morality and answers

8/3/2019 Morality and Answers

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Morality ToolboxSpartan Debate Institute 2005

Carson/Hardy/MahoneyConsequentialismPUtilitarianismGoodConsequentialist utilitarianism good frontlineExt I : Government vs. individualExt 3: Morality based on conseq uencesExt 5: Moral purity = immol-a1No solvency, no obligationNo obligation if self-preservation threatenedNo obligation because of nukesNuclear war = genocideNuclear war olw's all (Kateb)AT: Intentions keyAT: Consequentialism fails due to uncertaintyAT: Intervening actors (Gewirth)AT: Rescher (probability)AT: Callahan (tyranny of survival)AT: Watson (starvation right)AT: Kant (categorical imperative)AT: Aiken (right to be saved)Threshold deontology bestAbsolutism 3 rights violationsTopic Specific NegNational security trumps civil libertiesViolations now - eparation of powersViolations now - rivacyViolations now - due processExceptions for separation of powersExceptions for privacyExceptions for due p rocessAT: Rights violations sn owballMoral Ab s o lu t i sm lDeo n to lo~ oodBestRights outweigh all (certainty, fi~t ur entervention)Intervening actors (Gewirth)Consequentialism jus tifies 13 mutually assured destrxnUtilitarianism destroys value to lifeRestConsequentialism 3 paralysisUtiVConseq'ism 3 tyranny of survival, atrocitiesConsequentialism fails: can't compare goodsAT: Governments vs. individualsTopic S pecific AffRights violations snow ballStarvation outweighs all


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SD I 2005Morality ToolboxConsequentialist Utilitarianism Good F/L

( ) Consequences com e first for governments - only o ur evidence draws thedistinction between mo ral theories for individuals and gove rnme ntsHarries, editor of Nationa l Interest, 1994 (Owen, The National Interest, Sprin g, p. 11)Performance is the test. Asked directly by a Western interviewer, "In principle , do you believe in onestandard of hum an rights and free expression?", Lee immediately answers, "Look, it is not a matter ofprinciple but o f practice." This might appear to represent a simple and rather crude pragmatism. But in itscontext it might also be interpreted as an appreciation of the fundamental point mad e by M ax Weber that,in politics. it is "the e thic of responsibility" rather than "the ethic of absolute ends" that is appro priate.While an individual is free to treat human rights as absolute, to be observed whatever th e cost. governmentsmust weigh consequences and the com peting claims of other ends. S o once the enter the realm o f politics,human rights have to take their place in a hierarchy of interests, including such basic things as nationalsecurity and the prom otion o f prosperity.

( ) Absolutism causes paralysis because of conflicting obligations; onlyconsequences can break the tieNielsen 1993 (Kai, Phil. Prof @ U. Calgary, Absolutism and It Consequentialist Critics, ed. Joram GrafHaber, p. 170-2)In so treating the fat man-not just to further the public good but to prevent the certain d eath o f a wholegroup of people (that is to prevent an even greater evil than his being killed in this way)-the claims ofjustice are not overriden either, for each individual involved, if he is reasonably correct, should realize thatif he were so stuck rather than the fat man, he should in such situations be blasted out. T hus, there is noquestion of being unfair. Su rely we m ust choose between evils here, but is there an ything mo re reasonable,more morally appropriate, than cho osing the lesser evil when doing o r allowing som e evil cannot beavoided? That is, where there is no avoiding both an d where our actions can determin e whether a greater orlesser evil obtains, should we not plainly always op t for the lesser evil? And is it not obviously a greaterevil that all those other innocent people should suffer and die than that the fat man should suffer and die?Blowing up the fat man is indeed monstrous. But letting him remain stuck while the wh ole group d rowns isstill more monstrous. Th e consequentialist is on strong moral ground here, and, if his reflective moralconvictions do not square either with certain unrehearsed or with certain reflective particular moralconvictions of human beings, so much th e worse for such comm onsense moral convictions. O ne could evenusefully and relevantly adapt here-though for a quite different purpose-an argument of Donagan's.Conse~u ent ial ism f the kind I have been arguing for provides so persuasive "a theoretical basis forcommon morality that when it contradicts some moral intuition, it is natural to suspect that intuition, nottheory, is corrupt." Given the compreh ensiven ess, plausibility, and overall rationality of conseque ntialism,it is not unreasonable to overr ide even a deeply felt moral conviction if it doe s not squar e with such atheory, though, if it made no sen se or overrode the bulk o f or even a great many of ou r considered moralconvictions that would be another matter indeed Anticonsequentialists often point to the inhumanity o fpeople who will sanction such killing o f the innocent but cannot the compliment be returned by speaking o fthe even greater inhumanity, conjoined with evasiveness, of those who will allow ev en m ore death and fargreater misery and then excuse themselves on the ground that they did not intend the death and misery butmerely forbore to prevent it? In such a context, such reasoning and suc h forbearing to prevent seems to meto constitute a moral evasion. I say it is evasive because rather than steeling himself to d o what in normalcircumstances would be a horrible and vile act but in this circumstance is a harsh moral necessity he [it]allows, when he has the powe r to prevent it, a situation which is still man y times wo rse. He tries to keephis 'moral purity' and [to] avoid 'dirty hands' at the price of utter moral failure and what Kierkegaardcalled 'double-mindedness.' It is understandable that people should act in this morally ev asive way but thisdoes not make it right.***Gender modified***


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SDI 2005Morality ToolboxConsequentialist Utilitarianism Good F/L

Johnson, '85 (Conrad D. Johnson, 'The Authority of the Moral Agent' , Journal of Philosophy 82 , N o 8(August 1985), pp. 391)If we follow the usual deontological conception, there are also well-known difficulties. If it is simplywrong to kill the innocent, the wrongness must in some wav be connected t o the consequences. T hat aninnocent person is killed m ust be a consequence that has so me important bearing on the wrongness of theaction; else why be so concerned about the killing o f an innocent? Further, if it is wrong in certain cases forthe agent to weigh the consequences in deciding whether to kill or to break a p romise, it is hard to deny thatthis has some connection to the co nseauences. Following on e line of thought, it is consequentialistconsiderations o f mistrust that stand behind such restrictions on what the agen t may take into account.3 Butthen again it is hard to deal w ith that rare case in which the agent can truly claim that his jud gem ent aboutthe consequ ences is accurate, or, in that last resort of the philosophical tho ugh t experime nt, has beenverified by the Infallible Optimizer.

PTpe fact of ng mnkes a morit claimon not only from IC udLtnn:tn or onsequcntialist point of-iew. but on common-sensemoral grounds as well. E 3 tfrom nnv responsibilitv we m a v h : ~ ? nr_havincrmadc essfortunate other peov1e less wctl off r ~ c o u l duve been/&he sornmon-sense rnordity ofbenevolent a e q r d. it as in general wron never to do u n v t h i n P . f o r v l e s s t epeopIc whom one is in a position to help end as mbrallv petlcrto do more for such people rather than less. LOsacrifice- ofone's ownwell-being rither than less in order to give aid to thc- - -to dive aid to thosc wursc off than snesclf (whenonc can easilydo so. rtc.1.: And@m (when 111CIC.) to r1vu d l ype has to thc less lortunate. or. at least. to reducetmcscb to thc (prcsumabiy rising) kvcl of wcll-being of lhosc anc

- -;re. in that spectrum. k(mugh) Jividine lihc'hetwfcenverduties and su6ereropiti- hnevo lence should be drcrwvn kavc6alurccl time and time again in ed~icildiscussions. I


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SDI 2005Moralitv Toolbox

( ) Ignoring consequences is immoral - hey sacrifice others to preserve m oralpurity. It is most moral to a ct to produce the best end regardless of the moralcleanliness of the meansAilinsky 1971 (Saul D., Activist, Prof, Social Organizer with Int'l Fame, Founder ofIndustrial Areas Foundation, R ules for Radicals, p. 24-7)"Does this particular end justify th is particular means?" L ife and how you live it is the story of means andends. The end is what you want, and the m eans is how you get it. Whenever w e think about social change,the question of means and en ds arises. The person [man] of action views the issue of means and ends inpragmatic and strategic terms. H e has n o other problem; he thinks only of his actual resources and thepossibilities of various choices o f action. He a sks o f ends only whether they are achievable and worth thecost; of means, only whether they will work. To say that corm pt mean s corrupt the ends is to believe in theimmaculate concep tion of end s and principles. The real arena is corrup t and bloody . Life is a corruptingprocess from the time a child learns to play his mother off against his father in the politics of when to g o tobed; he who fears corruption fear s life. The practical revolutionary will understand Ge othe's "conscience isthe virtue of observers and not o f agents of action in action one do es not always enioy the luxury of adecision that is consistent both with one s individual conscience and the pood of [hulmankind. Th e choicemust always be for the latter. Action is for mass salvation and not for the individual's personal salvation.He [or she1 who sacrifices the mass good for his personal conscience has peculiar conception of "personalsalvation"; he doesn't care enough fo r people to be "cormvted" for them. The people [men] who pile up theheaps of discussion and literature on the ethics o f mean s and ends-which with rare exceptio n isconspicuous for its sterility-rarely write about their won experien ces in the perpetual struggle of life andchange. They are strangers, m oreover, to the burdens and problems o f operational responsibility and theunceasing pressure for immediate decisions. They are passionately committed to a mystical objectivitywhere passions are suspect. They assume a nonexistent situation where men dispassionately and withreason draw and devise means and en ds as if studying a navigational chart on land. T hey can be recognizedby one of two verbal brands; " We agree with th e ends but not the means," or "This is not the time." Th emeans-and- end moralists or non-doers always wind u p on their ends without any mea ns. The means-and-'ends moralists, constantly obsessed with the ethics of the means used by the Have- Nots against the Haves,should search thems elves as to their real political position. In fact, they are passive-but real-allies of theHaves. They are the o nes Jacques Maritain referred to in his statement, "The fear of soiling ourselves byentering the context of history is no t virtue, but a way o f escaping virtue." These no n-doers were the o neswho chose not to fight the Nazis in the only way they could have been fought; they were the ones who drewtheir windo w blinds to shut ou t the sham eful spectacle of Jews and political prisoners being dragg edthrough the streets; they were the one s who privately deplored the horror of it all-and did nothing. This isthe nadir of immorality. The most unethical o f all means is the nonuse o f any means. It is this species ofman who s o vehemen tly and militantly participated in that classically idealistic debate at the old League ofNations on the ethical differences between defensive and offensive weapons. The ir fears of action drivethem to refuge in an ethics so d ivorced from the politics of life that it can apply only to angels, not to m en.The standards of judg me nt mu st be rooted in the whys and wherefores of life as it is lived, the world as itis, not our wished -for fantasy o f the world as it should be. 1 present he re a series of rules pertaining to th eethics of means an d ends: first, that one's concern with the ethics of m eans and e nds varies inversely withone's personal interest in the issue. When we are not directly concerned our morality overflows; as LaRochefoucauld put it, "We all have strength enoug h to endure the m isfortunes of others."***Gender M odified***


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SD I 2005Morality ToolboxGovernments = conseq'ist

(

Finn

(J The government must always act in a consequentialist framew orkAlexander, Prof @ University of San Diego, 1987 (Larry Alexander, The Journal ofPhilosophy, Scheffler on Angent-Centered Perogatives, 1 987 May p. 282)An equally important reason why Scheffler cannot plausibly posit conflicting moral permissions across theboard, rather than as limited to discrete spheres such as athletic and business competition and (mo reproblematically) self-d efense, is that, without agent-centered restrictions, there is o n impor tant actor that isalways obligated to produc e an optimal set o f consequences. That actor is the government. T he governmentis not that kind of moral ag ent which ca n possess an agen t centered prerogative with resvect to its own acts.It must always act as a thoroughgoing consequentialist, giving only impartial consideration to individualsweightings of their own proiects.Persoqal morality isn't analogous to political morality-states aren'tpeople

(Senior editor of Freedom Review)93James,M i ~ h t Riaht After the ColdWar: Can Foreian 9oticv Be M W . Ed.Michael Cromartie,p. 44-6, _ . . .


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SDI 2005Morality Toolbox*

(J Consequences m ust be evaluated -moral rights and wrong s are based onconsequences themselvesJohnson, prof philosophy @ Cambridge, 1985 (Conrad D Johnson, The Journal of Philosophy,The Authority of the Moral Agent, 1985 August p. 391-2)Recent moral philosophy sh ows much interest in the problem of how deon tological constraints are to bereconciled with consequentialism. O n the on e hand there is the intuition that there ar e certain things it issimply wrong for an individual to d o, even if violating the prohibitions would produce better consequences.On the other hand, moral prohibitions themselves are not above critical scrutiny and w hen we turn to thisenterprise, consequentialism broadly conceived has a powerful claim; for ho w else are w e to evaluate andpossibly revise our conception of morally right behavior if not by reflecting on th e consequences. Troub ledevelops when w e try to reconcile deontological intuitions with consequentialist insights. Som e versions ofrule utilitarianism have seemed pr omising at first, but dissatisfaction returns when w e try to give a carefulexplanation of the relationship between the rules that are utilitarianly justified and th e particular actions thatone is called upo n to d o. When it is absolu tely clear to the agent in a particular case tha t follow ing the rulewill have worse conse quenc es than bre aking it, even though the rule is in general the best, is it morallyright to break the rule? If the rule is conceiv ed as merely cautionary and simplifying, then th ere is noargument aga inst bypassing it in a particular case in which the situation is wholly clear and the calculationhas already taken place or was unnecessary. On the other hand if the rule is conceived as having som eindependent authority , that what is the nature of this independent author ity? The rule-bou nd o r superstitiousperson might adhere to the rule fo r its own sake, but the rational person wo uld not. If we follow the usualdeontological conception, there are also well-known difficulties. If it simply wrona to kill the innocent thewrongness must in so me way b e connected to the consequences. That an innocent person is killed must be aconsequence that has s om e important bearing on the wrongness of the action; else why be so concernedabou t the killing of an innocent. Fur ther if it is wrong in certain cases for the agent to weigh theconsequences in decidin g whether to kill or to break a promise, it is hard to deny that this has som econnection to the consequences. Following on e link of though, it is consequentialist considerations ofmistrust that stand behind such restrictions on wh at the agent may take into account. But then again it ishard to deal with that rare case which th e agent can truly claim'that his judgement about the consequencesis accurate, or , in that last resort of th e philosophical thought experiment, has been verified by the InfallibleOptimizer. These cou nterexamples are a challenge, not because they are a t all likely, but b ecause they testour intuitions. The deontological conviction in even the more hard-bittern consequentialist among us seek sa deeper foundation than any prevailing and sufficiently consequentialist account is ab le to give.


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SD I 2005Mo rality ToolboxM oral absolutism bad : clean hands, dirty results

Their form of moral absolutism prioritizes clean moral hands over moral results:they are more concerned with not acting directly immoral than preventing muchlarger immoral consequencesNielsen 1993 (Kai, Phil. Prof @ U. Calgary, Absolutism and It Consequentialist Critics,ed. Joram Graf Haber, p. 170-2)Blowing up the fat man is indeed monstrous. But letting him remain stuck while the wh ole gro up drowns isstil l more monstrous. T he consequen tialist is on strong moral ground here, and, if his reflective moralconvictions do not square either with certain unrehearsed or with certain reflective particular moralconvictions of human beings, s o much the worse for such comm onsense m oral convictions. On e could evenusefully and relevantly adapt here-though for a quite different purpose-an argum ent of Don agan's.Consequentialism of the kind I have been arguing for provides s o persuasive "a theoretical basis forcommon morality that when it contradicts some moral intuition, it is natural to suspect that intuition, nottheory, is corrupt." Given th e comprehen sivenes s, plausibility, and overall rationality of consequ entialism ,it is not unreasona ble to override even a deeply felt moral conviction if it does not s quare w ith suc h atheory, though, if it made n o sense or overrode the bulk of or even a great many of ou r considered moralconvictions that would be another matter indeed Anticonsequentialisfs often point to the inhu manity ofpeople who will sanction such killing of the innocent but cannot the compliment b e returned by speaking ofthe even greater inhumanity, conjoined with evasiveness, of those who will allow ev en mo re death and fargreater misery and then e xcuse themselves on the ground that they did not intend the death an d misery butmerely forbore to prevent i t? In such a context, such reasoning and such forbearing to prevent seems to meto constitute a moral evasion. I say it is evasive because rather than steeling himself to d o what in normalcircumstances would be a horrible and vile act but in this circumstance is a harsh moral necessity he [flallows. wh en he has the p ower to prevent i t , a situation which is sti l l many times worse. H e tries to keephis 'moral purity' and [to] avoid 'dirty hands' at the price of utter moral failure and what Kierkegaardcalled 'dou ble-min dedn ess.' It is unders tandab le that people shou ld act in this morally eva sive way but thisdoes not make it right.***Gender modified** *


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SDI 2005Morality Toolbox

C 1 No try or die scenario--mitigated solvency nulfifies the mora l obligationto help othersAikea, prof of philosophy@ Chatham College, 1977 (William, IObligation, ed: Aiken and La Follette, p. 9 1-2)- he second minimal condition is the 'ought implies can' condition. &vrder to-be obligated to save the sufferer one must, have the means toremedv his condition, that is, have the ~o o d sr the capability to renderthe services reauhd to deviate the condition of the sufferer. I can o dbe obligated m save you if I can saveyou. ?hus, if youared y i n g 4cf a blood transfusion of a very rare type of blood and I am available fora transfusion,but my blood type is incompatible with your blood type andthus of no use to vop, then no matter how severe your need is, I have noduty to save you because I cannot provide you with the goods you need.However, any person of the right blood type who knows f your conditionand who is available to provide a transfusionhas a mord duty to saveyou.-

Government intervention in food distribution excuses us from ourmoral obligation to save the s tamng people. ..Aiken, profof philosophy @ Chatham College, 1977 (William, World Hunger and MoralOblisarion. ed: Aiken and La Follette, p. 96-7)- There is another excusing condition to the obligation to save personsfrom preventable death due to deprivation. If one has no access to aneffective method of makina the ~oo dsnd services available to the stEferer, . ..then oneis excued from the obligation to save the s&erer. For example,i$ government intentionally prevents the delivery ot toa rel ief to starv-ingpersons within that nation, then one possible methOd of delivering theload wodd be to destroy that government by ddaring war on it. h t h &wodd be to smuggle the food in with the knowledne that mostof It wouldbe confiscated. Another would be to drop packages from high flying air-craftwifih the hope that at least someof them reached theground undam--and were then received by those who need them. Each of thesemethods is a pmrible means of deliverinp the Food but none OF them isparticularly rffkfiw.In this case, where no effective m e a i nthe foodisavailable, we would b&xcu$edJ?om th e obligation to save thestarving persons in that nation. Of course, it might be that we haveothermoral responsibilities to findor to establish an effectivemethod. Wemightevenbe required o coerce that government nto permitting us to distributethe food necessary for the lives of persons within that nation; but thiswould be another typeof moral esponsibility, and justification of i t wouldrequire a separate argument. 410-3f


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No moral obligation exists if you must risk sacrificingyourself to fulfillth e obligationAiken, prof ofphilosophy@ Chatham College, 1977 (William, Wodd Hun- and MoralObligation,ed: Aiken and La Follette, p. 92-51

,It states that5t render the M c e rtion of equivalent or . . -.&e servick and--own deathbydehydration, henobviously have

nodutv tosavev a . ariy, if to save youfrom eeezing todeath I must've you my only coat and thus freeze to death mvself, then 1have no':oral duty to save you. This mndltion prevents the appeal to lifeboatsituations of u k cam& from s w i n g ascounterewmples to therightto be saved from death due o deprivation. The ethics of extreme scar&is perhaps different from the ethics of moderate scarcity or moderateabundance. Be ha t as it may , there are wry few situations in which thescarcity i s so extreme as to warrant appeal to "lifeboatethics" (which is,in my opinion, th e same as prudent self-interest). One situation of suchscarcity might be the caseof the dotting factor for hemophiliacs.Anothermight be the use of a dialysis machine for those with kidney Failure. Bu tvery few cases demonstratethis extreme scarcity. The worldhunger situa-tion is oot yet-pzcc the opinion of atany-a lifeboat:situation. It is more .of a problem of distribution,use,and waste of food than it is of scarcityOF food. -Self-defense necessitates imm oral acts at timesO'Keefe 2002 (Michael O'Keefe, Research Fellow at the ARC Centre for Applied Philosophy andPublic Ethics., Terrorism and justice : moral argu ment in a threatened world, ,2002 p. 119)

Bomb-throwing Russian anarchists of the nineteenth century, who gav e themselves u p for execution afterthey had murdered, arguably showed a kind o f respect for human life even when they deliberately killedcivilians. The 'softening up' operations that bombed tens of thousands of Iraqi soldiers into the desert sandsof Iraq and Kuwait, and which apparently provoked contempt for the United States in much of the Arabworld, showed a brutal lack of regard for hum an life. It is hard t o see how one co uld show such contemptfor the humanity of combatants and at the sam e time show respect for the humanity o f civilians by ca re hl(and much pub licised) attempts to minimise 'collateral damage'. Respect for the humanity of others is notso easily divisible. The frequent attempt to mak e it so is one of the reasons why Georg e Orwell wasscornful o f the sometimes hypocritical importance w e attach to the distinction between combatants andcivilians.6 'Do you think our en emy will lay down its arms just because we insist on being nice!' That ishow one form er US general put his objection to what he regarded as the childish constraints moralistswould place on the conduct o f war. Crude though his expression o f it was, the thought he expressed w as notcrude. Ever since Socrates claimed that it is better to suffer evil than to d o it , the same thought has beeninvoked to remind us that in politics one has so metime s to decide whether one will ad opt the only meansavailable for o ne's defence or renounce the m b ecause thev are uniust. Nothing in m orality can save us fromthe ~oss ib i l i tyhat we will face an en emy wh o is cunning enough t o ensure that the only available meansfor our self-defence a re evil. It is mere w histling in the dark to believe, as a distinguished Catholic moral-ist put it, that though morality m ay lead us to tragedy, it can never lead us to disaster.


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SDI 2005

In a nuclear world we have to weigh consequences.Sissela Bok,Professor of Philosophy, Brandeis, Applied Ethics and Ethical Theory, Ed. David Rosenthal andFudlou Shehadi, 1988The sam e argument can be made for Kant's other formulations of the Categorical Imperative: "So act as to usehumanity, both in your ow n person and in the person o f every other, always at the sam e time as an end, neversimply as a means"; and "So act as if you were always through actions a law-m aking mem ber in a universalKingdom of Ends." N o one with a concern for humanity could consistently will t inthe person of himself and every other or to risk the death of all members in a universal Kingdom of Ends&

the icake ofju stic e. To risk their collective death for the sake of following one's conscien ce would be, asRawlssaid, "irrational, crazy." And to s ay that one did not ,htefid Such a cafas tro~h e. ut that one merelv failed to stopother Dersons from bringing it about would be be side the doint when the end of the world was atNbiake. oralthough it is true that we cannot be held responsible for most of the wrongs that others commit. the Latinmaxim presents a case where we would have to take such a responsibility seriously-perhaps td the ~ o i n tfdeceiving, bribing, even killing an innocent person, in order that the world not perish.

Nuclear war requires the evaluation of consequencesMichael Moore,Warren Distinguished Professor of Law at University of San Diego School of Law, 199 7, PlacingBlame, p. 719-721

3 . Non-A bsolute Mora l Norms: Thresh old Deontology Apart from the exceptions that the content of moralnorms must have for them to be plausible, a third modification of absolutism is the softening of the 'wha teverthe consequences' aspect me ntioned e arlier. This aspect of absolutism is often attributed to Kant, who heldthat though the heavens ma y fall, justice must be done. Despite my nonco nseque ntialist views o n morality, Icannot accep t the Kantian line. It just is not true that one should allow a nuclear war rather than killing o rtorturing an innocent person. It is not even true that one should allow the destruction of a sizable city by aterrorist nuclear device rathe r than kill o r torture an innoce nt person. To prevent such e xtraordinary harmsextreme actions seem to m e to bejustified. There is a story in the Talmudic sources that may appear to appealto a contrary intuition. 122 It is said that where the city is surround ed and threatened with destruc tion if itdoes not send out one of its inha bitants to be killed, it is better that the whole city sh ould perish rather thanbecome an ac com plice to the killing of one of its inhabitants. Benjamin Cardozo expressed the sam e intuitionin rejecting the idea that those in a lifeboat about to sink and drow n may jettison enough of their number toallow the remainder to stay afloat. As Cardozo put it: Where two or more are overtaken by a com mondisaster, there is no right o n the part of o ne to save the lives of som e by the killing of anoth er. The re is norule of human jettison. Me n there will often be who, when told that their going will be the salva tion of theremna nt, will choose the nobler part and make the plunge into the waters. In that supreme moment the dark-ness for them will be illumined by the though t that those behind wili ride to safety. If none of such mold arefound aboard the boat, or too few to save the others, the hum an freight must be left to meet the chances of thewaters. 123 There is adm ittedly a nobility when those who are threatened with destruction choose on theirown to suffer that destruction rathe r than participate in a prima facie immoral act. But what happens when weeliminate the choice of all concerned to sacrifice themselves? Alter the Talmudic exam ple slightly by makingit the ruler of the city who alone must de cide whether to sen d one out in order to prevent destruction of thecity. Or take the actual facts of the lifeboat case'24 to which C ardozo was adverting, where it was a seamanwh o took charge of the sinking lifeboat an d jettisoned enough of its passengers to save the rest. O r considerBernard Williams's exam ple, where you com e across a large group of villagers about to be shot by the armyas an example to others, and you can save most of them if you will but shoot one; far fiom ch oosing to 'sinkor swim' together, the villagers beg you to shoot one of their num ber so that the rest may be saved.125 In allsuch cases it no longer seems virtuous to refuse to do an ac t that you abhor. On the contrary, it seems anarcissistic pr eo cc u~ at io n ith your own 'virtue'-that is, the 'virtue' you could have if the world were idealand did not present you with such awful choices-if you choose to allow the mea ter number to perish. Insuch cases, I prefer S artre's version of t he O restes legend to the Talm ud: the ruler should take the guilt uponhimself rather than allow his peo ple to perish.'26 One should feel guilty in such ca ses, but it is nobler toundertake such mil t than to shut one's eves to the horrendous consequences of not acting.


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SDI 2005Morality Toolboxe ob ~ f huw;$


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( ) Nuclear use is genocidal and escalates to further genocide - b ii on s could dieWeeramantry '96 (Christopher Greg ory, Law Pf- Monash U & International C ourt of Justice Judge, "Legality of theThreat or U se of Nuclear Weapons," July8,h t tp : / iwww.d fa t .g o v .a u / in to rg s / i c j -n u c /w)Nuclear weapons used in re swn se to a nuclear attack, especially in the event ofan all-out nuclear response, would belikelv to cau se genocide by trignerine offan all-out nuclear exchange, as visualized in Section IV ( inh . ) . Even a single"small" nuclear weam n, such as those used in Japan, could be instruments of~ en oc ide ,udging &om the number of deathsthey are known to have caused. If citiesare targeted, a sin gle bomb could c ause a death toll exceed ing a million. Iftheretaliatorv we aw ns are more numerous, on WHO'S estimates of the effects of nuclear war, evena b il lion ~ eo p l e , o th o fthe attacking state and of others, could be killed. This is ~l ai n lv enocide and, whatever the circumstances, cannot bewithin the law.When a nuclear weapon is used, those using it must kn ow that it will have the effect of causing deaths on a scale s omassive as t o w iv e ou t ent ir e ~ o ~ u la t io n s .enocide, as defined in the G enocide Convention(Art.11),means any actcommitted w ith intent to destroy, in wh ole or in part, a national, ethnical, racial or religious group,as such. Actsincluded in the definition are killing m embers of the g roup, causing serious bodily or mentalhann o members o f thegroup, and deliberately inflicting on th e group cond itions of life calculated to bring about its physical destruction inwhole or in part.In discussions on the definition of genocide in the Genocide Convention, much playis made upon the words "as such".Th e areument offered is that there must be an intention to tareet a varticular national. ethnical. racial or rel i~ io us ou pqua such group, and not incidentally to some other act. However, having regard to the abilitv of nuclear weap ons towipe ou t b locks o f u o~u lat io nanging from hundred s of thousands to millions, there can be n o doubt that the weapontarD;ets.in whole or in Dart. t he n at io na l m o u ~f the State at which it is directed.Nu rem be r~ eld that the extermination of the civilian ~ ouu latio nn whole or in part is a crime aeainst humanity. This ispreciselv what a nuclear weapon achieves.

( ) Nuclear war IS genocide- our disads operate within their own frameworkLang'86 . (Beret, Professor of philosophy and hu~ nani stic tudies- SUNY, UCLEAR WE APONS AND TH E FUTURE OF

HUMANITY: THE UNDAMENTA L QUESTIONS, Eds: Avner Cohen & Steven Lee, p. 122-123) =-


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SDI2005Morality Toolbox

..(Nuclear d i i r s ew r t vividly register that Giinc~ivcnas. t k_d o moral account that extinction may beonk r slinht m&$ty. No one can say&g m t the possibiiitv is. but na one has yet,

Ca-flm of robbil i~v r . . kt

( ) Any nuclearuserisks human extinctionKa eb 1986 coisscnt. . I64)Abnractlyput, the connections betwecn myuseofnuckar weapons and human and naturalextinction arc scveral{~ac obviously, a sir-able ucbangc of strategic nuclnr weapomcrus by a chain of cvents In nature, lead to thecanh's uninhabitability. to *nuclear wintcr,"or to Schell's %pubtic of i m t s and grass."But thc considerationof extinction cannot restwith the pasibility of a sizable cxchange ofstrategic weapons. It cannot mr with xhc imperatire t h t a sizable exchas p must not takcp'?4

( 1 Limited nuclearuse promotes escalation and extinctionKateb 1986 Q, a)< ~ i o Q l l c d tacticaior "theater use. ora swcalled\imitcd use, i s alsoprohibitedabb0IutC)Y.baause of thc possibilityof immcd'mtccscala- .tion into a sizable exchange: orbecause, cvea iftbm wcro nw an mmediate czcalatioh rhept&'bir~ty of cxrlnnion would wide in theprccc&nt for future useset by any w: what-ever in a world in which morc than one powpsscsw nuclear weapons: in the amagiouseffect an nonnuslear p e n w ho may feelsompllcd by a mixtureof fear and vanity atr y a cquire theirown weapons. thus iflcWS-in8 the powbility of use by 4 n c w i n g thenumbs of nuclear pow= and in theleached emotions of indignetion. relribathn,and tcvcnge tb t . if not acted On irnmediawin the formof escalation. can be N I U D I ~ OR TO


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( ) They are responsiblefor the &ads andturns--foresigBmakes themmmpHdtevmif theydonot intend tomuseharm

our responsibility to aur successors is to avoid MiforesmaNs ban on @em Sad to act: *re w can in wayswhich we can foresee will or r ~ a ywxk to their be ne f i t . .('Could have foreseenrhere pans 'could reasonably have been3P=='o fareseerr and the thingr; that are foreseeable i ns s8nse aze not just Utoea which the kncwledge we b p p n toham oharld bavs amhled ua to foresee, M also thosecmwpurmcc~uhichwacutldhmtaoomctobeinawsitirnta

( ) Focusing on intentions gives us no guidance about the moral worth ofpolicy-should look a t consequences . .Hinman, profofphIlosophy, 1998 ~Lan-teticc. t h i c s . P- 86)rLrnagurc a g a n h t he governmentu debattrig propoxd legislationto change hcalthsare benetiu foe the cldcrly. We could tumine themodvcr of thc i n d i v i d ~ ~ t o nnd lobbvisa who support or .%pox the lc@$ttion. but lbrr miuht be of idc king . . - .e h u he b ~tsclfM goad one or not,W faexample, that z 1 pcrcenraac of rhc DKID~C?%o cithtr su 01opporc them are mourntat bv a concernwithmlicilidcrla d m K 2 r n tor linancial q n . m c acting ourof~rin- bmthc nu@rmv & roughlv cvcnlv cpli~bcovccn he wo camps. Laalcing a t rhexindividual rnotivadonr, u2rnav decide that such nrotiwdons arc jwr amatar of pcrsond roncsn. - w whether h u t o r X uqonlrllv wcil rnodvjrcd in suppordna this Iceisladon. but thcv us

lcalcing ac what results or conscaucnccswould hUow from ldqptingihr Icdsl&on. We then srws these canscqucncu in t e r n of mmetbr cxmpic, in tcrm or'he mount oi plcvurc =dmp*t h e may causc. or in tcrm ot'the amounr ofhappincu and unbppi-ncu they m q causc. This is r o u~hIg hat rhc rule ucilidul scck todo: o s s c s s chc mom1 worth ol'a policy or rulc illr c m oida consc.oucnces tlut it wiil probably have.


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SDI 2005Morality Toolbox CH

AT: Intent key( ) Intent is impossible to determine in government policymaking: they vote for theplan for different reasons than the 1A C advantagesHinman, Prof of Philosophy, '98 (Lawrence, Ethics: A Pluralistic Approa ch to Moral Theory , p.186)When, for exam ple, we want to assess the moral correctness of proposed go vernme ntal legislation, we maywell wish to set aside any question of the intentions of the legislators. After all good laws may be passedfor the most venal of political m otives, and bad legislation may be the outcom e of quite good intentions.Instead, we can conc entrate solely on the question of what effects the legislation may have on the people.When we make this shift, we are not necessarily denying that individual intentions are im portant on som elevel, but rather confining our attention to a level on which those intentions becom e largely irrelevant. Thisis particularly a ppropriate in the case of policy decisions by governments, corpo rations, or other groups. Insuch cases there may be a diversity of different intentions that one may want to treat a s essentially privatematters hwen assessing the moral worth of the proposed law, policy, or action. Therefore, ruleutilitarianism's neglect of intention s intuitively makes the most sense when we are assessing the moralworth of some large-scale policy proposed by an entity consisting of more than one individual.


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( ) Their obsessionwith certaintyismisplaced-a less certain Ask ofnmuch h r ~ rimpact ismoral reason to vote negative

Problems with predictability don't justify rejection of utilitarianism-uncertainty is an inevitable part of the human cond ition

endless comparisons. 1-cc far many ofus. th e nrast d u e n d hctors-su& Y the hdividudslsme&the Kcnds we dcvdoped, chcpcoptcwefdl in low dlh-wcrc ona rvc couldncvcr have prcdictcd.Mast ax utiliari3nt arc willing magreewlrh uirics about &c lim-its o f our prcdicdve powm. but t . . - away that it no tonau c o u n t s d n ocr utilitarianism. Our o x d i e c

-Uncertainty about future predictions doesn't warrant rejection of utilitarianism

W v ct in the social world ifwe did notbdcv t that thcre& p-cnl predimbiitvro humanbehaor. This~ c n b i i w d o aothrvetouc cmplcre. Wc cyUnaJrc &in and bearr.


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SD12005Morality Toolbox

Cuinmiskey (Asst. PhilosophyM Bares C O I I C ~ ~ )[email protected], aewirth: Critical Essavson Action. Rationalitv. and Community, Ed. Michael Boylan, p. 134-5I w ou ld ca ll i t -~ on c r e t e o n x q u c n t i d ~ ~ - B u t ~ w h a t e v c rc cal l this ps i -tion, Kantian deonrologists arc ncrer satisfied when consequrntialists chanec lhr:

subject in this way. Thcy always ss on and rule out by stipulation al l the other \-dM1al ivcs that a i r t n14ilt* irnihrll pic. Oswinh. his ibsolutism 'rn-vc way to his con . To be bricf, hc p r r c n l L o ugum e& k*'$";~?zuphining h of the intervening r m n fo~owr -L'trec y rn the Principle of Generic C o n s i s k n c ~ndccd. at this ctucial pointI n the acvcIopmcnt ot his normative thcory, mcrc assertion add t k ntuitiveappeal of the principle =places his more charac~nstrc arci1rXrp30Petquite clearly much argument i s w l l c d for.-shown.AsGcwirtlr cmphasizcs. al l i iscnkihave u righr not lo be ki lled. The qu a-lion at issue i s whether il s sor~tc l i t i~csbligiltclry tcr ki l l to prcvcnr morc k i l l i n jp .-Ilene rcvpnnds that i t is no1 k c a u s c i~nuthcr genr is doing the kil l ing. then omi s simply ssun~inghat the dury ir r qucstion is or! a p t - d a t i v e r ~ t r i c t i o n . hisunnqucd assumption. howvevcr, conllicts with rhr buic PGC nquircrncnt 10

the rcmrists. As we haveseen above. al l orher lhings equal, the rights ofall w i l lbe morc secure i fweaccept u principle where the righuof a few giveway to therights of thc many,Thc consyucntial ist criterion ofthe degneof needfulness for


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( ) Their interveningactorsprinciple#ismorallyhollow-3 reasons-Diverts responsibility-Justifies inaction in tough circumstancm --Ignores foresight of harms which makes us complicit regardlessof ntent-Gasper '99 @s, ~nstitotefsocial~ t a d i e ~ ,he ~agae, e dmh j ~ , .

Bummu Jownal ofDevelopmentRseacb. vll, n2,Dcamber, p. 98-99)

Qke& wseintending thec fo r m~ ~ ]nebut notrbcotha' [P& 19791.handy tool could& u non-supp to the Rwandese camps,mqbann to the r~m-canb&t ~ l & m & % M b&d& I?Pushed hard, as a way of living with the d e o n t o l o g i ~ t i o n sn- - -R o i m Calholicism, tbe- dectrineaheneratedm n c h l c 8 9 u i s ~ uch as+Y h k w p i v e slot.machines Labelled "Par the.provention 'of disease onlc[bidu andcorresponarngcriticismFar ifsomecffectr of one's actionsare theteactionsof otheractors, and some of tfieir d o n s re consided f o d rnatmd, one is at l e a s C ~ y ~ n s i b 1 c ) f o rhem. Mackie went f u dm and *rejected th e doctrine as foIIows: 'if B's actiorq though neitha dcfensfile norexcusable,w ~ dc confidcntl&tici& a response to A'S.@kcome responsiiility for thedt,nd themore automaticB's responsecouldbe foreseen as being, the more of fie responsibility for the resultmust

( ) Moral responsibility extends to foreseeble conseqenceseven if not intendedGewirth (Departmentof Philosophy, Univ.d Chicago)82 . ..Alan. Human Riohts: EssavsonJustification and Am lications, p. 183

&his criterion i s distinct from the crikrion o f inrentionali~y.To be re -sponsible f0.r inflicting I e B d harms. a Wrsonneed not intend 07 desisopro;i'ucc such harms, either- as an cnd o; as a mca . is suthcicnt 11 1%harms comc about as an uritnlcnaea oucnoreseccs lle nd c o n t i o ~ c 'efliicl of whs-or smEch. hOGs ~ ~ v cth% actions or oolic?es undcr his control will lead to thc harms in qucs- 4 a stion. he can c o r k whether the harms will occur. so that it is within hispower to prevcnt or at ]cast lessen Oic pmbabiliry of their occurrence b yceasing to engage in these actions.Thus. ust as a l l persons haw a right toinformed control. so fa r as possible. over the conditions rclevanr to theirincurring cancer and othcr serio~ls arms, so the causal and moral rc-sponsibility for inflicting cancer can be atfributcd to persons who haveinforrncd control ove r other persons. sumering the lc thal harmsof cancer.>


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SDI 2005

- heir Martin Luther King, Jr. example doesn't apply-- In that circumstance theconsequential good outweighed the bad of his actions. MLK was in fact partly responsib- for riots and civil disturbances. The reason we look highly upon him is not because ofintervenlngactors, but because his overall effort produced far more good than evil.

PBppas Managhg editor, ChmnidesA Magazine of~mw i c d n ulture)98Theodore,ChicaaoTribune, July 5. 1998 p. lexisBut howm order and the rghl to rebel coexist?As always. his example isthe civil rlghtsmovement as led by Rev. Martin Luther King Jr. Carter"nonviolentprotest is not passive. . . 1 is intended,o btiw to the surface tensions that the s m l m Isdesianed'to oascwe."But, Carter assures us,"allthe noise' resulting from this formofpfotestwas 'civil."But is this true? Certainly thenoiseof"Bull"Conno& attack dogs wasanythingbutclvil, and he && of th

enterhisworlq,!aoe?-Can the praklers.bon'tiusPilate-like,abklve tiiernsehresOf responsibility for the b W y consequences of their ac f ~ ns ? nd if onejustides theconsequenceson grounds of a higher law, what Is to stop, say, theanti-abo~oflobby from killing moredoctors,bombing more dhics,all in thenameof greater civility?Carter's fine anafysls here comes updm. ike it ormt,oneof?heLeffspet strategies is cornlng home to roost, leaving abloody-anduncivit-trail behind it.


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Feldman 92 (Stephen, Associate Professor@ University of Tulsa CollegeofLaw, Georgetown Law Journal, June pp. 1874-6)I(ines#rsonal&xpriences of social iniusticeand radsm urevmted him60m eingnaive in his auest fot thebelovcdcommunity. 02.28He undemoodttre complexityof human nature, andhc d i z c d hat the*ad usually[*I8751~ d s threats to thelr DO- 11229 e remained etanally wary ofthe human propensities for depravity mdforgreedy pursuitofself-interest, andqmseaucntfy.~samatterofuofitieal tactics. he wasnot above advertin* to convcmenci~s envecn the i n tcre~~f whitesandAfrican American$. Fo r example. King argued tha! thc economic growth of theSouth r q u i d the aadicationof racial dism'mination and thatdiscrimination ddated tbc nation in world opinion. n230 ButKingemphasized."These re practical wnsiderations all dictating oneroad.Yetabove it all, agreater mperative demands fulfillment Throughoutourhistary, the moraldecision has alwtysk m he correct decision." n231Thus, thc constitutional and political theory hatemerges rom Kingstronglymemblesthe realistic civic republicanism of the framers. Theframers atways rcmained committed to a government thatpursues the cpmmongood, despite their recognilion that factionsw u l d inevitabIy arise in ademocracy. Lblvise;Kinealways remained cammiaed to thebeloved_gmmunitv. de s ~ i tcecomizinp hc human oenchant for evil. 0232 Thefraznasbelieved that throughpoliticaldialogue,the community can arriveat the common good, while Kin! believed that Ihrough various forms ofpolitical dialogue, fie mmun i t v can bush itselftowardsthe idealof thebeloved community.The iamesswcrc not above using factionalism topreserve h e epublic: they s(ructurcd the govcmment so that thctva-present potential fbr factionatism w u l d d l y mouragegovcmmmtalofficialsa wsue thecommon good llrr&l rnanwkile.was not&ove occasionallv u 4 n ~hite self-interest if it would hd o build thebeloved communiw but he mlizcd hat pure self-firtarscultimately iscorruptand thereforemust be suborciTnattd tomorality and love. 6 3 3King not only cch& the hmers , h o w v u , but also elaboratedtheitcivicrcpublic8o vision. He understood the diviskencss ofmismaswell ss heneed to take special stcps lo eradicatb itHe ecognizedthcncce~ity fempoweringall individualsand groups throughout Arnwican society so thatthtv could oarticiaate in thc political didome that is the lifeblood ofthe~comrn~nity.indbe rmli;rd batsocfaiiustiocandwlrtjcal cau-demand [*1876] profound economicdm ot&or ormedesInsum Kin& m n a l exDerlmctsof racism andommionimbued his civicmublicanlsrn with a &ism fiy m e ha^^ mv known


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SDI 2005

( ) f b abiIity assessment can notbe used when examining catastrophes. Thecatastropheshould be avoided no matter what thR probability.Rescher, prof ofphilosophy @U of Pittdwpk 1983 (JML p. 70-1)' Camtrophaareextraordinary ncgativitiesof particular d e v h t ~- efiied as such in relation to hazards iylns wdiary" range. A ca that that "inwrnparablyworse" than any negativitywithin the ordinary range- n wen--wonat is altogether unacceptable in relation to theseminornegativities. As Figure 4 i~usuates, a awhose neaativitv lies e n o n n o l b 2 i v m n d fhegativitiesf the ordinary range (that is, accordiilg to our earlierundmtanding, urceeding this range by more than thrtc ofmagnitude). Thus, catastrophic neeatidties are not dtoggthg:@commensurablewithprdinaryones, tk ust chat they cannot.1'0 be sure, fhcfundarnentaly fluid situation. The question ofwhat constituw acatastrophe- f just when dative intolerability and unaccgptability begins- s once again an evaluative issue that hgeIy liain the eyes of the beholder. With such drelative)catasmphec ttranspires that. in relation to any ordinary negativityH, ven theW t y f H is preferable to chancing a realization of thecaIastrophic C.Bis is x,~at ncm ivity that a"diopatit~ f risks" obtains between it andmy neaatiyity of the0 -

Certain ~ k shat are extremely large are unacceptable no matterhow he ematl the probabilityRescher83m k . rof Phil U of Pitt, p67)I n such situations we ar e dealingwith hazards that are just notin the same Ieague. Certain hazards are simply unacceptable_because they involve a (relativdy) unacaptabIe threat - hingsmay go wrong s o badly that, relative to the altCinatIvcs, it's just (not wolhwhilc to "run the nsk": even tn me face of a 6- rational man is not willing to trade / ,off against one another by juggling probabiiites such outcomesasthe loss of one hair and the loss of his health or hi reedom. The'@balance or dis~arity etween the &kt is lust too great c o xrestored k ~ ~ m b a b i l i s t i ceadJusLmentaThey are (probabilis-t i d y ] ncommensurable: soniontcd with such **hcomparablc'*h8zards. we do not bother to weigh this "balance ofprobabilities"

afall. butsimply dismiss one alternative as involving risks that are,,:n th

- ---e circumstances, "unacceptable." ,- J


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SDI 2005Morality ToolboxJ( ) Callahan concedes that genuine threats to survival cause tyrannyCallahan, Director of International Program, PhD on philosophy in Harvard, 1985

(Daniel, The Tyranny ofS uw iva1 and Other Pathologies of Civilized Life, p. 91-93 Kim)The first requirement is that a way be foun d to respond to the need for survival without, at the sam e time,allowing that need to b ecome a tyranny. T he Wrannv can result either because o f a panic in the face of agenuine threat to survival, because survival is invoked for self-interested or totalitarian political purposes orbecau se of an unne cessarily or unrealisticallv high standa rd of acceptable survival. Perhaps it is possible tod o no more in the face o f the last two possibilities than to b e aware of their potential force, and by politicaland cultural debate to neutralize or ove rcome their baneful effect. The panic which can resu lt from a realthreat to survival will be m ore difficult to coue with. a uanic which can lead to draconian measu res in the, .name of self-preservation. A t that point, the question must be faced whether there can be such a thing as toohigh a price to pay for survival. I believe there can be, particularly when the proposed price would involvethe wholesale killing of the weak and innocent, the sacrifice to an extreme deg ree of the values andtraditions which give people their sense of meaning and identity, and the bequeath- ing to f h r egenerations of a condition o f life which would be degrading and dehumanizing. The price wou ld be toohigh when the evil of the means cho sen would be such as to create an intolerable life both for the winnersand for the losers. While it might be possible to co nceive o f individuals willing to have their lives sacrificedfor the sake of group survival, it becomes m ore difficult to imagine whoIe grou ps being willing to makesuch a sacrifice. And there is a very serious moral que stion whether that kind of sacrifice should ever beasked for or accepted, even on a voluntary basis.


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SD I 2005Morality ToolboxAT: Ab solute right to starvation (Watson '77)

Uearlb the concept of pure justice produce$ an-eenturfw ago, wise men invented statutes o r 'lusllfy the rejection of such pure justice, in the interest of preventing

;ont&ual disdrder. The law zealously defcnds property rights, bu t an13relatively recent property rights. ~ r a w i n g line after an arbitrary time haselapsed may be unjust, but the alternatives are worse.We are all the descendants of thieves, and the world's resources a r pinecluitably distributed. But b a must begin the j&rney to tomorrow fmmhe point where we are today, We-cannot remake the past. We cannotsafcly divide th e wealth equitably among all peoples so bng as peoplereproduce at different rdtcs.TO o so would guarantee that our grandchil-dren, and everyone else's grandchildren.would have only aruincd ivorldto ~nhabit. 4To'begenerouswith one's own possessions is qui te differ-- nenerous with thosepf posterity. Weshould call this point to theattentionof thosc who, from a commendable love of justice and equality, wouldinstitute a system of thecommons,cither in the form of a world food bank,o r of unrestricted immigration.Wemust convince them if we wish to saveat teast some parts of the world from environmental ruin.


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SDI 2005Morality Toolbox -Ar: k 4 t ( I

( ) Even Kantians can allow innocents to suffer for a greatergood

C m skey P ~ D .Mich.. FellowshipWI Natmlndowmentfor the Humanities)96David,)(antfan Conseuuentialisrn,p.( I . TH E RESOLUTION OFCONFLICTIKC DUTIES

What must a Kan~fano when faced with the horrible ch oi i between killingsamep e o p o r Lettingmanymore peopledic?=if, for exanlple, the only way -ta end an otherwise lony: and brawn-out wa r *-ere bc to attack apopulaiion cente>?Such an act w rd y constitutes aggrecdfon against manynoncombatants tchildmn. the elderlv, dtizenr of tho opposing country whohuman sufferingand opprerrionTnd that ft will save man y lives. thest Isnotaid!&r why a b n t i a n should not sacrifice come to swemy.1 The ormulaof--in-itsclf m ui re that me ~t UK a n o t h e r b l d v b a means to asubjcctfveend. &ct in thk type of case. thr!cnds of theactionareoblective.notSubiative tChId 427). Thc objmtiwend in qucstion s first top m he i w ,,,and lib& that would bc lostby a prolongedconflict and, sceond, to promote. ''according to one's means, thcfvndarnentdand bash needsof 0 t h(MM 5a-r

( ) Sacrificing innocents for a greater good isn't anti-Kanti


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(MichaelD.,Westmhtm lnstikrtefor Ethicsand HumanValues,WastminstcrCollege,Ontario,M_oralttv, . 122-3)

dlredty related o aid. WilJiam~i l renon&nds thatpeoplehavea rbhtto-hwvedfmm preventable due to deprivetion.'r 0ecelrse starvation is e form ofdeprivatlan,s right to besaved from sulwatlonIs a bpecimof the moregeneralOne.Therighttobesaved.&ken argues. isa moral fn rwnfightbasedona h ~ m ~need. walnst sl persons.AP AlkenspecH~eshls right he avoidsmany ofhe above crfticismsof 0;Nefll'sergument" Rrst he does not clafm that people in devebped axlntrlesdiwc ~ ~ s ehedeathspfpeople Inlessdevebpedones. butonty that hey couldh epreventedthem. Second, he recognizes hatpeople cannotclaim the right Ifthey'havevokmnQriCaaumed risks of death by deprivation,Third, as 'wghf implies' 'can', the right& ot Impose a dvty on peaple unless they a n prevent thedeaths.This establishes th e "causal" connection.becauses anure to savewhenone canwillbe hecauseof theperson nothavinghis right fuffilled. (Becausethisr&t requlres one to act,the requirementof a causalconkctlon ssatisfied ifthefailure to act is necessary for th e deprivation.) Foud~.Aiken also limits thecorrelative duty to those peoplewho are awareof pwsons' needs to be saved.The,central efect InAiken's argument is that he nowheredim argues orthe right to be saved.Unfike the right not to be Wlled, thls right has not beenwidely reaxmized.The usualunderstanding of a rightto Life is asa negative right&to be k i l l e d . ~ a s positive right to be saved.Aikenstates hatthe i ahk be" - - - --is W e d by an a m . k a mosl p r i e hat .,pom~esmagatI d u a lwehare for all."" This prindole asembles the ufiliirienone, but itmaydafer h requtdng that the wgffare of each indnridual. tamer fEKfl% total orw e W . be promored (Pareto q3timality).Unfortunatety. Aiken heither clarifiesnor defends the principle.Nor does he show how the right to besaved s derived. from it.Alken suggests another argument for the tight to be w e d . namehr. that itsrecognit[onencapsulatesandclarifiesmoral i n&onsand argumentsw nparticu-lar. hr claims thatk ecognkbnw bebeneficial ortheworldhunaef issuebv I11that it is 1101 one of pnxlence%what onemeeought-to do butof a~ f l M o f b,nd 2)shiftingtheburden of prod trom those whoneed food tothose who could prwlde it TMs ergomfmt begs the question. for Ohe issuepreddy swhetherthe allurntoprovide foodaid iswrongorsimply he fallurn tb&something one o u g h t 7 I z t 3 -


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Our alternative is threshold deontology-nuclear war requires a temporary suspension ofKantian rules-this doesn't collapse into total consequentalismMichael Moore,Warren Distinguished Professor of Law at University of S an Diego School of Law, 1997 , PlacingBlame, p. 7 19-722Non-Absolute Moral Norms: Threshold Deontolorzy Apart from the exceptions that the content of moral norms musthave for them to be plausible, a thud modification of absolutism is the softening of the 'whatever the consequences'aspect mentioned earlier. This aspect of absolutism is oAen attributed to Kant, who held that though the heavensmay fall, justice must be done. Despite mv nonconseauentialist views on moralitv. I cannot accept the Kantian line.It iust isnot true that one should allow a nuclear war rather than killing or torturing an innocent person. It is not eventrue that one should allow the destruction of a sizable city bv a terrorist nuclear device rather than kill or tortureinnocent verson. To urevent such extraordinary harms extreme actions seem to m e to be iustified. There is a story intheTalmudic sources that may appear to appeal to a contrary intuition.122 It is said that where the city is surroundedand threatened with destruction if it does not send out one of its inhabitants to be killed, it is better that the whole city shouldperish rather than become an accomplice to the killing of one of its inhabitants. Benjamin Cardozo expressed the same intuitionin rejecting the idea that those in a lifeboat about to sink and drown may jettison enough of their number to allow the remainderto stay afloat. As Cardozo put it: Where two or more are overtaken by a common disaster, there is no right on the part of one tosave the lives of some by the killing of another. There is no rule of human jettison. Men there will often be who, when told thattheir going will be the salvation of the remnant, will choose the nobler part and make the plunge into the waters. In that suprememoment the darkness for them will be illumined by the thought that those behind will ride to safety. If none of such mold arefound aboard the boat, or too few to save the others, the human freight must be left to meet the chances of the waters. 123Thereis admittedly a nobility when those who are threatened with destruction choose on their own to suffer that destruction rather thanparticipate in a prima facie immoral act. But what happens when we eliminate the choice of all concerned to sacrifice hem-selves? Alter the Talmudic example slightly by making it the ruler of the city who alone must decide whether to send one out inorder to prevent destruction of the city. Or take the actual facts of the lifeboat case'24 to which Cardozo was adverting, where itwas a seaman who took charge of the sinking lifeboat and jettisoned enough of its passengers to save the rest. Or considerBernard Williams's example, where you come across a large group of villagers about to be shot by the army as an example toothers, and you can save most of them if you will but shoot one; far from choosing to 'sink or swim' together, the villagers begyou to shoot one of their number so that the rest may be saved. 125 In all such cases it no longer seems virtuous to refuse to do anact that you abhor. On the contrary, it seems a narc issistic preoccuvation with your own 'virtue'--that is, the 'virtue'you could have if the world were ideal and did not present vou with such awfu l choices-if you choose to allow the~reat er umber to ~er ish .n such cases, I prefer Sartre's version o f the Orestes legend to the Talmud: the rulershould take the guilt upon himself rather than allow his people to perish.'26 One shou ld feel rmiltv in such cases, k tit is nobler to undertake such mi lt than to shut one's eyes to the horrendous consecluences of not acting. I thus havesome sympathy for the Landau Commission's conclusion that 'actual torture . . would perhaps be justified in order to uncover abomb about to explode in a building full of people'. If one does not know which building is going to explode, one does not havethe consent of all concerned to 'sink or swim' together. On the contrary, one suspects that like Williams's villagers, the occupantsof the building, if they knew of their danger, would choose that one of their number (to say nothing of one of the terrorist group)be tortured or die to prevent the loss of all. In any case, the GSS interrogator must choose for others who will pay the costs for hisdecision if he decides not to act, a cost he does not have to bear; this situation is thus more like mv variation of the Talmudicexample than the original. any think that the agent-relative vikwjust sketched, allowing as it do& consequences to overridemoral absolutes when those consequences are horrendous enough, collauses into a consequentialist morality after all. GlanvilleWilliams, for example, in his discussion of the legal defence ofn&essi&, recognizes the ggent-relative view that 'certain actionsare right or wrong irrespective of their consequences' and that 'a good end never justifies bad means'. Williams nonethelessconcludes that 'in the last resort moral decisions must be made with reference to results'. Williams reaches this conclusionbecause, as Williams sees if the agent-relative slogans ust quoted reduce to the claim 'that we ought to do what is rightregardless of the consequences, as long as the consequences are not serious'. Contrary to Williams, there is no collapse ofagent-relative views into consequentialism iust because morality's norms can be ove mdd en bv horrendousconsauences.13' A consequentialist is committed by her moral theory to saying that torture o f one person isjustified whenever it is necessary to prevent the t o m r e of two or more. The agent-relative view, even as heremodified, is not committed to this proposition. To iustifv torturing one innocent person requires that there behorrendous consequences attached to not torturing that person-the destruction of an entire city, or, perhaps, of alifeboat or building full of people. O n this view, i n other words, there i s a verv hinh threshold ofbad conseauencesthat must be threatened before something as a f i l as torturing an innocent person can be justified. Almost all real-life decisions a GSS interrogator will face-and perhaps all decisions-will not reach that threshold o f horrendousconsequences justifying torture o f the innocent. Short of such a threshold. the anent-relative view just sketched willoperate as absolutely as absolutism in its ban on torturina the innocent.


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Threshold deontology maintains personal dignity but requires temporary suspension ofKantian rules at the threshold of nuclear warLarryAlexander, Warren Distinguished Professor of la w , Fall 2000 , San Diego Law ReviewIn his 19 89 law review article, Tort ure and the Balance of Evils, nl later republished as C hapter Seventeen inPlacing Blame, n2 Michael Moore declares himself to be a "threshold deontolonist. " n3 W hat he means isthis: There are som e acts that are morallv wron e desoite uroducine a net uositive balance o f conseauences;but if the positive balance of consesuen ces beco mes sufficiently great - esueciallv if it do es so by avertinghorrible conseauences as oppos ed to merely making people quite well off - then one is morally permitted,and perhaps reauired, to enRage in those acts that are otherwise morallv ~roh ibited .Thus, one m ay not kill ortorture an innocent person in ord er to save two or t h e e other innocent veoule from death or torture - eventhough purely consequ entialist considerations might dictate otherwise. How ever, if the number of innocentpeople who can be saved from death or torture gets sufficiently l a r~ e .hen what was mo rallv uroscribed - thekilling or torture of an innocent person - becomes morallv uermissib le or mand atory. At a certain number oflives at risk - the Threshold - consequentialist moral principles ove md e deontological ones. Says Moore:

just is not true that one should allow a nuclear war rather than killinn or torturing an innocen t Person. It is noteven true that one should allow the destruction of a sizable city by a terrorist nuclear device rather than killtorture an innocent person. T o prevent such extraordinary harms extreme actions seem to m e to be justified.

Exceptions to moral precepts don't collapse into absolute consequentialismMichael Moore,Warren D istinguished Professor of Law at University of San Diego Schoo l of Law, 1997,PlacingBlame. u. 707

SO& second com plexity that must be introduced into any plausible agent-relative view is the possibility thatnorms like 'never torture' hav e implicit exceptions clauses to them It may seem that su ch 'possibility of anindefinitely large num ber of exceptions' renders this into a consequ entialist view of m orality,92 but thiswould be a mistake. We must distineuish exce~tionso norms-excedions which are s i m ~ l v further fillingout of the content of norms- from overriding norms on occasion even when we admit that they are by theirterms a~vlicable.93The distinction is as familiar as the common law lawyers distinction betweendistinguishing a precedent case's holding (by showing how an unstated exception to the holding exempts thepresent case from its true reach) and overruling a precedent case's holding (where we adm it its applicabilitybut refuse to follow it in the case at h and). With this distinction in mind, we can see that consequentialism isthe view that we should ov em de moral norms like, 'don't torture', whene ver the balance of good over badconsequen ces say we sho uld. A non-conseq uentialist view of the comp lex kind here considered do es notallow such ovemdings of moral norms; it does allow moral norms to be quite complex in their contentbecause of its allowance of exception s to norms like, 'don't torture'. The only way the complex anent-relative view would collapse into a consequentialist view of morality would be if one counted as 'e xc e~ tio ns 'items like, 'unless g ood consesuences dictate otherwise'. Such 'exceptions' would of cou rse be nothing morethan an invitation for a general consequen tialist override of the norm in question .


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( ) CIqims of moral responsibility crush individual liberty3Waller (Prof. at Youngstown State Univ.) 90Bruce N., Freedom Without Resoonsibflitv,p. 203-4

1 T ~ E R ~ C I N A LCLAIM was that moral responsibility must be dis-tinguishcd from individual freedom: h e o-fault naturalist d a. . . . .. .'of moral responsibility does not -ua[ free-dom, an d evidcnce of (naturalist-c~rn~atibilist)ndividual freedomdocs not count in favor of moral responsibility. Thi s chapter hasbrought th e argument full circle: instead of mutual s u ~ p o r t b -

inquiries into th e c (both autonomous and het-eronomous) behavior, promotes punitive rather than positive social. p r o ~ r a m s . nd enmuraga inegalitarian social policies. Withqut tbc -hobbles of spurious moralr c s I ~ ~ ~cc 01 inor

r -c to u ' ' T iI freedom.-J z o 7 Cj'-.-- -IS the optimum environn~ent-f irndividual

( ) Notions of moral responsibility quash freedom-only rejecting moraresponsibility can preserve freedom and avoid absolutismWaller (Prof. at Youngstown State Univ.) 90Bruce N., Freedom Wllhout Re~g~t)s ibi l i tv ,. 186Moral res risibility, "just dacrts," and retributive punishmen tL&ans of ~r,crvint i n$v id4 frsdoy and d i g

nity; instead,thc no-fault naturalist dental ot moral responsibilityismore likely to promote and protcct genuine jndividual frcdom.In particular, the notior: of no-fault naturalist's opposingfrccJorn- - -a.pd imposing narrow "mind control" on anyone who dcviates is agrossly mistaken one. Nothing in determinism-naturalism or in theno-fault naturalist denial of moral responsibility implies such rcprcs-sivencss, and in fact (as wit1 be argued in the final chapter) no-faultnaturalism ismore naturally supportive of the broadat dn&leestm m c s p o n -=ity have ~ndeed hampioned autlioritarim intdcrancc; Irowcvcr,tbwc authoritatinti an d absolutist vicws st& from the rcligiow-as in "one truen religion-and not from tlic denial of moral re-sponsibitiry. That type of Absolutism is indeed a threat to toleranceaid openness an d individuality. But such absolutisr~intoknnnsm& likciy to be found in a system of motaf r_eswnsibiliruand justdeserts and r e ~ u t i o n ;t is no t&& rnfloy&h in a a e nv i r o~~~ i t e n tof no-ICeuIt rtatrcralisnr.)- ~ 4 b


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( ) F4eje&ingmoral responsibility is the only way to work towards bothmorality and freedomWailer (Prof . at Youngstown State Univ.) 90Bruce N., Freedom Without Peswonsibility. p. 200-1... ,..... 8 ,. .....-..- # *r & n moral ruponsibility;s dcnicf,-hc fundamental 'ustificationbipunirhrnenr is undcrhiiicd: no onewill e v a dc3crvr *

the ot he r direction, effective dtenmtivcs to punishnlent arc opencd9 ather than relymg hcavily on punishment (because it is "justlydeserved"), a more effective alternative is to encouraxe behavioralpatterns tha t arc incompattble~w ith he u n d e s i r a b l e M r . f i cs who~aplaatxsin r w ear qLOunishmerlt isnotacting freely; th c studenr who s not temvtcd to bccauses F E Z & d to c n i o y r h c I a t i o - n gand wrl tmg and thinking fo r hecseif-and because shc valucs thespirit of lnte~rcctual ommunity that plagiar ism betrays-nelyacts freely, but is also less likely to engage in p l a e i a r e t han ist h e s t u d e n t w h o rcfrains from fear of punishment. Bu t (as noted inChapte r Ten) optimal use of nonpunitive measures rcquires ab an-doning th e traditional conception of just descns.

(bchavior incompatible with the bchavior tot he individual who behaves detrimentally or

special treatmgnt-more benefits ( throu gha pattern of stretched interval reinforcerncnt, for example) lha n are-7a&ded the individual who bchayes hvell. Such a "violation" of' ' j ~ s t descrts" cannot b c used cffectively so long as the myth ofmoral respons~bility emains. Without m&al responsibility, there isg k a t e r scope for morc positive an d frecr (no ncocrc~ve no nonponi-tive) methods to shape free and "responsible" behavior-behaviorperformed bccausc the person wants to do it, behavior h a t ulti-mately is sustained and strengthened by natural sources of positivereinforcement: ( - L E ~G-(

. I

) Denying moral responsibility maximizes Individual freedomWaller (prof. at Youngstown State Univ.) 90Bruce N.. FreedornWithout R e s ~ o n s i b i l l t v ~. 195

i .!- f t n NO-FAUI:~ N A T U M ~ ~ ~ C O ~oral r . ,. .\cnt w i l l ~ aluian and prcsccw individual freedom. In particular,dcnyiilg w o rd responsibility does not Iicensc assaults on nd iv id~ lfreedonl under ih c guise o i ..therapy." But thc claim to bc agucdi z h p t e r s stronger: individual freedom i s nor thrtatcncd byiro-fault naturalism; ro t l ~ c c o n t r a r ~ ,lle_no-Caulnaturalist denial ofmoral rcspsnsibilitv lish - t i for preserving,koadcning, and s . . .- . (4


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SDI 2005Morality Toolbox CH-National security should trump civil liberties

Civil liberties should be curtailed during times o f emergency, like the war onterrorism--The public suppo rts it--The past has ma ny exam ples of measured restrictions--And, we alw ays re-balance rights after a period of reflectionKubler, 2004 (Joseph, St. John's Journal of Legal Comm entary, Spring, I8 St. John's J.L. Comm .63 1)We expect som e constitutional protections to erode in the face of danger. 1121Indeed, using th e classiceconomics of law approach, Judge Richard A. Posner argu es that "[civil liberties] shou ld be curtailed to theextent that the benefit of greater security outweighs the cost in reduced liberty." n22 "In wartime one canexpect "protections will be ratcheted dow n to the co nstitutional minimum,"' said Justice Scalia. n23Certainly the public sentiment is not ovenvhelminglv against many of these restrictions, as a survey ofHarvard law students show s overw helming support of racial profiling at airports. n24 Judge Posnercorrectly points out that our government's exaggerated responses in the past were considered reasonable atthe time; only after a period of calm reflection could wh at was excessive be sep arated from what wasnecessary. n25 Ho wever, after the period of calm and with the benefit of hindsight we have separated outwhat was proper and exagg erated and then put up procedural safeguards to protect against repeating ourindiscretions. n26 The real question should be, do these safeguards hold up when we are faced with thenext [*636] threat? Under what force will the levee break? Will we revert back to McCarthyism ordetention followed by a period of apolo gy or are we witnessing the slow judicial and political evolution ofconstitutional protections and civil liberties our forefathers contemplated?


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SD12005Morality ToolboxC

Separation of Powers violated nowCongress violating sep aration of po wers in religion vs. state areaWalston, Deputy Attorney General California, 2001 (Gregory, Universi ty of Hawaii LawRev, Summer, LN)Separation of powers principles prohibit Co ngress from interfering with the core functions of anotherbranch. n54 In Immigration and Naturalization Services v. Chadha, 11.55 the Supreme Court defined corefunctions as duties that are central to a branch's ability to perform its constitutionally-assignedresponsibilities. n56 In that case, the Court was faced with whether Cong ress could maintain a "legislativeveto" over deportation de cisions. n57 The Court invalidated Congress's unilateral deportation decisions,holding, inter aha, that deportation decisions w ere a core e xecutive function bec ause they w ere essential tothe executive branch's ability to perform its constitutionally-assigned responsibilities. n58 Therefore, thesedeportation decisions were core functions of the executive, and separation of powers principle s precludedCongress from abrogating exec utive authority to ma ke such decisions. 1159Under the delicate balance of pow er between the legislature and the judiciary, "the power to interpret theConstitution in a case or controve rsy remains in the Judiciary." n60 W here Con gress enacts a statute thatre-intemrets a constitutional provision by changing the requisite standard of showin g a constitutionalviolation, the statute is an im permissible usurpation o f the [*487] powers of the judiciary in violation ofseparation of powers principles. n61 In RLUIP A, however, Congre ss has, once again, reinterpreted theConstitution by shifting the burde n of proof in constitutional claims: RLU IPA states, "if a plaintiffproduces prima fa cie evidence to support a claim alleging a violation of the Free Exercise Clause . . . th egovernment shall bear the burden of persuasion on any element of the claim . . . ." n62 RLUIPA thuscreates constitutional rights in violation o f the S upreme Court's explicit holdings in City o f Boerne andChadha that separation of powers principles preclud e Congress from doing so. n63 RLU IPA's transparentre-interpretation of the judicial burden o f proof in a constitutional claim under the F irst Amendm ent is apatent infringement on the powers o f the judiciary under City of Boerne and Chadha .


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SDI 2005Morality ToolboxPrivacy violations now

CH

Privacy violations are inevitable - Privacy Act proves government has no incentiveto protect privacy and will eventually erode itHong, 2005 (Haeji, Akron Law Review , "Dismantling the Private Enforcement of the Privacy Act of1974: Doe V. Chao", LN)The government's illegal or careless disclosure of the social security numbe r to third parties, for any reason,is similar to leaving one's front d oor wide open - inviting thieves to steal. Because of limited resources andthe difficulty in tracing identity thieves, law enforcement rarely catches identity thieves. n28 4 This problemis compounded be cause m ost identity theft victims do not find out that their identities have been stolen untillong after the theft has begu n. n285 [* 1091 Thus, at the present time, safeg uarding the social securitynumber and other identifying information to prevent identity theft is more effective than relying on lawenforcement to catch identity thieves. Therefore, government agencies mus t take stringent proactivemeasures, now m ore than ever, to protect the privacy of individuals' personal information.3. The Importance of Private Enforcement of the Privacy ActTo do so, government agen cies should follow the Privacy Act and the guidelines of the Privacy Act morevigorously. Unfortunately, given the government's lack of incentives and the low priority on protecting theright of privacy, the Privacy Act is onlv effective if governme nt agencies are compelled to fo llow it. Toprevent substantial harm, such as identity theft, individuals must be able to bring actions to enforc e thegovernment's protection of individuals' informational privacy before sub stantial damage s arise. By swiftlybringing actions when illegal disclosures initially occur and forcing the governme nt to pay the statutoryminimum damage amount, individuals can compel government agencies to protect privacy more effectivelyand proactively.

Recent Suprem e Cou rt decision has upheld violations of Privacy ActHong, 2005 (Haeji, Akron Law Review , "Dismantling the Private Enforcem ent of the Privacy Act of1974: Doe V. Chao", LN )The Su preme Court's narrow construction of the Privacy Act will force individuals to overcome unrealistichurdles. The majority c ontorted the statute and the legislative history to reach a result that restrictsindividuals from effec tively enforcing the Privacy Act. n206 O n the other hand, the dissent'sstraightforward statuto ry construction is consistent with the purpose of the Privacy Act: n207 The Court'srestrictive interpretation is especia lly disturbing because the Court, in effect, held that indiv iduals have noremedy for the governmen t's unlawful disclosure of a person's social security number. n20 8 But ifindividuals have no effective remedy, who w ill enforce the Privacy Act? Historically, the governm ent hasproven itself to be a poor enforcer of the Privacy Act. n209 Thus, the Court's ruling in Doe v. Cha odecimates the likelihood of future enforcemen t of the Privacy Act.


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SDI 2005Morality ToolboxDu e Process violated now

CH

School districts violate d u e process rights of studentsNew York Law Journal, 2005 (April 7, 2005, "School District Is Not Entitled to Immunity, UnderEleventh Amendmen t, in Gun Case", Lexis-Nexis)The Fourteenth Amendment to the United States Constitution prohibits the state from de priving a person oflife, liberty, or property without due process of law. U.S. CONST . amend. XIV, A$1 . In Plaintiffs firstclaim, he contends that Defendant D eny 's consideration of B.G.'s written statem ents in his April 25, 2001decision without providing Plain tiff an opportunitv to cross-examine B.G ., especially in light of the factthat B.G. 's statements cons tit~ ~te dhe only evidence directly implicating Plaintiff, denied him a fair hearingand violated his procedural du e process rights under the Fourteenth Am endmen t. Comp laint (Dkt. No. 1) atAn3 1; Plaintiffs Memo. (Dkt. No. 15) at 22. In Plaintiff s second claim, he contend s that the School Districtviolated his due process rights by adopting Defendant De ny 's decision in its June 1, 2001 resolutionwithout sufficient evidence. Complain t (Dkt. No. 1) at ,4733.In any procedural due process claim, the initial inquiry should always be whether a property interest orright exists. The Sup reme Court in Board of Regents v. Roth, 408 U.S. 564, 577 (1972), held that propertyinterests derive from state law. Article XI, Section 1 of the New York C onstitution declares that the Stateshall provide children with a fi-ee public education. N.Y. C ONST . art. XI, ,481 ; see also N.Y. EDUC. LAWAtj3202(1 ). Thus, in New York, a s tudent such as Plaintiff has a protected property interest in hiseducation. meaning that he could not have been deprived of that right without due p rocess of law. Pollnowv. Glennon, 594 F. Supp. 220, 223 (S.D.N.Y. 1984).

Due Process violations occ urring in schoolsNew York Law Journal, 2005 (April 7, 2005, "School District Is Not Entitled to Immunity, UnderEleventh Amendmen t, in Gun Case", Lexis-Nexis)Constitutionally, due process " I-equires hat individuals have 'notice and opportunity for a hearin gappropriate to the nature of the case' prior to a deprivation of life. liberty, or property." Rosa R . v.Connelly, 889 F.2d 43 5, 43 8 (2d Cir. 1989) (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S.306, 3 13 ( 1 950)). "Notice must be 'reasonably calculated, under all the circumstances, to appraise interestedparties of the penden cy of the action and afford them an opportunity to present their obiections."' Id. at 439(quoting Mullane, 3 39 U.S. at 3 14).Defendants also contend that it is well established in the context of disciplinary proceedings that post-discipline due process provides su fficient due process to satisfv the requirements of the FourteenthAmendment. Def. M emo. (Dkt. No. 8) at 18. In Giglio v. Dunn 732 F.2d 1133, 1135 (2d Cir. 1998), theSecond Circuit noted that "due process requires only that a hearing be held at a meaning ful time and in ameaningful manner," and that " [wlh ere a predeprivation hearing is impractical and a post-deprivationhearing is meaningful, the state satisfies its constitutional obligations by providing the latter." Id. at 1135.The court found that an Article 78 proceeding is such a mea ning fd opportunity. Id.; See also Richardson v.Capt. Van Dusen , 833 F. Sup p. 146 , 153 (N.D.N.Y. 1993) (McAvoy, C.J.) ("[Elven when assuming that theSuperintendent's Hearing w as co nducted in [a] manner that deprived plaintiff of his due proc ess rights, theprocess afforded the plaintiff in the Article 78 proceeding cured any defect in the original hearing.");Monroe v. Schenectady County, 1 F. Supp. 2d 168, 172 (N.D.N.Y. 19 97) (McAvoy, C.J.) (finding that anArticle 78 proceeding provides an ad equate post-deprivation remedy and constituted "all the processplaintiff was due."); Gudema v. Nassau County , 163 F.3d 717, 724 (2d Cir. 1998).


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SD I 2005Morality ToolboxSeparation of powers has exceptions

There are exceptions to the separation of powers principleLononwski, '9 6 (Susan, Brandeis Law J, Spring, 34 U. of Lou isville J. of F a m . L . 421)n48 Id. at 701. In Dade County Classroom T eachers Ass'n v . Legislature, 269 So. 2d 684, 686 (Fla. 1972),Chief Justice Roberts, writing for a unanimous court, stated:We think it is approvriate to observe that o ne of the excep tions to the separation-of-pow ers doctrine is inthe area of constitutionally g uaranteed o r protected rights. The iudiciary is in a lo@ sense the guardian ofthe law of the land and the Constitution is the highest law. A constitution would be a meaninglessinstrument without some responsible agency of government having autho rity to enforce it. . . . When thepeople have spoken through their organic law concerning their basic rights, it is primarily the d u f ~f thelegislative body to provide the ways and m eans of enforcing such rights; however, in the absence ofappropriate Iegislative action, it is the responsibility of the courts to do so.

CH


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SD I 2005Morality Toolbox CH

Privacy exceptionsThere are key exceptions to the privacy principleCrawford, counsel to Association to Benefit Children, '96 (Col in, Cardo zo Women's LawJournal, 3 Cardozo Women's L.J. 3 1, LN )A. Privacy Con cerns. The privacy argument against pediatric H IV testing would presum ably go as follows:everyone has a right to m ake cho ices about his or her own health. Because a m other is entitled to thisprotection as much as anyone else, testing her child - and thus identifying the mother's HIV status - is animpermissible infringement on her constitutionally protected right to privacy.This argument fails, however, because of a key excep tion to privacy d octrine , the comp ellinc: state interestexception, which provides that the overriding public interest in protectin& he uublic [*38] health andwelfare supersedes nearly all personal ri ~ h ts . 25 Typically, privacy law has been bifurcated into two mainlines of case law: those cases dealing with confidentiality, and those concerned with related questions ofautonomy. Again, even if the pediatric HIV testing issue is examined in light of these cases, noconstitutional concern would argue against ABC's position as outlined in these remarks.


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SDI 2005Morality Toolbox CH

Due process exceptionsThere are impo rtant exceptions to du e process guarantees - chools proveBosniak, Fellow, Georgetown, 2002 (Georgetown Immigration Law Journal, Winter, 16Geo.Immigr. L.J. 407, LN)There is an important exception to due process requirements: "Students whose presence poses a continuingdanger to persons or property or an ongoing threat of disrupting the academic process may be immediatelyremoved from school," provided notice and hearing follow as soon as practicable. n93 The dilemma forschool officials u nder this ex ception is d etermining ( I ) when d oes a student's mere presence pos e a"continuing danger to persons or property" and (2) when does a student pose an "ongoing threat ofdisrupting the academic process"? For threatening behavior, Brandenburg provides an approp riate rule.Ad voca ting force or illegality may be proscribed if it is "directed to inciting imminent lawless action and islikely to incite or produce such action." n94 T he next two sections examine how schools and courts answerthese questions following several sensational violations of the sanctity of the schoolhouse. The answersreveal that school policies are overinclusive and courts do not provide adequate safeguards by mandatingdifferent grades of protection for student speech that is threatening.

Ther e are important exceptions to due process guaran teesBosniak, Fellow, Georgetown, 2002 (Georgetown Immigration Law Journal, Winter, 16 Geo.Immigr. L.J. 407, LN)There are certainly common themes that link these cases, yet stringing them t

morality and answers

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