In the late 90s I was reviewing a book on ageism that was so bad that I should, in retrospect, have begun the review as Dorothy Parker once began a review: “This book should not be tossed aside lightly; it should be thrown with great force.” Though missing that opportunity, I did find the book frightfully easy to excoriate, from its grammar to its multiple factual errors to its grave self-contradictions (was the editor simply asleep through the publication process?) to its offensive and puerile comparisons, which unintentionally illustrated the fallacy of moral equivalence. As an example of the last, the authors served up several comparisons of American ageism to Nazism: “The Jews are our misfortune, sloganeered the Nazis. The old are our misfortune, cry the not-so-old in America.” The authors lamented the “incarceration” of the old in nursing homes which represent a “final solution mentality” with the same function as “concentration camps everywhere.” Mining the theme for its full shock value, they suggested that “it is not unreasonable to speculate that our sciences of biology, psychology, and sociology could find justification for extermination of the old in the same manner as Hitler’s scientists found reason for exterminating the European Jews over half a century ago.” Even without dropping the wiggle words “not unreasonable,” “speculate,” and “could,” authors Ursula Adler Falk and Gerhard Falk’s intent is crystalline in its clarity: ageism is the moral equivalent of Nazism. We are invited to conjure images of evil-eyed, cackling, modern scientists spending their days in the lab bent on discovering the final solution for the extermination of the old.
This particular and most egregious assertion of moral equivalence can be easily rejected as outrageous by anyone with even a smattering of knowledge of the Holocaust and of ageism. It would hardly require an Auschwitz survivor to be repelled by the comparison. Here the equivalence is made in order to enshrine ageism with the moral gravitas and hideousness of the Holocaust, thus “elevating” ageism to a level of depravity almost unique in the annals of human degradation. (One must be careful here with that word “unique.” While the Holocaust holds pride of place in the modern imagination when it comes to institutional evil, we should not forget that both Stalin and Mao were each responsible for more actual deaths, certainly making the twentieth century unique in history for its grim necrology.) It may certainly be true that some things are, however, morally equivalent. Discernible differences may be so small that a rough equivalence can be justifiably argued. Additionally, we may need to wrestle with questions of degree or even opportunity, especially on matters of brutality and death: Was, for example, Cambodia’s Pol Pot the moral equivalent of Hitler on the fundamental question of presiding over a Holocaust—the same in kind, though lesser in degree? Probably so. But that caveat does not require that we abandon rationality in favor of doubtful equations.
The usage of moral equivalence—comparing two or more things and suggesting that there is no moral or ethical distinction to be made between them—is not always offered as a means of elevating or reducing one thing to the level of another, as in the case of the ageism authors. More often it is a device to imply that the common assumption of the moral superiority of one thing is a flawed assumption, and that in fact the two allegedly disparate items being compared are morally no different. Almost disdainfully, it asks, How could you possibly think that one of these things is better than the other when it is as plain as the nose on your face that they are the same, both equally mired in the mud? This equating occurs frequently among those disenchanted with politics, who justify their own disengagement by bemoaning that all politicians are the same and the parties are the same, wriggling and squirming for their own self-aggrandizement. Thus why bother to vote, since it makes no difference? The bankruptcy of this pitiable argument should be self-evident; but if not, one might ask the Mississippi black man of 1962 who was not allowed to vote if it makes a difference to him; or the woman of 1910 who had no vote if it makes a difference to her; or ask the historian if George McGovern and Richard Nixon had different agendas, or if Lincoln were a better president than Millard Fillmore.
Our current political campaign reveals how gravely polarized the electorate is, yet still there are many who accept the debased moral equivalence of the two candidates. USA Today, for example, recently editorialized that both candidates were equally guilty of lying about the other. As evidence, it offered a Romney ad that claimed that Obama would end any expectation of work requirements for getting welfare; then the editorial offered an Obama superpac ad that claimed Romney had killed a woman who lost her health insurance. The difference, barely acknowledged and relegated to insignificance by the author, was that the first was a Romney-endorsed ad, while the second was not an Obama ad at all, but a superpac ad supporting Obama, and by law not vetted by or coordinated with the President’s team. Aside from my own perception that the Romney campaign has been overtly mendacious (Obama “apologizes for our country” or the red-meat lies of Ryan’s acceptance speech) while Obama has not, the newspaper, in decrying the low tenor of the campaign, argued that both candidates were morally equivalent in their proclivity for lying.
Nor is academe exempt from the fallacy of moral equivalence. It has become quite fashionable in elevated academic circles to argue that cultural values are inherently equivalent, and that it is the apex of cultural narcissism to proclaim otherwise. This view is partly a laudable rejection of jingoism and American exceptionalism, partly a defensible embrace of egalitarianism, and largely a reaction to the colonial exploitation of indigenous peoples of Africa, India, and the Americas. In the colonial view, the exploitation (though not even recognized as such) was totally justified in the name of empire building and the grotesque and lachrymose self-pity of “the white man’s burden” in civilizing (read: exploiting and sometimes butchering) the benighted “savages.” One can still reject jingoism, embrace egalitarianism, and be justly repulsed by the sense of moral and cultural entitlement which animated colonial exploitation and yet not succumb to the postmodernist doctrine that cultural values and cultures themselves are inevitably morally equivalent.
Human aspirations may have a common foundation, but those aspirations may manifest themselves in very different societal and cultural outcomes, ranging from those in which a voice in how one is governed is a matter of theocratic superstition to those in which it is a matter of voting; from those in which the poorest of society are exploited to those in which the law insures some minimal livelihood; from those in which belief is a matter of coercion to those in which it is a matter of conscience; from those in which half the population are legally considered chattel to those in which no woman is forced to marry, forced to cover her face, prevented from driving, prevented from obtaining an education, prevented from speaking her mind, or prevented from holding any office. The proponents of the moral equivalence of cultures should live for a while in some of these other places, but if not that, at least listen to one who has, such as Ayaan Hirsi Ali (cited in Christopher Hitchens’ collection of essays, Arguably), who concludes in her book Infidel what to many would be obvious: “I left the world of faith, of genital cutting and forced marriage for the world of reason and sexual emancipation. After making this voyage I know that one of these two worlds is simply better than the other. Not for its gaudy gadgetry, but for its fundamental values.” This is not the language of a postmodernist ideologue, but someone who speaks from “lived experience.”
In the fullness of infinite time and the grandness of infinite space, there may be nothing of substance to differentiate among the infinitesimally unimportant moral beliefs and actions of a few tribes of a single, short-lived, pathetic species infesting some dry corners of a tiny mote of rock floating around in a miniscule speck of a galaxy. In this cosmic view, Aristotle’s philosophy, Shakespeare’s plays, my death or yours—or, for that matter, the extinction of humankind—is of no more consequence than the death of a gnat. But in our quotidian lives, the ones in which we get up and go to work, shop at the grocery store or till our patch of land, kiss our spouses and hug our children, and find what happiness we may—in that life we do not dwell overmuch on the grandiose, or fret overlong on the eventual death throes of the sun our planet circles, or take that long, long, cosmic view of the insignificance of our species. Instead we live in the present and inhabit a wide, familiar, and often disturbing world of the relatively immediate and the more or less local. And in that world, differences can matter; and failing to make necessary moral distinctions is as simplistic as its opposite—seeing the world in black and white.
John Rachal
September 1, 2012
Scalia Considered
July 9, 2012 at 4:12 pm (Political Commentary)
Just when we thought it was safe to conclude that the Supreme Court is hopelessly partisan, Chief Justice Roberts deftly throws a few morsels to the Right but manages to defend the healthcare mandate as constitutional, not on the four liberal justices’ ground of Congress’s right to control commerce, but rather on the ground that the mandate is effectively a tax and Congress does have the right to tax. Thus the centerpiece of the law was preserved, and not by the vote of the usual swing-voter, Anthony Kennedy, but by the conservative, George Bush-appointed Chief Justice, John Roberts. This outcome, particularly with this unexpected alliance of Roberts and the four liberal justices, was predicted by virtually no one, least of all me, who assumed the usual politically dictated outcome of 5-4 against.
It was certainly refreshing to see the Court tack counter to expectation. The 2000 Bush v. Gore decision broke perfectly along party lines, giving the election to Bush despite—though this was outside the Court’s consideration—the election being the country’s fourth in which the fellow with the most votes did not become president. The execrable Citizens United case also broke along party lines, allowing elections to be determined by train loads of one hundred dollar bills collected from mega-rich anonymous donors seeking to buy an election, all on the specious ground that a corporation is a person, a citizen, and thus entitled to free speech. Wealthy people generally being Republicans, the decision has rightly been interpreted as more favorable to the GOP, and already in this election cycle millions upon millions have slipped in to Superpacs, mostly favoring Romney. Even John McCain excoriated this decision, a decision allowing democracy to come perilously close to simply being bought, particularly in elections below the presidential level.
But the healthcare decision went, in general, liberals’—and one might even say moderates’—way. The four liberals of the Court (Ginzburg, Breyer, Kagan, and Sotomayor) voted predictably. Three of the five dependable conservatives (Thomas, Alito, and Scalia) did also. Kennedy, as usual, leaned right, though he does not always do so. The surprise was Roberts, always heretofore conservative. Among the plenitude of questions and implications the decision has for healthcare, it also raises the question of the influence of political affinity as the determiner of Court decisions. The healthcare decision notwithstanding, most decisions do seem to reflect the political orientations of the justices, however much we might wish otherwise. In all but the most obvious cases, a law’s constitutionality often evades the actual language of the Constitution, and depends instead upon the politically infused interpretations the justices offer of the Constitution. If this were not so, presumably it would be a total mystery to observers and commentators as to whether a controversial and especially politically-charged decision might be 9-0 for, or 9-0 against. Instead, we can generally predict eight of the votes. We know the political leanings of the justices, and on that basis we can with some likelihood determine how they will interpret the Constitution to arrive at the decision that comports with their politics.
What is interesting is that one of the justices, Antonin Scalia, takes strong exception to that, at least concerning his own decisions. I have now seen Scalia, the current Court’s longest serving justice, give two speeches. He is a charming and forceful speaker, devoted to the idea of “originalism,” a doctrine asserting that the only way to interpret the Constitution was by its “original intent,” which presumably can always be ascertained by a close reading. Scalia suggests that there are no legal questions—which he differentiates from moral questions—which cannot be interpreted within the purview of the Constitution; its principles are immutable whatever the ephemeral facts of any particular modern case might be. In contrast to originalism, he opposes the doctrine of the Constitution as a “living document,” a view he reviles on the premise that such a constitutional philosophy allows the meaning of the Constitution to change every few decades as social values evolve. Reasonably explicit in this argument is Scalia’s objection that the “living document” view inevitably invites politics into Court decisions, whereas originalism insures that decisions are safely insulated from politics since justices would rely only on the original intent of the framers.
Even aside from the highly suspect perspective that modern justices can derive the framers’ collective intent, the Scalia presumption that such derivations are immune to the political leanings of the interpreter is both naive and self-deceptive. Between the Constitution and a particular justice’s opinion is a layer of personal political conviction, a fact which every president nominating a justice and every senator voting on a nominee well knows. The most obvious evidence for this is found within Scalia’s own decisions—almost invariably conservative, at least when there is a conservative-liberal angle to the decision. Would, for example, the framers have endorsed the execution of child criminals—an issue the Supreme Court decided against a few years ago? How are we to decipher the framers’ intent on such a question? And in the absence of a clear constitutional prescription on a question, i.e., constitutional silence, isn’t trying to get into the minds of the framers and determine their intent at least as hazardous as relying on prevailing, rationally argued, ethical views? And by what consensus do we apotheosize the framers to such an extent that we assume their values and prescriptions, which were influenced by their cultural milieu just as ours are, to be infallible? The “father” of the Constitution, James Madison, apparently did not lose an excess of sleep over slavery, nor did he seem much troubled by excluding half the white population—women—from voting. So much for original intent of the framers. Those shortcomings were eventually “corrected” by amendments, and thus became constitutional, but those amendments were political products of their time and consequently clear evidence of an evolving, “living,” document. Why would the framers have inserted a mechanism for amendments if they did not wish to acknowledge the possibility of need for change, modification, or addition over time? The very fact that the framers provided that mechanism is itself evidence of their “original intent” that the document was a living document, to be amended as future generations saw fit.
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