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Philosophy & Monica Lewinsky

3.

I have so far not mentioned Posner’s discussion of the only really important aspect of the impeachment story: the constitutional issue. It will not matter much to history that the semen on the dress was Clinton’s, or whether he committed perjury, or even whether Starr is sexually obsessed. It will matter far more what lesson the nation has learned about how the fearsome impeachment power should be exercised. The Constitution allows Congress to depose a president, with no check from any other branch of government, whenever a majority of the House and two thirds of the Senate deem it appropriate to do so, and it is therefore crucial that the nation develop some understanding and tradition about when that process is appropriate. Posner devotes a chapter to the question, but we cannot understand his argument without first considering the other of his two recent books that I mentioned earlier—The Problematics of Moral and Legal Theory—because he believes, as I said, that his discussion of impeachment in Affair of State is an “empirical test” of claims that several of his recent books, including Problematics, make about “the superiority of pragmatism.”

Problematics defends two main claims: the “strong” claim that moral philosophy is of no use at all to anyone and the “weak” claim that, in particular, it has no part at all to play in legal argument. 20 Posner’s arguments for the first of these ambitious claims are very weak. He criticizes the work of a few highly selected philosophers—he attacks Judith Jarvis Thomson’s well-known argument for abortion rights by repeating objections that are already familiar in the literature,21 for example, and calls attention to the “lugubrious” character of the imaginary people in John Rawls’s famous “original position” story to show that Rawls has a mistaken view of human nature. (Rawls and others have written volumes trying to guard against that crude confusion: the imaginary inhabitants of the original position are not meant to be like us.) Then Posner declares, as a matter of a priori psychological dogma, that moral arguments, no matter how sound or powerful, never convince anyone not already convinced anyway, so that unless moral philosophers are “dilettantes” who don’t care whether their work has any practical consequences, they are wasting their time. This is wrong twice: no doubt many people are never moved by the logic of a moral argument, even once in their lives, but it is absurd to suppose that no one ever is. Moral philosophers who try to state and support what they believe to be the truth about matters of enormous importance are hardly dilettantes even if they know they are unlikely to ignite mass movements.

Posner’s arguments for his second thesis, that moral philosophy can be of no use at all to lawyers and judges, are even worse. The law is built around concepts—of responsibility, intention, fault, causation, meaning, liberty, equality, fairness, justice, and democracy, for instance—that have been the object of intense philosophical study for many centuries. It is insulting to both professions to claim that judges could not profit by consulting the vast literature of that study. Posner’s only argument for that further dogma is that philosophers disagree with one another. They do indeed, and anyone who expects them to stop disagreeing misunderstands philosophy’s point. Of course judges cannot cite any philosophical text as unchallengeable, as they might, perhaps, cite an uncontroversial economic study or a piece of widely respected historical research. But that seems beside the point, since judges cannot avoid taking sides in these philosophers’ disputes and might well benefit from some familiarity with the arguments on both sides.

Do patients dying in pain, or who are severely handicapped, have a moral right to a willing doctor’s help in suicide? Do patients kept alive by life support have a moral right to have that support terminated if they wish? Would it be inconsistent to recognize one of these rights but not the other? Moral philosophers disagree, and judges must take sides when they consider the constitutionality of laws prohibiting assisted suicide and terminating life support.22 Can a creature which has never been sentient have interests of its own? Philosophers disagree, and courts must take sides when they decide whether states are entitled to claim that an early fetus has rights.

Does democracy mean only majority rule; or does it also require that the rights of minorities be protected? Philosophers disagree, and judges take sides on that issue, too, when they accept or reject the argument that they should use sparingly their power to protect minorities from the majority because that power is undemocratic. Why should judges not be helped, in making all these decisions, by some awareness of what the prominent philosophers who disagree have to say? It is a basic assumption of the Anglo-American adversarial system of legal argument, after all, that disagreement can be instructive.

Posner insists, however, that judges can avoid all philosophical issues, including those I just mentioned, because they have available to them an entirely different method of resolving legal issues, which he calls “pragmatism.” Judges should not worry about whether acts are different from omissions in some morally pertinent way, or whether a fetus has interests of its own, or what the best conception of democracy is: instead they should identify the likely consequences of allowing assisted suicide, or of making abortion a crime, or of striking down some statute as unconstitutional, and then ask whether these are better than the likely consequences of the opposite decision. The pragmatist judge, he says, “wants to come up with the decision that will be best with regard to present and future needs.”

There is, however, a patent fallacy in this advice. Lawyers and judges must appeal to (or in any case make assumptions about) moral or political principles in order to decide whether the projected consequences of one decision are better than those of another. Suppose we are confident that imposing special restrictions on lawsuits against drug manufacturers would encourage medical research and greatly improve health care over the long run. We still cannot tell whether these restrictions would produce the best consequences until we first decide whether they would be unfair to the patients who would be prevented from suing: if the restrictions would be unfair to them, then the consequences of imposing them would be much worse, just for that reason.23 The point is even clearer when legal issues involve matters of deep moral controversy. How can judges decide whether the consequences of banning abortion—fewer abortions and more unwanted children—are better than the consequences of permitting it—fewer unwanted children and more aborted fetuses—without first deciding whether abortion is murder?

Posner believes that the Supreme Court’s decision in Roe v. Wade was premature: it would have been better, he says, to allow different states to experiment with different levels of regulation or prohibition, on a “trial and error” basis, in the hope that “an answer might have emerged that would have commended itself to the Court and the nation as both principled and practical.” (He calls me “blind” for not understanding the wisdom of this trial-and-error policy.) But how could we judge which results were “principled” without deciding whether women have a moral right to control the use of their bodies in reproduction? And if we think they do, then would it not be wrong to permit an experiment whose consequences, in some states, would include violating that right? Wasn’t that, in fact, exactly the “experiment” that had been conducted for decades before Roe v. Wade?

This obvious and apparently fatal objection has been pressed on Posner repeatedly over the years, and in Problematics he finally responds to it, but in a way that seems to acknowledge its force. He concedes that “pragmatism will not tell us what is best,” but adds that it can nevertheless help judges in their search for the best results “unhampered by philosophical doubts” provided there is a “fair degree of value consensus among the judges, as I think there is.” But if pragmatism is somehow to replace all reflection on philosophical issues, then the degree of consensus must be not just “fair” but very substantial indeed, and it is wildly implausible that it is substantial enough. Judges disagree about fundamental issues of morality and value as much as other people do, and even if they did agree they would still be responsible for explaining to the larger public, which would remain divided about issues like abortion, why they have settled on the view that they have. So Posner’s lame appeal to a supposed judicial consensus about important values seems to confirm that pragmatism is, after all, useless when values clash.

It is therefore odd that he should appeal to pragmatism yet again, in An Affair of State, at the crucial moment of his discussion about when impeachment is justified. Most of the academic lawyers who discussed the constitutional issue concentrated on the Constitution’s requirement that an official may be impeached only for “high crimes and misdemeanors.” That obscure phrase requires interpretation: we must ask which understanding of it fits best with the most persuasive account of the overall structure of our constitutional arrangement. Many of the legal scholars who opposed Clinton’s impeachment argued that “high crimes and misdemeanors,” properly interpreted, include only serious public offenses, like Nixon’s constitutional crimes and those private crimes, like murder, that show such a wanton disrespect for human life as to make a president’s continuance in office a danger to the nation, or (in the opinion of some scholars) such criminal depravity as to make it intolerable to leave the perpetrator at liberty.24 Posner rejects that test because, he says, not only serious crimes, like murder, but even more minor offenses may possibly indicate a dangerous character. That is true, but not to the point, because a murderer has demonstrated the depravity that makes him dangerous, and someone who lies about sex, even under oath, has not.

Posner does not supply an alternative interpretation of the constitutional standard that would allow us to decide whether Clinton should have been impeached and if impeached convicted. We can imagine cases of presidential acts so terri-ble that they clearly count as “high crimes and misdemeanors,” he says, and also acts so trivial that they would plainly not merit impeachment under that standard. But Clinton’s acts, he says, fell in between: they were not so terrible as to make impeachment necessary or so trivial as to rule it out. In that situation, Posner insists, it is “natural to focus on the consequences of impeaching and convicting,” to compare “the likely bad consequences [of that course] with the likely bad consequences of alternate courses of action, including intermediate sanctions, such as censure.” He considers a wide variety of consequences that might have been thought to flow from impeachment and conviction, including the expense of a change of government just two years before the next election, but focuses on the question whether impeachment might be expected to weaken the presidency as an institution and, if so, whether that would be desirable or undesirable. “The pertinent question,” he insists, “is whether the impeachment of this President on these grounds was likely to impair our system of governance.”

  1. 20

    I should acknowledge that Problematics is very critical of my own work; indeed the Economist called its “attacks” on me “near-hysterical.” (See The Economist Review, September 18, 1999, p. 8.) Just for the record, I shall shortly post an account of Posner’s criticisms, and try to correct his misleading reports of my views, in a dedicated page of the New York University website: www.nyu.edu/gsas/dept/ philo/faculty/dworkin/papers/posner. html.

  2. 21

    See my Life’s Dominion (Knopf, 1993), pp. 54-55 and 249, note 4.

  3. 22

    See Ronald Dworkin, Thomas Nagel, Robert Nozick, John Rawls, Thomas Scanlon, and Judith Jarvis Thomson, “Assisted Suicide: The Philosophers’ Brief,” The New York Review, March 27, 1997, and Ronald Dworkin, “Assisted Suicide: What the Court Really Said,” The New York Review, September 25, 1997.

  4. 23

    Different philosophers would, of course, answer the question of fairness differently: utilitarians, for example, would say that the restrictions would not be unfair if they would improve average pleasure or happiness, in the long run, even counting the effects on those who would be deprived of lawsuits. But utilitarianism is a very controversial moral philosophy, and advising judges to take it up is advising them, not to avoid philosophical controversy, but to dive in headfirst.

  5. 24

    That general understanding of the constitutional requirement was defended, for example, in a full-page New York Times advertisement signed by a number of scholars, writers, and others in September 1998, in letters signed by hundreds of legal scholars and historians in October of that year, and by a number of scholars in testimony before the House Judiciary Committee later in the year.

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