At the heart of liberty

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“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe and of the mystery of human life.”

“Belief about these matters could not define the attributes of personhood were they formed under the compulsion of the state.”

These startling sentences, which first appeared in Anthony Kennedy’s 1992 majority opinion in the Supreme Court abortion case, Planned Parenthood v Casey, might be the most viciously stupid ever written.

Taken together, they discard the objective, natural reality of the human being as the basis of our rights and replace it with the idea that the only thing available to us is our subjective constructs of each other, thereby making the rights of some contingent on the preferences of others.

Against this we must say that “personhood” as a bundle of “attributes”—properties that each of us attributes to others as a matter of subjective “belief”—cannot serve as the basis of human rights.

Why? For the simple reason that individuals will vary wildly in their conceptions of “personhood.” These conceptions will inevitably contradict each other in fundamental ways. So as a matter of basic logical coherence they cannot all be legitimate.

Nowhere is this more apparent than in the fight over abortion. Yet it is precisely here, at the heart of abortion jurisprudence,* that we are told that the most fundamental right—the right to life—is contingent on what one human being believes about the ultimate cosmic value of another. We are told that the decision about whether to have another human being killed falls completely within the “right” to such belief.

What we are not told is that the human being who bears the consequences of this decision gets no say whatsoever.

So one mother can declare by fiat that her perfectly healthy unborn offspring is an “unwanted pregnancy” or “clump of cells” and have him killed.

Meanwhile, in the house next door, another mother can declare by fiat that her perfectly healthy unborn offspring is her precious baby, her wonderful new son or daughter, and bring the baby to term.

Both offspring are ontologically equivalent as perfectly healthy human beings in the prenatal stages of development. The only difference between the two scenarios—between life and death—is what the mothers have projected upon them as a matter of arbitrary, subjective preference.

Kennedy seems to believe this nominalist view is an essential feature of the liberal order.

But the histories of slavery, Nazism, communism, etc. demonstrate that “belief about these matters” when “formed under the compulsion of the state” can indeed “define the attributes of personhood” on Kennedy’s nominalist view of personhood.

After all, if “personhood” is just a construct determined by the subjective belief of the individual, then the political conditions under which the belief is formed are completely incidental.

Take two anti-semites who have, unbeknownst to each other, formed beliefs about “personhood” that are for all intents and purposes identical. One has arrived at his belief free of state compulsion while living in San Francisco in 1989. The other while living under authoritarian rule in Berlin in 1939.

Inspired (independently) by the writings of Georges Vacher de Lapouge and other eugenicists, they have bundled together a shared set of “attributes of personhood” that they are sure is written into the meaning of the cosmos, attributes depressingly familiar to anyone with any knowledge of the history of anti-semitism: superior and inferior “racial” phenotypes, personality traits, tendencies, capacities, etc. Applying these beliefs about personhood to Jews, they conclude that, since Jews don’t possess the attributes considered superior, they are non-persons—parasites in fact—and it’s ok to kill them.

“Belief about these matters could not define the attributes of personhood were they formed under the compulsion of the state.”

The problem for Kennedy, of course, is that the content of their shared “belief about these matters” is essentially identical. Both are equally subjective. Both “define the attributes of personhood.”

In fact, that content is just the familiar set of “attributes of personhood” that makes anti-semitism historically distinct. The only significant difference between the two cases is that one instance of the belief was formed under a free political system while the other was not.

And so applying Kennedy’s criteria leads us to an absurd conclusion: despite the beliefs of the two anti-semites being essentially identical in content, the former is politically legitimate while the latter is politically illegitimate.

Of course, we must reject this for the genetic fallacy that it is. Kennedy’s distinction between the beliefs about personhood formed under the “right to define” and those “formed under the compulsion of the state” turns out not to have any relevance whatsoever to the question of whether a particular concept of “personhood” is a just one.

The problem with Kennedy’s theory is its reliance on the subjectivist formulation of “personhood” per se. It has no rejoinder to the criticism leveled at it here because it is cut off by design from any appeal to the ontological foundations of anthropology and morality that must apply necessarily to all human beings and the validity of which has precisely nothing to do with the subjective beliefs of the individual or of the political conditions under which those subjective beliefs were formed.

If Kennedy is right, we can no longer hold as self-evident the idea that we are endowed by our creator with unalienable rights.

The “freedom” Kennedy invokes knocks that universal basis from its proper place at the foundation of the system of individual rights and attempts to make the foundation contingent on the beliefs of the individual.

But we have no universal warrant for that move if the basis for it is contingent on the subjective opinion of the individual.

It’s completely back to front.

Again: It is the objective existence of the human being that is necessarily the basis of human rights. It cannot be the subjective definition of existence as believed by the individual. It cannot be the subjective bundles of “attributes of personhood” that each of us carries around in his head.

“Persons” as social or nominal constructs cannot stand in for the ontological reality of the human being as human being.

Kennedy confuses ontology with epistemology. He saws off the branch he is standing on.

And so I say his sentences are viciously stupid. Vicious because they rationalize the unjust killing of innocent human beings. Stupid because they makes no sense. The propositions they convey are incoherent.

* This reasoning was happily dealt a major setback today, June 24, 2022, by the Supreme Court in its Dobbs ruling. But it retains its grip on the minds of millions of people.

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