Those of us who argue that morality is grounded in a transcendent, objective standard often use extreme cases to demonstrate our point. We argue, for example, that in no conceivable universe would torturing an infant for personal pleasure be considered anything other than an unmitigated evil. Since there is at least one self-evidently moral truth that transcends all places, times, circumstances and contexts, the objectivity of morality is demonstrated.
The other day frequent commenter Learned Hand stated that “[Subjectiviests are] very much like [objectivists], in that we have moral beliefs that are as powerful for us as they are for you.”
The objectivist response to LH is two-fold. On the one hand, we say that it is entirely obvious and unsurprising that subjectivists feel powerfully about their moral beliefs. After all, subjectivists’ moral beliefs are grounded in the objective reality of a transcendent moral standard just like everyone else’s (even though subjectivists deny that this is so). Far from asserting that subjectivists are amoral monsters, objectivists absolutely insist that any given subjectivist can be as sensitive (or even perhaps in some instances more sensitive) to the demands of the objective moral law as an objectivists. Subjectivists, like everyone else, know that (and always behave as if) torturing an infant for personal pleasure is objectively wrong. Which, of course, is why the rest of LH’s rant in the linked comment is not only mean spirited, it is also blithering nonsense.
On the other hand, objectivists also argue that the subjectivist argument that they feel their morality just as powerfully as objectivists is patently false given their own premises. One group of people believe that morals are based on an objective, transcendent moral standard binding on all people at all times; another group of people take Will Provine seriously when he says no ultimate foundation for ethics exists. Certainly the responses of individuals within the group will vary. But can there be any doubt that people who believe morality is based on something real will, at the margin, feel more strongly about their moral commitments than people who believe their moral commitments are, ultimately, based on nothing at all? Can you imagine a moral objectivist insisting that we should not “judge” Aztec human sacrifice by our current cultural standards, as I once saw a curator of a museum here in Denver do?
Of course, the key to this analysis is the phrase “at the margin.” All decisions are made at the margin, and that is why when it comes down to the actual practical differences in the behavior of subjectivists and objectivists, examples from the poles are unhelpful, because the behavior of both groups will be practically identical. But is there really a difference in behavior at the margin? As I argued above, simple logic dictates that we should expect a difference in behavior at the margin. But do we have any concrete examples? I believe we do. It is called American jurisprudence.
As I have written before, it is not an overstatement to say that the modern era of law began with the publication in 1897 of The Path of the Law by Oliver Wendell Holmes, Jr. In this groundbreaking article Holmes almost singlehandedly founded the school of “legal realism,” which gradually came to be the predominate theory of jurisprudence in the United States. “Legal realism” should more properly be called “legal nihilism,” because Holmes denied the existence of any objective “principles of ethics or admitted axioms” to guide judge’s rulings. Why would Holmes deny the objective existence of morality? Because, as Phillip Johnson has explained, Holmes was a “convinced Darwinist who profoundly understood the philosophical implications of Darwinism,” and Holmes’ great contribution to American law was to reconcile the philosophy of law with the philosophy of naturalism. Truly Holmes’ ideas could be called “jurisprudential naturalism.” Thus began the modern era of what has come to be known as “judicial activism.”
What does all of this have to do with “morality at the margin”? The answer lies in the structure and history of the American Constitution. In the Federalist 79 Hamilton argued that judges would be restrained from judicial activism by their fear of impeachment:
The precautions for their responsibility are comprised in the article respecting impeachments. They [federal judges] are liable to be impeached for malconduct by the House of Representatives, and tried by the Senate; and, if convicted, may be dismissed from office, and disqualified for holding any other.
For structural reasons (impeach requires a supermajority in the Senate), political reasons (super majorities necessary for impeachment are impossible if even a significant minority of the Senate agrees with the results of the judicial activism), and historical reasons (Jefferson’s failed use of the impeachment process to check the judiciary weighed very heavily against subsequent attempts), Hamilton turned out to be wrong.
If judges cannot be checked effectively by fear of impeachment when they abuse their office, what does check their power? Just this: Judges take an oath of office to uphold the constitution, and the only practical check on their power is individual judge’s moral commitment to that oath. And it is here that the difference between subjectivist and objectivist commitments to morality have plain effects at the margin.
Every time a judge makes a ruling (especially in the area of constitutional law), there is a temptation. Suppose a judge has a powerfully felt commitment to a particular policy (it does not matter what the policy preference is). Suppose further that the text, structure and history of the constitution provides no warrant for elevating that policy preference to the status of constitutional imperative. If there is no effective political check on his power, what is to stop the judge from nevertheless falsely ruling that the constitution does indeed elevate his policy preference to constitutional imperative? Again, nothing but his moral commitment to his oath. This is especially true for Supreme Court judges whose rulings are not subject to further review.
Which group of judges has the stronger moral commitment? Based on a host of data, it is certainly the case that political liberals are far more likely to be areligious. Further, areligious people are far more likely than religious people to be moral subjectivists. Therefore, we can conclude that liberal judges are more likely to be moral subjectivists. Is it any wonder then that the vast majority of cases of judicial activism come down on the side most amenable to political liberals? Indeed, while I will be the first to admit that there have been a few rare cases of conservative activism, judicial activism is overwhelming seen as a phenomenon of the left. Conservative judges view their project as essentially a moral project. Liberal judges see their project as, in Justice White’s famous phrase, the raw exercise of power. It cannot be reasonably disputed that liberal judges (whom we can conclude have a largely subjectivist moral viewpoint) do not have as strong a moral commitment to their oath. And that, Learned Hand, is why it matters.