I just went through yet another argument about illegal immigrants in the comments at Jack Marshall’s Ethics Alarms blog. Jack has been a frequent source of blogging ideas (at least when I used to blog more), but he’s been kind of hard to take ever since Donald Trump was elected. It’s not that he likes Trump, but he’s clearly attracted to Trump’s authoritarianism, especially when it comes to making life hard for people who are here illegally.

Jack is in the “What part of illegal don’t you understand?” camp: He regards our immigration laws as axiomatically beyond reproach, so his analysis begins and ends with the fact that these people broke our immigration laws — an unforgivable sin. (For an example of Jack’s style, he regularly ridicules people for getting upset when illegal immigrants are torn from families, friends, jobs, and communities by DHS.)

One of my biggest complaints about U.S. immigration policies is that they impose the will of anti-immigrant restrictionists on all Americans, even if we would benefit from the presence of immigrants, and even if we explicitly welcome them. This reminds me of the Fugitive Slave Laws imposed on non-slave states before the American Civil War. These laws attempted to force Northerners to return escaped slaves to their masters, despite the harm that would come to slaves sent back, and despite the clear rejection of slavery by Americans in free states.

Every time I read one of Jack’s posts about illegal immigration, I find myself trying to imagine what he would have written about those escaping slaves. So, without further ado…starting with Jack’s attitude toward illegal immigration, and mixing in some of his rants against Black Live Matter and the media, I arrived at the following, which I imagine to be a pamphlet published shortly before the American Civil War by one of Jack’s ancestors:

 

Ethicf Alarmf #28

by Jackson “Cotton” Marshall

 

Unethical Anti-Slavery Editorial of the Year:

Now THIS is Unprincipled Hooliganism!

 

The Salem Times-Gazette has published yet another crazy editorial that threatens to make my cranium shatter.

Last week, in Salem, Ohio, federal marshals were in the process of apprehending two slaves who had illegally absconded from a fine cotton plantation in Georgia, when they were set upon by a crowd of thugs, who identified themselves as members of the unprincipled, law-breaking Liberty Party. The marshals were injured, and the criminal slaves escaped, presumably to make their way to Canada instead of returning to their lawful owners.

The Times-Gazette actually applauds these criminals for “helping escaped slaves.”

This is Unethical.

1. Newspapers should report the news accurately, not spout “abolitionist” propaganda.

2. The editorial refers to the fugitive slaves as “escaped,” thus promoting the false narrative that plantations are harmful to slaves. The utterly nonsensical nature of this should be obvious to anyone who considers that slaves are an investment, and slave owners can’t afford to mistreat them, not if their plantations are to succeed. Admittedly, there have been some abuses, but for the most part slaves are well cared-for — given food and a place to live — unlike factory workers in the so-called “free North” where this act of hooliganism took place.

3. The entire abolitionist movement is itself based on the lie that the Negro is equal to the white man. But if Negros were really equal to white people of European extraction, they wouldn’t be complaining so much about doing the same kind of farm work that Europeans have been doing for thousands of years.

4. Also, if Negros are supposed to be equal to whites, how come none of them have helped their community by investing in cotton plantations? This is nothing more than an excuse for the unwillingness and inability of Negros to perform the leadership roles that white plantation owners have been taking on for over a century.

5. White people did not enslave free African Negros. The slaves brought to the Americas were all provided in legal sales by legitimate African traders.

6. The federal marshals were enforcing the Fugitive Slave laws. These laws were passed by the United States Congress, and they are entirely Constitutional. I know this because I’ve actually read the entire Constitution, including Article IV, Section 2, Clause 3 which specifically states that

No person held to service or labour in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labour, but shall be delivered up on claim of the party to whom such service or labour may be due.

No honest person could read that and conclude anything other than that fugitive slaves must be returned to their owners. The Times-Gazette‘s bias makes it stupid.

7. It’s true that legally, according to the 1842 Supreme Court decision in Prigg v. Pennsylvania, no State can be forced to assist the Federal Government in enforcing the Fugitive Slave Act, but that’s a mere rationalization. That it’s not illegal does not justify supporting the flagrant violators of Fugitive Slave laws.

8. Canada continues its unethical subversion of our longstanding institution of slavery. Canadians are not bound by United States law, but that doesn’t change the fact that they are unethically depriving Southern plantation owners of their property.

9. Abolitionists continue their Orwellian deception of conflating free Negroes with absconding slaves. Bounty hunters who capture free Negroes certainly are a real problem — they deserve censure, and the free Negroes should be released immediately — but the truth you won’t hear in the media is that the vast majority of Negros captured by federal marshals are slaves who are too lazy to do the important agricultural work that is their God-given duty. Yet abolitionists scream and yell every time a Negro is captured in the North, as if these lazy slaves were deserving of the same rights as hard-working free Negros. What part of “fugitive slave” don’t abolitionists understand?

10. It is reported that 157 illegally absent slaves were apprehended in the North so far this year. Nobody knows how many weren’t apprehended, but it is probably more. No, they aren’t all rapists and murderers or even criminals, but they all went north or tried to go north illegally. That makes them wrong and undesirable, and all the linguistic tricks being employed to make that simple statement difficult to express won’t alter that central fact.

The Gazette goes on to complain that the slaves are being returned to the South, where they will be punished for what the Gazette calls their “attempt to gain the freedom of which every man is deserving.”

Good.

What abolitionist rabble-rousers refuse to admit is that Southern slavery of the Negro is the law of the land. Enforcement of the law against slaves stealing themselves away had, under previous administrations, been flaccid. It’s good to have strong leadership that sees the wisdom of bringing federal marshals to the fight. The refusal by some in the Northern States to enforce those laws is incompetent, it is irresponsible, and it is foolish.

Except for the rampant anachronisms, I think I nailed it.

Let’s talk about rapist doctors.

I’m not talking about doctors who take advantage of anesthetized patients. That’s a problem law enforcement can deal with. What I’m talking about is someone like Dr. Michael Parsa, who works at the University Medical Center of El Paso, and who essentially raped an unidentified woman for the police, according to a lawsuit filed by the ACLU:

39. After the X-ray, Ms. Doe was again handcuffed to the examination table. CBP agents Portillo and Herrera and Medical Center personnel were present in the room. Defendants left the door to the examining room open, and Ms. Doe could see hospital personnel at the nurses’ station in the hallway. She was angry that CBP had not released her and scared about what would happen next.

40. Defendant Parsa entered the examination room and barked an order that Ms. Doe spread her legs. She complied.

41. Ms. Doe was mortified. Defendants did not even have the decency to close the door to the examining room so that Ms. Doe would not also be subjected to being observed by passersby as she endured a forced gynecological exam.

42. Defendant Parsa then conducted a series of examinations. While agents Portillo and Herrera and other Medical Center staff watched, he inserted a speculum into Ms. Doe’s vagina and observed the interior cavity. According to medical records, Defendant Parsa did not see any foreign objects or evidence of internal drug smuggling.

43. Defendant Parsa also stuck his fingers into Ms. Doe’s vagina while palpitating her abdomen. This bimanual cavity search was negative: According to medical records, Defendant Parsa did not feel any foreign objects or evidence of internal drug smuggling.

44. Defendant Parsa also conducted a rectal examination: he inserted his fingers into Ms. Doe’s rectum and probed the orifice for foreign bodies. According to medical records, Defendant Parsa did not feel any or find evidence of internal drug smuggling.

45. While her rectum was being probed, agents Portillo and Herrera and Medical Center staff watched. Ms. Doe felt that she was being treated less than human, like an animal.

The police didn’t even have a warrant, which means that if these allegations are true, then a bunch of people brought a woman into the University Medical Center of El Paso against her will, and just because they asked him to, Dr. Michael Parsa inserted his fingers and a foreign object into her vagina and rectum against her will. That sounds like rape to me.

When something similar happened to David Eckert at the Gila Regional Medical Center last January — multiple medical explorations of his rectum — the police had at least gone through the trouble of obtaining a search warrant. I’m not convinced that getting an okay from a judge for this kind of violation makes it any better, but in theory the warrant compelled David Eckert to comply with the probings.

It did not, however, compel the doctors to perform the probings. I’m not a lawyer, so don’t use this as legal advice, but until the doctors performed their examinations, they were completely uninvolved with the investigation, and therefore beyond the judge’s jurisdiction. Judges can compel people to produce evidence and reveal knowledge that they already have, but they don’t generally have the authority to order random third parties to obtain evidence and discover knowledge. They can’t, for example, order random photographers to go take pictures of a crime scene for them. David Eckert may not have had a choice, but the doctors did, and I think they chose unethically.

As I pointed out a few years ago, when the subject of forced catheterization came up in connection with a DUI testing incident, the general ethical requirement is that medical procedures should only be done with the informed consent of the patient, and for the benefit of the patient. Consent has its exceptions — in cases where the patient is incompetent to consent, due to mental defect, unconsciousness, or minor status, certain family members can give consent, and there have been cases where a judge overrode a guardian’s refusal to give consent (e.g. had religious objections) to a lifesaving medical procedure, but in each of these cases the treatments were still done for the patient’s benefit.

That’s not what happened here. The examinations performed in all of these cases were not done in any way to benefit the patient, but to benefit the government’s war on drugs. I think the only ethical response to such requests is to refuse to do them.

There’s plenty of precedent for physicians refusing for ethical reasons to do things which they government wants them to do, the most prominent example being the refusal by nearly all American physicians to perform court-ordered executions. And although I can’t find any AMA ethics rules that specifically address forensic examinations conducted against the patient’s will, the AMA rules about participating in court-ordered medical treatments seem sort-of relevant:

Physicians can ethically participate in court-initiated medical treatments only if the procedure being mandated is therapeutically efficacious and is therefore undoubtedly not a form of punishment or solely a mechanism of social control.

So, for example, doctors might use drugs to calm a prisoner with a mental disorder that causes extreme agitation and self-harm, but they shouldn’t simply drug prisoners to make them more manageable for the benefit of the prison staff. Since the examinations conducted in these incidents have no clear medical purpose, they seem a lot more like the latter than the former.

I should note that I’m not saying that Dr. Parsa (or any of these other genital-handling doctors) is a rapist in the usual sense of the word: There’s no indication they did any of these things for their own enjoyment, and they certainly weren’t charged with the crime of rape. My guess is that they were all just having another busy day in the emergency department when someone in charge said “Go help those officers,” and so they did their thing and moved on to the next patient without thinking it through. But here are a few things they should probably think about next time some cops come in wanting someone examined:

Dr. Parsa and the others may not have been charged with rape, but I’ll bet that at least a few of them are rapists in the legal sense of the word. The key to most rape laws is the consent of the victim, not the motivation of the rapist. I’m pretty sure prosecutors never have to prove that the rapist enjoyed it.

And while you might think a doctor would be immune from prosecution because they were working with the police or participating in a court-ordered exam, the thing is that many states’ criminal statutes are notoriously poor at exempting law enforcement actions. For example, in states with the death penalty, the legal definition of murder might not include an exemption for legal executions. My guess is that the rape statutes in many states are no more thoughtfully written and do not include exemptions for law enforcement cavity searches, because no prosecutor would ever charge that. This does mean, however, that any doctor who participates in such searches is probably at the mercy of the District Attorney — and any succeeding District Attorneys — until the statute of limitations runs out.

Or perhaps more to the point, do you really want to do anything to an unconsenting human being that might or might not be rape only because a judge or a cop told you it would be okay? Shouldn’t you make that decision for yourself? And shouldn’t the right answer be obvious?

The title of this post is a lie. No means no. There is no medical exception.

I’ve been staying away from the Lance Armstrong mess because I don’t follow sports and I haven’t been paying attention to what’s been happening. However, a few days ago at Ethics Alarms, Jack Marshall tore into a Washington Post op-ed in which Professor Braden Allenby argued that the sporting world should allow performance enhancing drugs. Jack thinks he’s badly wrong, and gives a lengthy explanation of why. I don’t think I have to know too many details to explain why I think both of them aren’t thinking clearly.

To start with, it doesn’t help Allenby’s case that he seems to be defending Armstrong:

In the past month, cyclist Lance Armstrong has been stripped of his seven Tour de France titles. His commercial sponsors, including Nike, have fled. He has resigned as chairman of Livestrong, the anti-cancer charity he founded. Why? Because the U.S. Anti-Doping Agency and the International Cycling Union say he artificially enhanced his performance in ways not approved by his sport and helped others on his team do the same.

This may seem like justice, but that’s an illusion.

Allenby is conflating two arguments here. The first is his main argument that cycling and other sports should allow performance enhancing drugs. The second is that Lance Armstrong was right to use performance enhancing drugs even though they are not allowed. You can agree with the first argument and still find fault with the second. This may seem to contradict my arguments elsewhere that some rules and laws are so outrageously wrong that that it’s ethical to disobey them, but I don’t think that applies here because sports rules are different from other kinds of rules.

The key thing to remember when discussing ethical issues in sports (and games in general) is that most of the rules are, by definition, arbitrary. Basketball players have to dribble the ball when taking steps, football players can only throw a forward pass from certain positions on the field, and neither is allowed to use a bicycle to get around the playing area. These rules have no intrinsic moral or ethical basis. They’re just the rules of the game.

(Safety rules are an exception. I’m assuming for purposes of argument that we’re only talking about relatively safe performance enhancing drugs.)

This has a couple of consequences. If there’s no ethical dimension to the rules, there’s no ethical argument against changing the rules. Again, they’re just the arbitrary rules of the game. You might think this cuts in Lance Armstrong’s favor, but it doesn’t, because if there’s no ethical dimension to the rules, there’s no ethical argument for breaking them.

As far as I’m concerned, Lance Armstrong is free to ride his bicycle on whatever (non-dangerous-to-others) drugs he wants. But when he enters competitions, he promises to obey the rules of the competition, and there is an ethical dimension to keeping your promises. It is precisely because the rules are arbitrary that there’s no appeal to higher principles when disobeying them.

But that doesn’t mean there isn’t an argument for changing them, and this is where Jack goes wrong when he discusses the flaws he sees in Allenby’s argument.

Allenby’s argument would extend to allowing students to plagiarize material on the web and present it as their own as well. The theory that the “status quo” must be accepted as the ethical starting point is systemically suicidal as well as philosophically invalid.

Jack is comparing apples and oranges here. School is not a sporting competition: It has rules for reasons that matter. That’s not the case with most sporting rules.

This is also the first appearance of Allenby’s bias. His field is engineering and technology; naturally he believes that more is better. He and his colleagues are the people who develop the technologies athletes use to cheat. Of course he thinks they should be allowed to do it openly and legally, and the more the better.

Which doesn’t mean he’s wrong. And calling this a “bias” is as silly as saying that musicians are biased in favor of music.

Allenby really thinks that sports lovers care most about how well athletes can perform. Undoubtedly, some would be happy to watch freaks and robots compete, but the love of sports is fueled in most fans with admiration for human beings competing using their own abilities, perfected to the level that they can perfect them, without artificial, not to mention surreptitious, enhancements.

That’s a fair argument, but it’s a non-ethical consideration. It’s an argument about the design of sporting competitions.

It’s not even a very good argument about the design of sporting competitions. Seemingly outrageous changes to the rules of a sport usually just result in other sports. Allowing cyclists to put small gasoline engines on their bikes would be a perversion of the values of cycling, but it’s the definition of motorcycle racing. Heck, if fans want to see athletes “competing using the own abilities,” why are they allowed to ride bicycles? Wouldn’t it be more natural if they were on foot?

Again, the rules are arbitrary. Fans may not want cycling to change in certain ways, but that doesn’t make the changes unethical. Cycling with performance enhancing drugs may not be cycling as we know it — or want it to be — but that doesn’t make it unethical. That just makes it a different sport.

“Why not add drugs and other technologies to the list of legal enhancements, especially when most of us are enhancing our workplace concentration with a morning coffee or energy shot?”

Yes, this educator, scholar and lawyer really makes this fatuous and hackneyed argument. To begin with, it’s a non sequitur. How does the widespread use of coffee argue for the legalization of human growth hormone? At best, it is a poor excuse for allowing amphetamines in sports, so athletes can be alert too.

I don’t know how Jack doesn’t get this. It’s an analogy. Both caffeine and human growth hormones enhance the performance of the people who take them. Why is one legal and the other not? Again, the rules are arbitrary.

The real foolishness of this argument is that most people’s performance in the workplace isn’t a competition in which fairness [and] the appearance of integrity is paramount.

And integrity wouldn’t be an issue in the competition if everybody was allowed to use performance-enhancing drugs.

One of the things Jack accuses Allenby of (with some justification, I think) is using a “False definition of the opposing position.” Unfortunately, Jack mischaracterizes Allenby’s position in the next section:

“My anecdotal class surveys show that students have significant skepticism about the reported side effects of such treatments and drugs, as well as perceptions of bias among regulators against enhancement. As a result of such attitudes, there’s a tendency to play down the risks of some technologies. Call it the “Reefer Madness” response — ignoring real risks because you think the danger is exaggerated. This is ignorance born of prohibition.”

I give the professor kudos for a truly original crack-pot justification. Make something legal so you can prove that it’s more dangerous than we already think it is.

Allenby is arguing here that sports regulatory bodies have fallen behind the times when it comes to performance enhancing drugs. Like it or not, athletes are using them, so the responsible thing to do is to make sure they have the information to use them responsiby. It’s kind of like teaching children about safe sex: Would you rather they got advice from experts or tried to figure it out themselves?

I should emphasize that Jack Marshall’s post does have some very good points. In particular, he hits hard on the importance of integrity in sports, a point that Allenby misses by defending Lance Armstrong. The rules of any given sport may be arbitrary, but they are also the definition of the sport. Armstrong may have been very fast on a bicycle, but if he was breaking the rules, he wasn’t playing the sport he was supposed to be playing. It only makes sense that he shouldn’t win awards for a sport that he’s not even playing.

But as I said, the issue of Armstrong’s obedience to the rules is a different matter from whether the rules are wise. I know very little about competitive cycling, but Jack paints a picture of sport that is riddled with cheating to the point where it’s likely that anyone who wins is probably cheating, and anyone who plays with fairness and integrity is probably going to lose.

Those are terrible values. It’s the worst possible situation. The people in charge have created an environment where only the lawless can thrive. As bad as Armstrong was for the sport, the people who created this situation are far worse, because they have created a situation that rewards and encourages cheaters like him.

It’s the completely predicable result of creating a set of rules that you cannot or will not enforce, and there are only two ways out of that situation: You can do what Jack wants and enforce the rules, or you can do what Allenby wants and remove a rule that’s hard to enforce. I don’t know enough about cycling to have an opinion on which is better for the sport, but either is better than what they’ve been doing.

In Jack Marshall’s list of 24 unethical rationalizations for bad behavior, the number one rationalization — the king of all rationalizations — is “Everybody Does It.” Although I agree in principle, I find it interesting to explore the nuances and exceptions. In Part 1 I discussed cultural norms, and how sometimes ethical behavior is defined by what everybody does.

This time around, I’d like to talk about a much broader exception to the rule which occurs when you’re applying the ethical analysis not to yourself but to other people in a group.

Suppose it’s right before an election, and you read a credible news story claiming that one of the candidates for office used his official position to do small favors for friends. That probably counts against him in terms of gaining your vote. But supposed that the next day you read another credible story claiming that all the other candidates for that office also did small favors for friends. That kind of negates the information you had about the first candidate.

It’s not that “everybody does it” makes it better. It’s that your knowledge of one particular person’s bad behavior isn’t helpful if you know all the other people are engaged in the same bad behavior. When you’re making decisions about the relative merits of other people, the absolutism of rejecting “everybody does it” won’t help you. It would be irrational to hold one person more responsible than others for the exact same bad behavior.

Marshall himself uses this form of “everybody does it” in defending Mitt Romney over stories about his bad behavior when is was a very young man:

The Washington Post’s despicable exposition of ancient recollections of Mitt Romney’s mean-spirited and boorish conduct while being enrolled in that well-known cauldron of mean-spirited and boorish conduct–prep school–has caused me serial episodes of shock. […]

Guys in school assault each other, batter each other, punch each other, and do horrible things to each other that would get them arrested if they did it to a stranger on the street. That doesn’t make them “criminal,” and it doesn’t make them sociopaths. It’s called “growing up.” […] Why does Rick assume that Mitt Romney is different? Why doesn’t he see that it is unfair to assume that he is?

Obviously, if there are nuances to bad behavior, you can (and should) make judgements on those nuances. If all of your candidates are 35-year-old men who had sex with 16-year-old girls, it probably makes a difference if the relationship was a drunken hookup at a party, a teacher and his student, a client and a prostitute, or a father and his daughter.

But if the situations are identical (or at least somewhat comparable), then it doesn’t matter how reprehensible the conduct, nor how high the stakes, as long as you have to choose among a fixed group of people and there’s no way to postpone the decision or add other candidates. If it comes to light on election eve that all our presidential candidates are child molesters, then you’re going to have to hold your nose in the voting booth and choose which child molester you want to be President.

A few weeks ago at the Ethics Alarms blog, Jack Marshall published his list of 24 ways people justify unethical behavior. He starts the list with an old rationalization that is the basis for several others:

1. The Golden Rationalization, or “Everybody does it”

This rationalization has been used to excuse ethical misconduct since the beginning of civilization. It is based on the flawed assumption that the ethical nature of an act is somehow improved by the number of people who do it, and if “everybody does it,” then it is implicitly all right for you to do it as well: cheat on tests, commit adultery, lie under oath, use illegal drugs, persecute Jews, lynch blacks. Of course, people who use this “reasoning” usually don’t believe that what they are doing is right because “everybody does it.” They usually are arguing that they shouldn’t be singled out for condemnation if “everybody else” isn’t.

Since most people will admit that principles of right and wrong are not determined by polls, those who try to use this fallacy are really admitting misconduct. The simple answer to them is that even assuming they are correct, when more people engage in an action that is admittedly unethical, more harm results. An individual is still responsible for his or her part of the harm.

If someone really is making the argument that an action is no longer unethical because so many people do it, then that person is either in dire need of ethical instruction, or an idiot.

Despite Jack’s warning in the last paragraph, I’d like to write a few posts about situations where “everybody does it” is a actually a pretty good argument. I’ll let you decide whether I’m in need of ethical instruction or if I’m just an idiot.

I’ll start with the most obvious example: I don’t think anyone in this country doubts that driving on the left-hand side of a two-way road is unethical. First and foremost, it creates an immediate and potentially deadly hazard to oncoming traffic. Second, even if there’s no traffic, driving on the left side increases the possibility that a pedestrian will get hit because he or she was looking the other way. It’s so dangerous that I think we can safely say that only drunks and maniacs drive on the left-hand side of the road.

Or Englishmen. At least while they are in England, because everyone there drives on the left-hand side of the road.

I’m not sure how people ended up driving on different sides of the road in different countries — the best explantions I’ve heard have something to do with differences in the types of wagons pulled by horse-drawn teams — but whatever the reason, once one side began to dominate common practice, it would have been a huge gain in safety and efficiency to require everybody to drive on that side.

In other words, it’s the right thing to do because everybody does it.

(Arguably, the ethical rule is not “drive on the left side of the road” but rather “drive on the agreed-upon side of the road.” Driving on the other side is unethical not because there’s something bad about that side, but because it violates our common agreement about how to drive safely. That common agreement is exactly the sort of consensus ethical rule I’m talking about when I say that “everybody does it” can be a good justification.)

For another example, in the condo building where I live, except for the occasional party, I never hear the sounds of my neighbors’ lives. It would be rude for any of us to play lound music or crank up the television. If was a persistent problem, it would be cause for a complaint to the board.

This is very different from when I lived in a college dormitory, and everyone played loud musing all day and late into the night. It’s not that my college dorm mates were any less ethical than my condo neighbors. They were just younger and in college. Tolerating their neighbor’s loud music was a small price to pay for being able to play their own loud music. If anyone had complained, he would have been the one behaving rudely.

It was a case of different cultures, different rules. When the rules are defined in terms of cultural norms, then “everybody does it” isn’t just an excuse, it’s the way the rules are made.

It’s important to note that cultural norms variation of “everybody does it” only works when everybody involved is a willing participant in the culture. It’s no excuse for cultural practices such as gay bashing, slavery, or burning the heretics.