Brian Leiter's Law School Reports

Brian Leiter
University of Chicago Law School

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Wednesday, July 26, 2006

Religious Reasons and State Power

Against my better judgment--but since folks have been e-mailing me their comments in this debate--I'm going to say something about the rather unsatisfying discussion going on at several law-related blogs prompted by Geoffrey Stone's comments about President Bush's veto of funding for stem cell research.  Professor Stone wrote:

In vetoing the bill that would have funded stem-cell research, President Bush invoked what he termed a “conflict between science and ethics.” But what, exactly, is the “ethical” side of this conflict? Clearly, it derives from the belief that an embryo smaller than a period on this page is a “human life” – indeed, a human life that is as valuable as those of living, breathing, suffering children. And what, exactly, is the basis of this belief? Is it Science? Reason? Logic? Tradition? Morals? None-of-the Above?

What the President describes neutrally as “ethics” is simply his own, sectarian religious belief. Is this an ethical (or legitimate) basis on which a President should veto a law? Of course, Mr. Bush is entitled to his belief. He is entitled, for his own religious reasons, to choose not to donate an embryo he creates to try to save the lives of living, breathing children. More than that, he is entitled to protect the interests of others who do not want the embryos they create to be used in this manner. Thus, he could ethically veto a law that required all embryos to be destroyed in the name of scientific research, even over the religious objections of their creators. But in what sense is it “ethical” for Mr. Bush – acting as President of the United States -- to place his own sectarian, religious belief above the convictions of a majority of the American people and a substantial majority of both the House of Representatives and the Senate? In my judgment, this is no different from the President vetoing a law providing a subsidy to pork producers because eating pork offends his religious faith. Such a veto is an unethical and illegitimate usurpation of state authority designed to impose on all of society a particular religious faith.

Except for one ambiguity (about which more in a moment), this strikes me as a straightforward and plausible argument.  Let me reconstruct it a bit more formally, for purposes of bringing out how unsatisfactory and sometimes confused some of the blogospheric commentary on it has been:

1.  Government officials should only wield the power of the state (e.g., the power to fund or not fund certain activities) on the basis of non-religious reasons.

2.  There is no non-religious reason to veto funding of stem cell research.

3.  Therefore, President Bush acted unethically in imposing his sectarian view of stem cell research against the majority of the legislature and the populace.

The ambiguity pertains to the right way to interpret (1) 's requirement that state power be exercised only "on the basis of non-religious reasons."  This could mean (1a) the actual reasons on which state officials act must be non-religious, or (1b) the possible reasons which might justify the decisions of state officials must be non-religious.  On the second interpretation, it suffices to meet (1)'s requirement that there exist non-religious reasons for the exercise of state power, even if those reasons are not the reasons which motivate officials to act.  [There is actually a third possibility, a variation on (1a), according to which what is required is that state officials only act when they can identify reasons of the (1b) variety, even if those reasons don't motivate the state action.  I shall bracket that possibiltiy here.]  Professor Stone's argument in the posting in question appears to endorse (1a), but uses a variation of a (1b) argument to support the conclusion that Bush's motivation was sectarian:  namely, the truth of (2) (if it is true) supports the conclusion about Bush's actual religious motivation.

Both (1a) and (1b) strike me as defensible.  Some of Professor Stone's rhetoric suggests that he thinks there is a constitutional argument for (1), namely, from the Establishment Clause.   But other remarks suggest he thinks there is a moral argument for (1).  Perhaps, as Professor Solum usefully suggests, it is a Rawlsian argument that requires, "given the fact of reasonable pluralism," that official decisions about fundamental constitutional matters be based on public reasons acceptable to all reasonable people, where public reasons includes (to quote Professor Solum again) "common sense, the noncontroversial results of science, and public political values. Nonpublic reasons include the deep and controversial premises of particular moral and religious theorys; for example, the utilitarian idea that only consequences count would be a nonpublic reason."   Or perhaps if, as I have argued, there is no moral justification for singling out religion for special legal protections, related considerations would help explain why it is morally objectionable to exercise state power on exclusively religious grounds.  (Let me emphasize "related considerations":  the paper cited above does not make the latter argument, though I think a reader of that paper can see how it would go.)

Professor Stone does not, needless to say, give an extended argument for (2), though it too strikes me as prima facie plausible.  Here, remember, is what Professor Stone does say:

What, exactly, is the “ethical” side of this conflict? Clearly, it derives from the belief that an embryo smaller than a period on this page is a “human life” – indeed, a human life that is as valuable as those of living, breathing, suffering children. And what, exactly, is the basis of this belief? Is it Science? Reason? Logic? Tradition? Morals? None-of-the Above?

Notice that there is a simple, sectarian, religious premise that would support this argument:  e.g., that all life is a gift from God, from whence its value derives, and that all life acquires this special value once God implants a soul; souls being non-material are present in embryos, even embryos smaller than a period on the page, and thus what is morally significant about "living, breathing, suffering children" is the same as what is morally significant about embryos, namely, that they have God-given souls.  (I am going to shift back and forth between speaking about embryos and [embryonic] stem cells, though it may well be that this difference would matter for the kinds of arguments that can be given against stem cell research, i.e., it may be the moral status of embryos is more robust that the moral status of embryonic stem cells.)

Now Professor Stone's challenge is to ask what non-sectarian (or perhaps "public") reason could support this conclusion?  On this particular point, I do not find Professor Solum's rejoinder very compelling:

If Stone means to assert that there are no reasonable nonreligious arguments for the belief as described, then he is...woefully ignorant of contemporary moral theory.

I admit to being woefully ignorant of many things, especially sports, but also a lot of work in bioethics (which I'm afraid I find too often to be a philosophically unsatisfying field), but I think we really need to hear more about the arguments that Professor Solum has in mind.  Might some (at least apparently) non-sectarian arguments against abortion be extended to the case of stem cell research?  Perhaps, I am not sure.  In the blogospheric discussion prompted by Professor Stone's posting, I have come across only one actual attempt to articulate an argument (despite lots of hand-waving about how easy it is to do), in a comment here.  This commenter also waves his hands, but then, to his credit, presents an argument:

[T]he secular argument against embryo-killing research is almost trivial to make. I believe it is that argument that President Bush cited in support of his veto, not any scripture. Namely: that a new-born child is a human being, protected from murder. A not-quite born child is physically the same, therefore also protected. The development of the unborn child from conception to birth is a continuous process; there is no point after conception at which one can say "this is now a human being; previously it was not". Therefore, the protection covers all human fetuses and embryos.

Not everything, unfortunately, that has the syntactic form of an argument constitutes a rational argument, i.e., one that would constitute a reason for doing something, like vetoing a law.  Unless critics of Professor Stone can do better than this commenter, however, then his premise (2) stands. 

The proposed argument, quoted above, has two rather obvious problems (dare I say "almost trival[ly]" obvious problems?).  First, it draws precisely the wrong conclusion from a form of argument associated with the so-called paradox of the heap (or, more generally, "the Sorites paradox").  One grain of sand is not a heap, nor are two grains of sand.  Fifty million grains of sand do make a heap.  But (to quote the preceding article):  "Given...that one grain of [sand] does not make a heap, it would seem to follow that two do not, thus three do not, and so on. In the end it would appear that no amount of [sand] can make a heap."  This is a paradox because the premises are apparently true, the form of reasoning valid, but the conclusion is false.  The argument doesn't show that there are no heaps; if it did, there would be no paradox!

Unfortunately, the proposed argument for protecting embryos, above, parallels the argument for the paradox of the heap, except it treats it as non-paradoxical because it treats the entailed conclusion as true!  That is, from the fact that there is no point at which we can say an embryo is a human invested with moral rights, it is supposed to follow that there is no difference in the moral status of embryos and humans.  But this is tantamount to saying that since there is no point at which grains of sand become a heap, there is no difference between a grain of sand and a heap, which is false (or, more precisely, there are no heaps).  The paradoxical character of vague predicates--namely, that there are cases where their application is indeterminate--simply doesn't show that they don't also have plenty of non-vague applications.

This is related to the second flaw in the proposed argument:  it doesn't actually address what is at issue here, namely, the features of living things in virtue of which they have a moral right not to be killed.  Noting that murdering children is illegal is neither here nor there; the question is why children have moral value such that their murder ought to be prohibited.   Professor Solum fairly complains that Professor Stone has not given a systematic argument on this point, though the latter's comments suggest that he views sentience--the ability to suffer, to experience pleasure and pain--as morally significant, a feature which children have, and embryos don't.  (Notice that abortion would have to be treated differently under this approach than stem cells.)  But the burden, for now, is on those who would reject premise (2) of Professor Stone's argument to show that there really is no difference in the moral status of embryos and humans by explaining what is morally significant about killing humans.  I suspect the most promising response to Professor Stone would fare best by putting pressure on his premise (2).  Unfortunately, the blogospheric discussion has almost entirely neglected that central issue.

Now let us turn to some of the other responses to Professor Stone's comments.  Professor Horwitz starts off a bit snidely:

One often sees examples of laypeople expansively assuming that any religiously motivated action by a legislator or other public official is, in some way, an undermining of the "separation of church and state."  But such views are, it seems to me, increasingly rare in that sector of the legal academy that deals regularly with law and religion issues.

That this view is "increasingly rare" among academics--with Professor Stone being a pleasing exception--may tell us more about the corruption of scholarship on religious liberty by sectarian partisanship than about the law or ethics of the matter.  In any case, this is tangential to the crux of Professor Horwitz's substantive criticism, which is as follows:

Professor Stone suggests that the President erred by acting on his own "sectarian, religious belief[s]."  We do not know why he did what he did, however.  It is entirely possible that the President vetoed the bill not only or even primarily for religious reasons, but for political purposes -- shoring up the base and so forth.  Motivations for legislative action are often opaque; what of a legislator who (permissibly, according to Professor Stone) acts to protect religious objectors from having their embryos destroyed, not for any secular reasons, but strictly as a matter of her own religious faith?  So we should set motivation to one side and acknowledge that what Professor Stone is really asking is, under what circumstances is it ethical or legitimate for a public official to publicly offer religious reasons for some official action?

Although it may often be unwise to offer religious reasons, and no other reasons, for a public action, that does not make it illegitimate.  Ours is a republican democracy, but not a Rawlsian republic in which public officials or citizens deliberating publicly are obliged to speak in terms of universally accessible reasons, if such a language is even available. 

Motivations are plainly not as opaque as Professor Horwitz implies they are, and we, in fact, make warranted inferences about motivations based on accessible evidence all the time in both law and in ordinary life.  Professor Horwitz's own comments well-illustrate that practice, as he identifies one of the three possible motives for Bush's actions:  namely, to shore up political support among his "base" (call this "the political motivation").  The evidence for ascribing this motivation is apparent and hardly controversial, notwithstanding the purported opacity of motivations.

The other two possible motivations are, as Professor Stone suggests, that Bush acted on the basis of sectarian, religious reasons, or that he acted on the basis of non-sectarian, non-religious reasons.  If, as Professor Stone  believes, there exist no reasons of the latter kind, then there are really only two plausible motivations:  the "political motivation" and the "religious motivation."  (Contrary to Professor Horwitz, the issue of motivation and of reasons are the same in this context; why Professor Horwitz thinks the issue is "publically" stated reasons I am unsure.  Professor Stone's objection, rather clearly stated I thought, is that Bush's veto constituted an "unethical and illegitimate usurpation of state authority designed to impose on all of society a particular religious faith."  That objection stands whether the religious reason or motivation is publically articulated or not.)   For purposes of Professor Stone's argument, it isn't clear that the difference between the "political motivation" and "religious motivation" account matters:  both involve the "usurpation of state authority designed to impose on all of society a particular religious faith."

The claim in Professor Horwitz's second paragraph is a bit obscure, as Professor Solum helpfully brings out:

One interpretation is that there are several (or at least two) forms of republican government--"Rawlsian republics" and "republican democracy" and that ideals of public reason are relative to the form.  I can't quite imagine how this argument could possibly go--maybe Horwitz can explain it.

Another possibility is that Horwitz means to argue that checks and balances--"a host of vetogates"--somehow create conditions which change the content of the ideal of public reason that is appropriate.  Once again, however, I am puzzled.  How could this be the case?  Ideals of public reason can be justified in a variety of ways.  Rawls, for example, appeals to the liberal principle of legitimacy--the political value of offering justiications that can be accepted as reasonable given the fact of reasonable pluralism--the fact that citizens adhere to a variety of religious and moral doctrines.  Given the structure of Rawls's argument, the existence of vetogates does not seem relevant, at least not in any obvious way.

(In an update to his original post, Professor Horwitz, as I read it, effectively concedes the force of these criticisms, which is to his credit.)

Professor Volokh aligns himself with Professor Horwitz's implausible claims about motivations that we have already discussed, but then adds the following:

I suspect that for many deeply religious people, all their moral beliefs are faith-based, because they believe morality only comes from God. I'd wager that many religious pacifists, abolitionists, and others would take precisely this view. Yet I think that we surely shouldn't condemn either their cause or them for this.

Strictly speaking, this is irrelevant to the issue actually raised by Professor Stone's argument:  the question was whether the power of the state may be wielded based on religious reasons (and against the will of the majority), not whether the citizenry may have religious reasons for their actions.  Of course, if Rawlsians are right, it may be that we ought to "condemn" those of our fellow citizens who do act on the basis of sectarian reasons (at least when fundamental constitutional issues are at stake):  the warrant for Professor Volokh's "surely" is, in that regard, mysterious.  But we can bracket that question here.  Professor Volokh continues:

Your moral views may come from your understanding of human dignity; another's view may come from utilitarianism; another's may come from libertarianism; another's may come from fundamentalist Christianity. None of these bases are somehow provable; none is constitutionally superior to the others....Any other approach is itself deeply discriminatory — it suggests that atheists, agnostics, utilitarians, and the like are entitled to enact their moral views into law (because they don't rest on religion) while devout Catholics, Protestants, Jews, Muslims, and others are forbidden from enacting their moral views into law (because they do rest on religion). That's not mandated by the Constitution, it's not in my view compatible with our national traditions, and it's not right.

This paragraph, I am afraid, confuses a variety of issues, and, in consequence, fails to give any real argument on the crucial issue (about discrimination).  The second of the two general confusions is more significant than the first:

A.  Provability.  It is unclear precisely what Professor Volokh has in mind by "provability," and it is also unclear why this would be relevant on any of the possible interpretations.   Certain aspects of "fundamentalist Christianity," for example, are certainly disprovable in the familiar sense that, e.g., belief in the literal truth of the Bible is not rationally warranted given uncontroversial standards of inference and evidence that even fundamentalist Christians otherwise accept and apply in other contexts.  (This is related to one of the reasons I thought "insulation from reasons and evidence" had to be a distinguishing feature of religious faith.)   As to "provability," this immediately puts fundamentalist Christianity in a worse situation than, e.g., utilitarianism, none of whose tenets  are false in light of the robust results of biology and geology.

Now it might be said in reply that the false claims of fundamentalist Christianity (e.g., about the age of the earth) aren't really at issue in this context, since what matters is a distinctively moral view, namely, about the moral rights of embryos.  Recall the earlier, admittedly sectarian argument I suggested for rejecting stem cell research:

[A]ll life is a gift from God, from whence its value derives, and...all life acquires this special value once God implants a soul; souls being non-material are present in embryos, even embryos smaller than a period on the page, and thus what is morally significant about "living, breathing, suffering children" is the same as what is morally significant about embryos

Does Professor Volokh's concern with "provability" include considerations of epistemic warrant, of what we are reasonably justified in believing?  If so, then I still do not see that the views he considers are on equal epistemic footing, since the epistemic warrant for belief in immaterial souls is quite a bit shakier than the epistemic warrant for the main premises of utilitarianism or libertarianism.

But we do not need to belabor this point, since "provability," however we are to understand it, is irrelevant.  What is at stake in Professor Stone's argument is (to borrow Professor Solum's gloss on it) the need for "public reasons" in justifying the exercise of state power.  There are many kinds of public reasons unrelated to questions of "provability" or "epistemic warrant," and so we may put Professor Volokh's not very plausible claims about "provability" to the side.

B. Discrimination. Professor Stone's view simply does not "suggest[] that atheists, agnostics, utlitarians, and the like are entitled to enact their moral views into law...while devout Catholics, Protestants, Jews, Muslims and others are forbidden from enacting their moral views into law (because they rest on religion)" (as Professor Volokh claims).  It suggests, instead, that the power of the state may not be exercised when the only reasons for doing so are religious reasons or, more broadly, when they are non-public reasons.  The religious may enact their moral views into law all the time when there are public reasons supporting those views (even if the religious find the religious reasons far more compelling and motivating).  And the non-religious are equally restricted from enacting their moral views (whatever their source) when they lack public reasons in support of them.  (Recall Professor Solum's point about utilitarian reasons being, potentially, non-public in the Rawlsian sense.  But that is one of many possible examples.  Someone who, e.g., wanted to enact laws based on evolutionary psychology would equally well be thwarted by the non-public character of the reasons [on this issue, the discussion in the paper by Michael Weisberg and myself is pertinent].)

Now there is a weaker version of Professor Volokh's claim about discrimination, which does follow from Professor Stone's (and Rawls's and my own) view, namely, that state officials who have only religious reasons for acting (call them "the solely religious") are acting unethically and improperly.  (Those with only "public reasons" for acting, by contrast, do not act improperly.)   This does, indeed, discriminate between the solely religious public officials and other state actors.  As noted earlier, however, there may be both legal (Establishment Clause) and moral (Rawlsian arguments, or my own) reasons for thinking this discrimination is both legal and just.  (Viewpoint discrimination doctrine has so wrecked Establishment Clause jurisprudence that the legal argument may be harder to make these days; I'll leave that matter to the experts.)   So, yes, "the solely religious" are treated differently under Professor Stone's approach, but there is no argument in evidence as to why this is illegal or unethical.

Professor Garnett's comments are the briefest, but at least one aspect of his remarks warrants critical scrutiny.  He writes:

It seems to me that Professor Stone, like many others, assumes that an objection to public funding of research involving the destruction of human embryos is -- and could only be -- a "religious" or "sectarian" one. It is not the case, though, that the arguments against such funding require, or always involve, recourse to revelation. I am starting to think that *all* moral claims -- e.g., "it is wrong to deny equal protection of the laws on the basis of race" -- are, in the end, "religious" arguments, but put that aside. The claim that there is something about a human embryo such that its destruction for research purposes ought not to be funded by the government -- whether we are moved by it or not -- is not, it seems to me, any more "religious" than any other argument about how human persons ought to be treated.

I do not think it can be the mark of religious arguments that they are all based on "revelation," since I do not understand "revelation" to be a central feature of all traditions of religious ethics.  But putting that aside, Professor Garnett (perhaps like Professor Volokh) appears to misunderstand the argument against "the solely religious" public official.  "Public reasons" are, by hypothesis here, reasons that may properly ground legislation and exercises of state power.  The argument that religious reasons are not "public reasons" isn't that they lack a certain kind of foundation that genuine "public reasons" have (perhaps this is what Professor Volokh was after with the talk about "provability"); the argument is that they aren't public, i.e., that they aren't the kinds of reasons acceptable to all reasonable people in a pluralistic society.  Many "public reasons" in this sense may lack foundations of one kind or another, but that has no bearing on their public status.  To put it (a bit too) crudely, reasons are "public" largely in virtue of a head count, not in virtue of their having more robust epistemic foundations.  So, contra Professor Garnett, it is not apparent that the the foundations of the beliefs or reasons in question are at issue here.

This is a lot more philosophy and argument-parsing than I usually do on blogs.  No doubt there are mistakes in reasoning and infelicities of expression in the preceding.  But perhaps these remarks may stimulate a more focused discussion, and give some pause to the hasty skepticism many in the blogosphere have expressed about Professor Stone's position.

UPDATE:  I have fixed several typos and reformulated a couple of points in the hour or so since this was posted.  I also meant to open comments; non-anonymous comments only.  I will only approve those that make a substantive contribution to the discussion and reflect an actual engagement with the arguments laid out here.

ONE MORE:  I have also now corrected a line in the discussion about vague predicates, which Trevor Morrison correctly pointed out was missing a necessary negation.

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» Leiter on the Stem Cell Veto from Legal Theory Blog
Brian Leiter has a well-argued post on the stem-cell veto/religious reasons debate. I may have some comments later. [Read More]

Tracked on Jul 26, 2006 2:57:25 PM


You do not need to find a non-religious reason for banning stem cell research to satisfy prong 2 of your analysis of Prof. Stone's comment. Instead, you only need to find a non-religious reason for not funding such research. It seems to me there is always a possible non-religious reason for a funding decision: the money is better spent elsewhere. The federal budget is not bottomless, thus allocating federal dollars requires some things to be funded and some things not to be. Thus, a valid non-religious reason for not funded stem cell research would be that right now we need a new road from Toledo to Detroit or more body armor for troops in Iraq than more than we need stem cell research.

Of course, one say either of these rationales are stupid, but they're not religious. Since this rationale exists, your 1(b) interpretation of Prof. Stone's comment is met, assuming the President could identify this reason, which I believe he could. However, when I read Prof. Stone's comment, I interpreted it in a more robust form (your 1(a) interpretation). Under that interpretation, the President's veto statement seems to put forth solely a religious reason, which I do find troubling.

Posted by: Pete Kreher | Jul 27, 2006 7:44:49 AM

"To put it (a bit too) crudely, reasons are 'public' largely in virtue of a head count, not in virtue of their having more robust epistemic foundations."

Although I agree with much of the argument of this post, I don't think this is the right way to formulate what makes reasons "public." It opens the door to the claim that since most citizens are religious, the (exclusive) use of religious reasons is permisible. I realize that this is a rough formulation and not a formal attempt to define a category of public reasons. But I think it would be better to say something like: reasons are public (in the relevant sense) when they can be understood and accepted by free and equal citizens, and not only by those who believe a particular religious or philosophical doctrine. This is also a crude way of putting things, but it doesn't reduce to a numbers game, which risks undermining the central argument.

Posted by: Micah | Jul 27, 2006 8:01:03 AM

I take Micah's point that the gloss on "public" reasons was unRawlsian, but I confess I find the Rawlsian line on this a bit obscure because of the difficulty in fleshing out the notion of "free and equal" in a way that doesn't already implicate "particular...philosophical doctrine[s]." My thought was that, in the context of this debate, the public/sectarian difference might be adequately captured by the "head count" gloss. But maybe this will createa too many problems of its own.

Pete Kreher is correct that the question could be framed his way, and then there are non-religious reasons aplenty as he notes. This is just an artifact, though, of the particular piece of legislation at issue. A cleaner case for Professor Stone's challenge would certainly be legislation that simply presented the question of the permissibility of stem cell research.

Posted by: Brian Leiter | Jul 27, 2006 8:31:32 AM

I must admit that I have always found the Rawlsian conception of public reason to be somewhat obscure too. But what about this argument for banning stem cell research, which makes no appeal to the doctrine of any religion? I use "stem cells" as shorthand for "embryonic stem cells" below:

1) Ceteris paribus, it is unethical to experiment on nonconsenting human life.
2) Stem cells are nonconsenting human lives.
3) None of the conditions that would negate the ceteris paribus condition in (1) are present.
4) Therefore, it is unethical to experiment on stem cells.
5) The government should not fund unethical research.
6) Therefore, the government should not fund stem cell research.

Or, alternatively,

7) Defining other members of homo sapiens as not really human, or as subhuman, or unworthy of moral consideration, has been the cause of great moral evils such as genocide.
8) The tendency to degrade or "other" members of homo sapiens and define them as not really human, subhuman, or unworthy of moral consideration, has been present and widespread in a great many societies and cultures, including our own.
9) Therefore, we should be extremely wary of defining other members of homo sapiens as nonhuman or subhuman or not worthy of moral consideration.
10) Stem cells are members of homo sapiens.
11) Therefore, we should be extremely wary of defining stem cells as not really human, subhuman, or unworthy of moral consideration.
12) If we are extremely wary of defining X as not really human, subhuman, or unworthy of moral consideration, the government should not fund research on X's.
13) Therefore, the government should not fund research on stem cells.

I don't see any appeals to God, immortal souls, revealed truth, the teachings of some particular religion, or any such indica of religiousness in these arguments. I see some controversial premises there, including ones I don't buy, but I don't see why any of these premises would be the wrong kinds of reasons, or why the commonly accepted truths of science etc. would render them obviously false.

Incidentally, you seem to be presupposing that invalid arguments are not reasons. Why aren't they just bad reasons?

Posted by: Elliot Reed | Jul 27, 2006 3:00:22 PM

(Please excuse any errors in the below -- I'm basically thinking out loud.)

I'm not sure that the definition of public reasons as headcount really goes through. My problem with it is, in a sense, the opposite of Michah's. In a sufficiently pluralistic society, there are not going to be any public reasons on some issues, if we restrict public reasons to those that can get some kind of critical mass of headcount. Consider, for example, the related issue of human cloning. It's difficult to imagine any reasons either for or against human cloning that will have a claim to being acceptable to all reasonable members of society, given that any such reasons would have to take really controversial and edgy positions on individual identity, the autonomy of the "unborn," human bodily integrity, etc.

Ultimately, might a Habermasian proceduralist gloss be more successful? Any reason is admissible as a public reason, so long as it is (a) genuinely held by the advocate and (b) open to critique and revision? Critique and revision, here, would come by virtue of the electoral process. To the extent that the electoral process structurally fails to replace anti-stem-cell politicians with majority-preferred pro-stem-cell politicians, does this failure of the system impose any additional argumentative constraints on the politicians in question?

Posted by: Paul Gowder | Jul 27, 2006 9:00:57 PM

A couple of thoughts on Mr. Reed's comments.

In the first version of the argument, I suspect all the work is being done by the "ceteris paribus," which is what permits you to state a moral conclusion--to wit, that stem cells are "human lives" in a morally relevant sense of human lives--without saying what makes it a morally relevant similarity.

The other argument, unlike the first, strikes me as a non-starter since (10) is wholly question-begging.

The more interesting question Mr. Reed raises, at least to my mind, is the last one: can't bad reasons still be reasons? Certainly, they can figure in the causal explanation of an action (dumb people, like the President, are more likely to find bad reasons compelling after all). But if we bracket the causal/motivational question (which we should on one way of construing the Stone argument), then the question we are asking sets a higher normative bar, since the norms of reasoning about what ought to be done have to answer to more than, e.g., logical consistency.

Posted by: Brian Leiter | Jul 28, 2006 7:51:39 AM

I find Pete Kreher's comment unsatisfying:
"The federal budget is not bottomless, thus allocating federal dollars requires some things to be funded and some things not to be. Thus, a valid non-religious reason for not funded stem cell research would be that right now we need a new road from Toledo to Detroit or more body armor for troops in Iraq than more than we need stem cell research."
I see two points to be argued here:
1. Somewhat trivially, this wasn't why the veto was exercised.
2. Why do we need that road more than we need stem-cell research? The federal budget is famously bloated with projects that aren't needed and desperately lacking in funding for projects greatly needed. Its not a simple matter of comparing budget item A to budget item B. Its budget item A compared to every other budget item. I'm going to say, with reasonable confidence, that there is something in the federal budget that would be much a less efficious use of funds than stem cell research. Unless you can show me that there is no room at all in the federal budget for stem cell research, that nothing can be cut out to make room, this argument doesn't convince me.

Posted by: Mark Engleson | Jul 28, 2006 8:21:46 AM

I've tried to answer the concern expressed by Paul Gowder in the comment above in a paper on "The Completeness of Public Reason," Politics, Philosophy & Economics 3(2) (2004): 191-220 (sorry for the cite, but I couldn't get a link to go through on the comments here). I think it has to be argued that public reason fails to provide guidance in hard cases. And even if public reason proves to be incomplete, I don't think that's sufficient cause to abandon it in favor of political justification based on nonpublic reasons.

Posted by: micah | Jul 28, 2006 9:28:02 AM


My objection is limited to the headcount version of public reason, not the whole Rawlsian notion. I'm not sure whether the example I gave of the human cloning debate would be incomplete under public reason qua public reason. But it's pretty clear that it's incomplete if we determine what counts as a public reason by counting up a critical mass of people.

It's a lot less clear that public reason defined with reference to, as Brian put it, "more robust epistemic foundation," would fail to resolve that debate. There may be correct, but disputed, scientific or philosophical reasons that would suffice under public reason sans headcount.

Posted by: Paul Gowder | Jul 28, 2006 11:32:41 AM


Point taken -- although some of my arguments concerning the Rawlsian conception may apply regardless. Just because there are no public reasons for a particular policy doesn't mean that it is permissible to appeal to nonpublic reasons.

Consider an example I mention in the paper: suppose a committee charged with allocating organs must choose between two patients. The patients are equivalent in every respect. They don't differ as to life expectency, responsibility for their condition, transplant success prospects, age, etc. In other words, there are no reasons based on public values to distinguish them. Would it be permissible for the allocation committee to rely on religious reasons in assigning a kidney to one but not the other? I think the answer is no -- and that, under such circumstances, we ought to use a lottery or some other random decision procedure.

Drawing implications from this example will be controversial, but it should at least be clear that the failure of public reason to provide unique solutions to political questions is not, in itself, a reason to appeal to nonpublic reasons. There may alternative solutions that rely on second-order decisionmaking procedures or on default principles (including the principle that the state should not act coercively without public justification).

Whether the "head counting" version of public reason will be incomplete more often than a Rawlsian conception is an interesting question. But I don't really know what the "head counting version" is -- or what the phrase refers to. The bloggers on Mirrors of Justice have interpreted Prof. Leiter as counting only reasonable people, in which case the two conceptions may be similar. But given Prof. Leiter's comment above, I don't think that was his intention. So I'm not really sure what conception of public reason is at work here.

Posted by: Micah | Jul 28, 2006 2:40:56 PM

Donald Marquis of Kansas University has offered a non-religious anti-abortion argument which would be equally relevant to the embryonic stem cell question presented. See, e.g., Why Abortion is Immoral in the Journal of Philosophy, 1989. Perhaps this is the sort of argument that Solum has in mind--it is a rather well-known argument, having been reprinted dozens of times. The existence of the argument suggests that Stone's No.2 is false.

If, as Leiter suggests in his initial post and discusses above in this string, only good reasons can count as public reasons, then there's no debate to be had, as I see it. One side is right and the other is wrong, and the side that's wrong is wrong before the debate begins, so any discussion would violate the supposed norm. That can't be right--what is meant by public reason must be something much less demanding, which would allow both good and bad reasons.

Professor Garnett's point, I think, could simply be restated to say that there are no relevant public reasons--that all the available reasons are similarly situated to "religious" reasons. Without saying more here, I find that plausible.

Posted by: Thomas Lynn | Jul 28, 2006 9:25:21 PM

First, I am in favor of federal funding for embryonic stem cell research. Second, although I do not consider myself religious and have even been accused of being sacreligious, I do believe in the interconnectivity and unity of life. That said, I will attempt to address "the features of living things in virtue of which they have a moral right not to be killed."

So what is it that grants human life a moral right not to be killed? It cannot be that the ability to reason inheres in each of us a moral right not to be killed if the paradox of the heap is analogous because that ability does not attach until years after birth. Something beyond the ability to reason must grant us our moral worth.

Thus, life is the only attribute common to us all. Entailed in life is the ability to contribute, be it through physical, emotional, or spiritual acts each of which have the potential of being the singular contribution that enables our continued existence. Ending a life, be it adult, child, or even prechild is still ending life which may also be ending that ultimate potentiality of our continued propogation. Moreover, in my view, ending any life is ending that shared, common part of each of us that is life and, thus, is ending part of ourselves. To the extent that self destruction is immoral, ending any life is similarly immoral. At this point, I am not sure that I have left the realm of reason and entered the realm of "religion," but I would love to hear what others think about this view and whether it enters the realm of religiousity.

I am not sure how I would feel about creating embryos for no other reason than to harvest their stem cells. However, once the production of more embryos than necessary for those with difficulty reproducing is accepted so is the ultimate destruction of embryos. This I see as the inconsistency in the position of those against stem cell research and federal funding for it.

Posted by: Jim Green | Jul 29, 2006 3:54:04 PM

I am unsure why Micah finds "head counting" so puzzling, especially in this case. Reasons that are accepted across sectarian divisions in society count as "public reasons" on this view; thus, arguments against stem cell research, like the one I sketched in the original post, are plainly not based on "public reasons" in this sense. That was all I meant.

Mr. Lynn writes: "If, as Leiter suggests in his initial post and discusses above in this string, only good reasons can count as public reasons, then there's no debate to be had, as I see it. One side is right and the other is wrong, and the side that's wrong is wrong before the debate begins, so any discussion would violate the supposed norm." This isn't, however, what I said. Public reasons are non-sectarian reasons, i.e., reasons that are acceptable across sectarian divisions in the society. Many bad reasons can be public reasons. The question about good reasons bears on the question whether there is a good public reason for doing something, e.g., vetoing legislation. That there are good reasons and bad reasons obviously doesn't entail that there is no room for debate, though that may be true in a particular case (e.g., there are obviously no good public reasons for teaching Intelligent Design in high school biology classes). But there may be many cases where there are good public reasons on many sides of a question. It isn't clear that stem cell research is such a case. Perhaps the Marquis argument would do the trick, but the devil is always in the details.

Posted by: Brian Leiter | Aug 4, 2006 7:34:49 AM

1. Regarding this question of whether a reason becomes a public reason by head counting or robust epistemic foundations, I believe Rawls cashed this out in terms of reasonable acceptability/rejectability: a public reason is a reason which I reasonably believe other members of my society will reasonably accept. (There's a circularity there, perhaps, though 'reasonableness' is a primitive throughout the law.) That differs from a head count, because my fellow citizens may or may not be reasonable. It also differs from a requirement of robust epistemic foundations, because it may be that certain beliefs are reasonable despite a lack of epistemic foundations. For example, ,oral judgments arguably have dubious epistemic foundations, though we still say that some are reasonable and others not. Claims that deny the freedom and equality of others are paradigmatically unreasonable for Rawls, though he consciously abstains from saying this is rooted in some deep metaphysical truths.

2. A key component of Rawls' account of public reason is that 'constitutional essentials and matters of basic justice' must be involved, to trigger the requirement of public reason. In the US, I suppose one could argue that, under the establishment clause, the invocation of religious reasons by public officials will automatically engage constitutional essentials, no matter how trivial the issue. (I'm not sure though that Rawls counts the establishment clause as a constitutional essential in his idealized model, as it would seem to trivialize the requirement that constitutional essentials be engaged.) In Canada, where I live, it's less clear: what basic rights would be violated by denying federal funding to stem cell researchers?

Posted by: T-Bone | Aug 19, 2006 1:09:47 PM

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