On Wednesday I spent a lot of time trying to knock down Jennifer Morse's view that the natural purpose of sex is either procreation or spousal unity.

Now it's time to respond and clarify a bit.

First things, first. Brent Andrewsen at Southern Appeal says, "I am not sure what being against 'presexual marriage' is, but presumably it is the opposite being in favor of abstinence until marriage." [This is because I wrote "Some people (like, presumably, Ms. Morse) are against premarital sex. Other people (like myself) are against presexual marriage."]

Mr. Andrewsen's presumption is pretty much on the mark. I think it's generally unwise for people (particularly people who view monogamy as generally desirable and divorce as generally undesirable) to get married before they've begun having some sort of sexual relations. Sex is important to marital compatibility (even Ms. Morse says so), and it would be bad to be stuck married to somebody whose views about the purpose and details of sex were drastically different from one's own.

Furthermore, sex is a very important way of gaining knowledge about somebody ("Carnal knowledge," as we call it. "Not of the flesh, but through the flesh.") Sex (at least good sex) is a form of reading, and when something resembling eternal commitment is at stake, it's hardly wise to leave this chapter unperused.

Now, I understand that a lot of people have strong moral or religious or aesthetic convictions that make them want to "save themselves" for their eventual one-true-beloved. That's their choice to make, but I think it's a bad idea, and I'd be very very scared of somebody I cared about taking that kind of risk. [When I was taught about sex in school they warned us that once sex enters a relationship for the first time, everything changes. That isn't always true, but to the degree that it is, I think people should get married knowing what they're getting into rather than taking a random draw.]

This brings us round to Sara Butler, ever-ready to disagree with me on these things:

On the other hand, Will's argument against Mrs. Morse seems to amount merely to, "I don't like the way she would have me behave sexually. Other people agree with me. Therefore there is no right or wrong way to use sex." Okay, so he'll take me to task for being uncharitable, and I guess I am. So maybe Will is arguing that actually it's more virtuous to behave in the opposite way from the way Mrs. Morse is advocating. I'm not entirely clear on his reasons for claiming this, I guess because he believes it to be more enjoyable and that it somehow participates in a certain Stoppardian (okay, Henry-esque) view of romantic love as the "insularity of passion." Perhaps he could say that we ought to have sex for this purpose because it fits in with our nature in some way - while humans may not be the only animals who have sex face-to-face, they are the only creatures who write love poetry - but I don't think that's the kind of argument Will would make. Maybe it's just appeals to his literary sensibilities. I'm really not sure.

I have two responses to this, and truth be told, they're a little be at odds with one another. The first response is my typically Libertarian live-and-let-live instinct. The question of when to have what kind of sex with whom and how often are very difficult and very personal ones. Society has always housed both prudes and libertines, and so long as these two groups don't get in one another's way liberalism demands that we live and let be. (This doesn't necessarily demand that there's no right way to have sex, but it does suggest that what's right for one person isn't always right for another, or at least that neither side should enshrine their view in the law.)

Sara knocks me for arguing "Other people agree with me. Therefore there is no right or wrong way to use sex," but since what Ms. Morse was arguing was that her view of sex was the natural and organic one, the fact that people think differently than she does and pretty much always has is a pretty damning counter-argument. [Suppose, for example, I were to argue that my view-- that sexual variety and experimentation are generally good things-- was simply the evident "natural and organic" way of things. That, too, would be wrong, as evidence by the swarms of Ms. Morses who have been passing moral laws for millennia. There still might well be a right way and a wrong way to have sex, but the argument that some are "natural" and others are not is simply ignorant of history. Homosexuality was not invented at Dupont in the 1970s.]

So are there right and wrong ways to have sex? Of course there are. [An easy case: Rape is a wrong way to have sex.] And do I actually think "it's more virtuous to behave in the opposite way from the way Mrs. Morse is advocating"? Yes, I think I do. [Also, a note: Just because there isn't "one true way" to have sex well, (Morse's contention), doesn't mean that all ways are equally valid. There is, for example, more than one way to skin a cat, but there are also some ways that one simply can't skin a cat. With a banana, for example.]

There are two main components to Ms. Morse's view of sex that I think are unvirtuous. One is her view that sexual relations are a matter of communal concern. Privacy is valuable, virtuous. It's not just that passion ought to be insular, it's that having it belong to nobody but us and those about whom we are passionate allows us to be more generous about what's shared. That we must let other people have a say in how we run our lives is a sad fact of democracy. Having a few personal, private parts of soul where nobody else gets a vote makes that bearable.

The second part of Ms. Morse's view that I think is bad is her view that sex ought to be kept between spouses, or that sex's job is to bring spouses closer together. I think this is a cause-effect confusion.

Sex shouldn't be used to bring people close together-- it should be used to help us find people with whom we're compatible enough to be or grow close. (And marriage, as I said earlier, isn't always relevant to this closeness-- plenty of pairs unmarried people love each other as much or more than plenty of other pairs of married or ex-married people. Especially in a world where some of these unmarried people are legally forbidden marry the other unmarried the people they love.)

In other words, sex is an end in itself rather than simply a means. There are sexual virtues and sexual vices (I use the word vice, for once, in the pejorative sense). Some lovers are virtuous, others are cruel. Some are selfish, some are giving. Some are curious, some are shy. Some are eager, some reluctant. Just as it's far better to marry somebody whose intellectual personality we admire and are prepared to deal with on a regular basis, it's far better to marry somebody whose sexual personality we admire and are prepared to deal with on a regular basis. [There is, of course, some room to differ here-- some people seek eager, giving lovers. Others pine for cold cruelty. Some people don't think sex is very important. That's fine too, but they'd be better matched with somebody who agreed.]

Marrying somebody without knowing whether they behave in a good or evil manner in bed is like marrying somebody without knowing what their favorite book is, or what their religion is, without knowing what they think constitutes moralvirtue. These things are too important, and too central to our very identies, to simply hope that they will work themselves out later like the question of whose parents get the first Christmas.

[All of this is to say nothing of the virtue of pleasure itself-- a topic I'll leave until after Blackburn's Lust is published.]

So, on the one hand, I think that we ought to be broadly tolerant of the fact that people we otherwise respect a great deal have vastly different views than us about sex. The prudes and the libertines have each taken the upper hand at various times, and neither side is ever going to completely win over the other. But on the other hand, as a committed philosophical libertine, I don't think that all views about sexual relationships are equally valid. I think it's a mistake to try to find people one otherwise loves, respects, and admires and simply hope or assume that one will also love, respect, admire, and enjoy having sex with them. Sexual relationships aren't just a way to grow close to somebody we hope to love-- they're an independent source and expression of value and virtue, an independent reason for admiring some people, and a motivation for overcoming the vast barriers that separate hearts and minds. [Oh, and they're also often quite fun.]

Note to Insta-Readers.

In the course of reading this excellent essay by Chicago Professor Adrian Vermeule I stumbled across the following short passage, of note to those readers who have been following my brief tangles with Matthew Yglesias over precedent:

What theory of precedent should judges adopt in deciding constitutional cases?

Accounts of precedent typically assume that all judges, including future judges, will coordinate on the same approach. The theoretical problems facing any particular judge who adopts any given approach will, however, change dramatically when other judges adopt different approaches.

Consider a story like the following. At Time 1, a particular account of precedent prevails in the legal system. This account might hold, for example, that a precedent decided at Time 1 may be overruled by a court sitting at Time 2 only if there is some special justification for overruling it. At Time 1 the jurisdiction’s highest court issues a precedent decision. Under the prevailing account of precedent, it is not permissible for the Time 2 court to overrule the earlier decision just because its members think that decision erroneous. When Time 2 is reached, however, the judges then sitting happen to hold a different account of precedent. Under this account, judges may overrule any earlier decision that is mistaken, in their current view. So the Time 2 court overrules the earlier decision and substitutes a precedent decision that is the opposite of the earlier one.

Now imagine a judge sitting at Time 3. This judge subscribes to the account of precedent that prevailed at Time 1—that is, precedents may not be overruled unless there is special justification for so doing; it is not enough that the earlier precedent be erroneous. On this view, to which precedent does the Time 3 judge owe allegiance—the decision issued at Time 1, or the overruling decision issued at Time 2? From the standpoint of the Time 3 judge, the overruling decision was erroneous; it invoked a mistaken theory of precedent, and under the correct theory the Time 1 decision would still be the law. The very theory of precedent that brands the Time 2 overruling as mistaken, however, also bars the Time 3 judge from voting to overrule the Time 2 decision just because it was erroneous. The theory held by the Time 3 judge can be interpreted in procedural or substantive terms, and these interpretations now have sharply different implications.

This story is not fanciful; similar accounts are ubiquitous in constitutional law. Consider two narratives commonly encountered in originalist legal discourse:

• Before 1937, the Supreme Court issued restrictive decisions about the scope of national legislative power, the delegation of legislative power to agencies, and other topics. After 1937 these decisions were overruled, in some cases on the simple ground that then-sitting Justices thought them mistaken. Should the current Court adhere to the overruling decisions, even though they were methodologically flawed, or reinstate the overruled decisions, even though to do so would require the current Court to adopt the same aggressive approach to overruling precedent that the post-1937 decisions adopted?

• The Warren and Burger Courts casually overruled a great many criminal procedure precedents, expanding criminal defendants’ constitutional rights in many settings. Moreover, the Court made some of its rulings prospective, in part
to weaken the constraints of stare decisis (because prospectivity reduces the cost of overruling precedents). Should the current Court respect the Warren and Burger Court precedents, or should those decisions be treated in the same cavalier fashion as the older decisions they overruled?

The point here is not to assert that either of these accounts is historically accurate; it is merely to use them to illustrate the quandary that the Time 3 judge faces. What should the Time 3 judge do? There is no answer internal to the theory of precedent that the Time 3 judge holds, because the theory is at odds with itself: its procedural instruction is to uphold the Time 2 decision, while its substantive counsel is that the Time 1 decision should be reinstated as the law that would obtain has the correct account of precedent been followed. The Time 3 judge must choose between these two possibilities on other grounds entirely.

Richard Posner has a review of Same-Sex Marriage and the Constitution
by Evan Gerstmann in TNR (and on the Chicago website). Unsurprisingly, it doesn't lack the traditional Posner touch:

It should be apparent by now what the problem with Gerstmann's approach is. Though he is a political scientist as well as a lawyer, his approach to the question of homosexual marriage is legalistic. Find a precedent (Turner v. Safly, or Zablocki v. Redhail, a case in 1978 that invalidated a law prohibiting a person who was under court order to support minor children to marry without the court's permission), and analogize it to the present case, and use the analogy to put an impossible burden of proof on your opponent, and limit the scope of your rule by rejecting further analogies on however arbitrary a ground, so that the right of a prison inmate to marry is deemed analogous to a right of homosexual marriage but not to a right of polygamous marriage, because the polygamist, unlike the homosexual, is not denied the right to marry the person of his (first) choice.

This is what is called "legal reasoning," and it is hard to take seriously.

PG (also of En Banc fame) has a long-ish and intriguing post about F. Scott Fitzgerald's treatment of women and Nabokov's Lolita.

A passage from Fitzgerald's short story Winter Dreams, quoted by Will Baude, reminded me of the role women play in Fitzgerald's fiction. They are desirable, but almost as money is desirable, and they often are closely linked to money. The lack thereof makes the woman one wants unobtainable, while the possession of it brings her within reach -- or almost within reach, as in Gatsby's case.

Rosemary took a cocktail and a little wine, and Dick took enough so that his feeling of dissatisfaction left him. Afterward they drove back to the hotel, all flushed and happy, in a sort of exalted quiet. She wanted to be taken and she was, and what had begun with a childish infatuation on a beach was accomplished at last.