is to say…good point.Report