The World Turned Upside Down: What’s Up with the Harm Principle?

Guest Blogger

For the Balkinization symposium on James E. Fleming, Constructing Basic Liberties: A Defense of Substantive Due Process (University of Chicago Press, 2022).

Cathleen Kaveny

Legend has it that the British played a song called “The World Turned Upside Down” as the laid down their arms in defeat at the last major battle of the Revolutionary War. How could the colony have defeated the empire? It just didn’t make sense.

In an admittedly exaggerated way, “The World Turned Upside Down” captured something of my reaction when I read two recent invocations of the liberal Harm Principle, which limits legitimate law, or at least legitimate criminal law, to prohibiting actions that wrongfully harm another person.

On the one hand, conservative Justice Samuel Alito assured his readers in Dobbs v. Jackson that the right to same –sex marriage was not in danger just because the Court had overturned the right to abortion. As a justification, he seems, at least tacitly, to invoke the Harm Principle. “The exercise of the rights at issue in Griswold, Eisenstadt, Lawrence, and Obergefell does not destroy a “po­tential life,” but an abortion has that effect” (slip op. 218) So the reason that the right to abortion can be overruled is that it harms a third party (the fetus). The activity at stake in the other cases does not harm other people—therefore they should not be overruled. How this reasoning interacts with Justice Alito’s constitutional theory, and analysis of precedent, is not entirely clear.

On the other hand, eminent constitutional law scholar James E. Fleming explicitly distances himself from the Harm Principle in his compelling new book, Constructing Basic Liberties: A Defense of Substantive Due Process (2022).  In response to a charge made by Justice Scalia (accompanied by a parade of sexual activities) Professor Fleming argues that “Clearly, the protection of the rights of same-sex couples to intimate associations and to marry does not ‘effectively decree the end of all moral legislation.”

 So on the surface at least, we have a conservative seemingly endorsing some version of the Harm Principle, and a progressive defending the use of the law to further moral purposes. Is the world really turned upside down? Or is something else going on? In this essay, I would like to examine the situation. In the first part, I will consider the Harm Principle. In the second part, I will look at both Alito’s and Fleming’s use of the Harm Principle. In part three, I will consider four bigger questions their invocations of the Harm Principle have raised for me.

The Harm Principle

As Fleming helpfully outlines in his book, the liberal Harm Principle is attributed to John Stuart Mill’s On Liberty.  In more recent times, it was at the center of the debate between H.L.A. Hart and Lord Patrick Devlin over the decriminalization of homosexual acts. In my view, however, the most compelling and complete philosophical articulation of the Harm Principle can be found in Joel Feinberg’s four-volume series on The Moral Limits of the Criminal Law. Feinberg argues that the “liberal position” (which he advocates limits criminal law to the Harm and the Offense Principles. A harm, in his view, is a setback to a person’s interests that is accomplished by a violation of their rights.

So Feinberg rejects many, many reasons for enacting criminal laws, including:

·         Legal paternalism—the view that it is a good reason for the criminal law to target actions that cause physical, psychological, or economic harm to the agent themselves.

·         Legal Moralism— the view that it is a good reason for the criminal law to target activities on the grounds that they are inherently immoral.

·         Moralistic Legal Paternalism— the view that it is a good reason for the criminal law to target activity designed to prevent moral harm to agents themselves

·         The Benefit to Others Principle—the view that it is a good reason for the criminal law to enact a prohibition that works to the benefit of others.

·         Benefit-Conferring Legal Paternalism—the view that it is a good reason to for the criminal law to enact a prohibition that works to the benefit of the agent. 

·         Perfectionism—the view that it is a good reason for the criminal law to enact a prohibition necessary for the improvement of the character of a) citizens in general; or b) of the person whose liberty is being limited. (Feinberg, Harmless Wrongdoing, 1988).

Feinberg’s framework would not permit the criminalization of all sorts of behavior, including pretty much any consensual sexual behavior, behavior that corrupts the agent (not only because they have consented, but because in consenting, the agent has changed their values and was not harmed), and a whole list of “free-floating evils” including violation of taboos, such as incest, discrete and harmless immoralities, including masturbation, religiously tabooed practices, moral corruption, evil thoughts, impure thoughts, false beliefs, the wanton and capricious squishing of a small wiggly creature, the extinction of a species. Also not to be protected is the loss of a traditional way of life, whether that of Native Americans or middle-class WASPS.

So when we talk about whether and to what degree we are enacting the Harm Principle, it helps to be specific. If we are not liberals in the mode of Joel Feinberg, which type of moral reasons will we consider legitimate to limit individual liberty?

Justice Alito and the Harm Principle

A glaringly obvious problem in Justice Alito’s invocation of the Harm Principle is how to make a principled distinction between overruling Roe v. Wade in Dobbs v. Jackson from overruling Obergefell v. Hodges in the near future. One issue is that his constitutional method would seem to indicate that both should be overruled (as Justice Thomas indicated).  According to Justice Alito, constitutional rights not enumerated in the text of the Constitution need to be “deeply rooted in this Nation’s history and tradition” (Dobbs, slip. op 36, citing Washington v.Glucksberg, 521 U. S., at 721). If anything, it appears that same-sex sexual acts were less accepted throughout American history than abortion was. In colonial times, sodomy was a felony. The idea of same-sex marriage would simply not have occurred as a possibility to the Founders, or for that matter to the generations preceding or following them.

So is there a way in which Justice Alito’s remark might make more sense, perhaps by focusing on a general analysis of how the law should treat harm, rather than the Harm Principle? In certain respects, yes. Classical accounts of law have always paid attention to harm. In his “Treatise on Law,” St. Thomas Aquinas noted that the law does not prohibit all acts of vice, but chiefly those that harm others. St. Augustine famously defended the toleration of houses of prostitution rather than making the targets of the criminal law.  But these venerable figures of history and tradition do not get Justice Alito as far as he needs to go, even on his own terms. It is one thing for Augustine and Aquinas to tolerate what they considered to be morally unacceptable sexual behavior. It is another thing entirely to endorse it by expanding a social institution to legitimate it as a constitutional right. Even Feinberg’s articulation of the Harm Principle does not go so far—as he emphasizes throughout this work, he is discussing the moral limits of the criminal law, not the moral judgments that are made all the time in the recognition of institutions and the incentivization of certain patterns of behavior.  (At the same time, I am fairly confident that Feinberg would accept same-sex marriage on other grounds.

Professor Fleming and the Harm Principle

In Constructing Basic Liberties, Professor Fleming make an extensive and detailed argument that a commitment to (his version) of substantive due process does not entail a commitment to a Millian (or Hartian) version of the harm principle. In particular, it does not mean that we cannot continue to legally prohibit a wide range of consensual sexual behavior, including polygamy, despite the Harm Principle’s corollary: volenti not fit inuria. Professor Fleming notes that his view of substantive due process is not value-free, as some believe the Harm Principle to require, but rather that it instantiates the values of liberty, equality, dignity, and democratic participation.[1]

It is Professor Fleming’s argument that substantive due process would not require the constitutional protection of polygamy that piqued my interest, and to honest, aroused my skepticism. He argues that there is no chance that even a liberalish Supreme Court would protect polygamy, but largely for practical reasons. First, the U.S. population simply isn’t ready for it. There is no social movement that has prepared the way for a right to plural marriage in the same way that the gay rights movement prepared the way for Obergefell. Second, there is some evidence that polygamy is detrimental to the children involved in the practice, particularly the young boys who are cast out of society by powerful older men seeking more than one wife. Third, and most significantly, polygamy is harmful to certain key political and moral values, such as the dignity of women and their full equality with men.  It is on this basis that he vigorously argues against Chief Justice Roberts’s dissent in Obergefell, which contends that same-sex marriage is a greater departure from our understanding of the institution of marriage than polygamy. According to Professor Fleming, that contention is false, in large part because same-sex marriage preserves (and extends) the value of equality, while polygamy can be understood to demean and discount women.

Four Questions

As I thought about Professor Fleming’s argument about polygamy, four questions came to mind. First, how do we determine what counts as harm, even defined in terms of the harm principle, which focuses on physical, material, and financial harms)? It is not, after all, as if the opponents of Obergefell did not introduce their own studies showing that same-sex marriage was detrimental to children, as well as to the institution of marriage itself. From his discussion of polygamy, it appears that the harms Fleming would acknowledge are fairly material in nature: He writes, for example, “I want to emphasize that my concerns about polygamy are not moralistic but are empirical and systemic ((Constructing Basic Liberties,167). The harms are social, but they are also empirically assessable. In contrast, it seems that social conservatives are more inclined to recognize less tangible harms to morals and institutions, such as the losses involved in a broadening set of family structures, particularly order and stability.

Second, if we move beyond the harm principle to consider moral and institutional harms, how do we describe the moral values legitimately at stake and the appropriate shape of the institution to be defended? A highly influential article in empirical psychology by Jesse Graham, Jonathan Haidt, and Brian A. Nosek has argued that there are five political-ethical foundations at work in the United States: harm, fairness, ingroup loyalty, authority, and purity. Political liberals emphasize harm and fairness, while conservatives distributed their concerns more evenly across all five foundational values.

 Can the Constitution—or the Due Process Clause in particular –be read to protect all five values, rather than just the two liberal values? In other words, can there be a moderate-to-conservative version of Substantive Due Process? Like a good progressive and liberal, Professor Fleming emphasizes fairness as well as harm. Professor Fleming’s commitment to equality would probably not qualify as legitimate under Feinberg’s version of the Harm Principle. But the three other political foundations advocated by conservatives would more fully activate the principles rejected by Feinberg: Legal paternalism, Legal Moralism, Moralistic Legal Paternalism, The Benefit to Others Principle, Benefit-Conferring Legal Paternalism, and Perfectionism.

Third, how do we define the central values of the institution at stake? They change over time. As Nancy F. Cott describes in her fascinating volume, Public Vows: A History of Marriage and the Nation (2000), the nature and purpose of marriage has evolved over the past two centuries. At the time of the Founding, the social purpose of marriage was mutual support and fidelity, procreation of children and the orderly cultivation and transmission of property to the next generation. Many people, including many conservatives, still understand marriage largely in this way.

 In today’s secular society, however, another notion of marriage has become prominent, if not dominant: a companionate notion of marriage, designed to secure physical and emotional intimacy for the individuals participating in it. How one conceives of marriage determines whether one thinks same-sex marriage or polygamy is the greater departure from its purposes. For those, like Chief Justice Roberts, who emphasize the procreation of children, same-sex marriage is the greater leap from traditional heterosexual marriage. For those who emphasize personal intimacy and egalitarian support, like Professor Fleming, polygamy seems the greater stretch. So Professor Fleming and Chief Justice Roberts are both right in their assessments – but they are drawing upon different understandings of marriage for their measuring stick.

Fourth, and most importantly, in our political and judicial context, when do the people or the justices get a second bite at the apple with respect to the identification of a right? This is a central question about Dobbs, which took away the constitutional right to privacy that protects the right to abortion. Alito’s comment distinguishing Dobbs from Obergefell strongly suggests that the harm brought about by legalized abortion was the major factor in the downfall of the abortion right.

That opinion is contentious, of course. But even people who do not believe the fetus to be a person may have qualms about the sheer number of abortions since Roe (63 million), and may wish the right to be trimmed back to allow more regulation. In other words, some people look at the consequences of the right, and have second thoughts about its identification description.

But extinguishing a constitutional right (as opposed to merely cutting it back) is a troublesome phenomenon. Except in limited instances (such as crying “Fire!” in a crowded theatre), rights operate as deontological “trumps” to broad consequentialist considerations. Once we have identified a right, we do not muster consequentialist arguments to dismantle it wholesale. Instead, we address the problems it raises i other ways. If divorce causes problem for children, for example, we do not ban divorce. We find other ways to get those children the help they need.

Or at least this is the way we have proceeded in the past.  But will this be the case in the future, now that Dobbs has paved the way for the flat-out extinguishing of a right? This is where my questions to Professor Fleming and Justice Alito converge. Professor Fleming demonstrates how important the judgment that a particular activity or practice does not cause harm is to the decision to give it constitutional protection as a right under the Due Process Clause.  Justice Alito defends leaving Obergefell untouched because, unlike abortion, the practice of same-sex marriage does not cause harm. But he leaves that claim unsupported by the citation of evidence. Social conservatives would beg to differ.

So I began to wonder: Is Justice Alito actually inviting arguments by social conservatives that same-sex marriage has caused harm, so the right to marry someone of the same sex should be rolled back? And what kinds of harm on Feinberg’s list would count?  And if so, how would Professor Fleming respond? If, as he says, considerations of positive or neutral social consequences are necessary (but not sufficient) to justify the creation of a new right, do considerations of negative social consequences justify its extinction after some time of testing?  And if considerations of broad social consequences can affect the proclamation of a right under the due process clause, in what sense are we talking about a “right” –at least about a “right” as a trump anymore?

I would like to thank Professor Fleming for his tightly argued, wonderfully written book. I would simply say that it is deeply engaging, but I hope that this essay is testimony to my great interest and respect for his work.

M. Cathleen Kaveny is Darald and Juliet Libby Professor of Law at Boston College School of Law. You can reach her by e-mail at cathleen.kaveny@bc.edu.