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Daniel Chapman

Very well put, Paul... and your hypothetical perfectly illustrates the next point. I probably disagree with you in saying that I'd pick "breedocracy" over "sextopia." Big whoop. Sextopia can do what it wants... that's why democracy should be local and the supreme court should stay out of it.

Paul Gowder

Yea, I suspect very few will choose Breedocracy. Oh, sure a bunch of Christian Coalitioners will go there -- but then their wives, sick of being beaten for failing to make the bannana bread nice and fluffy, and desiring to do something with their lives except spawn, will all emigrate (assuming they can escape the Defenders of the Faith which will undoubtedly be guarding the borders) and the ministers won't have anyone to boink. I'm sure they'll manage somehow, though. Probably with kidnappings and stronger border fortifications, though perhaps they'll just ban women from the schools so that they won't get the education necessary to realize there's a world other than Breeding The Wonderful Children That Are The Fount Of All Our Laws.

What the hell, eh? Lets just let Texas throw out its current legislative code and replace it with a copy of The Handmaid's Tale, eh? Because, hey, that's obviously what the People Want.

Daniel Chapman

Either you didn't read me very closely, or that's awfully rude. Oh well... we all know how productive and happy hedonists are. I suppose I'm just fooling myself by choosing a monogomous marriage.

Paul Gowder

Daniel: (b). And a little bit of (c) (deliberate hyperbole).

My point is that freedom, so long as such freedom doesn't cause real harm to someone else (the second clause being the reason I think libertarianism is blind -- many "economic" freedoms are filled with externalities or deceit), is good for everyone. Majoritarianism needs to buckle to that principle. Democracy needs to buckle to that principle. The states should not be permitted to decide, no matter how democratic the process, to take away the social freedoms of others.

I'm reading a very interesting book about the French revolution right now, coincidentally. That's what happens when the majority looks up and realizes "hey, we can really SCREW all those people who we don't like!" Heads start rolling. Chop. Chop.

My committment to democracy and to state's rights does not extend so far.

Daniel Chapman

Yes... I suppose I could also be rude and point out how incredibly stupid that argument is. I could go over the top in my sarcasm and do my best to insult your personal beliefs in the process.

But sarcasm is a tool of people who have given up trying to actually convince others, and it's beneath me. So I'll just leave you alone.

Paul Gowder

Consider re-reading the "deliberate hyperbole" part. (Need I omit the "re-"?)

I don't recall insulting anyone's personal beliefs. Where did I say "heterosexual monogamy is bad?" Indeed, it's my own personal relationship preference. Emphasis on the "personal." The problem comes when people start trying to remove that word. Let me repeat it again. "Personal." A good definiton of "personal" would be "not subject to legislative interference." Indeed, the groundbreaking feminist insight that "the personal is the political" perhaps could better be phrased in part as "historically, political power has inappropriately been exerted over the personal."

And yes, sarcasm is indeed a tool of people who have given up trying to actually convince others. Alas, I appear to be at that state right now.

Indeed, there's something to be said for that perspective in general. I seriously doubt anything said in any of these places by anyone is going to change anybody's mind about anything.

Ca ira.

Paul Gowder

We live in a country one of whose bedrock principles is the protection of minority rights in the context of generally republican governance. It's the "protection of minority rights" bit that means that royalists in the colonies, after the American revolution, weren't sent to the guillotine like they were in France.

"Social conservatives" seem hell-bent on eliminating that principle. Their all-out attack on the courts, on gays, on affirmative action, on the separation of church and state, and on the fillibuster, among others, are all manifestations of that mission. They want to destroy the wall of separation, for example, because, as Scalia regularly suggests, this is a "Christian" nation. And god help you if you're not a member of that majority. Replace "Christian" with "straight" or "white" or whatever, as you please.

The conservatives really believe they have a majority that is entitled, as John Smith suggested with his idiotic "gays are icky and people have a right to legislate their morality" posts, to write any damn thing they please in the laws, rights of the minorities be damned.

In that context, I utterly reject the idea that these things should be left to the democratic process. The democratic process be damned, I demand justice and minority rights.


The conservatives really believe they have a majority that is entitled, as John Smith suggested with his idiotic "gays are icky and people have a right to legislate their morality" posts, to write any damn thing they please in the laws, rights of the minorities be damned.


And liberals really believe they have an enlightened MINORITY that is entitled to legislate their morality and write any damn thing they please into the Constitution, rights of the majority, rule of law, and democracy be damned!


What exactly do you think suffers when judges do nothing but write their will into the Constitution? That is the rule of law which is suffers!

There is no generic minority rights clause in the Constitution. It is not what you want it to be, and trying to mold it to your political whims undermines the rule of law. The Constitution is a foundation for government with SOME minority protections. It isn't a blank check handed to the judiciary to ensure "social justice" or whatever is popular with the elites at any given moment.


Forgive me if this point has been made in one of the many previous postings... If the returns to marriage have decreased for women as they have acheived greater economic freedom, then does it follow that women are now demanding greater benefits to continue consuming the marriage product? I suspect that women are demanding more compassion and more companionship in their marriages than they did when they had less economic freedom. If true, then women may assign lower value to marriage with those men who show lower likelihood of a sustainable "companionate" marriage. Women may be willing to have relationships with such men, but may be less willing to ultimately marry them.

Paul Deignan


The difference would be in the an increased acceptibility of men who are good companions but poor providers. I think we see something of that trend.

This is one of the benefits of economic equality between the sexes.

John Smith

"The conservatives really believe they have a majority that is entitled, as John Smith suggested with his idiotic "gays are icky and people have a right to legislate their morality" posts, to write any damn thing they please in the laws, rights of the minorities be damned."

This is a purposeful distortion. I clearly stated that the "gays are icky" argument would fail in court and is prevented by Lawrence. The ends-based argument I have made has nothing to do with Lawrence or the "gays are icky" argument, as should be clear to anyone who reads. I even stated that before. CTRL+F for the word "confusion". I have never made an argument that minorities have no rights against the majority. But the existence of minority rights does not meant the absence of majority rule. I actually took no position on whether gay marriage should or should not be permitted. I only noted that an ends-based argument could succeed as a defense of heterosexual marriage, a means-based argument could not, and "democratic experimentalism" is in essence the means-based argument.

As an aside, I do think "the people" have the power to legislate their morality, although I never said such a power was absolute. Anyone who believes that the prohibition against murder is not a based in moral belief, or that a state legislature has no legitimate power to prohibit murder, is the idiot.

John Smith

"It isn't a blank check handed to the judiciary to ensure "social justice" or whatever is popular with the elites at any given moment."

And yet that is exactly what means-based defensese of heterosecual marriage and democratic experimentalism collapse into.

John Smith

"How can you say that one thing is intrinsically good in comparison to another when you've only experienced one? (Admittedly, I'm ASSUMING you've only experienced one. Feel free to correct me.)"

There is no "in comparison". I am EXPLICITLY NOT saying that heterosexual sex is BETTER than homosexual sex. THAT is a means-based argument: heterosecual sex is better than homosexual sex at acheiving goal XYZ. That is not my argument. The argument is that heterosexual sex is an end in and of itself. There is no need for comparison, because it is not a means to an end. I don't need to experience homosexual sex to know that heterosexual sex is INTRINSICALLY good. The INTRINSIC goodness of heterosexual sex has nothing to do with homosexaul sex at all. That's the whole point.

Means-based arguments invite comparison. Ends-based arguments do not.

John Smith

"John, John, John -- I don't think anyone has really addressed your "gays are icky a priori" 'argument.'"

That is because I never really made that argument. I just threw it out there. I don't actually think gays are icky, and have stated repeatedly that Lawrence is a barrier to such kind of arguments. But I did provide a link to a legal scholar who makes it (which you obviously did not read).

John Smith

"gays are icky a priori"

And actually, I NEVER made a sketch of an "a priori" argument in the metaphysical sense. The idea is more akin to Jane Galt's argument: people just don't agree with the gay agenda after they come to know what it truly means for radically altering society. There are so many straw-men abounding here.

John David Galt

I mostly agree with Posner's analysis but feel that he is missing a crucial piece of the puzzle.

Sex has two potential purposes: pleasure and children. For reasons of evolution, men have always been inclined to the view that it's for pleasure, and women to the view that the purpose is to have children.

The 20th century brought us two major changes that have strengthened the "pleasure" view. One is the development of safe contraceptive methods (as well as safe abortion), making unintended pregnancy much less likely than it was for most of our evolutionary past. The other is that (at least in the rich countries) the need to have lots of kids as a form of old-age pension plan has largely disappeared; not only are most of us now rich enough not to need support from our kids, but also any kids you have are much more likely to survive to adulthood, so you don't need to pump out twenty kids in the hope that two or three will survive. (I don't list improvements in disease treatment because those are largely a wash; for every STD conquered, a new one has appeared.)

As a result, in the modern world, nearly all sex is purely for pleasure, not reproduction, and both religion and law need to be updated to recognize that reality. Religions that don't will be discarded as obsolete; laws that don't are tyranny.

By updating the law, I mean a lot more than just legalizing all forms of sex by consenting adults, though that is certainly a moral imperative and needs to be done yesterday.

The law also needs to be changed to put authority and responsibility in the same hands in the many cases where it currently isn't.

Example: An unintended pregnancy occurs. The woman has sole authority to decide the outcome; she can have the child and keep it, have it and give it up for adoption, abort, or (in many states) even legally abandon it. She doesn't even have to tell the man that it happened. But she is free to choose the most expensive outcome -- having the child and keeping it -- and the law compels the man to pay for the result of that choice. This is horribly unfair. The same rule ought to apply as in awarding damages after an accident -- if you don't take all reasonable steps to minimize the cost of the accident, you give up the right to collect.

Several related laws amplify the tyranny here.

1) The woman can falsely promise not to keep the child if this happens, and renege and still collect. She can entrap the man deliberately by falsely telling him she's using birth control, and still collect. She can even deliberately defeat such measures as condom use, withdrawal, or sex practices not involving the vagina (by collecting and inserting the semen afterward) and still collect.

2) Child support awards have nothing to do with even a guess about the cost of raising a child. Instead, they are based on a court's (often ridiculous) estimate of the man's potential earnings. And no attempt at all is made to ensure that the money actually gets spent on the child. This, combined with 1), has created a huge opportunity for dishonest women to live at a man's expense without even having to live with him.

3) Courts routinely use contempt orders to effectively recreate the debtor's prison for men who can't pay. In addition, federal law frequently creates that very inability by forcing states to revoke the drivers' licenses and occupational licenses of men who can't pay. In effect the 13th Amendment has been worse-than-repealed for men who've been forced into fatherhood.

Honest women who want children, and who quite sensibly want to insist that the father commit himself to taking responsibility for them, have always had a perfectly good mechanism for formalizing exactly that agreement; it's called marriage, and all they have to do is insist on it before having sex (or at least, vaginal penetration).

Just as the law quite sensibly insists that people who want a contract (for large stakes) enforced put it in writing, the law should insist, as it did until about 1930, that a woman who wants to collect child support begin by getting the man's signature on a marriage license. In the absence of marriage, the law ought to expect her to either refrain from sex or to pay for the result of her after-pregnancy choice herself. Until this change is made, more and more women will enslave men by trickery.

Antnio Lus

Just to say that I fully agree with post regarding the "forced paternity". I leave in Portugal, and the law problem is the same.

Paul Gowder

John: "ends based arguments" as you call them certainly do invite comparison because there's limited resources. If Joe is going out and getting the intrinsic good of heterosexual sex, he's using time and effort which could instead be spent going out and getting homosexual sex. Since we're all mortal, one has to know whether homosexual sex is an intrinsic good too, and, if so, whether it's more or less intrinsically good, in order to justify a policy choice which favors heterosexual sex over homosexual sex on that basis.

Moreover, your idea that heterosexual sex is an intrinsic good is based solely on the evidence of the experience of engaging therein. That is all you've suggested as the basis for identifying its intrinsic goodness, and there has to be some basis -- merely saying something is intrinsically good does not permit you do avoid all need for evidence therefor, unless you are, in fact, making that assertion a priori. Since you explicitly disclaimed a priori as the basis for the intrinsic goodness, you're left with the need for evidence, which comes from experience.

But merely by saying that, you refute the intrinsic nature of the good and reduce it to an instrumental good: the experience that led you to declare heterosexual experience as an intrinsic good must have caused some consciousness-state (otherwise it wouldn't have been an experience). Consciousness-states are the only things that people can evaluate from experience: evaluation is practiced on an accessible object, and that object is the state of consciousness induced by an act. Thereofre, that consciousness-state is what the identified good would be, and the experience causing the consciousness-state (the heterosexual sex) would merely be an instrumental good in order to reach the intrinsic good of the consciousness state.

Let me rephrase for clarity:
There is no way to establish, within the limited scope of human consciousness, any intrinsic goods beyond: (a) positively evaluated states of consciousness (a.k.a. "happiness"), and (b) intrinsic goods asserted a priori (a.k.a. "truth, justice, motherhood, God and apple pie."). Since you claim that the goodness of heterosexual sex does not come from balt a priori assertion (a wise claim, since anyone can make a priori assertions), and since heterosexual sex is not itself a direct manifestation of consciousness, it follows that heterosexual sex is good only insofar as it brings, or leads to something that brings, pleasure. An instrumental good.

Paul Gowder

clarification... what I'm really saying is there can be no a posteriori intrinsic good. As an epistemological matter, that would be a contradiction.


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