The Wig Store in Flatbush II

We've been wondering whether the students of Chaim Berlin could see the wig store display from the front of the building. ProfK claimed that she couldn't. Lucky for us someone (scroll to the bottom) decided to post a picture from the point of the Yeshiva closest to the store:



Blow up the picture to full size. I can only barely make out one of the heads and not very clearly. And this is at night, when the pictures have a back-lighting. During the day it is probably more difficult because the traffic is greater and the lighting doesn't have as much an effect.

To see this display, the bochurim have to make an effort. It is not right in front of them all the time. So I fail to see the difference between this store and anything on Ave. M.

Is G-d The Only Source Of Objective Morality?

In this post I mentioned the philosophical problem that implicit in any legal or moral system that is predicated on Divine commands. In essence, a Divine command can only be binding if there is some outside force that binds us. In other words, there must be normative reason why we are obligated to follow G-d's will that exists independent of His will.

A little over a year ago, the Jblog world was abuzz about an article by Rabbi Avi Shafran where he claimed that without G-d we "have no reason to believe in objective categories of good and evil." He argued that absent G-d the world would be

"a place where the very concepts of morality and ethics are rendered meaningless, a world view in which a thieving, philandering, serial murdering cannibal is no less commendable a member of the species than a selfless, hard-working philanthropist."

In other words, without G-d there is no objective morality and everything is a free-for-all.

This argument relies on three important assumptions:

1) That we are capable of determining the content of that morality (the epistemic assumption).
2) That the content of that morality is "better" than any subjective morality (the metaphysical assumption).
3) That we are bound by that objective morality (the normative assumption).

These three assumptions are crucial. If there is an objective morality, but we have no means of learning our duties, then objective morality is useless and we are no better off than if morality was purely subjective. We wouldn't have any way of knowing if killing an infant is objectively good or bad. Furthermore, G-d's objective morality must really be more moral than any system of subjective ethics or it serves no purpose. It might be wrong to kill infants because G-d said so, but so what? It might also be wrong to kill infants because any random person came up with a system of morality. The objectivity of the system is only valuable if it leads to more moral results. Otherwise who cares if morals are objective or subjective?

Moreover, even if objective morality exists and we can discover that objective morality, we must be bound by that morality. If we can choose whether to be bound by that morality, we are no better off than if morality was subjective. Anyone can do whatever he wants.

I posted about this debate when it first happened, and my argument focused on the first assumption. There I argued that even if objective moral principles exist, man must apply to them to real situations and since reasonable people can disagree over how to apply these principles, objective morality is never completely objective. We can never really know what objective morality demands.

Notwithstanding the validity of that argument, I wish to challenge the third assumption here. Let me unpack its hidden premises a little more. The argument that only G-d can create an objective (and therefore meaningful) morality presupposes that we are bound by that Divine morality. It also assumes that moral duties can only exist if they are universal: they must apply to and bind everyone. What does it mean to say that an action is "good" or "bad"? "Good" actions are the ones that uphold a moral duty, "bad" actions are the ones that violate that duty. We have a duty not to murder infants and also a duty to help the poor. People who murder infants violate the former, while charity givers follow the latter.

But in what sense is a person violating a duty if he isn't obligated by it? Am I violating a duty to believe that Jesus is our savior? Or to kill infidels? The fact that a system exists which designates moral categories is meaningless unless I am obligated to follow that system.

So if I am not bound by G-d's moral system, then there is no objective morality in any nontrivial sense. There might be a system that claims to be objective, but so what? Hitler was only wrong (in Rabbi Shafran's view) because he violated his objective moral duty not to kill innocent humans. But if he wasn't bound by that duty, how could he be "wrong?" In that case, morality is inherently subjective in the sense that we are free to choose our moral obligations. If I am not bound by G-d's objective morality, then I can choose my personal subjective morality. So Rabbi Shafran's argument clearly presupposes that we are bound by some independent objective morality that exists apart from G-d's command or else we wouldn't be violating G-d's morality.

Perhaps one could respond that if the epistemic and metaphysical assumptions are correct, then objective morality is actually more moral, and we have an obligation to be moral. But what is the source of that obligation? If we aren't bound by G-d's morality, what obligation do we have to be moral? Some independent objective morality must exist that does not depend on G-d.

So Rabbi Shafran's argument is actually turned on its head. Rather than proving that objective, meaningful morality can only exist because of G-d, it actually presupposes that an independent morality exists without G-d! Without that independent morality, there can exist no useful, G-d given, objective morality. The argument fails on its own premises.

Some Israel Stuff

A few thoughts on what's going on regarding Israel these days:

1) The Winograd Report came out today. The Report doesn't blame any particular individuals but lays the blame for the war's failure on the political and military leadership. The idea of going to war was a good one, but the execution, planning and communication between the IDF and political leaders were disasters, leading to at least the perception that Israel, the region's strongest power, lost to a quasi-military force.

Basically Lebanon II was Iraq II, but much worse. The Iraq invasion was at least carried out competently, even if the occupation and reconstruction were poorly done. By Lebanon, the entire process from beginning to end was a failure. Sure it's significant that Nasrallah declared victory from the rubble of a bombed-out village (only in the Arab world does victory mean "not losing"), but a regional superpower like Israel should have had a solid plan in case war with Hizbollah broke out. Apparently they didn't.

2) It looks like the UN Security Council won't be issuing a presidential statement about the Gaza situation. Apparently the US would not sign onto anything that equated responses to terror with the acts of terror themselves. Frankly these declarations are worthless, but they make it more difficult for Israel activists to defend Israel. It's not as easy as it looks to defend Israel when the other side can point to dozens of security council resolutions that Israel supposedly violated.

3) Israel's Supreme Court upheld Israel's right to blockade Gaza. This ruling reminds me of a book I read a number of years ago called The Occupation of Justice, written by David Kretzmer, a professor of law at Hebrew University. He argued that Israel's Supreme Court has generally deferred to the legislative and executive branches on issues relating to the territories. They were only strongly activist when it came to human and civil rights questions within Israel proper.

Off the top of my head, that seems pretty accurate. They haven't been deferential on every issue (but neither has the US Supreme Court) but they've been much more laid back than their reputation admits. For example, despite almost universal agreement among legal scholars who are not openly pro-Israel that the territories are subject to the Geneva Conventions, the Court has never ruled that way. They even allowed settlements that were not built on private Palestinian land (which is the majority of the territories) despite the fact that settlements are strongly opposed by the liberal elite in Israel. And even though the International Court of Justice ruled that the security fence violated international law, the Court took a much more moderate approach.

Of course in Israel itself the Court is extremely activist. They've tried to become the moral arbiters of Israeli society, which is unacceptable. But characterizations should be as accurate as possible.

Back To Some Sports

I've been cutting back on sports a bit, but after the Santana trade yesterday, I feel like I have to comment.

The Mets got Johan Sanatana, the greatest pitcher in the majors and a guy with a higher career ERA+ than Cy Young, Christy Mathewson, Sandy Koufax and Randy Johnson without even giving up their top prospect. Keith Law has a report on the prospects they traded, and it doesn't seem like they gave up anyone top-tier. There was certainly no one in the same league as Hughes or Lester/Ellsbury, who were on the table in November. The Twins went from getting a package including one of the best pitching prospects in the majors and who is major league ready and a very young above average CF who is cost-controlled, to a deal that included only two really good prospects (and Deolis Guerra is very young) and no major league ready talent.

I'm very happy the Mets got Santana since that gets him out of AL and away from Boston's clutches. I was on the fence about trading Hughes at the time, but never would have agreed to include another top-tier prospect like Jose Tabata or Ian Kennedy. The biggest problem with acquiring Santana, though, would be the money and age. First, let's look at the possible extension. Santana rejected a 4 year 80 million dollar deal from the Twins last year. Santana is obviously looking for something well over 100 million. The largest deal ever offered to a pitcher is Barry Zito's contract of 7 years, 126 million, which breaks down to 18 million a year. I think 6 years 132 million is reasonable estimate of Santana's contract. 22 million a year is simply too much money for a pitcher, and especially one who is almost 30.

The age thing is also important. Pitchers tend to decline as they reach their mid-30s. In truth Santana might already be declining. His ERA jumped up last season, owing mainly to the bump in the home runs he gave up. His HRs allowed went from 24 to 33. His walk rate also increased.

Moreover, his ERA+ dropped from 161 to 130. Now 130 is a pretty good season, but the drop is alarming. Also his DERA jumped from 2.90 to 3.50, implying that the lower ERA+ was not a result of bad luck.

Does any of this mean that Santana is done? Of course not. He was still probably the best pitcher in the AL and maybe all of baseball last year. But he is getting older and will require the Mets to tie up their payroll for many more years. But for a team that hasn't won a world series in over 20 years, it might be worth it. For the Yanks and Red Sox, who have both won multiple world series in the last 10 years, not as much.

One a less timely note, I came across this post on FireJoeMorgan about the statistical probability that someone like Bonds would hit 73 HRs at the age of 38 . The guy estimates that the chances are 1 in 53 million! The season was so many standard deviations from the norm that the author had to search the web to find a chart that could fit the data because there were no charts like that in his statistics textbook. Bonds' performance was literally off the charts. The author's analysis really confirms our intuitions that Bonds cheated.

Morality and The Content of Halacha

Yesterday, I posted about the interaction between morality and Halacha. In summary I viewed Halacha and morality as two independent systems, both of which are binding on Jews (and the latter on all of humanity). If we assume that Halacha is binding, its obligatory nature must derive from the authoritativeness of some other binding system, which is morality. Since both are binding, and morality dictates that Halacha be followed, Halacha can trump morality when the two conflict. However when Halacha abstains and imposes no obligation, morality takes over. If one has a moral duty in such a case, he cannot choose to ignore it and is bound by its obligation. I am using the words "duty" and "obligation" very loosely and am not taking a position on whether morality should be defined in utilitarian, deontological or virtue ethics terms.

My argument allows both Halacha and morality to retain autonomy. Halacha is completely autonomous because morality need not influence its dictates (at least not directly), except in the rare situation where Halacha requires an action that undermines its very authority. Morality is autonomous insofar as it demands adherence to Halacha and has its own authority when Halacha is silent. This conception of the working relationship between the two allows them to retain their own conceptual space.

Another possible view of the relationship is offered by Kant. Kant believed in an independent morality that was synonymous with reason. He believed that morality can be used as a tool to determine whether Divine commands come from a just and good G-d. He states,

"If God should really speak to man, man could still never know that it was God speaking. It is quite impossible for man to apprehend the infinite by his senses, distinguish it from sensible beings, and recognize it as such. But in some cases man can be sure the voice he hears is not God’s. For if the voice commands him to do something contrary to moral law, then no matter how majestic the apparition may be, and no matter how it may seem to surpass the whole of nature, he must consider it an illusion."

Kant's problem is that man has no reliable way of ascertaining whether the command comes from a good G-d or an evil G-d. How do we know that it is G-d telling us to do an act and not Moloch, who requested that mankind sacrifice their children? For Kant the answer is that a command from a just G-d would comport with reason. Any command that is immoral cannot be the directive of a good G-d and must be ignored.

Kant's use of morality in this case is epistemic. We know that it is G-d making the command by the fact that the command is moral. My view of the interaction between morality and Halacha is that morality serves as a normative basis. The practical difference between the two conceptions is that Kant requires that immoral commands be rejected, while I would at least accept the possibility that Halacha can demand immoral acts. Kant clearly considers morality to be the primary system; I view the two on equal grounds, with Halacha having primacy because we have a moral obligation to abide by G-d's commands (I am assuming such a reason exists, but I haven't offered one here).

So the difference is how to approach the content of Halacha. Halacha is not necessarily influenced by morality in my view (besides for a few situations), while Kant would allow morality to dictate the actual content of Divine commands by asking us to reject commands that are not consonant with morality.

The Wig Store in Flatbush

Updated Below:

For the unaware, there is a wig store across the street from Yeshiva Chaim Berlin in Flatbush. The owner decided to place pictures of women wearing the wigs in his window. Since looking at women can cause impure thoughts, a few of Rav Aharon Schecter's (RAS) talmidim asked the store owner to remove the pictures from the storefront. His response was not too friendly, and RAS sent out a letter to the members of Chaim Berlin's mailing list, asking that people refrain from buying wigs from that store until the owner removes the offending pictures. Here is the text of the letter:







Dovbear is kind enough to provide us with a photo of the actual display:

Having spent almost my entire formative years in Flatbush, I can assure you that these pictures are representative of the attire of the average Flatbush woman. This isn't one store in the middle of Bnei Brak selling pornography; these are very common looks in Flatbush.

So if the students are exposed to this type of look all the time, why call for a boycott of this store? After a day participating in DB's comments, I've come up with three theories:

1) The pictures themselves are assur. The text of RAS' letter implies that they are pritzus (licentiousness) and they therefore must be removed since they are causing the students to have impure thoughts.

The problem with this theory is that Halacha allows women to go around with uncovered faces and many Poskim accept wigs as hair-coverings. As stated earlier, fancy wigs are common fare in Flatbush. So if the very idea of women wearing wigs cannot be assur, why would pictures of wig wearing women be assur?

2) There's nothing wrong with wigs per se, but these pictures do not belong in front of a Yeshiva.

This argument would make sense if the Yeshiva was located in a residential neighborhood away from stores and cafes. But it isn't. Coney Island Ave. is a major thoroughfare and intersects with Ave M, literally a block away. Ave. M is full of stores, restaurants and cafes, all of which are frequented by women with uncovered hair. All types of women walk or drive down the street on which Chaim Berlin is located. So what's different?

Perhaps the problem is that the pictures are always in front of the Yeshiva. Sort of true. From my understanding, they are located in a store on the other side of Coney, which is a 6 lane street (including parking lanes) that is generally very busy. The pictures are not right next door or on the sidewalk right in front of the building. Someone who wants to avoid looking at the pictures can easily do so.

3) The pictures are problematic, but it's the derogatory response to the student's respectful request that must be opposed.

Basically this argument is framed as defending Kavod HaTorah. These are the top students in a century old Yeshiva, and yet the owner dismissed them like school children. But is that true? RAS' only allusion to disrespect was that the owner told them Flatbush isn't Bnei Brak. I don't see how that is disrespectful. Flatbush has its own standards of tzniyus, and is under no obligation to become Bnei Brak.

Even if he said some other unseemly retorts, perhaps boycotting a store for a few comments isn't so prudent. Boycotts should be tools of last resort and not taken lightly. Is it really unreasonable to expect RAS himself to speak to the owner and try to work out a deal before calling for a boycott?

When it comes down to it, the students of Chaim Berlin have the obligation to not look at the pictures if they will generate impure thoughts. It is not the store owner's responsibility to accommodate them. Flatbush really isn't Bnei Brak. Anyone who thinks differently really needs to get out more.

Update: Check out this comment:

"So I went and stood in front of the yeshiva and looked directly across the street, and the wig store is not directly there; it is further down. So I moved to the point where I was directly across from the wig store and the pictures are not clearly visible from across the avenue."

I have never seen the store, but I am aware of the layout of that street, and my intuition is that the pictures are not clearly visible from the Yeshiva. Apparently I was right. But if the pictures are not visible from the Yeshiva, then how are they different than anything on Ave. M? Just tell the students to cross Coney by Ave. M instead of the middle of the street.

Morality And Legal Lacunae

This is the third post in the series I started earlier (I, II) but not the post I promised. That's still in the works.

Rabbi Yitzchak Blau wrote an article a few years ago titled "Ivan Karamazov Revisited: The Moral Argument For Religious Belief." In it he dealt with the propensity of Kiruv organizations and educators to use the moral argument as a reason for believing in G-d. Basically the argument work like this: if G-d doesn't exist and didn't determine morality in the Torah, what makes something moral?

I remember watching a kiruv video on Tisha Ba'av a few years ago where the Kiruv professional made the same argument. If there is no G-d, why was Hitler wrong? Why is it wrong to commit genocide? That argument struck me as contrived back then, and even more so now.

But this post isn't going to try to explain the basis of an independent objective morality that does not depend on G-d. I will argue that such a morality must exist for the Torah to be binding and that morality can fill in the gaps where Halacha abstains.

One of Rabbi Blau's objections to this argument is that the solution doesn't solve the problem. Sure G-d can define morality and his Divine commands could be the definition of morality, but why are we bound by his commands? The fact that G-d commands us to do something cannot be a normative basis in itself. Why must we follow that command? R. Blau recounts Rav Saadiah Gaon's response to this problem: man is obligated to obey G-d as an act of gratitude for all that G-d has done for us. It seems Rav Saadiah's solution presupposes the existence of a morality that exists independently of G-d's command.

I don't see any other way. I'd like to make three points. For G-d's command to be binding there must be a morality that exists outside of his command. The morality need not exist independent of G-d, but it must exist outside of G-d's command. Furthermore this morality must be objective. If not, why can't any individual claim he isn't bound by G-d's command because his own morality doesn't dictate a normative reason to be obligated to listen to G-d's words? Last, that objective morality must bind us. If we can choose whether to be moral, we can choose whether to obey G-d. Therefore that morality must impose obligations upon us or the Torah isn't universally binding on Jews.

Moreover, it seems as if this morality is accessible to humans without divine intervention. Practically it is quite difficult to disentangle G-d's command from his epistemic guidance on moral issues. G-d theoretically could inform us that our moral intuitions point toward listening to G-d's command, but most divine statements are framed as commands and not guidance. So we must be able to determine our moral obligations without Divine assistance.

So if an independent morality exists, and humans are capable of determining their moral obligations without divine assistance (through reason), how does that affect Halacha? Is Halacha threatened by an outside objective morality? I don't think so, or at least not directly. Once we have a moral reason to listen to G-d, his command become binding, assuming the divine command doesn't contradict the original moral reason for G-d's command becoming binding. So, for example, if we are required to obey G-d because of gratitude, then nothing G-d commands can require us to contravene gratitude since that would undermine the entire basis of our obligation in the first place.

On the other hand, it is possible that G-d's binding command could order us to act against morality in other cases. If we are bound by G-d's command as well as by objective morality, then it becomes a question of which to choose. A reasonable person can choose the former, at least because G-d might be more qualified to determine what objective morality demands of us. So Halacha could trump morality in vast majority of cases.

But what about where Halacha does not impose an obligation upon us? To use a classic example, Halacha set up two different tracks about how to act depending on whether one's associate is a Jew. For example, if a Jew's ox gores another Jew's ox, he does not need to pay the full extent of the damages (subject to the damaging ox's status), but a non-Jewish owned ox must always pay the maximum damages. The Gemara itself in Baba Kamma recognizes that the disparity is morally problematic (at least from the perspective of the Roman auditors who were responsible to review Halacha).

If one posits that objective morality demands that a Jew not treat a fellow human being differently based on his religion, he could argue that a Jewish court should not impose different standards. The bare Halacha does not mandate that the Gentile owner of an ox must pay the full damages, only that Halacha does not afford him the leniency given to the Jew. There is no Halachic obligation to require a non-Jew to pay more than a Jew; there is just an allowance to be lenient by a Jew. In other words, the Halacha is just a minimum not a maximum. We can choose to give a break to a non-Jews as well. (If my Halachic analysis is incorrect, please let me know).

Since G-d did not command us to require full damages from non-Jews in all cases, we have a gap in the law. The law does not require us to act either way. In that case independent morality comes into play and if it requires treating non-Jews and Jew alike, non-Jews should no longer be obligated to pay complete remuneration.

Another example is telling Loshon Hara about non-Jews. A few months ago I had a long argument with Ed about whether it is acceptable to tell LH about Blacks. Ed argued that Halacha prohibits telling LH about Jews, but not non-Jews (which is true). Therefore we are allowed to denigrate Blacks. I disagree because the Halacha is setting a floor, not a ceiling. It does not command us to slander Blacks, but merely allows it. I believe the independent morality mentioned above can be used to fill this gap. If it is morally wrong to slander anyone (Jew or non-Jew) that morality requires us to forgo telling LH about non-Jews.

Basically the interaction between Halacha (i.e., Divine command) and morality can be treated like the relationship between federal and state laws. Federal law preempts state law, so whenever the two conflict, federal law reigns supreme. But where federal law abstains and doesn't dictate policy, state laws can fill the gap. So too with Halacha and morality. Halacha preempts morality, but where Halacha states no command, morality dictates what we can do.

Cloverfield

Shifra and I went to see Cloverfield tonight. I loved it; she thought it was ok. I'm not going to give away too many spoilers, but if you want to see it with a clean slate, do not continue reading.

In fact, one of the best things about this movie is that I didn't know anything about it at all going in. I purposely avoided all reviews, and did not spend hours searching the web for hints about the monster. Apparently there was this whole storyline on the web about some Japanese company that may have accidentally created or awakened the monster. Well it wasn't mentioned in the movie, so I don't think the backstory is that important.

What I especially liked about this movie was the first person mode, which you'll either love or hate. The entire story is the tape from a video camera that was found in Central Park. Watching the film from the characters' perspective allowed me to feel the anxiety they were feeling as their city was overrun by a giant beast.

The monster itself is actually scarier before we see it. They could have done a much better job making look a lot more fearsome. But wow is it huge and destructive.

9/11 was definitely alluded to in this movie. There's a scene when a large building (I think it was the Empire State Building) is toppled, and we see the debris rushing toward the camera. It's almost right out of news coverage from that day.

Basically this was a very good movie and substantially scarier than I Am Legend. I actually thought it was also a much better movie. Definitely worth the price of admission.

What Can Women Do?

I'm working on Part III of the science/Torah/constitutionalism series, but it's not ready yet.

Any debate on the blogs about Chareidi education for girls will always devolve into an argument about how Chareidi women are stifled and viewed as less equal than their husbands, fathers and brothers. Frankly, I think that argument is meaningful, as we should try to lay out what Chareidi Judaism or Orthodox Judaism as a whole consider valuable.

I have a number of problems with how Chareidi ideology views women (some, if not all, of these problems exist in the Modern Orthodox world as well). One issue is the primacy of Torah, but the prohibition against women learning Gemara, which is considered the highest level. In fact, I'm not even sure women's Tanach learning is considered valuable itself, rather than just as a means of indoctrinating girls. If a Chareidi woman penned a perush on Tanach, would any Chareidi Yeshiva even carry it? Even Nechama Leibowitz's work isn't carried or read in most Chareidi venues (I'd love to be corrected on this).

So the society values Torah learning as the highest ideal, but deprives its female members of participation in that endeavor. Women serve as enablers, helping their husbands or sons learn Torah. The Gemara in Kiddushin even says that women receive the merit of Torah by sending their husbands and sons out to learn and waiting for them to return. But what of women who never married? How do they merit protection?

In fact, what exactly does Chareidi Judaism have to offer an unmarried women? To be more precise, what can the deep Chareidi world, the society that denies women (and men) the ability to acquire a higher education, do for a single girl besides find her a husband? She can't have a career and is limited to working at a menial job. But since she isn't married, that's all she can do, unless she wants to teach, something not everyone is cut out to do. So what exactly is her purpose in life? At least an unmarried man can learn. She can't even do that. I guess she can do Chessed, but no one seriously values Chessed as much as Torah learning. So this woman is worse off than her male counterpart.

Moreover, Chareidi women carry the majority of the household burdens. I'm not just talking about doing the dishes or laundry. Women have to work full-time and then come home and take care of the kids/house. I hope the men help out when they aren't in Yeshiva, but I'm not very optimistic.

The Modern Orthodox world doesn't suffer from these problems as much. Firstly, some promote Gemara learning for even women, but even when they don't, they recognize the value of women's Torah learning. Second, MO men are usually more cognizant of the need to help out around the house. We tend to be more involved with culture, and our culture promotes a greater amount of burden sharing. Lastly, they allow people to find a career, so the woman can be fulfilled by her work. There are more choices. I'm not saying MO society doesn't have these problems also (as well as its fair share of other problems), but I think it has done a lot to mitigate them.

In essence that's the primary function of society: to provide choices. Most people do not fit into a mold and must be given options. Forcing all women into the homemaker/secretary mold cannot be a successful.

Living Constitutionalism And The Science/Torah Debate Part II

Yesterday I wrote about an important debate I had about the conflict between science and Torah. Today I want to talk about a second debate, and how it has come to influence my thinking on Judaism.

About two months ago Noyam responded to a challenge to provide an "intellectually honest justification" for a living constitution. It's not Noyam's response that is important for this post (although I suggest you read it because it is quite good) but rather my take on the Living Constitutionalism (LC)/Originalism debate. The debate got me thinking about the issue I'm going to post about. But first a little background is in order.

As long as our Constitution has existed, there has been a debate how to best interpret it. Today there are number of schools of thought, but the two most popular interpretative methodologies are Originalism and Living Constitutionalism (LC). Put very basically, Originalism argues that the Constitution should be interpreted according to its original meaning, which is how the people at the time understood it. LC, however, believes that the meaning of the text should evolve over time to coincide with the moral values of the populace at any given time. I'd like give an example, but the originalist camp has become so large, and the disagreements within the camp so profound, that it's hard to find a case where Originalism and LC clearly reach opposite conclusions.

But I'll try. Many originalists believe that the Constitution does not protect a right to abortion. The Supreme Court in Roe v. Wade found a right to abortion in the 14th Amendment's Due Process Clause. They argued the states could not impinge on a person's liberty right (which, partly based on precedent, they interpreted to mean any law that infringes on a fundamental right). Since they believed that the right to have an abortion was derivative of the right to privacy, which was a fundamental right, they held the state could not ban abortions unless they had a compelling interest. The state had such an interest when protecting a viable fetus or the mother's health, but they could not ban first trimester abortions.

This reasoning coincides with LC. The term "Liberty" is ambiguous. While Liberty in the 19th Century might have not included the right to terminate a pregnancy, today's moral standards do (let's leave aside the question whether that is actually true). We should interpret the Constitution to accord with our standards today, not the views of 18th Century men.

Many Originalists look at Roe as the paradigm of constitutional interpretation gone wrong. If the Constitution is supposed to be interpreted according to its original meaning, and the term "Liberty" did not include a right to abortion when the 14th Amendment was enacted (as evidenced by the restrictions on abortion during that time), then the Constitution cannot prohibit abortion.

Originalists make a number of arguments in support of their theory, but they most often make a normative argument. Everyone would agree that judges cannot just disregard laws. No LC would allow a judge to completely ignore a law because he didn't find it to be moral. Why not? Because when laws are enacted, they are the will of the majority of our citizens and judges do not have the power to simply disregard laws legislated by society. If that's true, then they cannot disregard the meaning of the laws either, because doing so would be no different from ignoring the laws themselves. And the meaning of the laws were what the laws meant at the time they were enacted because that's what the laws were designed to mean. So changing meaning is the logical equivalent of changing the actual laws.

The simple (and weak) response, which is the one heard most often, is that the Constitution was written hundreds of years ago in a very different time. We cannot allow an 18th or 19th Century moral understanding to dictate the meaning of the terms in the Constitution. The Constitution must be flexible or it will become irrelevant. Originalists have a good response to this problem: amend the Constitution. If you want to protect a woman's right to choose, then amend the Constitution to include such a right. Believe the Bill of Rights applies to the states? Amend the Constitution to bind the states. And so on.

At this level, the Originalist clearly has the upper hand. If the Constitution is binding on us, we cannot just change its meaning, especially when the Constitution itself includes a mechanism for making that change. The fact that the Constitution might be antiquated isn't very relevant.

But that's the whole question: why assume the Constitution is binding on us? My generation never ratified it, and I surely never did. It was written by white, landowning males over 200 years ago. Many Americans, if not most, are descendents of people who immigrated to the US long after the Constitution was ratified. So why should it bind us?

This is a very serious problem, and one which the majority of Originalists (though not all) simply gloss over. The LCs, however, have a solution. They argue that the Constitution itself isn't actually binding because it lacks a normative basis. We are not bound morally because we never consented to its authority. So what gives it its normative basis? The Constitution is normatively binding if its interpretation imposes a moral obligation. Assuming we are bound by moral obligations, the Constitution becomes binding if its clauses are moral. The judge's task, then, is to interpret the Constitution in a way that imposes a moral obligation upon us.

So let's assume that the moral view today is that women have a right to abortion. The state then passes a law banning all abortions. Such a law can be struck down if the Constitution is interpreted morally; if the 14th Amendment's Due Process Clause is interpreted morally, the "Liberty" element will mean "the right to terminate a pregnancy." We will then have a moral obligation to allow women to abort and that obligation will overrule our personal opinions that women should not be allowed to abort.

There is a lot more that can be said on the legitimacy of LC or on whether Originalism is a superior method of constitutional interpretation, but that's for another post. Now I wish to talk about how Living Constitutionalism and the science and Torah debates are related.

What's the connection between my argument with FKM and the LC argument? Both FKM and most Originalists start with an assumption that is insulated from challenge and then start their arguments from there. FKM starts with the assumption that the Torah is divine and Originalists assume the Constitution is binding on everyone. If we start at that point of the argument, the opponent begins at a large disadvantage.

But if we challenge those assumptions, the argument will take a different turn. Both LCs and Orthodox Jews believe those assumptions are accurate. All Orthodox Jews believe the Torah is divine (in some sense at least). All LCs believe the Constitution is binding to some extent (if they didn't, why would we engage in the charade of constitutional interpretation?). Where they disagree with their opponents is why. First we'll look at LCs. LCs, as related earlier, believe it is binding because its interpretation results in moral obligations. Therefore they allow the normative basis to influence how the Constitution is interpreted.

This might be very abstract so I'll compare the LC view to Randy Barnett's understanding of the normative basis of the Constitution. Put simply, Barnett believes the Constitution is normatively binding because its original meaning leads to just outcomes. If that's true, the Constitution must be interpreted with an eye towards effecting just outcomes. In Barnett's view, adhering to the original meaning will lead to the most just outcomes as a whole. So Barnett's method of interpretation is greatly influenced by what he considers the Constitution's normative basis. In other words the second step of the argument (interpretation) is directly derived from the first step (finding legitimacy). LCs do the same thing, but tie the two steps into one. The second step (interpretation) is the first step (legitimization).

The same idea applies to the science and Torah debates. How we understand science's relationship with Torah must be influenced by what basis we have for the Torah's divinity. Remember the only reason to ignore creation science is because the divine Torah trumps its reliability. Our belief in the divinity of the Torah must be more justified than our belief in the reliability of creation science, or we cannot legitimately choose Torah over science. All Orthodox Jews believe the Torah is divine, but what is the basis for that belief?

I believe the Torah is divine because I have faith, but others might argue we should believe it to be G-d given because of sense experiences. Either way, unless our basis for our belief in the Torah's divinity is stronger than the basis of our belief that the universe is billions of years old, we cannot choose Torah over science.

Opponents of a more liberal approach to this issue put the question of the Torah's divinity in a black box and start the argument at step two. Step one is determining a basis for the belief of the Torah's divinity. Step two is arguing how to relate a divine Torah to scientific truths. Step two must relate to step one. There is no other way.

Tomorrow I hope to post about how step one and step two relate.

What The Science/Torah Debates Have To Do With The Living Constitution

Spurred on by Gil's post about searching for a justification for religion, I'm going to write a few posts about a number of ideas that have been floating around my head recently. That doesn't mean I won't write about the Yankees or the Hall of Fame anymore (I've been meaning to write a series of posts about the HOF), but I'm going to focus on more theological issues for the time being.

About a month ago, I engaged in two seemingly disparate debates. The first, on Hirhurim, was with the Chareidi blogger Frum Kiruv Maniac about the age of the universe and biblical literalism. FKM has been one of the strongest opponents of Slifkin's attempt to reconcile Torah with current scientific evidence and has opposed any attempt to reinterpret what he believes is a consistent Mesorah of supernatural creation. He believes that since the Torah claims the creation was supernatural, any attempt to understand the origin of the universe naturally is bound to fail, and using this flawed scientific method to understand G-d's act of creation is doomed from the start. Therefore there is no reason to allegorize Bereishis because the science used to a reinterpret the text is fatally flawed.

My response can be found here reposted on FKM's blog. I have to give him a lot of credit for publicizing this exchange since it was buried in the comments of an old post and never would have seen the light of day otherwise. My essential argument was that a large number of Orthodox Jews base their beliefs on the historical strength of the Kuzari Principle (KP), which is basically a historical argument. But science and history are similar methods; both work with data and both make inferences based on reasonable data. When a supporter of the KP opposes Slifkin on the grounds that the latter's approach is flawed because science makes unreasonable assumptions, he is being inconsistent. In what way is creation science flawed and how is that flaw not evident in ancient history, especially the KP? Is science's assumption of consistent laws really less justified than the idea that millions of people can't be tricked? If not, why choose history over science? Why not go the other way?

Meaning why start with the assumption that the Torah is true, rather than start with the assumption that science is accurate? Sure if we start with the assumption that the Torah is true, then we can debate whether there are legitimate reasons or sources that allow for allegorization. But why start with that assumption?

I wish I could take credit for this argument, but I owe a debt of gratitude to Little Foxling and Kenneth Einar Himma. I was playing devil's advocate with LF about the Gosse Theory and whether someone could be a supporter of the KP and Gosse and still be consistent. He argued that since the KP is based on experience, how could KP adherents support Gosse, which denies the accuracy of sense experience? I responded that if someone assumes G-d exists and the Torah is true, then Gosse is the result of sense experience. If the Torah is relaying a truthful account of the creation story, and it states that the world was created in six days, then the result of analyzing and weighing our sense experiences is that the world was created in six days less than 6000 years ago. We've basically chosen to believe the Torah over science. (This argument isn't mine either)

LF picks on that point. He argues,

"If we presume, as the Gosseist does, that the fossils really do contradict the Kuzari proof, then just as the Kuzari proof is sensory perception that contradicts the fossil evidence of an old universe, so too, by definition, the fossils are sensory perception that contradict the Kuzari proof. So, if you are wiling to reinterpret the sensory perception of the fossils in light of the Kuzari sensory perception, why not reinterpret the Kuzari sensory prescription in light of the fossil sensory perception?"

Basically his argument is that the Gosseist has chosen to accept the Torah (via the KP) over science arbitrarily. Both the KP and science are based on sense experiences, yet the Gosseist, for no real epistemic reason, chooses the former over the latter.

Professor Himma's article (not available on-line but I have a copy if anyone wants it) argues that the Argument from Design cannot be sustained without "help" from another argument. Put simply, the Argument from Design is that all our experiences teach us that complex objects require designers. If we were walking in the desert and saw a watch lying in the sand, we would assume the watch was made by someone and dropped there. We wouldn't think the watch was just a bunch of pieces that came together on their own to form a complex machine. Certainly in the case of the infinitely more complex universe we should posit the existence of a creator.

Himma's response is devastating (Richard Dawkins responded to the Watchmaker Argument scientifically). We only assume the watch was created because we know that people capable of creating watches exist and that said people have the motivation to create watches. In other words, we have evidence that a designer exists and could have designed the watch. Without that evidence we would not be justified in accepting the design theory over the chance theory.

But in the case of the universe, we do not have evidence of a designer within this argument (there is evidence for a designer, i.e., G-d, but that evidence cannot be derived from the Argument from Design). The chances that the universe happened spontaneously are low, but they are not zero. On the hand, the odds that a designer exists and could have created the universe are unknown because we don't know that such an entity even exists. We are more justified in accepting a known, but low, probability over an unknown probability.

What do both these arguments have in common? Both require us to recognize that we're making a key, but unjustified, assumption and thereby rigging the game. LF's argument forces us to recognize that the the assumption that the Torah is true must be backed with support and cannot be taken as a given in science and Torah debates. We can't just assume it is true and work from there. Himma's point that the Argument from Design cannot stand on its own shows us that the assumption that complexity implies a designer is flawed when we have no evidence of a designer. We cannot assume what we are trying to conclude.

So how does any of this relate to the Living Constitution question? What is a living constitution? I think the link is very important, but this post is already pretty long, so that's for the next post.

More Dominant Than Rivera? Don't Make Me Laugh

I write this post as a Yankee partisan, as someone who considers Mariano Rivera the greatest reliever in the history of baseball.

Tomorrow we find out the members on the 2008 HOF class. Jayson Stark, like every other baseball writer on the planet, wrote an article arguing for the inclusion of a number of players, especially Goose Gossage. I'm not going to comment on whether Gossage deserves admittance or not. Rather, I will focus on one of Stark's arguments in favor of Gossage being admitted.

Stark argues that Gossage "was the most dominating closer ever." Certainly the property of "dominating" is inherently nebulous, so it's hard to get a handle on the specifics of Stark's point. Stark decides to strengthen his argument for Gossage by comparing him to Rivera, since everyone knows Rivera is a sure-fire, no-brainer, first-ballot HOFer. Stark compares Gossage's first 11 full seasons as a closer to Rivera's 11 seasons since he became the closer for the Yankees:

"Want to pick a category? Be my guest. ERA? Gossage 2.21, Rivera 2.35. Strikeouts? Goose 8.54 whiffs per 9 innings, Rivera 8.09. Unhittability? Gossage 6.59 hits per 9 innings, Rivera 7.17."

Immediately two things struck me. First ERA alone is not entirely useful because it doesn't adjust for park effects and league differences. ERA+ is a much more comprehensive statistic in that regard. Number 2, Stark left out walks, which seems to be a pretty useful indicator of dominance. Perhaps he meant dominance is the sense of Nolan Ryan, who struck out an insane number of batters, but also walked a large number. So let's focus on ERA.

I decided to run the numbers. Not exactly sure which years Gossage was using, I picked the first 11 seasons Gossage served as a reliever (1975, 77-86). I took his innings and runs and calculated ERA. Since we both got 2.21, we're probably using the same years.

I then did the same thing for Rivera. Working with 97-07, I came up with 2.12. Since Stark calculated Rivera's ERA during his 11 seasons as a closer at 2.35, I thought my numbers were wrong. Then I realized that 2.35 is Rivera's career ERA, which includes one season as a bad starter and one as a dominant reliever. So basically Stark compared Gossage's ERA from his peak seasons with Rivera's career ERA. That's disingenuous if you ask me.

Next I looked at ERA+. It should be noted that Rivera's career ERA+ (194) is the highest ever for any pitcher with a substantial number of innings under his belt, and will be highest of any pitcher who threw 1000 innings after this season barring injury. But just using his 11 seasons as a closer, his ERA+ was 222. Gossage's? 198. That's 24 points higher for those keeping score at home. Over the course of a career that's the difference between Johan Santana and Rick Aguilera.

Next I decided to look at each pitchers defense independent ERA (DERA). BP's stat attempts to sever defense from pitching and list the ERA each pitcher would have had in front of an average defense, as well as account for league and park. Gossage's ERA over those seasons was almost exactly 3. Rivera's was 2.26. That's almost .75 of a run or over a career is the difference between Christy Mathewson and Sparky Lyle.

Stark's one legitimate point is that Gossage threw more innings over those seasons. Rivera only threw an average of 71 innings, while Gossage pitched almost 95. That 25 inning advantage is significant and definitely is an edge to Gossage. But it's not an edge that can make up the extremely large differences in ERA+ and DERA.

In fact another BP stat may be of assistance. BP uses a statistic called Pitching Runs Above Replacement, which measures how many runs a pitcher saved over a replacement player. Over those 11 seasons, Gossage saved an average of 60.2 runs above replacement. Rivera saved 67.5 runs. Per inning, those numbers aren't even close with Rivera saving .953 runs and Gossage .634. But since total numbers take into account the innings pitched, Rivera's advantage shrinks to around 7 runs a season. But 7 runs a season is not a trivial amount.

Look, it's not the Mariano Rivera Hall of Fame, so Gossage doesn't need to be Rivera's equal to make it. But these ridiculous (and somewhat misleading) comparisons do not serve to advance Gossage's cause.

Update: I did a little more research and realized that Rivera's Hits/9 and SO/9 were also based on career numbers. But in those categories even Rivera's closer years do not stack up to Gossage's first 11 seasons as a closer.

I also decided to look at Billy Wagner, who has been very dominating as a closer, even according to Stark's criteria. Taking Wagner's 11 seasons as a closer, he has a 11.8 strikeouts per 9 innings and allowed only 6.2 hits per 9 innings. His ERA, however, is only 2.40 (189 ERA+), so Gossage wins in that category. But Wagner struck out more than three batters per nine innings, and gave up .3 less hits. It's not that clear that Gossage was a more dominating closer than Wagner.