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Small-Scale Question Sunday for April 23, 2023

Do you have a dumb question that you're kind of embarrassed to ask in the main thread? Is there something you're just not sure about?

This is your opportunity to ask questions. No question too simple or too silly.

Culture war topics are accepted, and proposals for a better intro post are appreciated.

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What’s up with Tyler v. Hennepin County?

Next week, SCOTUS is hearing a case from Minnesota. The county foreclosed on a home with $15,000 in tax debt. It made $40,000 from the sale and kept all of it as a windfall in accordance with state law. The 94-year-old owner sued on takings clause (and due process, and 8th amendment) grounds.

The district court dismissed all claims. The circuit court affirmed. What gives?

It feels like there should be protections against the state profiting off the difference from tax debt and market value. Is this just one of those situations where it turns out there are no rights? Am I missing something?

Home seizure is one of the canonical examples for illustrating "substantive due process" versus "procedural due process." This is (and probably always will be) a pretty hotly contested bit of American jurisprudence; procedural due process is "was the procedure followed" while substantive due process is more about law-in-equity, i.e. "was justice truly done." If your city or state craft ordinances that, through totally procedurally sound action, works a clear injustice, it's not usually all that difficult to get people to agree that something has gone awry. Based on the Court's posture toward asset forfeiture in Timbs v. Indiana (they decided it violated the Eighth Amendment as excessive), I would not be at all surprised to see Hennepin County definitively lose this case.

However, the main question in my mind is that this is a "tax" case, rather than a "fines" case, and Chief Justice Roberts famously saved Obamacare by giving "tax" status to something that essentially no one thought of as a "tax." Remember that without the Sixteenth Amendment, income tax was clearly an unconstitutional taking. (Personally, I'm very comfortable with the proposition that the Sixteenth Amendment was deeply immoral, and that most taxation is indeed simply theft, but at least it is a kind of theft that was given special exemption in the Constitution.) Strictly speaking, so long as they aren't violating any state laws on the matter, a U.S. county has the power to levy as much property tax against your property as they wish, which could have the practical effect of confiscating anyone and everyone's property for government use (by setting the tax well above the value of the property).

I would hope that, in such a case, the courts would quickly call out the tax as a pretext to seizure and thus declare that it falls afoul of the Fifth Amendment! But courts are remarkably skittish in every case that tends to expose the fact that all taxes are inescapably coercive and confiscatory, with thin justification.

How are taxes different in their coercive nature from any other government action? Even in a direct democracy, if you are on the losing side of a vote you are coerced by the government to abide by the terms if the winning vote.

How are taxes different in their coercive nature from any other government action?

I mean, they're mostly not. I am very broadly in favor of government taking substantially less action than it does today.

Even in a direct democracy, if you are on the losing side of a vote you are coerced by the government to abide by the terms if the winning vote.

"Even in" is an interesting framing. Direct democracies are historically terrible for pretty much this exact reason. The strongest limiter on coercive action in the American tradition is individual rights. If the majority votes to kill you, your fundamental right to life is supposed to cause the government to stand against the majority. Collective action is often likened to a deaf, dumb, blind leviathan, overwhelming in its capacity to destroy individual lives and insensitive to the nuances of individual human existence. We erect such leviathans out of a sense that our individual lives may be better protected thereby (if nothing else, from the leviathans constructed by others), but the idea that they have great potential to get out of control has led to the Western tradition of hobbling those leviathans in various ways.

Taxation is just one way in which the leviathan extracts sustenance from its constituent members. Some taxation is presumably inevitable; at minimum, the provisioning of a stable financial system seems like something people participating in that system should be willing to support through taxation of one kind or another. Likewise the maintenance of military and police protection. Anything that plausibly benefits everyone in a country more-or-less equally is at least simpler to justify as an expense worth occasional coercion of the recalcitrant; robbing the collective Peter to benefit selective Pauls, on the other hand, is quite difficult to justify on any moral grounds that respect individual rights. (Importantly, utilitarianism does not respect individual rights, Bentham himself regarded rights as nonsense, and this is the central critique of utilitarianism as a moral system.)

Your celebration of individual rights seems to me, however, to be just a different shade of pink. When individuals' understanding of their rights differ, either the more powerful of the differers or some other more powerful authority (like a government) will assign an outcome, and coerce the other (or both) to abide by the decision. I'm not sure which of these two is the greater moral failing.

I'm not sure which of these two is the greater moral failing.

It's not at all clear to me that they are even commensurable. "The Government" is just other people, ultimately. Diffusion of responsibility can create the illusion that the individuals acting on the government's behalf are somehow insulated from blame for morally impermissible activities, but anyone who has seen A Few Good Men knows how thin that illusion can be.

When individuals' understanding of their rights differ, at least one of those people is probably wrong. The realpolitik (or what are sometimes called the "facts of power") are a different consideration; you are right that powerful individuals or groups will often simply impose a view, but that doesn't make it the morally correct view. And often, powerful individuals or groups will regard themselves as bound by morality in ways that are not explainable on the reductive account you've offered here. Your concern has been expressed since ancient times (e.g. Thrasymachus in Republic), and very few moral theorists find it compelling, because it does not appear to capture the way that most people experience morality.

What then does make a morally correct view? And, assuming such a circumstance can or does exist, who is to recognize it? I also don’t see why it follows that one person is likely morally wrong (in some objective or universal sense) when two disagree on their rights. It’s as likely, it seems to me, that they could both be wrong, or both be right based on incomplete information.

Sticking just to the constitution of the us (including the bill of rights), I’m not persuaded that even all signatories agreed what it meant. And that’s an arbitrary, defined set of rights and relationships. I happen to agree with a particular interpretation of much of it, partly due to conditioning and partly to sharing certain values with some of the drafters (could also be due to conditioning, tough to tell). But my interpretations differ widely from many others. Have so far been unable to persuade a sufficiently powerful group to my point of view, and so I remain coerced into abiding by understandings with which I disagree. Is this a moral outcome? How am I alone to determine that? How are you and I? How are we as a polity?

You appear to mostly be asking the basic questions of moral realism versus moral relativism. A majority of philosophers either accept or lean toward moral realism. A big reason for this, I think, is that retreating to moral relativism is like the original motte-and-bailey. It's the kind of thing people say when they feel like they are losing an argument about morality. But if someone starts torturing you, or tries to enslave you, or steals your precious belongings, or otherwise wrongs you, it would be very surprising if your reaction were simply, "eh, who even knows how to do morality, really? Maybe they're doing the right thing, by torturing me for their own amusement." In fact there is a very high chance that, if you thought it might change their activity, and maybe even if you had your doubts about that, you would try to reason with them, in part by appealing to morals. So it is no accident that, for thousands of years now, there has been very broad agreement among people thinking about these matters carefully that ethics is first and foremost grounded in human reasoning.

I'm not saying that this makes the answers easy, or that it makes the answers uncontested, and most of the time those answers are rooted quite deeply in the human condition, so it would be a mistake to assume they are definitely universal in nature, even if they are broadly applicable to humankind. But there is absolutely nothing arbitrary about this process. Powerful people do act to subvert it, but there has never in history been a shortage of criticism of people in power!

I also don’t see why it follows that one person is likely morally wrong (in some objective or universal sense) when two disagree on their rights. It’s as likely, it seems to me, that they could both be wrong

Yes, "at least one of those people is wrong" also means both could be wrong.

both be right based on incomplete information.

No, this is not how "being right" works. If you would be right if you had all the information, but you don't have all the information and you are wrong, then you are still wrong. (You might lack all the information and accidentally be right, but then you're just lucky.) This is just how truth works.

But now that you've removed the discussion from the actual issues and retreated into simple relativism, you've stopped expressing any points (and essentially claimed that there is no way for us to reason to a shared understanding) because moral relativism is in fact a thought-terminating cliche. If you really do accept it, then I have no way of persuading you, and you have no way of persuading me, so it's not clear why you're even talking to me about it. I have reason to talk to you, of course--I believe you actually don't believe what you've suggested here that you believe. But if I'm wrong (as I may well be!) and you're right, then your own judgment on the matter is irrelevant, and the only point of substance you can really contribute here is to discourage substantive conversation. I'm not interested in continuing that conversation, as it seems to me that it can only either be false, or true but both useless and boring.

No, this is not how "being right" works. If you would be right if you had all the information, but you don't have all the information and you are wrong, then you are still wrong. (You might lack all the information and accidentally be right, but then you're just lucky.) This is just how truth works.

This mischaracterizes my statement. I meant, right based on the available information. There is no speculative conditional embedded there. And, as a practical matter, there is always incomplete information, and always, two minds will interpret the same information differently. In the case where their capacity and approach to logic is identical and without error, they may still reach opposing conclusions. They are nevertheless both "right."

You seem to have sidestepped my question, which was not “are morals relative,” or even, “why do you believe in moral absolutes.”

It was rather, how do individuals and groups determine morals? This is also not a question about politics, but rather procedural. I don’t think your answer would be “long tradition,” but I guess it could be. That runs counter to your confession if individual rights, however, as many groups across the world, often in the minority, have lengthy traditions different from Europe’s.

For example, certain Buddhist traditions would, in fact, hold that allowing torture of oneself is a moral imperative.

FWIW, I certainly don’t feel like I am losing a debate, or even having one. I’m simply asking clarifying questions about assertions of yours that seem presumptive. I do appreciate your engagement.

I will push back on one thing though. If the basis of your belief in “moral realism” is simply long tradition, I don’t see how thousands of years is sufficient. Humanity has been around for much longer. And I can’t think of any moral that is universal and also divorced from economics. Perhaps you can provide an example? Maybe involuntary euthanasia of old people? Not sure that goes back much before the Hebrews in the western tradition, nor has it ever been universal.

Another way to ask my question might be, what is the standard against which you measure moral truth, and where does it come from?

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