Constitutionalizing Social Values
RJLipkin at aol.com
RJLipkin at aol.com
Thu Feb 26 06:39:40 PST 2004
With genuine respect and admiration for Greg, a few brief replies to
his post are required:
(1) Definitions (necessary and/or sufficient conditions for using a
particular term) in practical (social, political, constitutional, legal)
reasoning are prohibitions if they're worth their salt at all. If we define
"marriage" as exclusively the union of a man and a woman we prohibit (exclude) unions
of other partners.
(2) It is a non sequitur to insist that because certain relationships
"have established value to society" they should be elevated "from among the
multitude of other relationships in society" where that entails fixing the
meaning of that relationship and excluding others who seek entrance into the
practice. Similarly, the fact that a relationship or practice has "an established
value to society" or is "foundational of future generations" neither explains
nor justifies the exclusivity and fixedness of that relationship.
(3) What I don't understand, and perhaps this is my failure, not
Greg's, is in a society committed to liberty and equally why should we enshrine a
particular relationship--even a superior relationship--because it has
tradition on its side or that it is "superior to most other relationships." This
explains, at best, why those sharing this view of the relationship should
enshrine it in their lives and in the moral environment of their family, church,
political party, and so forth. Even morally exemplary relationship do not, in my
view, necessarily warrant intruding into someone else's moral environment,
restricting his or her choices, unless the not doing so would have catastrophic
effects on the moral environment of moral environments (also known as, but is
not quite the same thing as, public morality) as would permitting murder.
Surely, if there's anything of value (and I think there is) in the writings of Ayn
Rand, Nathaniel Branden, John Hospers, or Robert Nozick) "valuable,"
"foundational," "morally exemplary" relationships justify adopting particular
conceptions of relationships and practices by the person making these judgments, for
his or her own moral environment and that of his or her own community, not as
part of public morality. Of course, we need not prize liberty and equality.
But if we do, however foundational a person believes a particular relationship
to be cannot legitimately intrude into the moral environment for those who do
(4) the locution "foundational of future generations" trades on a
biological and a normative meaning. Without a doubt there are many ways we cannot
(and should not desire) free ourselves from biology. But in a host of ways
freeing ourselves from biology is what, for almost all of us, gives life added
Again thanks to Greg for his explanation.
Robert Justin Lipkin
Professor of Law
Widener University School of Law
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