(The Return of) Ignatz, by Sam Heldman

Thursday, March 17, 2005

things that freak me out
Sometimes I think, despite the bad things in the newspaper, that in a big-picture sense human behavior and government are getting better and will continue to do so -- and that our country has some shared basic principles that will continue to push it in the right direction.

Other days, I read things that really make me believe that our country is in a pitched battle between people of reasonable moral sense and people without, and that the outcome is far from certain.

Today is one of those worse days. Eugene Volokh, putatively the blogosphere's most pleasant and erudite right-wing lawyer, says that he is in favor of -- and would, if he were the family member of a victim, would like to participate in -- the execution of mass murderers in long, drawn-out, excruciating public-participation ceremonies. And, as Marty Lederman explains, Harvard Law professor Alan Dershowitz -- putatively a smart guy -- absurdly professes to be unsure whether the intentional infliction of "excruciating" pain for fifteen minutes constitutes "torture" under the relevant legal definition.

Volokh says, in a nutshell, "that's my moral intuition and you can't prove it's wrong." Sure can't, you moral relativist you. But my moral intuition is that it's outrageously hideously wrong. Dershowitz, by contrast, is wrong as a legal matter as well as a moral matter.

posted by sam 12:15 PM 6 comments


How much imagination would it take to turn this debate around slightly - suppose Volokh came out *against* the dilation and extraction abortion procedure, insisting that it represented a level of violence to a late-term fetus that was morally offensive.

Would his critics today become his supporters tomorrow, arguing that certain moral judgements simply trump others?

Or would the critics say, "Wrong again, Eugene" - although you personally may find D & X to be repugnant, that is a matter of individual choice.

Well, we both know the answer.

I thinkyour post does a good job of at least recognizing the moral relativism issue - most of the critics are just howling in outrage.

Tom Maguire

By Anonymous Anonymous, at 9:49 PM  

Er, Tom, it's perfectly consistent to say that some moral judgments simply trump others, and that hypothetical-Eugene would be wrong again. It could be the case that the D&X intuition wasn't one of the trumps, or that the rights of the mother intuition is one of them. I don't see why you even think Eugene's opponents would face a choice here.

By Anonymous Anonymous, at 10:13 PM  

I'm just curious why the wingers who rail against Iran in every other matter are suddenly ready to embrace their justice system. I mean, torture aside, do they really trust the system so much that they are certain they got the right guy? The only thing you can really have faith in when it comes to this situation is the sadism involved, and that's what Volokh seems to be rolling in.

By Blogger Jane Hamsher, at 4:28 AM  

rea, blogger's done that to me too. I think I may have a blogger profile that I forgot about or something.

That aside, I don't know what I can add to the entirely warranted criticisms that have been made of Volokh's vile little screed, but I do have to say this: Any so-called "moral" position that relies solely on the actor's "feelings" and is not subject to any form of debate is not a moral position. It may be a lot of things, but it ain't moral.

By Blogger nolo, at 11:53 AM  

Just posted about this at my blog:

In the City of Hudson in the 19th Century, a young woman was hanged from a tree in front of the jail, before a large crowd, for committing a murder.

But the day after her hanging, the young woman's boyfriend confessed to the crime.

She was innocent.

Now, imagine if she had not just been hanged, but cruelly tortured first, to satisfy the crowd's rough sense of "justice."

And now, imagine if a 21st Century Constitutional scholar were to propose that the U.S. should copy Iran's practice of torturing criminals before executing them.

That's grotesque and un-American, the Union would say. But that's just what supposed Constitutional scholar and moral midget Eugene Volokh is proposing.

Volokh is an idiot, a coward, un-American, and no scholar if he fails to grasp this point -- or is unable to master his "emotions."

By Blogger Friends of Hudson, at 1:22 AM  

great point, Sam. I cannot believe that we're even having this discussion on the blogosphere at all. It really shows the sick effect the radical right is having on this country. They're trying to destroy every noble tendency in the American tradition. I swear to God I just can't fucking believe it sometimes. Thinking about Volokh and what's happening w/ the Schiavo stuff together- it's a sickening context.

By Blogger Swan, at 8:39 PM  

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