Althouse: "It is a misunderstanding of freedom... to suppose that choice is not free when the objects between which the chooser must choose are not equally attractive to him."

October 28, 2014

"It is a misunderstanding of freedom... to suppose that choice is not free when the objects between which the chooser must choose are not equally attractive to him."

"It would mean that a person was not exercising his free will when in response to the question whether he preferred vanilla or chocolate ice cream he said vanilla, because it was the only honest answer that he could have given and therefore 'he had no choice.'"

Wrote Judge Posner (in a 2003 case that comes up in my Religion and the Constitution class).

42 comments:

David said...: I would add strawberry, a banana, some nuts, pineapple and chocolate sauce topped by whipped cream and a cherry. Now that's freedom.; 10/28/14, 10:35 AM
Ignorance is Bliss said...: As an atheist, I must point out that the Freedom from Religion people are asses.; 10/28/14, 10:51 AM
Big Mike said...: Guy sure doesn't like to write plainly, does he?; 10/28/14, 10:58 AM
Fernandinande said...: "It is a misunderstanding of freedom... to suppose that choice is not free when the objects between which the chooser must choose are not equally attractive to him."

Fortunately nobody except judges seems to have that misunderstanding.

"It would mean that ..." judges write a lot of stuff that falls somewhere in the realm of false, trivial and gibberish.; 10/28/14, 11:02 AM
Sofa King said...: Fortunately nobody except judges seems to have that misunderstanding.

I encounter it all the time.

THEM: We are slaves to capitalism.

ME: You are not a slave. You freely choose to work.

THEM: No, I have no choice at all, because I have to (eat | pay rent | have internet).; 10/28/14, 11:07 AM
rhhardin said...: I always flip a coin and then do the opposite.; 10/28/14, 11:11 AM
Paddy O said...: Interestingly, I used an ice cream analogy in my theology classes.

Using the creed, "I believe..." What does "believe" mean in light of the creedal statements. I believe I like vanilla is a form of belief, but it's a pretty big misunderstanding of the nature of religion to see that form of belief as equivalent to "I believe in God the Father Almighty, maker of heaven and earth."

One is a relatively benign preference without real consequences, one is an assertion of how reality is shaped that then has repercussions in every other element of life.

Seeing preference as equivalent to religious belief suggests the judge has no business talking about religious cases.

Maybe a closer analogy would be to offer that choice to someone who is severely lactate intolerant, will die or be put into the hospital if they choose either vanilla or chocolate.

"Choose!" That's a demand that takes away free will.

In a curious way, Posner's analogy is a bit akin to saying gays have always had the freedom to marry, they could marry any woman they wanted to. Has that been considered freedom?; 10/28/14, 11:11 AM
Bobber Fleck said...: So Janis Joplin was right all along: "Freedom is just another word for nothing left to lose."; 10/28/14, 11:13 AM
HoodlumDoodlum said...: A reductio alsmost writes itself, no?
You must choose whether to vote for the Party or get shot. Hey, it's your free choice, buddy.

What if responding to the ice cream question is itself what you consider a violation of your freedom (ie you believe you have a right not to answer at all, or perhaps not to have to choose)?; 10/28/14, 11:26 AM
Now is the winter of our discontent made glorious summer by this son of New York said...: What he should more properly have said is "I would like to redefine freedom thus:"

But that would have carried a lot less legal weight, him not being a legislator and all.; 10/28/14, 11:26 AM
Krumhorn said...: While Judge Posner's argument has a facile appeal, it doesn't really work at anything other than a superficial level. Take the basic choice: return to prison vs. stay at a halfway house and find Jesus.

That's not a vanilla/chocolate choice. It's not even a vanilla/poo-flavored ice cream choice.

I would prefer it if the judge were to state with the same clarity that felons don't enjoy all of the niceties of our constitutional protections any more than do illegal enemy combatants.

Oh wait.......

Nevermind.

- Krumhorn; 10/28/14, 11:44 AM
lgv said...: "Guy sure doesn't like to write plainly, does he?"

LOL. The title line of the post has to be read carefully if you are a bit tired, but the whole decision reads pretty well. The case seems very clear.

I wonder if there are some less clear cases, e.g. go to AA or get jail time.; 10/28/14, 11:45 AM
Mark O said...: If viewed that way, there can be no free will. Many, many, many writers and thinkers disagree.

If he is correct, however, how do we ever find someone guilty of a crime that requires intent?

I'll wait.; 10/28/14, 12:06 PM
Mark Caplan said...: "I short-handed this point...."

Normally "short-handed" means understaffed. Hillary's unusual coinage refers to an office secretary's role as stenographer. She is obviously pandering to her overworked, underpaid sisters in the labor force.; 10/28/14, 12:08 PM
Ignorance is Bliss said...: Krumhorn said...

While Judge Posner's argument has a facile appeal, it doesn't really work at anything other than a superficial level. Take the basic choice: return to prison vs. stay at a halfway house and find Jesus.

Is that the choice presented in this case? From reading the opinion it sounds like the choice was stay at a halfway house where they will encourage you to find Jesus vs. stay at a halfway house where they won't.; 10/28/14, 12:09 PM
Sarah from VA said...: Krumhorn, if you'll read the opinion, the choice was not to stay at the religious halfway house or go to prison. The choice was to go to a religious halfway house or a secular halfway house.

(The ice cream got involved because the religious halfway house offered a longer supervised stay, and therefore might have been considered better than the secular offerings. But that's vanilla and chocolate.); 10/28/14, 12:11 PM
RecChief said...: The title line of the post has to be read carefully if you are a bit tired, but the whole decision reads pretty well. The case seems very clear.

I wonder if there are some less clear cases, e.g. go to AA or get jail time.

When I first joined the military, there were a number of guys in my unit who had gone before a judge, and the choice was jail time or an enlistment. Like that kind of choice?; 10/28/14, 12:14 PM
jr565 said...: Paddy O wrote:
In a curious way, Posner's analogy is a bit akin to saying gays have always had the freedom to marry, they could marry any woman they wanted to. Has that been considered freedom?

Isn't it saying that just because gays didn't have right to gay marriage it wouldn't mean they were not free?; 10/28/14, 12:16 PM
Unknown said...: Chocolate Chip. But sometimes Chocolate Chip Cookie Dough, too.; 10/28/14, 12:17 PM
PatHMV said...: The statement is true enough, generally. But there becomes a point where one choice is bad enough that it does in fact negate the real freedom to choose.

"Give me your wallet, or I will shoot you in the head." Two choices, but no freedom.

That's one end of the spectrum, to establish that there are "unfree" choices as a general principle.

At the other end of the spectrum is "Choose to work at X job and make $100,000 a year or at Y job and make $95,000 a year, both with similar working conditions and time requirements." Complete freedom of choice, even if one option is slightly less attractive than the other.

And then there's the hard, murky middle.

"(1) Work in the coal mines, live in the coal company town, and go broke buying everything from the company store, or (2) be some scratch-luck farmer or moonshiner, or (3) move away from all of your family and find some other job in someplace you've barely even heard of."

Choosing option 1 is not what I would call the freest choice ever made. But still freer than many people have had throughout human history.

Some hard-core libertarians (probably closer to anarchists) tend to assert that even my first example represents a free choice, because nobody can actually force you to act against your will. They can merely threaten unpalatable alternatives.; 10/28/14, 12:22 PM
jr565 said...: Pat HMV wrote:
The statement is true enough, generally. But there becomes a point where one choice is bad enough that it does in fact negate the real freedom to choose.

Vote for Sadaam Hussein or get a bullet to the head.; 10/28/14, 12:25 PM
chillblaine said...: Freedom is servitude.; 10/28/14, 12:37 PM
steve uhr said...: Freedom of will is a myth. Either our actions are controlled by our genes, which we have no control over, or they are controlled by our environment, which we have no control over.; 10/28/14, 12:49 PM
Rusty said...: steve uhr said...
Freedom of will is a myth. Either our actions are controlled by our genes, which we have no control over, or they are controlled by our environment, which we have no control over.

That lets you off the hook for all kinds of behavior.; 10/28/14, 12:50 PM
Fernandinande said...: chillblaine said...
Freedom is servitude.

Well, "freedom is slavery". And war is peace, ignorance is strength, and judges are interesting, deep-thinking philosophers.; 10/28/14, 12:51 PM
Fernandinande said...: Sofa King said...
"Fortunately nobody except judges seems to have that misunderstanding."

I encounter it all the time.

THEM: We are slaves to capitalism.

I was referring to adults.; 10/28/14, 12:56 PM
Ann Althouse said...: "Fortunately nobody except judges seems to have that misunderstanding."

It's the plaintiff in the case that pushed that understanding. The 3 judges rejected it.

The plaintiff was the Freedom from Religion Foundation. They were arguing that parolees given a choice of going back to prison or into a halfway house were coerced into the religious halfway house because it was clearly the best of the halfway houses from which the parolee could choose.; 10/28/14, 12:57 PM
steve uhr said...: "That lets you off the hook for all kinds of behavior"

My wife (i.e., my environment) keeps me in line for the most part.; 10/28/14, 12:57 PM
Ignorance is Bliss said...: steve uhr said...

Freedom of will is a myth. Either our actions are controlled by our genes, which we have no control over, or they are controlled by our environment, which we have no control over.

I disagree. I believe that my actions are fully deterministic* ( based on my genetics, environment, the chemical composition of what I ate for breakfast this morning, etc ) and that I have free will.

All those deterministic things happening inside my head are me. The decisions that they cause me to make are my decisions, freely chosen.

*I am open to the possibility of random events at the quantum level effecting my decisions, but since that randomness is outside of my control, it does not add or subtract from my free will.; 10/28/14, 1:13 PM
Unknown said...: didn't someone once say "you gotta serve somebody"?; 10/28/14, 2:14 PM
jr565 said...: Rusty in response to steve uhr wrote:
Freedom of will is a myth. Either our actions are controlled by our genes, which we have no control over, or they are controlled by our environment, which we have no control over.

"That lets you off the hook for all kinds of behavior."

That's the whole point. Makes you listen to Lady Gaga's song Born This Way in a whole new light.; 10/28/14, 2:16 PM
Ignorance is Bliss said...: Unknown said...

didn't someone once say "you gotta serve somebody"?

Yeah, I think that was one of the hipsters from Terminus talking about the plans for Thanksgiving dinner.; 10/28/14, 2:35 PM
Unknown said...: This comment has been removed by the author.; 10/28/14, 3:09 PM
Unknown said...: "It is a misunderstanding of freedom... to suppose that choice is not free..."

There is always a cost.

ROMANS 6:16 -- Don't you realize that you become the slave of whatever you choose to obey? You can be a slave to sin, which leads to death, or you can choose to obey God, which leads to righteous living.; 10/28/14, 3:11 PM
Krumhorn said...: Ignorance is Bliss:

Is that the choice presented in this case? From reading the opinion it sounds like the choice was stay at a halfway house where they will encourage you to find Jesus vs. stay at a halfway house where they won't.

and

Sarah:

Krumhorn, if you'll read the opinion, the choice was not to stay at the religious halfway house or go to prison. The choice was to go to a religious halfway house or a secular halfway house.

(The ice cream got involved because the religious halfway house offered a longer supervised stay, and therefore might have been considered better than the secular offerings. But that's vanilla and chocolate.)

Of course, I read the opinion. I just wasn't clear enough about the issue. The choice Judge Posner was discussing was the choice between a secular (and less good option) and the religion-affiliated (better) option.

However, the "basic choice" I was referring to was whether to return to prison or enter a halfway house as a threshold matter. That's no choice at all, and that was the flaw in the judge's reasoning. But he shouldn't have bothered.

It seems to me that parole or probation violating felons ought not to treated as if they are fully-vested with all of the constitutional niceties of the rest of us citizens who manage to avoid committing felony acts.

If the best choice for that miscreant is to end up somewhere that features finding Jesus as a path forward, I'm all for it so long as there is no requirement that he or she actively search for Jesus. All this hand-wringing about equitable options is wasted judicial energy.

Similarly, I don't lose sleep at night if illegal enemy combatants don't know which way is East on their cellblock in Gitmo, or, for that matter, if they are held indefinitely without trial.

-Krumhorn; 10/28/14, 3:12 PM
Ignorance is Bliss said...: I have no problem with convicted felons losing some of their rights, but I still want the establishment clause to be a limit on the government regardless of the rights ( or lack of them ) of the individual involved.

Note that in this case I agree with Posner that the establishment clause is not violated.

I do wonder how some people would react to this decision if the halfway house in question was Islamic rather than Christian.; 10/28/14, 3:49 PM
Revenant said...: The success of Alcoholics Anonymous is evidence that Christianity can be a valuable element in a program for treating addiction.

That's an embarrassingly silly thing for Posner to have written. Not just because he confuses correlation with causation, but because he isn't even right about the correlation -- AA hasn't been Christian for a long, long time, and its success rate isn't actually very good.; 10/28/14, 3:52 PM
Revenant said...: "That lets you off the hook for all kinds of behavior."

Except it doesn't, of course.

When something that lacks free will poses harm to human beings, we don't usually say "oh, it isn't in control of itself, we shouldn't do anything". We don't let rats run wild through our food supplies, we don't let weeds choke our gardens, etc.

Why would we act differently in response to a human murderer pleading that he's incapable of deciding not to murder? Either he chose to murder, in which case he should be punished for moral reasons -- or he's incapable of choosing not to murder, in which case he's a weed to be pulled.; 10/28/14, 4:17 PM
bbkingfish said...: I think anyone who has had the experience of voting understands Posner's meaning.; 10/28/14, 4:26 PM
Scott said...: "This is a taxpayer suit to enjoin Wisconsin correctional authorities from funding Faith Works, a halfway house that, like Alcoholics Anonymous, incorporates Christianity into its treatment program."

Alcoholics Anonymous does not "incorporate Christianity" into its program. Every AA meeting begins with a preamble that includes the following declaration: "AA is not allied with any sect, denomination, politics, organization, or instituion..." Some people refer to their "higher power" as God, but many others don't. There are a large number of agnostics in AA. The early movement may have been influenced by certain Christians or the Oxford Group, but that's far from "incorporating Christianity."

And it is not a treatment program. There are 12 steps, but they are suggested and not required. There are no dues or fees. The only requirement is the desire to stop drinking. You don't have to sign anything or even tell anybody your name. And there is no scientific basis to anything that AA does -- just tradition.

"The success of Alcoholics Anonymous is evidence that Christianity can be a valuable element in a program for treating addiction."

Bullshit. Nobody has been able to ascertain that AA is "successful." All AA can claim is a certain popularity with some people who are trying to stay sober. And since AA is not a Christian organization, the evidence that Posner points to doesn't exist.; 10/28/14, 5:01 PM
Drago said...: steve uhr said...
Freedom of will is a myth. Either our actions are controlled by our genes, which we have no control over, or they are controlled by our environment, which we have no control over.

Which one (genes or environment) forced you to post that?; 10/28/14, 5:05 PM
chillblaine said...: Will Freedom From Religion be bringing suit against the multitude of 'faith-based organizations,' that all the illegal immigrant children were released to over the summer? They are materially equivalent.; 10/28/14, 8:24 PM