Glucksberg vs. Lawrence

Earl Maltz emaltz at
Thu Mar 18 14:24:12 PST 2004

At 12:34 PM 3/18/2004 -0600, Howard Schweber wrote:

>>>   Is majoritarian moral preference, by itself, a legitimate basis for 
>>> legislation?
>>>(How about majoritarian aesthetic preference?  Would a law banning ugly 
>>>shirts serve a legitimate government interest?)
>>First, as I suggested in a recent post, the idea that governments can 
>>have interests is a myth.  Does anyone disagree?  If son, I'd appreciate 
>>an explanation.
>I think there is a potential error in equating "governments" and "states" 
>-- what might be described as political positivism.  The idea that the two 
>are coextensional is not new -- it is usually described as originating 
>with Jean Bodin -- but it is quite separate from the social contractarian 
>models that describe a commonwealth for which the government acts as the 
>agent.  Governments may not have interests, but in this latter model 
>states certainly do.

IA "commonwealth" has an interest?  Does it have a brain?  A 
soul?  Otherwise, how would one define the interest and determine what it was?

>>Second, assuming that governmental interests exist, majoritarianism is 
>>not the point.  Challenged laws derive from the authority generally 
>>legitimate governing bodies (Congress or some branch of state 
>>government0.  Whether or not those laws comport with the will of a 
>>majority of the populace is completely irrelevant.
>Here we get a bracing dose of legal positivism.  I suppose it is true that 
>the word "majoritarian" is gratuitous in the question raised above, other 
>than as a description of the political situation most likely to arise in 
>fact.  On the other hand, the term "majoritarian" becomes far less trivial 
>when we recognize that the claim to be acting in accordance with the moral 
>preferences of the majority is the argument-from-democracy in favor of 
>morals legislation, and is the language that legislators actually use when 
>they want to defend such legislation.  So whether such laws comport with 
>the will of the majority may be irrelevant, but the fact that they are 
>claimed to be legitimate on those grounds is not, unless the issue of 
>legitimacy is to be reduced to a purely procedural set of requirements 
>("any law is constitutional that is enacted in accordance with the 
>appropriate procedures.")

I plead guilty.  Our Constitution does not presuppose majoritarian 
rule.  Nor is there any provision that, in context, requires legislation to 
be rational in any meaningful sense.  In the case of state governments in 
particular, all law is constitutional unless it is for some reason forbidden.

>>Third, if moral judgments do not suffice as a reason for the passage of 
>>laws, what about animal cruelty laws?
>Well, the alternative to moral preference is the prevention of harmful 
>consequences, right?  That is to say, laws against murder have moral roots 
>but they are independently justified by the conception that the state has 
>a legitimate function in preventing harm to its citizens.  Animal cruelty 
>laws prevent harm to the animals, not merely to protect the moral 
>sensibilities of persons uninvolved in the activity in question, just as 
>the designation of national landmarks prevents harm to pieces of property 
>that members of the community may want to visit.  Pure morals legislation 
>is unique in that the only definable "harm" is the awareness that others 
>are engaged in conduct of which I disapprove.  By contrast, the 
>destruction of a landmark building deprives me of the opportunity to see 
>or visit that building, and cruelty to animals inflicts harm upon the 
>animals.  This may be taken to confer a certain kind of intermediate 
>status to animals -- that we think of them as different from other kinds 
>of property by virtue of their sentience, etc.

You would still have to explain why we see animals as different. At its 
core, it seems to me, the anti-harm justification for people rests upon 
utilitarian notions about the rights of entities that are parties to the 
compact (either directly or through their states).  I don't  would claim 
that animals are parties to the compact.  Therefore, the prohibition 
against animal cruelty can only be justified in basic moral, nonutilitarian 

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