Strengthening Constitutional Self-Government

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Spitzer: changing the subject

The distinguished moral philosopher Martha Nussbaum tries to change the subject in this op-ed. Here’s her opening:

Eliot Spitzer, one of the nation’s most gifted and dedicated politicians, was hounded into resignation by a Puritanism and mean-spiritedness that are quintessentially American.

My European colleagues (I write from an academic conference in Belgium) have a hard time understanding what happened, but they know that it is one of those things that could only happen in America, where the topic of sex drives otherwise reasonable people insane. In Germany and the Netherlands, prostitution is legal and regulated by public health authorities. A man who did what Spitzer did would have a lot to discuss with his wife and family, but he would have broken no laws, and it would be laughable to accuse him of a betrayal of the public trust. This is as it should be. If Spitzer broke any laws, they were bad laws, laws that should never have existed.

A little later, she offers us this nugget of wisdom, comparing prostitutes and professors (indicating thereby a low view of both the mind and the body):

Professors, factory workers, opera singers, sex workers, doctors, legislators — all do things with parts of their bodies for which others offer them a fee. Some people get good wages and some do not; some have a relatively high degree of control over their working conditions and some have little control; some have many employment options and some have very few. And some are socially stigmatized and some are not. However, the difference between the sex worker and the professor — who takes money for the use of a particularly intimate part of her body, namely her mind — is not the difference between a "good woman" and a "bad woman." It is, usually, the difference between a prosperous well-educated woman and a poor woman with few employment options.

It’s true that I shouldn’t sell my thoughts to the highest bidder, saying (or writing) what I think people want to hear in order to make a buck. But my mind, and the capacity it embodies (reason) is meant to be public, meant to enable me to join a community. Nussbaum, who has written ad infinitum (or is it ad nauseum?) on cosmopolitanism (especially its ancient roots in Stoicism) is aware of this. Expressing her nature, one might say, she doesn’t keep her thoughts to herself. She’s trying to arrange a meeting of the minds. I might disagree with her on some counts, but I surely don’t think that I could offer her enough money--any sum of money--to change her mind.

Which brings me to her argument about prostitution. For her, it’s just another way of earning a living. We all do what we can. If we were truly enlightened, if we got over our "quintessentially American" mean-spirited Puritanism (well, at least she didn’t call it Talibanism; I’ll give her that), we’d recognize that our sexual organs are just another part of our body, to be used as we see fit, according to our "values." No natural teleology here. Everything’s exploitable for any end, so long as the partners consent. But, on this view, why should consent matter? What is it that makes us so worthy of respect that our consent should be required?

I suppose also that Nussbaum’s observation that Spitzer might have "a lot to discuss with his wife and family" has to do with the matter of consent (about which, at the moment, she probably knows nothing) rather than about the way he regarded his bodily parts and those of the women with whom he engaged in transactions. Nussbaum presumes that this wasn’t O.K. with his wife and daughters. On what ground? Perhaps the ground that marriage, procreation, and child-rearing have ineluctably "teleological" elements that point to proper uses for our bodies. We don’t regard our spouses as sex workers, nor do we regard our children as potential sex workers. We would, I think regard anyone who held this opinion about his or her spouse and children as depraved. I don’t think Nussbaum is depraved. As evidence, I cite the fact that she believes that Spitzer "ought" to have an issue with his wife and daughters. But this, it seems to me, counts against her argument that prostitution is just another industry, that various parts of our bodies are just profit centers.

If that’s the only defense of Spitzer a smart woman like Nussbaum can come up with, then her side of the argument is in pretty sad shape.

Discussions - 20 Comments

Hmm. I don't recall her defending Larry Craig in this same spirit. Mind you, he's from the "wrong" political party.

Everything’s exploitable for any end, so long as the partners consent. But, on this view, why should consent matter? What is it that makes us so worthy of respect that our consent should be required? This is very well put, Joe. Thanks. The whole notion of consent does imply a natural order of the universe that requires some respect. Nussbaum, by ignoring this, is engaged in more of the "happy" or "optimistic" nihilism that characterizes Americans who are corrupted by it.

Nussbaum's argument may work had Ms. Dupre been a midwife...

It's rather sad to see someone as bright and accomplished as Prof. Nussbaum sully herself with a defense of the thoroughly reprehensible Mr. Spitzer. And it's oh so strange to see the advocates of an unyielding and unreserved right of sexual liberty then turn around and reduce the thing such liberty is to protect to little more than some recreational transaction. That really is just a sad, sad effort.


You really should look at the debate between Will Wilkinson and Ross Douthat on this topic from a few days ago. Will makes an argument similar to Nussbaum's, pointing out that your side of the argument assumes that selling the use of penises and vaginas is somehow different than selling the use of other parts of our bodies, which we do all the time. But what is the basis of this assumption? That doing so makes the more conservative among us feel icky?

Leon Kass might be content with that argument, but the rest of us find it pretty inadequate.

Will makes an argument similar to Nussbaum's, pointing out that your side of the argument assumes that selling the use of penises and vaginas is somehow different than selling the use of other parts of our bodies, which we do all the time. But what is the basis of this assumption?

What is the basis of your assumption, that the use of penises and vaginas is no different from selling anything else? How about turning that skepical eye on your own deeply held beliefs, if you can.


Why does consent matter? What is it about our character as rational beings (should I say "our nature"?) that elevates consent to the place it has is much of contemporary liberal theory (which I take it, perhaps wrongly, that you share)? It seems to me that arguments about consent smuggle nature (and teleology) in the back door; else they're just as arbitrary as anything else, and all we have is will to power. To be sure, this is a possibility, but one I suspect that neither you nor Nussbaum nor Wilkinson wishes to embrace (though I have to confess to not being familiar with Wilkinson's corpus).

If our character as rational beings is important, what prevents us from looking for natural purposes elsewhere?

Let me state it another way: if you acknowledge that there are good and bad arguments, good and bad uses of reason, why can't there be good and bad uses of other parts of our bodies?

I hope Joe and Damon continue their debate. Sounds to me that their differences are foundational and terribly consequential. Just what this blog should be about. And could *someone* get Leon Kass himself to join in, if only in part to shed light on Mr. Linker's gibe?

Well, if that's how they do things in Europe, then thank God I'm not European by birth. Secular humanism/nihilism is reproachful, and thank God for "Puritanism and mean-spiritedness that are quintessentially American."

We demand the same values of our political leaders as we do of ourselves. I would have it no other way.


I'm not sure I follow you. Did I mention consent? If not, why do you raise it right off the bat?

I'm also confused about why you place so much weight on us being "rational beings." Sure, human beings can use reason, but we can do many other things, too. Why do you privilege reason so much? What's at stake in you doing so?

As for your restatement at the end of your comment, yes, there are good and bad arguments, in the sense of valid or persuasive and invalid or unpersuasive arguments. And yes there are bad uses of reason, in the sense that I can employ reason poorly to make false distinctions, invalid inferences, etc. But how does the analogy apply to parts of our bodies (meaning, I assume, sexual organs)? Or do you mean that reason can be put to evil purposes, just as our sexual organs can be put to evil (albeit pleasurable) purposes? If you think so, I invite you to give me some examples. (I predict one example will involve incest, which is where Ross Douthat ended up in his debate with Will W.) In a word, there can be morally "good and bad uses of other parts of our bodies." You just have to tell us what those uses are and why such uses are, in fact, good and bad, i.e., in light of what account of the whole.

Since I have so little to say in response to the questions you posed, let me try a different approach. You seem to be concerned about consent because you sense that the emphasis placed on it in liberal theory presupposes a theory of human dignity that is not defended as such. You're absolutely right about that. Liberals (including libertarians like Will W.) do tend to assume that individuals possess such inviolable dignity, and they do little-to-no theoretical work to ground this assumption.

That sounds pretty philosophically lame, and it is. It's a faith. But what's a liberal supposed to do when he or she can't get him- or herself to believe in a more traditional theological ground of human dignity? Must one choose between being a traditional theist, embracing an implausible Thomistic teleology that holds out procreation as the fixed natural end of our sex organs, or a Nietzschean sadist, out to devour the tasty little lambs of the species? Are those really our only options? Sorry, I don't buy it. Why not try to live decently without god, as lots of pagans did and do? (The Stoics, for example, were neither theists nor nihilists. The same holds for an existentialist like Camus.) I'm afraid I have no other choice -- and I suspect many liberals, if pushed, would say the same.

"...embracing an implausible Thomistic teleology that holds out procreation as the fixed natural end of our sex organs,..."

Damon, would you comment further on why you find a "Thomistic teleology..." implausible?
And would you agree that your own position is, finally, a "faith"?

-Gary Seaton

How do we know what it is to live decently without God, who ties us back to goodness? Who gets to decide what is goodness and decency absent an absolute standard? Even those who don't live by faith, but love goodness, seem dependent on those who do for their standards of decency.

It does seem a shame that we are dependent on reasonable words to describe faith, which is unreasonable. I mean any faith, not just my own Christian one. If I can't accept the premise that there is no God, then nothing that follows seems logical to me in an argument. Anyway, the premise that God exists demands decency from me. The premise that God is not or might not be or is irrelevant to any discussion would leave the question of what is right and good wide open to interpretation. A world where men do what is right in their own eyes - life would be nasty, brutish and short.


I'm on holiday and so don't have time to say much. I suppose that I dragged in reason because that, ultimately, seems to be the bar before which many contemporary liberals and libertarians would bring everything. Of course, that reason is either instrumental or practical, but emphatically not teleological. As you concede,however, the privileging of reason and the assertion of dignity rest, in many cases, on shaky ground.

Is the ground on which pagans--who try to live decently without God--rest any less shaky? I suppose that you could offer a sort of non-theistic teleology, based upon an orderly cosmos. Or you could make a Platonic move, which vindicates gentlemanliness to the degree that it points toward philosophy (which also makes sense if there's at least the prospect of an intelligible universe). But is the argument for these grounds of decency any better than the neo-Thomism you dismiss?

And I'm sure you're aware that in both the Thomistic and Reformed traditions there's provision for "living decently without God," inasmuch as God has given human beings the capacity, without revelation to recognize the distinction between good and evil. So those traditions offer a ground for the decency you seem to cherish. But if you're not a philosophic or moralistic Socratic (the contradiction in terms that seems to be Stoicism), I don't see how you can offer anything other than the Rortian shrug.

Perhaps I can offer you a fuller response when I'm back home. But I also need something more from you before I do.

Mr. Linker's back.

Apropos to his anti-Kassian jibe at the end of comment #5: he might want to read Kass's essay "Thinking about the Body" which can be found in Toward a More Natural Science. In it he (briefly) considers the meaning of our genitalia within the broader context of reflections upon our upright posture. It is passing strange to me how the reflections on our natures and on ethics by Leon Kass are constantly caricatured.


Please call me Damon. We were once friends, after all, and I, for one, would be happy to continue thinking of you as a friend, despite our differences.


My argument in favor of human dignity is phenomenological. Every human being, when harmed by another, experiences a kind of righteous indignation, a feeling that something within the natural order of things has been violated. That's it. As I put it in a 2001 article for Commentary about animal rights, "How do we know that human beings possess this dignity? Because they tell us they do." And they go on to demand that it be recognized by other human beings and the state -- even though there is no extra-human basis for believing that it exists, i.e., there's no god that grounds it or is its source. You may call it universal intersubjective assertion of the will to power if you wish, but it would be more accurate to see it as something like Hegelian liberalism. (After all, there is no extra-human ground for rights in his system either.)

Now, there is no way that this minimal, intersubjective faith will satisfy you (Joe), Gary, or Paul, let alone Kate, given your much thicker theological commitments. But I do hope that you can understand why Thomism just isn't an option for me, just as it isn't for most modern liberals. Thomism isn't an option because it makes no sense outside of the conceptual universe of biblical Judeo-Christianity. (Paul, I've read Kass on the body, and I think he smuggles in all kinds of assumptions; it's just not possible, in my view, to derive so much moral content from our experience of nature, let alone the evolutionary fact that we happen to stand upright. Sorry.) Aquinas (and the reformed tradition, too, for that matter) might leave a lot of leeway to philosophical reflection, but its "reason" is still grounded in and limited by a prior revelation that must remain untouched by reason. And I haven't experienced such a revelation. So what would you have me, and other liberals, do?

Did I shrug when I wrote that? I don't think so. I'm not indifferent to my own a-theism. (I use the hyphen because I don't go around trying to puncture other people's faith, as Harris, Dawkins, and Hitchens like to do. I am merely without faith.) I'm not indifferent at all. But it is what it is. I do my best. I muddle through. Believers tell a nice story. I just think it's much more likely to be a fairy-tale than true. (Much like Socratic fairy-tales about the godlike self-sufficiency of The Great Philosopher.) So again, what would you have me and like-minded believers do? Pretend to believe for the sake of the public good (which is one version of the Straussian catechism)? But I don't think believers automatically make better liberal citizens. I like secular Europe. And I'm not kept up at night fretting that we'll all start acting like sociopaths if American citizens stop thinking of the United States as a "nation under God." That leaves being true to world as I see it and learning how to live within its limitations. It would be delightful to believe that everything adds up, ties together, harmonizes morally and theologically and scientifically -- that, for example, my upright posture can show why I shouldn't cheat on my wife, and perhaps even why the state should punish me if I do. But I live in a world in which things only add up like that in fantasies, and I'd prefer not to live my life in a delusion.

For those who do not have the Kass text handy (with apologies for the length):

"What is the meaning of nakedness? Why is the awareness of one's nakedness shameful? To be naked means, of course, to be defenseless, unguarded, exposed -- a sign of our vulnerability before the elements and the beasts. But the text [Kass is referring to the Adam & Eve story -- which he is reading not with faith but with reason] makes us attend, as did our ancient forebears, to our sexuality. In looking, as it were, for the first time upon our bodies as sexual beings, we discover how far we are from anything divine. As a sexual being, none of us is complete or whole, either within or without. We have need for and are dependent on a complementary other, even to realize our own bodily nature. We are halves, not wholes, and we do not command the missing complementary half.

Moreover, we are not internally whole, but divided. We are possessed by an unruly or rebellious 'autonomous' sexual nature within -- one that does not heed our commands (any more than we heeded God's); we, too, face within an ungovernable and disobedient element, which embarrasses our claim to self-command. (The punishment fits the crime: The rebel is given rebellion.) We are compelled to submit to the mastering desire within and to the wiles of its objects without; and in surrender, we lay down our pretense of upright lordliness, as we lie down with necessity.

On further reflection, we note that the genitalia are also a sign of our perishability, in that they provide for those who will replace us. [snip]Crucial to the development of genuine sociability and culture is the perception of one's place in the line of generations. Those who aspire to autonomy and self-sufficiency are prone to forget -- indeed eager to forget -- that the world did not and does not begin with them. Civilization is altogether a monument to ancestors biological and cultural, to those who came before, in whose debt one always lives, like it or not. We can pay this debt, if at all, only by our transmission of life and teachings to those who come after. Mind, freely wandering, in speculation or fantasy, can forget time and relation, but a mind that thinks on the body will be less likely to do so. In the navel are one's forebears, in the genitilia our descendents. These reminders of perishability are also reminders of perpetuation; if we understand their meaning, we are even able to transform the necessary and shameful into the free and noble. For even in yielding to our sexual natures -- I must add, only heterosexually -- we implicitly say yes to our own mortality, making of our perishabable bodies the instruments of ever-renewable human life and possibility. Embodiment is a curse only for those who believe they deserve to be gods" ("Thinking about the Body," pp. 291 & 293).

It's interesting to note that "the subject" (which is what, exactly? Hypocrisy? The need for Spitzer to resign or be impeached? What?) didn't need to be changed here at NLT when Senator David Vitter (who still holds his office, by the way) got caught up in his prostitution scandal, which involved prostitutes in both DC and Louisiana. THAT subject just simply wasn't brought up. I wonder why.

Until the moment when any prostitution laws are abolished or changed, I'm comfortable enough with expecting resignations or threatening impeachment with public servants who get caught with their pants down. So, I'm not shedding any tears at all for Spitzer's exit. He did do some admirable work as attorney general, and I do think that the circumstances underlying Spitzer's bust look sketchy, at best (regarding selective prosecution and the political nature - appointed agents pursuing specific elected targets - of the investigation), but he broke the law, so he's gone. Yet I do wonder why Vitter's crimes did not cause as much indignation and outrage on the right as Spitzer's have. And I wonder why Vitter still holds office (and the "statute of limitations" sure seems like a lame cop-out).

Craig: Perhaps the philosophical foundations and consequences of Vitter's dalliance didn't come up because, at the time, Martha Nussbaum didn't write to defend him.
Damon, thanks for weighing in. The last thing those of us with "much thicker theological convictions" want is for you to live with any delusions. St. Paul was uncommonly clear on that. "If Christ has not been raised from the dead, then our faith..." Unlike Joe and Paul, I'm not a trained academician. But it seems to me that your own position is as much -or more - indebted to an "unrevealed faith" as the "revealed faith" proposed by the Church. That observation, of course, doesn't settle the truth of the matter. I'll look to Joe and Paul and others to continue the conversation.
BTW, I met and visited with you at the Union League Club in the fall of '99. RJN and Russ Hittinger hosted the event...which was happily "thick with theological convictions." Lenten cheers.


I'm familiar with the phenomenological argument from indignation, which tends to lead either to Kant or to the Platonic analysis of the problematical character of spiritedness. Kant can't leave it at phenomenology, but also can't believe the "metaphysics" required to make the indignation comport in some way with reason.

Another possible point of departure for a phenomenology is gratitude. Is this any less "reasonable" or "real" than beginning with indignation? Rather than focusing on ME or on the violator of the "natural order" (your words, in this case, not mine), it points toward an author of the natural order.

I've thought a lot about anger, having drunk deeply of the pleasures of righteous indignation in my younger days. But I learned a long time ago that it doesn't lead to reasonability...and it's certainly not consistent with the Stoicism to which you earlier pointed.

I understand the a-theist's desire not to be blamed for not seeing what he doesn't see. It would be nice if he returned the grace, if only in a social way, and did not blame the faithful for seeing what they cannot help seeing. We are accused of "fantasy" and "delusion" and "telling nice stories" and told that our reality is a false one. How do you know? You say you know simply because it is something that is not your reality. Neither is my husband of your reality, nut I promise you, he exists. I can accept that you do not experience the world as I do, and do not accuse you of anything.

Biblically, faith is described to me as a gift. In our current world society, it is an uncomfortable gift. If we could put it in the back of a drawer and forget about it, life might be easier. It is not that kind of gift. Mr. Linker, you may not think you are not trying puncture faith, but you have a brutal way of defending your lack of the same. "I do not condemn you for your faith, I merely point out that you are delusional. How do you miss the fact?" Such is the politeness of atheism.

Is it really the modern liberal experience of the world, "I am indignant, therefore I am"? A lot of modern discourse makes sense, if true.

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