ControlsFreak
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User ID: 1422
ControlsFreak
2yr ago
but obviously not everything is beyond a child's understanding
Agreed. But how do we know that something is or is not?
One of them, which might suggest somewhat of a convergence with a "harm to children is the (main?) reason to think that pedophilia is wrong" is that the harms involved in making a bad decision.
Analogously, think about someone who is blind drunk, staggering back from a nightclub on their own. Should they be able to buy a greasy, fatty, sugary kebab? Well, there's some potential harm to their health, but they can plausibly comprehend that, if they're able to e.g. exchange the cash. Should they be able to hand over all their assets to support the charitable works of the Church of Latter Day Suckers in a legally binding and irrevocable contract? Presumably not, that's a level of commitment and potential harm that's beyond their capacity in that context.
Substance use is a very tricky part of both Westen and Wertheimer. Like, suuuper tricky. Most people agree on something akin to "blind drunk" or unconscious. But I hardly think children can be analogized to that. When it comes to lower levels of intoxication, it's really difficult. (I don't have my copy of Westen handy, but Wertheimer was honestly a bit better at trying on a few of these, to my recollection, whereas Westen somewhat more often just fell back on a descriptive, "Here is what different legal regimes do in practice, and here is some vocabulary about how we can describe some of the conceptual differences.")
One commercial analog given is gambling and drinking in a casino. No one argues that drinking and gambling (possibly more than you intended to, on both counts) may result in significant potential harm, but basically no one thinks that it should be flatly prohibited or that gambling losses should be recoverable if intoxicated, at least not until one reaches a pretty extreme state1. He thinks this is partially justified because the gamblers, themselves, would prefer this rule to how the world would be in the counterfactual world. Like, just that there might be some harms, or that they might be significant, isn't really connected in any solid way. I don't think people actually take a measure of the harm that might befall a child who is, say, playing hockey or rock climbing (which could include, ya know, death), and determine that that level of potential harm is just flatly above some threshold, categorically banning them from consenting to the activity.
Wertheimer again ends up grounding his reasoning here in something that isn't really "about" ability to consent. He contrasts two frat houses, one in which the members accept consent from a woman only when it is given before she starts drinking and one that will accept consent after she starts drinking (the former is analogized to a "tattoo parlor rule", while the latter is analogized to the gambling rule). Literally says:
Which houses would women prefer? I do not know, but the choices that women now make do tell us something. ... When all is said and done, if women would prefer the gambling-rule fraternities, then they have little complaint when men engage in sexual intercourse with them after they give intoxicated consent.
So, like, uh, h-what? What has he even done here? It's kind of wild. It's not anything to do with their actual intoxication or mental abilities or anything. And of course, it's not anything to do with their specific regret/lack of regret for a particular action. For surely, every person would prefer the rule to be that they can legally take back every particular donation to the LDS that they regret, every particular gambling loss they incur, but keep every particular gambling gain, and of course have all the particular intoxicated sex that they don't regret. So, he ends with this awful mash of awfulness. It's certainly not anywhere nearly clear cut to tell us anything useful regarding anything about the mental capacities necessary to consent, on some hypothetical sliding scale of intoxication level, or how to understand how children would fall into this approach. That's probably why his attempt for children just completely went down the empirical route rather than even trying for any sort of real analogous reasoning here. Like, I just don't think you actually can reason analogously here at all, because they're just not the same sort of thing, and we have no theoretical mechanism linking them to each other or to anything about the gravity of sex or whatever.
Hot damn, as an aside, I checked to make sure I was remembering completely right that he did, indeed, immediately head for the empirical route for children, and he sure did. What I had forgotten was this doozy immediately thereafter:
As I noted above, however, there is considerable controversy with respect to the harmfulness of youthful sex. Moreover, at least some of the harm is “socially constructed.” Michelle Oberman claims that underage sex is typically harmful because the females experience a “diminished sense of self and a damaged reputation,” but this would not be so if we did not think that early sexual relations were improper. [emphasis in original]
This is what the claim will be. Again, you're just a regressive, sex-negative (probably religious) prude if you disagree.
I'd start by talking with them about their own personal sexual choices and emotional history. Then I'd probably get slapped in the face...
LOL! Nah, tho. They're Aella-based and enlightened-pilled. They'll be as happy as all get out to describe how sex-positive they are about all the sex they chose to have. "Even the sex I kind of regret was good in its own way, and I'm glad to have had the choice," or whatever. See the NYT article that I linked in one of my comments that I linked way back up in our earlier conversation.
There is a funny irony here: some (mentally able) adults, especially among the young, the unwise, or the unconservative, don't have a much better understanding of sex than children, yet they can still consent to sex. However, (a) edge cases make bad laws and (b) I don't claim that a sophisticated understanding of sex is required for consent, only a stronger one than children can attain.
I mean, this is going to go very poorly for you. You've sort of given up the game that you can have the same level of understanding of sex (and presumably the gravity and breadth of any moral implications), but somehow, those children still can't attain some mystical additional "sophistication"?! Like, what? How does this even work? What religious magic is this?
I was teaching about labour exploitation and sex in a class not long ago; it was the left-wing students (albeit not Americans and not liberals) who almost all found it quite easy to reject a consent-only view in both areas.
Yeah, you have to work a bit to make them actually see the contradictions in their claims. Most of the time, people just shake their head with mood affiliation. But when it comes to serious politics and Supreme Court briefs, they will absolutely refuse to see the contradictions, akin to how they'll suddenly think that opinion polls settle biological science.
Rigorous arguments are great and I'm glad that people are developing them, but I think that their historical influence is limited, for both good and ill.
Fair enough. We might be doomed, you and I, regardless of whether we can actually complete this project. They're probably going to do what they're going to do, regardless of whether we actually have a rigorous argument that children can't consent. Mayyybe, it miiiight help, but probably they'll just find some way to ignore it or minimize it anyway. Of course, it doesn't help that their counter to, "Children can't consent," is something short and pithy like, "Why not? They consent to all sorts of stuff!" whereas our counter to their counter is, "Well see, if you understand this complicated rigorous argument that fixes all the prior issues with not being able to analogize this situation to intoxication and avoids falling into the trap of, and... and..." I guess we really just are doomed to the fate of being right (ya know, if we can fix all of the problems in the project, which I'm still not seeing yet) but ground under an unstoppable cultural force.
1 - Worth noting here briefly that I think prohibitions on children gambling are, and should be, based on reasoning other than that they "can't consent". But I admit that it would be easy for this issue to get complicated, and that it seems a bit disanalogous.
ControlsFreak
2yr ago
I’m also amused by you seeming to claim you’ve witnessed fake gays or something, because all the gays I know remain very much that way.
Ok, if you're going to start being ridiculous, then it's probably not of much use to continue having a more nuanced conversation about cultural context. I remember people trotting out long-term 10yr studies, wayyyy back in the old old old place, and it being hilariously bad evidence for their claim. Usually, this type of attitude cashes out in a person actually having the ideological position that it is simply definitionally impossible for someone to change sexual orientation (i.e., they've so internalized the lie that they make up whacky definitional epicycles to conform to their dogma). Like, for example, they'll claim that for even the most clear cut case of someone who claimed to be one sexuality and lived that way for a while, then claimed to be the other way, and lived that way for however long, that it's still not an example of changing; we have to call them bisexual. Let's see if we can get that type of super ridiculous stuff off the table before we see if there's any value in going any further. Would you at least admit that it is possible, and that such a person would not be a "fake gay"?
ControlsFreak
2yr ago
Why not? They "can't consent", he said. What is it about the second player (or maybe second and third, if they're a kinky kid) that somehow converts their inherent ability to consent from a "can't" to a "can"? How does this work? And if there are cases where there's a "can consent", why didn't you jump in to tell @Harlequin5942 that he's just wrong about his broad claim that they "can't consent"?
ControlsFreak
2yr ago
Do you deny that children, in general, have weaker abilities to understand the implications of their decisions than adults, in general?
Of course not. But what aspect of that is relevant to make the distinction below? They still can surely consent to all sorts of things, even having generally weaker understanding.
one major respect (which I alluded to with the example of becoming a heroin addict, and which I later suggested with the example of transgender interventions on kids) is the gravity and breadth of the moral implications.
Expand on this. I'm considering Activity X, and I want to know about the gravity and breadth of the moral implications. How do I check where it falls? How do I connect this to the particular aspect of the weaker ability that you identified in the above question?
Are you aware that, as I mentioned in the linked comment far above, many people think that sex is like tennis? It's just a fun activity that two people choose to do, expecting to have a little bit of a good time, and then nothing interesting follows from it. They don't think there's any gravity to it, and certainly not any breadth of any moral implications... at least not to anyone who isn't a sex-negative prude (probably due to religious superstition). How would you perform the gravity and breadth of moral implications analysis in your explanation to them?
This is one reason why parents, as a general rule, should have a lot of social and legal authority over children. Why doesn't that authority extend to choosing to let (or require) children have sex, without the child's consent? That's a good example of where a consent-only ethics (or legal doctrine) falls short
Of course, I am pleased that you do not hold a consent-only sexual ethic. Of course, that does also open up the question of whether there are other areas that do not abide by a consent-only sexual ethic. It is truly a shame that you will be a cancelled bigot as soon as this is found out.
I only hope you don't have better things to do with your time than working out really carefully why it's wrong to have sex with children.
I only hope that the two of us can figure out a really careful, theoretically-solid reason for this, preferably within a consent-only framework, because without it, when we tell the new social revolution that children can't consent to sex, they're going to ask why not, and then they're going to shun us for not having an answer and for being a bunch of outdated bigots (probably clinging to some religion or something).
ControlsFreak
2yr ago
Ok, what is the nature of the mental capacity that they are lacking? Is there something about sex that requires a different type of mental capacity than what is required for children to consent to the variety of other things that they can consent to? If so, what is that nature of that difference, and what are the underlying reasons for why they are lacking one but not the other? Can you help explain the theoretical mechanism to me and to the professional philosophers who have written entire books on this topic, but seem to have just missed the super simple and super obvious way of doing this?
(Before you ask, no, at least Wertheimer didn't think that retarded adults with childlike levels of understanding could consent to sex, either. I'm not immediately recalling off hand Westen's position on this. In any event, Wertheimer again grounded this not in any theoretical explanation of the nature of the mental capacity that was missing. He again simply grounded it in an empirical argument, that he thinks that such people tend to be, on net, harmed by such sex. Moreover, he said that this case was more concerning to him than the case of youth, because while youth tend to grow up, we're essentially foreclosing the possibility of sex for retarded people, ever, regardless of what other importance it might have. Note that this concern is again based on considerations other than a theoretical explanation of consent and capacity, because fundamentally, this area is a big gaping hole in the project of a consent-only sexual ethic. It simply has not been explained.)
ControlsFreak
2yr ago
Your confusion seems to be because you are missing the distinction between "inability to consent is a sufficient reason for children not to have sex" with "lack of consent is a necessary condition for sex to be wrong."
Not at all. I understand this distinction perfectly well. Nevertheless, you said:
They can't consent to sex. Whatever consent to sex is (not an easy concept to analyse, to put it mildly) ... The problem is that children and animals can't engage in consensual sex, whether they want to or not, any more than they can make a mature decision about whether to become addicted to heroin.
I'm asking you why this is. Your confusion seems to be that you can't bring yourself to answer the question at hand.
ControlsFreak
2yr ago
Likewise, the response to a fundamentalist trying to defend marriage was “nope, still equal protection.”
That could have possibly been a response. Again, impossible to find my old comments from legal blogs back at that time, but I have a clear memory of writing a comment where I considered various possible grounds on which the Court could have ruled in favor of Obergefell. I concluded that the one that would have made the least hash out of the law would have been to just drop EPC and be done with it (this would have required a little bit of effort, because of the societal context, but could have been done relatively simply). But that's not what we got. We got a hash. And it's not surprising that we got a hash, because that's where the state of the discourse was at the time. It wasn't just a simple, clear-cut question without any deep philosophical import. It was absolutely considered to be deeply intertwined with these issues of sex, the nature of sexual behavior/orientation, identity, nature/nurture, and the purpose of marriage. I think the easiest and best evidence of this, if you simply disbelieve my recollection, is to read both the majority and dissenting opinions in Obergefell. In contrast, Loving was simple, to the point, and unanimous. The sole concurrence makes the reasoning even more simple and concrete - racial classifications are just bad, mkay.
ControlsFreak
2yr ago
I mean, I had a whole paragraph immediately before that one:
at the time that interracial marriage rose to prominence, the question was relatively simple (in comparison), and one that was reasonably easily cabined as a purely legal question. Everyone more or less agreed that race was basically a thing. Everyone more or less agreed on what marriage was. They just had to figure out what to do with these things.
I even said later:
I recall predicting (from my experience taking a queer theory class at the time) that, if anything, we were going to see that the decisions made in the past concerning things like interracial marriage were, not wrong, but woefully shallow, as the philosophical eye would no longer take things like "race" to be more-or-less agreed upon as mostly existing as a thing, and that it might become messier in the future.
So sure, nowadays, people are trying to ask more deep philosophical questions about race, along the lines of what you're talking about. But I don't think this was so apparent at the time.
ControlsFreak
2yr ago
Ah, well, then I'm sure you have some other, non-consent reason why children can't have sex. That's fair enough, but it's a bit surprising considering your comment that I responded to. There, it seemed like the pertinent question (which is the only question to the consent-only folks) was about consent, which still leaves open the question, "Why not?"
EDIT: To add one little remark, consent-only is the current dogmatic position, and you may already be an X-ophobe if you don't ascribe to a consent-only sexual ethic.
ControlsFreak
2yr ago
They can't consent to sex. Whatever consent to sex is (not an easy concept to analyse, to put it mildly) ... The problem is that children and animals can't engage in consensual sex, whether they want to or not, any more than they can make a mature decision about whether to become addicted to heroin.
This is more than just not an easy concept to analyse. From my comment here a while ago:
When it comes to the question of whether children can consent to sexual relations, the dominant position is that it is just trivial that they cannot. I mean, sure, they can consent to playing tennis just fine, but sex is completely and totally different. Why? I've steeped myself in the academic philosophy literature on this topic, and while it's a thousand times better than the responses you'll get from regular Joe, it still comes in seriously lacking in my mind.
Westen doesn't take a super strong position on the topic, but likely grounds it in what he calls the 'knowledge prong' of what counts as valid consent. A person needs to have sufficient knowledge of... something... related to what sex is, what it means, what the consequences could be, the cultural context... I'm not exactly sure what. I don't think he did the best job of really digging in to details here. This is perhaps the most fruitful line of inquiry for future academic work for those who want to salvage a consent-only sexual ethic, but right now it's seriously lacking. Any work will definitely need to distinguish from tennis, because I see kids out learning tennis at our local courts somewhat regularly, and they can hardly be said to understand the risks/cultural context/etc. of tennis any more than could be said for sex.
Wertheimer, on the other hand, doesn't even attempt a theoretical explanation for why children cannot consent. Instead, he views it as simply an empirical question of whether, in a particular society, children tend to be, on net, harmed by sex. The opinion piece writes:
[A]s categories, we experience [race and gender identity] in large part through the perceptions that others have of us, based largely on our outward appearances.
A disciple of Wertheimer might say that a large part of how children perceive sex, and whether they perceive it as harmful or not, may depend on the perceptions others have of it.
Of course, either of these approaches opens up all sorts of cultural engineering possibilities. If we team up the "sex is like tennis" folks with the "comprehensive sex education as early as possible" folks, it's easy to imagine how society could change to one where children learn the requisite knowledge and are not, on net, harmed by the sex that they do consent to. Some folks might cheer on this result, saying that society would be immeasurably improved to the point that it unlocks this new world of possible good things... but the "it is trivially true that children cannot possibly consent to sex" crowd would certainly disagree.
Your comparison to "mak[ing] a mature decision about whether to become addicted to heroin" is definitely somewhat relevant here, if you read the full linked comment. People think that there's something "more" and "different" about sex and heroin and things like that compared to "normal" things that children can definitely, totally consent to. But the theory here is just completely whack and not at all up to the challenge of explaining why. You can simply ask yourself, "Why can't children consent to sex?" When you do so, you might go down the same road I went down; you might read the same major works by professional philosophers that I read. But I really don't think you'll get a good theoretical answer. It's just sort of an axiom that is held by some. To others, it's just the dogmatic mantra that they were forced to repeat in order to help justify fighting the X-ophobes. But when the same people who convinced you to subscribe to a consent-only sexual ethic and who swear that the thing we need most is early comprehensive sex education to help children understand the sexual choices that they're allowed to make come calling, they're going to ask, "Why can't children consent?" If you don't have a better answer than the professional philosophers who are making the best case possible for a consent-only sexual ethic, you're going to find out that you're an X-ophobe. You're going to get stared at like you're an alien for making outdated assumptions about people. For Sagan's sake, everyone knows that kids are capable enough to choose their gender, have parts of their body hacked off, and keep it all secret from their parents! Of course they're capable of deciding to have a little fun with some friction on the bits.
ControlsFreak
2yr ago
ControlsFreak
2yr ago
Sometimes, merits go strongly with the way that the preliminary injunctions and stays go; sometimes, they don't. I'd agree that this was a mildly concerning signal, but we're getting a full review of the merits on the question, with oral argument in three weeks. I'm really interested to see how they're going to sound.
ControlsFreak
2yr ago
Ah, I did not actually state the names of the cases; thanks! That one is the Texas case (the second one I talked about, and the second one argued). The Florida case is Moody v. NetChoice, LLC.
The transcript of the oral argument in Citizens United gets a little lengthy for a full blockquote of the relevant section here, but this summary really does get at the essense of how it went down:
In one of the more memorable exchanges, Justice Alito asked if the "government's position . . . [would] allow[] the banning of a book if it's published by a corporation?" Stewart candidly replied, "the electioneering communication restrictions . . . could have been applied to additional media as well." Even a book. Justice Alito was taken aback by the answer: "That's pretty incredible. You think that if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?" The answer was yes.
[In the full transcript, other justices piled on to really pin him down that he really was actually claiming the ability to ban such books.]
The government changed its position six months later when the case was re-argued. Justice Ginsburg asked Elena Kagan, the Solicitor General and future-Justice, "if Congress could say 'no TV and radio ads,' could it also say 'no newspaper ads, no campaign biographies'? Last time the answer was, yes, 'Congress could, but it didn't.' Is that still the government's answer?" Kagan answered, "The government's answer has changed." There was audible laughter.
There's a saying that you usually can't win a case in the Supreme Court based on oral arguments, but you can lose one. There are many details (e.g., the procedural posture was inherently weird in that they asked for a reargument) that I will gloss over, but this sure seemed like one of those moments where the government may have gone a long way to losing a case based on their capacious response in oral arguments. I just finished listening to the social media cases this morning, and this colloquy from the Florida argument really stuck out and reminded me of the days of old, also from Alito:
JUSTICE ALITO: [...] does Gmail have a First Amendment right to delete, let's say, Tucker Carlson's or Rachel Maddow's Gmail accounts if they don't agree with her -- his or her viewpoints?
MR. CLEMENT: They -- they might be able to do that, Your Honor.
Quite capacious, indeed! Again, Justices Roberts and Gorsuch piled on a bit to get him to really spell out how they could discriminate, even for direct messages.
These cases have allllll sorts of details and issues (e.g., it's a preliminary injunction on a facial challenge, which took up the lion's share of the argument time), but however the Court deals with it, I cannot imagine that it will be an across-the-board victory for the challengers. I cannot imagine five members of the Court will sign off on saying that the Constitution guarantees GMail the right to refuse private communications service based solely on their dislike of an individual's politics. The best I think the challengers could hope for is some vague kicking of the can back down, maybe giving in on a temporary injunction in order to develop a better record, but maybe having a classic Kavanaugh concurrence where he says some form of, "...and if you come back here saying that the result you came up with would Constitutionalize allowing GMail to refuse service solely on their dislike of an individual's politics, we will absolutely rule against you on the merits."
Sure enough, when Solicitor General Prelogar for the federal gov't entered the chat and Alito asked her if she agreed with the challengers' position on email services, she flatly disagreed with them. No one may ever know if she had actually game-planned this conversation or expected to have to explicitly disagree with them... or if she just was smart enough to have read the room and knew that whatever she came up with, she couldn't agree with them.
I can't imagine trying to predict exactly what the Court will come up with... there were a lot of indications that went the other way, too, and this one factor certainly isn't going to necessarily lead to a broad ruling in the other direction, but I also can't shake the feeling that we're really starting to see the 90s internet consensus finally cracking and crumbling. By that, I mean the consensus that was always bought and paid for by powerful internet companies who have held the line that they can do absolutely anything they want and cannot be held accountable for anything they do. They're the important part of the internet, and without them, they imagine that the entire 21st century economy will come to a halt. But it is only them, because they never really believed the propaganda around Net Neutrality; they never actually thought that it was a serious concern that maybe ISPs would start kicking folks off the net because of politics (at the time when there were precisely zero examples of this); that was just a play to try to reduce their costs at the expense of infrastructure companies. They're the ones who should be allowed to kick you off the net because of politics. As they dig their hooks deeper into every aspect of your internet experience, where you use your Google device to connect to your Google internet service, and only interact with the Google AI who tailors your entire experience, it will all be shaped at their whim, to their political preferences. Maybe, just maybe, we'll avoid that dystopia.
But what you really came here for is the memes, and the Texas Solicitor General at least tried to bring them for you. First, a shout out to all the lurkers out there! We love you guys!
That's when I say you look at the text of the statute, their theory would mean that even if you just want to lurk and just listen and see what other people are saying, they can kick you off for any reason at all. So if you have somebody who had never posted anything or their speech is identical to the speech of somebody else, their theory is: Well, we can kick you off.
Has anyone ever acknowledged the existence of lurkers in front of the Supreme Court before? Second, he tried describing the need for internet companies that allow individuals to control their own private communications, and that if the line is that if private companies provide the service, they can do literally anything they want, inject/reject whatever politics they want, versus if gov't provides it, then all that stuff ("censorship") is forbidden, then he basically said that we'd need to spin up a gigantic government internet 'company' to do that stuff if we want it without censorship. It was a little hard to follow, and his line certainly didn't land perfectly, but at least he tried:
So, for me, the answer is, for these kind of things like telephones or telegraphs or voluntary communications on the next big telephone/telegraph machine, those kind of private communications have to be able to exist somewhere. You know, the expression like, you know, sir, this is a Wendy's.
As much as I have a strong desire to be able to respond to stuff like the latest Gemini hamfisted diversity-in-image-generation with, "Sir, this is a Wendy's," and that they just need to fuck right off with their politics in products that could provide the world incredible mundane technological benefits, we're probably going to have to muddle on with pretty powerful politicized internet companies even after these cases. The only current alternative of giving all that power to government may be the only thing that's worse. So, I guess, here's to rooting for it not being too much of a hash!
ControlsFreak
2yr ago
A collection of positions of religious organizations are obviously going to be focused on theological positions. They don't need slippery slope arguments. This is how you tailor arguments for a religious position piece.
Legal arguments tended toward the most convenient, most obvious legal slippery slope, especially because we have a solid history and case law concerning polygamy that opponents would have to wrestle with. This is how you tailor arguments for a judge.
To build on @ArjinFerman, I think it included, but was even more than "changing the definition of marriage, and if you can do that, what else can you change?" It would be impossible for me to find my old comments on a legal blog from the period, but I had predicted that this general area could continue to be a sore spot, more like abortion and less like interracial marriage. The reason is that it cuts into deep questions of philosophy and science in ways that are difficult to reconcile beyond short-term applications of pure social power.
That is, at the time that interracial marriage rose to prominence, the question was relatively simple (in comparison), and one that was reasonably easily cabined as a purely legal question. Everyone more or less agreed that race was basically a thing. Everyone more or less agreed on what marriage was. They just had to figure out what to do with these things.
On the other hand, gay marriage very much got down to philosophical concepts concerning what is sex, is sexual behavior distinct from an orientation, how is that determined, is it biological or not, etc., as well as questions concerning what marriage is, what its purpose is, why we have it, etc. This is very much like how abortion sparks deep questions about what life is, when it is human, when it has value, etc. Trans questions are likewise in the intersection of very deep and important philosophical questions, and I think they retain the potential to persist as a divide over time.
It is of little surprise to me that as people are getting past the point of peak social power to get a policy outcome, they're realizing that they've actually found themselves in a bit of a philosophical thicket, and some are even wondering whether they let the fervor get the best of them the last time rather than reasoned consideration. We're just digging deeper into the really hard questions. I recall predicting (from my experience taking a queer theory class at the time) that, if anything, we were going to see that the decisions made in the past concerning things like interracial marriage were, not wrong, but woefully shallow, as the philosophical eye would no longer take things like "race" to be more-or-less agreed upon as mostly existing as a thing, and that it might become messier in the future.
I definitely recall arguing (on SSC, even, not just legal blogs) that the philosophical and scientific claims were on dreadful grounds, and that it was going to be a mess, somehow, for them to enshrine, as a matter of Constitutional interpretation, these shaky claims, akin to how Justice Thomas often reminds us that segregation in schools was once justified by social scientists with shaky claims that it would surely enhance learning to be in a cohort of similar looking peers. I don't think those warnings need to be cashed out in ultra-specific predictions of exactly what form the fallout will take. Just a general sense of the "abortion distortion effect" in the legal space, where it seemed to be the case (following Roe/Casey enshrining questionable philosophy buttressed by appeals to science) that the question of abortion precedent mangled far-reaching areas of the law that wouldn't, on their surface, seem to have anything to do with abortion.
Once you walk down the line of enshrining Constitutional interpretation based on lies about science and questionable philosophy, there are going to be bad effects, somewhere, somehow. "Hey, this other claim looks really close to that other lie, and you are absolutely forbidden from acknowledging that it was a lie, so what'r'ya gonna do about it?!" The whole endeavor is built on a rotten premise, and the only question is how many other rotten conclusions will be adopted in service of that rotten premise along the way. It took almost 50 years for Roe to finally be repudiated; will this end up being repudiated at all? Or will it truly be enshrined as complete cultural dogma, irrefutable by science or the lack thereof, free to continue distorting everything that comes close to it? Who knows. No one can predict with any level of granularity. We can't predict which specific offshoots will garner sufficient strained legal analysis and which others will struggle. But I think we can predict that this deep philosophical rift will persist.
Again, to make an analogy to abortion, I think about the fact that Peter Abelard, in the 12th century, has preserved writings on questions that are extremely close to current questions on abortion. That rift is way older than the 50 years from Roe to Dobbs. I can't imagine that fundamental questions about sex, gender, sexuality, identity, nature/nurture, etc., are just going to become suddenly resolved in a stable way super soon. If those fundamental questions are going to stick around, building on a bedrock of questionable philosophy and absolutely horrid "science" seems to almost necessitate some form of weird and bad transient outcomes.
ControlsFreak
2yr ago
I mean, you can just think whatever you want to think, and I can think otherwise. I lived through it also. I saw all the propaganda. I watched The Daily Show, uh, on the daily. You think it was "knowing people" and "personal relations", but that is still downstream of the lies. It was, "I know this person, and now that they've told me that they were born gay, that that's just who they are, and that I just have to accept who they are, I will do it." The personal relations and knowing people simply goes differently if you don't have the foundational bedrock of a lie about the person that you know.
It's really hard to extricate this lie from your mind, but it really is like saying that if people just knew more folks who steal things, they'll become more accepting of theft. I doubt that's the case. However, if you had a constant cultural threat to simply recognize that they were actually just born a kleptomaniac, that that's just the way that god made them, that there's nothing that you can do about it, they're never possibly going to change, you either just have to accept it or else you're a bigot and will be completely socially shunned, made fun of on primetime television, fired from your job, and ejected from the sphere of respectable people, then yeah, I think some number of folks would accept it. They may even construct ego-preserving myths about how they were just convinced by the science or how the whole culture became more "enlightened". But the upstream reality is that it was pure social power being exerted on the hinge of a lie.
Moreover, that lie was "critical", especially to get the political and legal power to now persecute any stragglers who want to bake cakes or make websites. Of course people are going to bend under the pressure and retcon that they were totally rational about the whole thing all along.
ControlsFreak
2yr ago
People really run away from agency/blame when it casts shade on their own actions or their political commitments. This is an incredibly basic egoistic primitive. E.g., when you have an abortion, you're not "killing" it, you're simply removing it from the uterus, and it's not your 'fault' that it doesn't survive out in the elements. Might as well be pushing a stroller off a cliff and blaming gravity.
ControlsFreak
2yr ago
Graduating high school in 2006 is utterly different than in 2016 with respect to the gays. The people that can’t remember 9/11 also can’t really remember a lack of societal acceptance of gays. Even if the courts had not ruled in favor of gay marriage when they did, the cultural change was already a foregone conclusion.
I don't know that this happens without the lies, though. That NYT article said that it was "critical" to tell people these lies so that they could effect a cultural change. Again, I think you're so swimming in the result that you really just can't fathom how important it was for the culture to change. How many people felt just utterly bullied into changing their perspective, because they felt they couldn't say anything in response to, "The Science says!" They had to retreat to, "Well, I might not personally like it, but if that's who they are," or some people even said, "...if that's who god made them to be, then..."
Graduating in 2016 meant being most exposed to peak propaganda on precisely this issue. Literally 2015 was Obergefell, when the APA told SCOTUS that a bloody opinion poll settled the science on the issue. The lies were literally more like the water they were swimming through than at any other time.
Frankly, this is just reinforcing my original point. They were sooooo successful with pushing these lies to effect cultural and legal change that you can't even see how important it was. It's no wonder they think they can just boldly do it again on any issue they please. You might personally see through it the next time, but there will be a train of people who graduated in 2026 instead of 2016 or 2006 who will be right there to say, "But you just don't understand that there was a cultural change," and completely not grokking how that cultural change happened.
the biggest factor is that what the gays wanted was not that much of an ask, overall
In comparison to what? There is a reason that the lies were focused on making it, "...compared to having to 'live a lie' and betray your very identity that is as core to your being as your DNA, and as a result, never ever have the chance to live a happy and satisfying life." If you lie enough to make the alternative YUGE, then you can make it sound like what you're wanting is not that much of an ask. It's baked in to your thinking that it's not that much of an ask, and you probably can't extricate it from your mind to look at it any other way.
ControlsFreak
2yr ago
One possible answer is the Bryan Caplan answer: the left hates markets, and the right hates the left. See Bryan for further exposition.
Another possible answer is the William Riker answer, what he calls "herestetics". The idea is that because the population will always have a distribution of preferences over possibilities, any voting mechanism will be subject to strategizing, changing the order/method by which things are considered, raising novel concerns that you think can split what would otherwise be unified opposition to your own preferences, etc. This is now done on an industrial scale, and the importance of national politics (given a strong federal government) raises the stakes significantly. Sprinkle in a little FPTP and negativity bias, and maybe that's just the fundamental reason for the culture war.
One thing I would note that would seem to support Riker's ideas, in my mind, is that when I watched Ken Burns' documentary on prohibition, I was amazed by just how poorly the political divide at that time mapped on to the divide today. Maybe someone could have gone through issue by issue and explained how I was misunderstanding, and that the same fundamental explanatory principle harmonizes them, but it really makes me think that it's all herestetics and path dependence; one group of folks try to bring up and really focus on Issue X, because they think it'll get them over whatever hump, then another group of folks tries to crack that coalition by coming up with Issue Y, and eventually lines start to get drawn.
One thing I would suggest/request for how to do a better job of getting to the real answer would be to survey across time and across the world. Is there anywhere where there ISN'T a culture war? Can we get a measure of, "In this area, the level of culture war is like a 0.3, but in this other area, it's like a 0.8"? Then, is there anywhere that is persistently low?
ControlsFreak
2yr ago
The battle over gay marriage was won so fast both legally and popularly that progressives think they can repeat that with say trans issues.
Moreover, they did so by just lying about what is known about reality, enforcing it through pure social power, then freely admitting that they totally lied. There have been, and there will be, zero consequences for this lying, so ISTM that they feel emboldened to repeat the same tactic on any issue of choice.
Counting federal student loans?
On this note, if you didn't see, they just got handed a full $1.2B that was laundered through the label of a "loan".
EDIT: Forgot link.
ControlsFreak
2yr ago
Sure, that's an interesting topic with lots of areas of discussion. I think I made it clear that there's nothing wrong with discussing how to instill confidence in a voting system even in response to suspicions that end up being unfounded.
So, uh, would you like to discuss it? Maybe make a contribution to the discussion?
There's nothing forbidden about presenting evidence and drawing conclusions from it. If someone's skepticism is indeed immune to evidence, what other explanations are there?
I'm trying to understand this very thing right now, so we'll see if the mods agree that this is a thing that you can do.
ControlsFreak
2yr ago
I don't think my model has a concept of justified/unjustified disgust, nor a sense in which all politicians deserve an equal level of disgust. Just that individuals have a possibly noisy level of general political disgust, and that Trump created an unprecedented increase, well above the noise level, of disgust in them. This disgust can have different outcomes in different folks (in ways that are path dependent), but the core linkage between them is this outsized disgust, which does not correlate with prior political commitments. In fact, it is due to the fact that it does not correlate with prior political commitments that it can have different outcomes in different folks.
As the NYT opinion piece says, nobody even bothers making bad science these days on this topic. There's no point anymore; no need. The Constitutional battle has been won, and it's not going back.
In any event, the example that really sticks out in my mind that I was able to find in a pretty quick search for old SSC comments was that this paper was bandied about as an on-call link for people who were anti-bigot. I summarized it thusly:
Perhaps you also missed my link somewhere to this comment, where I harken back to the APA, the bastion and gatekeeper of The Science (TM), whose primary piece of Real Science Evidence in their premier brief laying out the clear and irrefutable Science on the topic was... an opinion poll.
I mean, I don't know what to say. I point out examples of shitty science in high places meant to support a dogmatic position. I point out high profile experts openly admitting in the NYT that the "science" was "a very 1990s preoccupation" (completely minimizing its cultural relevance) that surprise, surprise, turned out to be all bupkis, and now we're admitting it (so yeah, the premise that was clearly being pushed by raw social power, well before the timeline that you think the culture just magically shifted in the absence of such lies). They also freely admit that nobody cares anymore, so there's no incentive to churn out any more bad science; they just want to memoryhole the whole thing. And somehow, your complaint is that I'm apparently not citing any more bad science? Like, I don't get what your complaint really is or how you could be satisfied by anything. It's not like you're here trying to say that there actually is all this good science, and let me show you all this good science.
Instead, I think it simply doesn't matter to you. You are not here to talk about science, anyway. You've got your personal experience, and that's all that matters to you. That's fine, but I hate to say it, sort of not really relevant?
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