Moral expertise? Constitutional narratives and philosophical argument

Metaphilosophy

Volumn 33, Issue 5, 2002, Pages 502-520

  Nussbaum, Martha C ^a  

^a UNIVERSITY OF CHICAGO   (United States)

Author keywords

Aristotle; Bisexuals; Ethics; Evidence; Expert testimony; Gay men; Homosexuality; Kant; Lesbians; Maritain; MILL; Moral philosophy; Murray; Politics; Public issues; Putnam; Rawls; Religion; Science; Socrates; The good

Indexed keywords

EID: 25444509163     PISSN: 00261068     EISSN: None     Source Type: Journal    
DOI: 10.1111/1467-9973.00245     Document Type: Article

References (50)

1. Evans v. Romer, 63 Empl. Prac. Dec. (CCH) 42719 (Colo. Dis. Ct. Dec. 14. 1993)
2. For a much more extensive account of the case and of my role in it, see my "Platonic Love and Colorado Law: The Relevance of Ancient Greek Norms to Modern Sexual Controversies," Virginia Law Review 80 (1994): 1515-1651
3. in shortened form in my Sex and Social Justice (New York and Oxford: Oxford University Press, 1999). Amendment 2 made it illegal for any state agency or local community to "adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination."
4. See Evans v. Romer, 854 P. 2d 1270 (Colo.)
5. The legal strategy was highly controversial, given the difficulty in describing the concept of "independently identifiable group": would this mean, for example, that a state may not pass a law forbidding local communities to pass nonsmoking ordinances? Because of these difficulties, it was judged unwise to rest the case on the slender reed of the argument leading to strict scrutiny. Therefore, when the case was argued before the U.S. Supreme Court, an entirely different strategy was chosen, one that ultimately led to the far stronger result that Amendment 2 was declared to lack a "rational basis": see Romer v. Evans, 116 S. Ct. 1620 (1996)
6. On the eventual Supreme Court arguments, see my "A Defense of Lesbian and Gay Rights" in my Sex and Social Justice
7. These included John Finnis, David Novak, Hadley Arkes, Barry Gross, Robert George, and Harvey Mansfield. Finnis's argument is also presented in "Law, Morality, and 'Sexual Orientation,'" Notre Dame Law Review 69 (1994): 1049ff
8. for the arguments of Arkes and George, see the exchange in the Georgetown Law Journal 84 (December 1995): 261-337, including Stephen Macedo, "Homosexuality and the Conservative Mind," Robert P. George and Gerard V. Bradley, "Marriage and the Liberal Imagination," Hadley Arkes, "Questions of Principle, Not Prediction: A Reply to Macedo," and Macedo, "Reply to Critics." The exchange also gives ample references to previous writings by the various authors
9. See Plaintiffs' Motion in Limine at 8-10, Plaintiffs' Supplementary Memorandum on the Legal Status of "Morality" as a Governmental Interest
10. Dover, Greek Homosexuality, second edition (Cambridge, Mass.: Harvard University Press, 1986)
11. see also appendix 4 in my "Platonic Love," a statement cowritten by me and Dover
12. See Rawls, Political Liberalism, expanded paperbound edition (New York: Columbia University Press. 1996). 212-54
13. see also "The Idea of Public Reason Revisited." University of Chicago Law Review 64 (1997): 765-808
14. Ronald Dworkin. Thomas Nagel, Robert Nozick. John Rawls, Thomas Scanlon, and Judith Jarvis Thomson, "Assisted Suicide: The Philosophers" Brief," in New York Review of Books 44 (March 27, 1997): 41-47
15. Friedman. "The Methodology of Positive Economics," in Daniel M. Hausman, ed., The Philosophy of Economics: An Anthology (Cambridge: Cambridge University Press, 1984), 212
16. Putnam, "Objectivity and the Science-Ethics Distinction," in Martha C. Nussbaum and Amartya Sen, eds., The Quality of Life (Oxford: Clarendon Press, 1993), 143-57
17. In The Fragility of Goodness (Cambridge: Cambridge University Press, 1986), chapter 8
18. and in "Equilibrium: Scepticism and Immersion," Acta Philosophica Fennica 66 (2000): 171-97
19. See also the account of Socrates in my Cultivating Humanity: A Classical Defense of Reform in Liberal Education (Cambridge, Mass.: Harvard University Press, 1997)
20. See Rawls, A Theory of Justice (Cambridge, Mass.: Harvard University Press, 1971), 20-22, 46-53
21. Rawls, A Theory of Justice, 48
22. See my "Why Practice Needs Ethical Theory: Particularism, Principle, and Bad Behavior," in The Path of the Law and Its Influence: The Legacy of Oliver Wendell Holmes, Jr., ed. Steven J. Burton (Cambridge: Cambridge University Press, 2000), 50-86
23. See Kant, Perpetual Peace, "Third Definitive Article of a Perpetual Peace."
24. Cultivating Humanity
25. For some excellent work along these lines, see Dan Brock, Life and Death (Cambridge: Cambridge University Press, 1994)
26. See my "Flawed Foundations: The Philosophical Critique of (a Particular Type of) Economics," University of Chicago Law Review 64, no. 4 (Fall 1997): 1197-1214
27. the best account of the particular issue of commensurability is in Henry S. Richardson, Practical Reasoning About Final Ends (Cambridge: Cambridge University Press, 1994)
28. See Nussbaum and Sen, eds., The Quality of Life
29. and Amartya Sen, Choice, Welfare, and Measurement (Oxford: Blackwell, 1982)
30. and Resources, Values, and Development (Oxford: Blackwell, 1983)
31. See Human Development Report 1996 and similar volumes in previous years, starting with 1993 (New York: United Nations Development Program)
32. In Sex, Preference, and Family: Essays on Law and Nature, ed. David M. Estlund and Martha C. Nussbaum (New York: Oxford University Press. 1997)
33. For another excellent critique, see the essay by Macedo cited in note 4 above
34. See my critique of Weithman in my "Preference and Family: Commentary on Parts III and IV," in Sex, Preference, and Family, 327
35. See Scott Brewer, "Scientific Expert Testimony and Intellectual Due Process," Yale Law Journal 107, no. 6 (April 1998)
36. Robert P. George
37. For a range of representative discussions of Mill's On Liberty, see Gerald Dworkin, ed., Mill's On Liberty: Critical Essays (Lanham, Md.: Rowman and Littlefield, 1997)
38. See also Ronald Dworkin, "Liberty and Moralism" and "Liberty and Liberalism," in his Taking Rights Seriously (Cambridge, Mass.: Harvard University Press, 1977), 240-58, 259-65
39. H. L. A. Hart, Law, Liberty, and Morality (Stanford: Stanford University Press, 1963)
40. Rawls, Theory of Justice, 331 n. 54
41. Richard Posner, Sex and Reason (Cambridge, Mass.: Harvard University Press, 1992), 202-3, 233-34
42. Richard Epstein, "Caste and the Civil Rights Laws: From Jim Crow to Same-Sex Marriages," Michigan Law Review 92 (1994): 2456-78
43. Commonwealth v. Wasson (842 S. W. 2d 487; 1992 Ky)
44. Commonwealth v. Bonadio, 490 Pa. 91, 415 A.2d 47 (Pa. 1980)
45. People v. Onofre, 415 N. E. 2d 939 (N. Y. 1980). The Pennsylvania and Kentucky Courts both note that a similar view of homosexual acts is taken in the Model Penal Code, sec. 207.5-4, 1955, and in the 1980 edition (quoted in the Kentucky case), sec. 213.2
46. Jacques Maritain, "Truth and Human Fellowship," in his On the Uses of Philosophy: Three Essays (Princeton: Princeton University Press, 1961)
47. Here my views are very similar to those of Maritain and Murray, and also to those currently expressed by John Rawls, in "The Idea of Public Reason Revisited" and more briefly summarized in the introduction to the paperback edition of Political Liberalism (see above, note 9)
48. Notoriously, Bowers was not mentioned at all in the majority opinion. For an excellent analysis of the opinion and its reach, see Cass R. Sunstein, "Foreword: Leaving Things Undecided," Harvard Law Review 110, no. 1 (1996): 6-101
49. See articles by Stephen Jay Gould and Richard Dawkins in Martha Nussbaum and Cass R. Sunstein, eds., Clones and Clones: Facts and Fantasies about Human Cloning (New York: Norton, 1998)
50. On this question, see the chapters by Jean Hampton and Joshua Cohen in David Copp et al., eds., The Idea of Democracy (Cambridge: Cambridge University Press, 1993)