[Majordomo,
Saturday February 26, 2005 at 10:00am]
Panel 3: Freedom and Virtue
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Oh, boy. This panel should be terrific. As readers of Ex Parte know, many of our contributors slant towards the libertarian side of the Federalist Society. In fact, Ken Salter recently contributed a post on the need for conservatives and libertarians to continue to bridge their differences.
This panel features:
* Professor Hadley Arkes, Amherst College
* Judge Alex Kozinski, U.S. Court of Appeals for the Ninth Circuit
* MODERATOR: Professor John C. Manning, Harvard Law School
The panel description reads:
In recent years the relationship between freedom and virtue has received renewed attention. This debate seeks to explore several fundamental questions: What is the proper relationship between freedom and virtue? Can human societies survive (or flourish) by solely embracing a libertarian conception of liberty? Or does true freedom need to be ordered by the virtues? Does a conservative account of the virtues necessarily restrict individual freedom? Is it possible (as suggested by Frank Meyer's theory of "fusionism") to reconcile the libertarian concern for individual liberty with the conservatives' emphasis on order and virtue? Or are the differences so fundamental that the two theories can never be reconciled? We envision this debate leading to constructive discussions between libertarian and conservative members of the Society.
Whoa. This is a tough one and a good one. To leaf through the pages of my old posts here at Ex Parte, I can see myself torn by my loyalties to both principles. Yet Meyer's fusionism has always seemed implausible as well, even if we see it in our own conflicted loyalties.
On another note, you've got to love unofficial fan site...
This allowed Professor Arkes to shine at times, articulating his complex ideas, complete with citation to a wide group of authorities, from legal cases to literary masters.
First, echoing Kevin Hasson's point about the right to conscientious thought and religious freedom predating the structures of law, he commented that Hamilton's Federalist No. 84 (I think that's right) arguments about the absence of a need for a Bill of Rights, because we are surrendering no rights to the government, have sadly fallen into disfavor. By considering rights in the pre-governmental era, he suggested, we can better understand just how limited the scope of governmental action against them should be.
He explored the difficulties of making categorical pronouncements about the moral and the immoral, and emphasized the high bar of strictness that must be set before we impose the categorical prohibitions of the law.
In particular, he emphasized the error in thinking that just because a majority, or a unanimity, is willing to make a categorical pronouncement about the morality or immorality of a subject, the morality is so decided. As he illustrated with the example of abortion: if we should decide to prohibit abortions, it cannot be because everyone thinks the fetus looks like a baby on the sonogram, it must be because it is a person, and killing that person would be objectively wrong.
Then, he focused on some of the dangers of attempting to recognize a categorical wrong, in situations where the morality of the ends, rather than the act, is really what governs.
He concluded with a critique of Justice Kennedy, who has a tendency to "pronounce moral judgments while divorced from moral substance," and observed that the remedy is to get clear again about moral grounding and remind ourselves of how strict the test must be to impose the categorical.
Judge Kozinski opened with perhaps the third or fourth "rabbi" story we've heard during the Symposium.
Not surprisingly, he focused on the compatibility of federalism and libertarianism, using as his examples Oregon's grant to doctors of the authority to help people end their lives, and California's medical marijuana authorization.
Criticizing the Bush administration for failing to uphold the principles of federalism and limited government in stripping doctors engaged in these practices of their licenses, he sounded the same note as Arkes on the question of whether majoritarian disapprobation indicates actual immorality.
A government of federalism and limited powers, he emphasized, is designed to protect freedom from these sorts of incursions by government.
In a brief rebuttal, Arkes admitted that he lacked a strong view on the role of federalism in protecting libertarian ideals, but tried to bring out examples where local governments are so susceptible to immoral actions that the use of federal authority for morality purposes would be justified. This served to emphasize his original point: that somewhere, these moral judgments must be made, but that the fewer and narrower the categorical bans that we impose, the less likely we are to go beyond the bounds of appropriateness.
Oh, boy. This panel should be terrific. As readers of Ex Parte know, many of our contributors slant towards the libertarian side of the Federalist Society. In fact, Ken Salter recently contributed a post on the need for conservatives and libertarians to continue to bridge their differences.
This panel features:
* Professor Hadley Arkes, Amherst College
* Judge Alex Kozinski, U.S. Court of Appeals for the Ninth Circuit
* MODERATOR: Professor John C. Manning, Harvard Law School
The panel description reads:
In recent years the relationship between freedom and virtue has received renewed attention. This debate seeks to explore several fundamental questions: What is the proper relationship between freedom and virtue? Can human societies survive (or flourish) by solely embracing a libertarian conception of liberty? Or does true freedom need to be ordered by the virtues? Does a conservative account of the virtues necessarily restrict individual freedom? Is it possible (as suggested by Frank Meyer's theory of "fusionism") to reconcile the libertarian concern for individual liberty with the conservatives' emphasis on order and virtue? Or are the differences so fundamental that the two theories can never be reconciled? We envision this debate leading to constructive discussions between libertarian and conservative members of the Society.
Whoa. This is a tough one and a good one. To leaf through the pages of my old posts here at Ex Parte, I can see myself torn by my loyalties to both principles. Yet Meyer's fusionism has always seemed implausible as well, even if we see it in our own conflicted loyalties.
On another note, you've got to love unofficial fan site...
Update:
This allowed Professor Arkes to shine at times, articulating his complex ideas, complete with citation to a wide group of authorities, from legal cases to literary masters.
First, echoing Kevin Hasson's point about the right to conscientious thought and religious freedom predating the structures of law, he commented that Hamilton's Federalist No. 84 (I think that's right) arguments about the absence of a need for a Bill of Rights, because we are surrendering no rights to the government, have sadly fallen into disfavor. By considering rights in the pre-governmental era, he suggested, we can better understand just how limited the scope of governmental action against them should be.
He explored the difficulties of making categorical pronouncements about the moral and the immoral, and emphasized the high bar of strictness that must be set before we impose the categorical prohibitions of the law.
In particular, he emphasized the error in thinking that just because a majority, or a unanimity, is willing to make a categorical pronouncement about the morality or immorality of a subject, the morality is so decided. As he illustrated with the example of abortion: if we should decide to prohibit abortions, it cannot be because everyone thinks the fetus looks like a baby on the sonogram, it must be because it is a person, and killing that person would be objectively wrong.
Then, he focused on some of the dangers of attempting to recognize a categorical wrong, in situations where the morality of the ends, rather than the act, is really what governs.
He concluded with a critique of Justice Kennedy, who has a tendency to "pronounce moral judgments while divorced from moral substance," and observed that the remedy is to get clear again about moral grounding and remind ourselves of how strict the test must be to impose the categorical.
Judge Kozinski opened with perhaps the third or fourth "rabbi" story we've heard during the Symposium.
Not surprisingly, he focused on the compatibility of federalism and libertarianism, using as his examples Oregon's grant to doctors of the authority to help people end their lives, and California's medical marijuana authorization.
Criticizing the Bush administration for failing to uphold the principles of federalism and limited government in stripping doctors engaged in these practices of their licenses, he sounded the same note as Arkes on the question of whether majoritarian disapprobation indicates actual immorality.
A government of federalism and limited powers, he emphasized, is designed to protect freedom from these sorts of incursions by government.
In a brief rebuttal, Arkes admitted that he lacked a strong view on the role of federalism in protecting libertarian ideals, but tried to bring out examples where local governments are so susceptible to immoral actions that the use of federal authority for morality purposes would be justified. This served to emphasize his original point: that somewhere, these moral judgments must be made, but that the fewer and narrower the categorical bans that we impose, the less likely we are to go beyond the bounds of appropriateness.