GROUP PURCHASING ORGANIZATIONS

      WHAT IS A GROUP PURCHASING ORGANIZATION ? 

   Most hospitals in the United States procure their supplies through Group Purchasing Organizations ( GPOs ). GPOs negotiate vendor contracts that are intended to save money for the hospitals and other health care providers, such as nursing homes. The genesis of GPOs can be found in the common and quite essential activity where a number of small organizations combine their purchasing power to gain buying leverage on their suppliers to negotiate for lower prices and other discounts for related services. Buying cooperatives, or collective buying initiatives, of this type can be found in a number of industries, especially when they are in the early stages of their growth. 
   The first known hospital GPO was the Hospital Bureau of New York, founded in 1910. The proliferation of the GPO industry had a humble beginning. They were generally established by groups of small hospitals. For about 50 years, the GPO concept grew slowly. By the early 1970s, with the establishment of Medicare and Medicaid, there were 40 hospital GPOs in the United States. (http://www.ftc,gov/ogc/healthcarehearings/docs/03092bloch.pdf)
   As companies in an industry grow, they become more complex and managing their supply chain function may take different paths along a continuum. At one end, companies may create their own purchasing departments, which manage all aspects of purchasing and other elements of the supply chain. At the other end, highly specialized middlemen may emerge to provide one or more of these services with greater efficiency in terms of product groups or concentrated geographical areas. Some hospital groups have chosen to locate these services within their own organizations or more recently through Integrated-Delivery Networks (IDNs). However, a great many others have opted to work with independent middlemen, that is, GPOs. A large majority of the hospitals procure their supplies through GPO-negotiated vendor contracts. 
   The modern-day GPOs could not be more different than their early predecessors. Rather than mere servants of their hospital masters, the new GPOs are giant behemoths in a very large industry. The GPO industry is a classic example of a highly concentrated oligopolistic structure, where a handful of companies control more than 80 percent of the hospital supplies purchased through GPOs. This oligopolistic market structure has allowed these, mostly privately owned and controlled entities, to extract excessive rates of return for their own benefit   and to the detriment of their member hospitals.  In an economic situation that has been characterized by drastic increases in healthcare costs and inefficiency, the GPO oligopoly is a major factor of heretofore unrecognized significance. 
   GPOs as middlemen present a set of unique opportunities, which makes their role as agents to be highly lucrative. As agents, they operate with rather limited obligations of due diligence and fiduciary duty to their clients. They have also received special protection from antitrust laws. And lastly, while a very large part of their income is derived ---directly or ---indirectly from government programs such as Medicare and Medicaid, the responsible government agencies have bee indifferent and inept in ensuring that government funds are prudently used. 
   An inevitable outcome of this state of affairs is that the system favors agency at the expense of stewardship. The GPOs' primary role is that of providing a service to their healthcare clients, for which they assess a service charge. However, as privately owned independent organizations, they also seek to maximize profits for their shareholders. Under normal conditions of competitive markets, these interests are balanced by market forces. This however, is not the case for the GPO industry. The enormous size of the industry, and the fact that it controls buying power of such magnitude, would raise anticompetitive concerns under the best of circumstances, that is, freely operating competitive markets. In the case of GPOs, the potential for abuse is even greater. As middlemen, they carry little risk or incur additional costs arising from normal business operations. The justification for their services ---and the cost of these services, that is, GPO revenues---must rest on the criterion of efficiency, that is, low unit transaction costs arising from economies of scale, which would yield greater benefits to their clients and masters, that is, hospitals, nursing homes, and other healthcare organizations. However, these efficiencies and cost savings are unlikely to occur, if the agencies' costs, that is, opportunities and incentives toward self-enrichment on the part of GPOs, are not controlled. 

                                  SOURCES OF REVENUE

   GPOs derive most of their revenue (more than 50 percent) from administrative fees paid by manufacturers and distributors, effectively capped at 3 percent of purchasing volume in tandem with Medicare Safety Harbor regulations. This was confirmed in the report prepared in May 2005 by the Office of Inspector General (OIG) , U. S. Department of Health and Human Services. This report indicated that "three GPOs collected $513 million in revenues for the period reviewed, mostly from administrative fees. 
   Notwithstanding, GPOs also derive a handsome portion of their revenue from other "fees" paid by suppliers in excess of the 3 percent cap stipulated under Federal safe harbor regulations to attract GPO business. Estimates by various sources indicate that these fees can range anywhere from 6 percent to 18 percent of purchasing volume. In addition, another source of revenue is derived by GPOs from distribution fees levied on suppliers. Health Industry Distributors Association estimates that GPOs charge Medical Products Distributors, particularly those serving acute care facilities , a distributor's fee in excess of 11 percent computed on a basis greater than the cost of the distribution service provided. In some cases, GPOs may also receive a patronage fee or patronage dividend from a supplier as a reward for the successful negotiation of a contract with a GPO. 

                        EXAMPLE OF A MAJOR GPO

   Based on the number of covered hospitals, Novation is by far the largest national purchasing organization. It is also the largest GPO in the United States based on the volume of purchases. In the last several years, the company has been experiencing a stable annual purchasing growth of 13 percent. In 2007, Veterans Health Administration, University HealthSystem Consortium, and Provista members used Novation and alliance contracts to purchase $33.1 billion in supplies and services. 
   Novation was established on January 1, 1998. It is an affiliate of healthcare alliances VHA and UHC and conducts supplies and services contract purchasing for VHA and UHC and conducts supplies and services contract purchasing for VHA, UHC, and Provista. Novation currently is one of Cardinal Health's biggest GPO customers. 
   The company procures medical equipment and supplies, pharmaceuticals, laboratory equipment, food, and other products needed to run healthcare facilities. 

   Many GPOs, including Novation are widely believed to demand excess fees from manufacturers. Novation extracts fees from manufacturers in a number of ways. It requires suppliers to sell through private label brand called NovaPlus, the largest comprehensive private label program in health care. The company also uses Marketplace@Novation and other incentive and performance-based programs such as OPPORTUNITY, the most active online exchange of its kind in the industry, to expand its presence in the market. In 2000, Novation got control over the electronic marketplace through the acquisition of e-commerce company Neoforma and partnering it with Premier's (another GPO) Global Healthcare Exchange (GHX), LLC. 

CONSUMERISM : CURSES AND CAUSES

   US consumerism---citizens driven excessively to buy goods and services and accumulate consumable wealth --- is cursed almost everywhere. Many environmentalists blame it for global warming. Critics of the current economic disasters after point to home-buying gluttony as the cause. Many see consumerism behind the borrowing that makes the United States the world's greatest debtor nation today. Moralists of otherwise diverse motivations agree on attacking consumerist materialism as against spiritual values. Educators blame it for distracting young people's interest in learning. Psychologists attribute mass loneliness and depression to unrealizable expectations of what commodities can deliver to consumers. Physicians decry the diseases, stress, and exhaustion linked to excessive work driven by desire for excessive consumption. Yet, for a long time, exhortations by all such folks have mostly failed to slow, much less reverse, US consumerism. 
  The question is why ? The answer is not advertising, since that begs the question of why that industry should have been so successful in the US and grown to such influence. Nor is it plausible to attribute some national personality flaw to our citizens. 
   A big part of the answer lies in the unique history of US capitalism. From 1820 to 1970, over every decade, average real wages rose, enabling a rising standard of consumption. These 150 years rooted workers' beliefs that the US was a "chosen" place where every generation would live better than its parents. This was "the good news" of US capitalism for the workers. The "bad news" was that the average worker's productivity ---the amount of output each worker produced for his/her employer to sell---rose even faster. This was because workers were relentlessly driven by employers to work harder, faster, and with ever more, and more complicated, machinery. Thus, alongside rising workers' wages, faster rising productivity brought even bigger gains for employers. 
   An unspoken, historic deal defined US capitalism for those 150 years. Capitalists paid rising wages to enable rising working-class consumption ; the workers had to provide rising work effort, rising profitability, and thus the even faster rise of profits. Because the rise  in workers' consumption was slower than the rise of their productivity --- the output that they delivered to employers ---the gap between workers and employers widened across US history. A fundamentally unequal society emerged, one that forever mocked, challenged, and undermined the ideological claims of the US to be the land of equality and opportunity. The working class labored even harder, consumed more, and yet fell even further behind the minority who lived off the growing difference between what workers produced and their wages. 
 The deal might have collapsed at any time if US workers rebelled against the organization of production in the US. This could have occurred if rising wages did not suffice to make them ignore the growing inequality of US life, or if they rejected subordination to ever more automated, exhausting work disciplines, or if they refused to deliver ever more wealth to ever fewer corporate boards of directors of immense corporations ever further removed from them in power, wealth, and access to culture. For that deal to survive---for US capitalism to have been "successful" for so long ---something had to emerge in US society that prevented any of these deal-breakers from happening. Enter consumerism ! 
   The idea settled into US culture that consumption was the proper goal of work and the measure of personal wealth, of one's "success" in life. Business boosters and ideologues pushed that constant idea, but they were hardly alone. Advertisers made it their constant message. Trade unions focused also on raiding wages and consumption ---just what US capitalism could and did deliver --rather than challenging the organization of production. So too did most left movements. Economists did their part by building modern economics on the unquestioned axiom that labor was a burden for which consumption enabled by wages was the compensation. This definition of economics required banishing the alternative of Marxian economics from schools. Te mass media proceeded as if it were likewise obvious common sense that all any employee really cared about was the size of his/her wages/salary. Of course, some dissident voices ---especially on the left --- rejected these ideas and this capitalist/labor deal, but consumerism usually all but drowned them out.
   Consumerism's deep roots in the psyche of US workers explains their reactions when real wages stopped rising in the 1970s and since. They simply kept on buying more commodities. To pay for them, workers took on more hours of labor and borrowed vast sums. Worker exhaustion rose accordingly, likewise the number of family members sent out to work (straining "family values" to the breaking point) Anxiety intensified over frightening debt levels, mostly credit card. In this situation, the current scandal of sub-prime mortgages was a predictable disaster waiting to happen. 
   The 150-year deal had been broken. The business side no loner needs it ; it hasn't since the 1970s. That is why real wages stopped rising. Most workers just postponed facing that reality and its implications : by having more family members do more work and by heavy use of credit cards. Meanwhile, able and willing, laborers abroad who accept wages far lower than in the US beckon. US corporations are moving to produce there. They will ship "home" the goods and services they produce abroad so long as US citizens can afford them. When that no longer pays, they will redirect shipments to the rest of the world market.
   Consumerism was a necessary component of US capitalism from the 1820s to the 1970s. As an ideology uniquely suited to that capitalism, it was articulated, cultivated, and supported by different social groups. Whatever fun comedians and critics poke at consumerism, it was not some lovable human foible, nor some quirk of our culture. It was the glue holding US capitalism together for a long time. Even more important, business dissolved that glue in the 1970s, and now US workers have exhausted ways to postpone the results of that dissolution. Storms are rising. 

The Decline of Public Higher Education

    Over the last 50 years, Americans got used to the idea of their children going on to college and universities after high school. In the early 1970s, about 8.5 million Americans attended college ; by 2004 the number had doubled. The US population across this time rose by less than 50 percent.This spectacular growth in our student population reflected the pent-up demand of the mass of Americans for what they had viewed as a luxury as well as a ticket to better jobs and higher incomes. The demand would have far exceeded the supply had not most of the states rapidly increased facilities for public higher education. Today, the vast majority of US college and university students attend public, not private, institutions. Yet therein lies the problem.
   The last quarter century, and especially the last decade, have also moved the country to the right towards less government provision for social services, like public higher education) and more privatization. Real wages have stagnated since the 1970s, so most Americans are finding it ever more difficult to pay for higher education.  Meanwhile its costs have been rising far faster than the general level of inflation. We are on a collision course in which a historic demand for higher education ---which has now become an embedded expectation for half the population --- confronts a rapidly escalating rationing of enrollment by cost. Social tensions and rising resentment and anger are sure to follow. 
   Let's take the example of the main campus of a major state university : the University of Massachusetts at Amherst. Approximately 25,000 students, undergraduate and graduate, attend that university. About three quarters come from Massachusetts households. The total cost for in-state undergraduate students went from $2,340 in 1978-79 to $16,584 in 2007. That increase was three times as big as the rise in the consumer price index over the same period. The increase was larger still for out-of-state undergraduates. Given that real wages stagnated across this period, Paying for their children's college-level education presented families ever-rising level of financial difficulty. No wonder the data show that American workers over the last 25 years steadily increased the number of hours worked per year(multiple jobs and/or more overtime). No wonder those families increased household debt at historically unprecedented rates to historically unprecedented levels. 
   Nor is it any wonder that students now graduating US colleges and universities do so with increasing levels of personal debt (in addition to their parents' household debt) taken to pay part of college costs. The US Department of Education says that in 2005-2005, two thirds of students graduated from colleges and universities with debt averaging $15,500 at public schools and $20,000 at private schools. In New York, which runs the nation's largest system of public higher education, the average debt was $21,000 then, and it is higher today. 
 Several lessons flow from this situation. First, many parents have reacted strongly to the additional stress and exhaustion(from the increasing hours of paid work they have undertaken) and the additional debt anxieties (from the fast rising levels of household debt) incurred since the early 1970s to finance runaway college costs. Some have turned against higher education in a deepening rage about about the financial burdens that it imposes. This can take the form of hostility toward teachers and teachers' salaries insofar as these are blamed for rising college costs. It can take the form of a cultural turn against higher education : viewed increasingly as an unnecessary and useless distraction from "real" life and a job or as a luxury indulgence for the idle or both. Most likely, anger about college costs will flow into the growing "middle-class malaise" that fuels the rhetoric and campaigns of many Democrats and mystifies so many Republicans, who simply deny there's a problem. 
   Nor have matters been improved as public universities, to save costs, resort ever more to substituting overworked and underpaid "adjuncts" for the full-time faculty who used to do most of the teaching. New PhDs face ever fewer tenure-track jobs and so must take multiple adjunct positions at different institutions. They have far less time foreach class and little or no time for the research that should enable them to keep up with their discipline and improve their teaching across their working life. Grossly underpaid in comparison to what tenure-track teachers get, they resent their situation. Rising pressures not matched by rising resources, respect, or remuneration also provoke more dissatisfaction and resentment among the relatively shrinking portion of tenured professors. The deteriorating circumstances of the teachers spill over to diminish the educational experiences of the students. The students have thus been required topaz ever more for ever less in the way of educational services. What keeps students in school is the terror of facing a deteriorating job market without a degree. They remain students despite the quality of their classroom experiences. 
   Nothing better illustrates all these trends than the current rapid proliferation of "distance-learning"---the prevailing euphemism for internet-based courses. In them, very low-paid adjuncts administer electronic courses that students increasingly substitute for the formerly in-person engagement with tenured professors. In many state universities, faculty reductions have so limited classes that undergraduates find it necessary to add an extra semester or two (and its heavy costs) to get sufficient classes to graduate in their chosen major fields. Offering such students "distance-learning" via the internet is proving a profitable new opportunity for such universities. 
   The finance-driven turn to adjuncts and distance-learning widens the gulf between public and private higher education. The private colleges and universities see the decline of public colleges and universities as a competitive opportunity in the business sense. The democratization of higher education had been notably advanced after World War II when the states built up first-rate institutions that often outperformed the best and oldest private institutions. Now, that short-lived democratization is unraveling and with it the quality of higher education provided to the majority of our students. A differentiation of first-class (private) and second-class (public) higher education is hardening into the norm with many state and community colleges sinking further into still lower quality educational experiences. It would be hard to exaggerate the complex consequences of these developments for many years and in many domains of our society. 

REAL WAGES IN THE U. S. A.

                                           Let's Do The Numbers

   Let's do the basic US wage and productivity numbers that seem to elude most radio, newspaper, and TV commentators. The data comes from the US Bureau of Labor Statistics , gathered and interpreted by the Economic Policy Institute ( see www.epi.org/datazone ). 

  From 1973 to 2005, this is what happened to the 80 percent of US workers in non-supervisory jobs. Their hourly wages --- adjusted for inflation and expressed in 2005 dollars -- rose from $15.76 to $16.11. That is, over a 32-year period, most US workers enjoyed a stunning 2 percent increase in what their hourly pay could buy. Because their work weeks shortened over over those years, their real weekly pay ---what they could actually afford for a week's pay --- actually fell from $581.67 to $543.65, a decline of 6.5 percent. This means that workers' wages could buy less in 2005 tun in 1973. 

   Over the same thirty years, US workers produced 75 percent more. In the language of economics, that's how much output per worker ---"productivity"---rose. Corporations got 75 percent more goods and services produced per worker. They sold that extra output and thus got much more revenue and profit per worker employed. Yet what they paid those workers did not rise. Stagnant wages did not allow the workers to buy any of the extra output they produced. 

   Why and how did this happen ? Over the last three decades, jet travel, computers, the internet, and cell phones changed every workplace on the planet. Companies survived global competition if they produced more with fewer workers.  So they changed technology to replace people with machines, and they successfully pressured the remaining employees to work harder and faster. At the same time they moved production to places where they could minimize costs by using dangerous technologies and production methods (think lead-contaminated toys or chemically dangerous pet food and so on). Perhaps they bribed local authorities to ignore the resulting ecological, safety, and health problems ; perhaps they just looked the other way as in "failing to properly supervise." In any case, what mattered and what happened was that productivity rose. 

   Wages, however, went nowhere because US corporations (1) outsourced what had been US jobs to cheap labor overseas, (2) imported immigrants willing to work for less, (3) threatened to export their jobs if US workers pushed for higher wages, and (4) financed politicians who legalized all these actions and undercut the already shrinking unions. In 1973, union contracts covered about 24 percent of US non-supervisory workers. By 2005, that number fell to 12.5 percent.

  And always, a growing army of well-paid commentators in the mass media glorified the "efficiency of the world economy." Sometimes, troubling facts arose to threaten the constant celebration (anti-free-trade protests, scandals involving toxic exports, etc.). The commentators found ways to ignore them, deflect attention from them, and soothe their audiences by recalling the wonders of "the new modern economy." 

   Yet the importance of rising worker output coupled with stagnant real wages is clear for anyone willing to see. It is exploitation getting worse. The huge size of the post-1975 productivity -wage gap overwhelms all the usual quibbles about the statistics. The gap between the standard of living that their rising productivity made possible and the standard of living their wages could afford got wider every year. 

   So workers rebelled. With their wages effectively frozen and no union, party, or social movement available to unfreeze them, workers responded individually. Women moved massively to add wage-labor to their household. Families Families undertook massive personal debt. As families and finances became shaky, anxieties grew. Upset by frightening changes on so many levels, Americans sought reassurance or escapes from new pressures. Fundamentalisms enjoyed revivals : in churches, synagogues, and mosques but also in politics, patriotism, "family values," and economics. Escapisms bloomed --- spectator sports, drugs, alcohol, food, but also fitness, pornography, and the private tech-worlds of iPods, blogs, chat rooms.

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       What Might A New Politics of the Common Good Look Like ?


3. Inequality, solidarity, and civic virtue 

   Within the United States, the gap between rich and poor has grown in recent decades, reaching levels not seen since the 1930s. Yet inequality has not loomed large as a political issue. Even Barack Obama's modest proposal to return income tax rates to where they stood in the 1990s prompted his 2008Republican opponent to call him a socialist who wanted to spread the wealth. 
   The dearth of attention to inequality in contemporary politics does not reflect any lack of attention to the topic among political philosophers. The just distribution of income and wealth has been a mainstay of debate within political philosophy from the 1970s to the present. But the tendency of philosophers to frame the question in terms of utility or consent leads them to overlook the argument against inequality most likely to receive a political hearing and most central to the project of moral and civic renewal. 
   Some philosophers who would tax the rich to help the poor argue in the name of utility ; taking a hundred  dollars from a rich person and giving it to a poor person will diminish the rich person's happiness only slightly, thy speculate, but greatly increase the happiness of the poor person. JohnRawls also defends a redistribution, but on the grounds of hypothetical consent. He argues that if we imagined a hypothetical social contract in an original position of equality, everyone would agree to a principle that would support some form of redistribution. 
   But there's a third, more important reason to worry about the growing inequality of American life : Too great a gap between rich and poor undermines the solidarity that democratic citizenship requires. Here's how : As inequality deepens, rich and poor live increasingly separate lives. The affluent send their children to private schools ( or to public schools in wealthy suburbs ) , leaving urban public schools to the children of families who have no alternative. A similar trend leads to the secession by the privileged from other public institutions and facilities. Private health clubs replace municipal recreation centers and swimming pools. Upscale residential communities hire private security guards and rely less on public police protection. A second or third car removes the need to rely on public transportation. And so on. The affluent secede from public places and services, leaving them to those who can't afford anything else. 
   This has two bad effects, one fiscal, the other civic. First, public services deteriorate, as those who no longer use those services become less willing to support them with their taxes. Second, public institutions such as schools, parks, playgrounds, and community centers cease to be places where citizens from different walks of life encounter one another. Institutions that once gathered people together and served as informal schools of civic virtue become few and far between. The hollowing out of the public realm makes it difficult to cultivate the solidarity and sense of community on which democratic citizenship depends.
   So, quite apart from its effects on utility or consent, inequality can be corrosive to civic virtue. Conservatives enamored of markets and liberals concerned with redistribution overlook this loss. 
   If the erosion of the public realm is the problem, what is the solution ? A politics of the common good would take as one of its primary goals the reconstruction of the infrastructure of civic life. Rather than focus on redistribution for the sake of broadening access to private consumption, it would tax the affluent to rebuild public institutions and services so that rich and poor alike would want to take advantage of them.  
   An earlier generation made a massive investment in the federal highway program,which gave Americans unprecedented individual mobility and freedom, but also contributed to the reliance on the private automobile, suburban sprawl, environmental degradation, and living patterns corrosive to community. This generation could commit itself to an equally consequential investment in an infrastructure for civic renewal : public schools to which rich and poor alike would want to send their children ; public transportation systems reliable enough to attract upscale commuters; and public health clinics, playgrounds, parks, recreation centers, libraries, and museums that would, ideally at least, draw people out of their gated communities and into the common spaces of a shared democratic citizenship. 
   Focusing on the civic consequences of inequality, and ways of reversing them, might find political traction that arguments about income distribution as such do not. It would also help highlight the connection between distributive justice and the common good. 

                           A Politics of Moral Engagement 

   Some consider public engagement with questions of the good life to be a civic transgression, a journey beyond the bounds of liberal public reason. Politics and law should not become entangled in moral and religious disputes, we often think, for such entanglement opens the way to coercion and intolerance. This is a legitimate worry.  Citizens of pluralistic societies do disagree about morality and religion. Even if, as has been argued, it's not possible for government to be neutral on these disagreements, is it nonetheless possible to conduct our politics on the basis of mutual respect ?
   The answer, I think, is yes. But we need a more robust and engaged civic life than the one to which we've become accustomed. In recent decades, we've come to assume that respecting our fellow citizens' moral and religious convictions means ignoring them (for political purposes, at least), leaving them undisturbed, and conducting our public life --- insofar as possible --- without reference to them. But this stance of avoidance can make for a spurious respect. Often, it means suppressing moral disagreement rather than actually avoiding it. This can provoke backlash and resentment. It can also make for an impoverished public discourse, lurching from one news cycle to the next, preoccupied with the scandalous, the sensational, and the trivial. 
   A more robust public engagement with our moral disagreements could provide a stronger, not a weaker, basis for mutual respect. Rather than avoid the moral and religious convictions that our fellow citizens bring to public life, we should attend to them more directly --- sometimes by challenging and contesting them, sometimes by listening to and learning from them. There is no guarantee that public deliberation about hard moral questions will lead in any given situation to agreement --- or even to appreciation for the moral and religious views of others. It's always possible that    learning more about a moral or religious doctrine will lead us to like it less. But we cannot know until we try. 
   A politics of moral engagement is not only a more inspiring ideal than a politics of avoidance . It is also a more promising basis for a just society. 


























learning more about a moral or religious doctrine will lead us to like it less. 

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               A NEW POLITICS OF THE COMMON GOOD 

What might a new politics of the common good look like ? Here are some possible themes : 


1. Citizenship, sacrifice, and service

   If a just society requires a strong sense of community, it must find a way to cultivate in citizens a concern for a whole, a dedication to the common good. It can't be indifferent to the attitudes and dispositions, the "habits of the heart," that citizens bring to public life. It must find a way to lean against purely privatized notions of the good life, and cultivate civic virtue.
   Traditionally, the public school has been a site of civic education. In some generations, the military has been another. I'm referring not mainly to the explicit teaching of civic virtue, but to the practical, often inadvertent civic education that takes place 

when young people from different economic classes, religious backgrounds, and ethnic communities come together in common institutions. 
   At a time when many public schools are in a parlous condition and when only a fraction of American society serves in the military, it is a serious question how a democratic society as vast and disparate as ours can hope to cultivate the solidarity and sense of mutual responsibility that a just society requires. This question has recently reappeared in our political discourse, at least to some 
extent.
   During the 2008 campaign, Barack Obama observed that the events of September 11, 2001, stirred in Americans a sense of patriotism and pride, and a new willingness to serve their country. And he criticized President George W. Bush for not summoning Americans to some form of shared sacrifice. " Instead of a call to service," Obama said,  "we were asked to go shopping. Instead of a call for shared sacrifice, we gave tax cuts to the wealthiest Americans in a time of war ---something that had never before happened in or history. 
   Obama proposed to encourage national service by offering students help with college tuition in exchange for one hundred hours of public service. "You invest in America, and America invests in you," he told young people as he campaigned across the country. The proposal proved to be one of his most popular, and in April 2009, he signed legislation to expand the AmeriCorps public service program and provide college money for students who volunteered in their communities. Despite the resonance of Obama's call to national service, however, more ambitious proposals for mandatory national service have not found their way onto the political agenda. 

2. The moral limits of markets 

   One of the most striking tendencies of our time is the expansion of markets and market-oriented reasoning into spheres of life traditionally governed by non-market norms. Earlier, we discussed the moral questions that arise, for example, when countries hire out military service and the interrogation of prisoners to mercenaries or private contractors ; or when parents outsource pregnancy and childbearing to paid laborers in the developing world ; or when people buy and sell kidneys on the open market. Other instances abound : Should students in underperforming schools be offers cash payments for scoring well on standardized tests ? Should teachers be given bonuses for improving the test results of their students ? Should states hire for-profit prison companies to house their inmates ? Should the United States simplify its immigration policy by adopting the proposal of a University of Chicago economist to sell U.S. citizenship for a $100,000 fee ?
   These questions are not only about utility and consent. They are also about the right way of valuing key social services --- military service, child-bearing, teaching and learning, criminal punishment, the admission of new citizens, and so on. Since marketing social practices may corrupt or degrade the norms that define them, we need to ask what non-market norms we want to protect from market intrusion. This is a question that requires public debate about competing conceptions of the right way of valuing goods. Markets may be useful instruments for organizing productive activity. But unless we want to let the market rewrite the norms that govern SOCIAL INSTITUTIONS, we need a public debate about the moral limits of of markets.
   

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        DISCUSSING VIRTUE AND GOOD IN POLITICS 

   In the last half of the twentieth century, the most promising voice in the direction of political discussion about virtue and good was that of Robert F. Kennedy, as he sought the Democratic presidential nomination in 1968. For him, justice involved more than the size and distribution of the national product.  It was also about higher moral purposes . In a speech at the University of Kansas on March 18, 1968, Kennedy spoke of the war in Vietnam, riots in America's cities, racial inequality and the crushing poverty he had witnessed in Mississippi and Appalachia. He then turned from these explicit matters of justice to argue that Americans had come to value the wrong things. "Even if we act to erase material poverty," Kennedy said, "there is another greater task. It is to confront the poverty of satisfaction . . . that afflicts us all." Americans had given themselves over to "the mere accumulation of things." 


     Our gross National product now is over 800 billion dollars a year. But that Gross National product counts air pollution and cigarette advertising, and ambulances to clear our highways of carnage. It counts special locks for our doors and the jails for the people who break them. It counts the destruction of the redwood and the loss of our natural wonder in chaotic sprawl. It counts napalm and counts nuclear warheads and armored cars for the police to fight the riots in our cities. It counts . . . the television programs which glorify violence in order to sell toys to our children. Yet the Gross National Product does not allow for the health of our children, the quality of their education or the joy of their play. It does not include the beauty of our poetry or the strength of our marriages, the intelligence of our public debate or the integrity of our public officials. It measures neither our wit nor our courage, neither our wisdom nor our learning, neither our compassion nor our devotion to our country. It measures everything, in short, except that which makes life worthwhile. And it can tell us everything about America except why why we are proud to be American. 

   Listening to Kennedy, or reading this passage, you might say that the moral criticism he leveled against the self-satisfaction and material preoccupations of his time was independent of his point about the injustices of poverty, the Vietnam War, and racial discrimination. But he saw them as connected. To reverse these injustices, Kennedy thought it necessary to challenge the complacent way of life he saw around him. He did not hesitate to be judgmental. And yet, by invoking Americans' pride in their country, he also, at the same time, appealed to a sense of community. 
   Kennedy was assassinated less than three months later. WE can only speculate whether the morally resonant politics he intimated would have come to fruition had he lived.
   Four decades later, during the 2008 presidential campaign, Barack Obama also tapped Americans' hunger for a public life of larger purpose and articulated a politics of moral and spiritual aspiration. He got sidetracked by a financial crisis and deep recession that prevented him from turning the moral and civic thrust of his campaign into a new politics of the common good. Too bad. 

SQUARE PEGS AND ROUND HOLES

         


                                                          Same-Sex Marriage

Continuation of discussion of Massachusetts Supreme Court Case--




    Notwithstanding its emphasis on freedom of choice, the Massachusetts court made clear that it did not intend to open the way to polygamous marriage. It didn't question the notion that government may confer social recognition on some intimate associations rather than others. Nor did the court call for the abolition, or disestablishment, of marriage. 
   To the contrary, Justice Marshall's opinion offers a paean to marriage as "one of our community's most rewarding and cherished institutions." It argues that eliminating state-sanctioned "would dismantle a vital organizing principle of our society." 
   Rather than abolishing state-sanctioned marriage, Marshall argues for expanding its traditional definition to include partners of the same sex. In doing so, she steps outside the bounds of liberal neutrality to affirm the moral worth of same-sex unions, and to offer a view about the purpose of marriage, properly conceived. More than a private arrangement between two consenting adults, she observes, marriage is a form of public recognition and approval. "In a real sense, there are three partners to every civil marriage : two willing spouses and an approving State." This feature of marriage brings out its honorific aspect : "Civil marriage is at once a deeply personal commitment to another human being and a highly public celebration of the ideals of mutuality, companionship, intimacy, fidelity, and family."
   If marriage is an honorific institution, what virtues does it honor ?  To ask that question is to ask about the purpose, or telos, of marriage as a social institution. Many opponents of same-sex marriage claim that the primary purpose of marriage is procreation. According to this argument, since same-sex couples are unable to procreate on their own, they don't have a right to marry. They lack, so to speak, the relevant virtue.
   This teleological line of reasoning is at the heart of the case against same-sex marriage, and Marshall takes it on directly. She does not pretend to be neutral on the purpose of marriage, but offers a rival interpretation of it. The essence of marriage,  she maintains, is NOT PROCREATION but an exclusive, loving commitment between two partners ---be they straight or gay. 
   Now, how, you might ask, is it possible to adjudicate between rival accounts of the purpose, or essence, of marriage ? Or is it simply a clash of bald assertions ---- some say it's about procreation, others say it's about loving commitment --- and there's no way of showing one to be more plausible than the other ? 
   
      HEY DARLINGS, READ THIS NEXT PARAGRAPH

    Marshall's opinion offers a good illustration of how such arguments can proceed. First, she disputes the claim that procreation is the primary purpose of marriage. She does so by showing that marriage, as currently practiced and regulated by the state, does not require the ability of procreate. Heterosexual couples who apply for marriage licenses are not asked about "their ability or intention to conceive children by coitus. Fertility is not a condition of marriage, nor is it grounds for divorce. People who have never consummated their marriage, and never plan to, may marry. " While "many, perhaps most married couples have children together (assisted or unassisted)," Marshall concludes, "it is the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children, that is the sine qua non of civil marriage." 
   So part of Marshall's argument consists of an interpretation of the purpose or essence of marriage as it currently exists. Faced with rival interpretations of a social practice --- marriage-as-procreation versus marriage-as-exclusive-and-permanent-commitment--how can we determine which is more plausible ? One way is to ask which account makes better sense of existing marriage laws, taken as a whole. Another is to ask which interpretation of marriage celebrates virtues worth honoring. What counts as the purpose of marriage partly depends on what qualities we think marriage should celebrate and affirm. This makes the underlying moral and religious controversy unavoidable : What is the moral status of gay and lesbian relationships ?
   Marshall is not neutral on this question. She argues that same-sex relationships are as worthy of respect as heterosexual relationships. Restricting marriage to heterosexuals"confers an official stamp of approval on the destructive stereotype that same-sex relationships are inherently unstable and inferior to opposite-sex relationships and are not worthy of respect. 
   So when we look closely at the case for same-sex marriage, we find that it cannot rest on the ideas of nondiscrimination and freedom of choice. In order to decide who should qualify for marriage, we have to think through the purpose of marriage and the virtues it honors. And this carries us unto contested moral terrain, where we can't remain neutral toward competing conceptions of the good life. 

                      JUSTICE AND THE GOOD LIFE 

   Over the course of this discussion of justice and what's the right thing to do, we've explored three approaches to justice. One says justice means maximizing utility or welfare--- the greatest happiness for the greatest number. The second says justice means respecting freedom of choice ---either the actual choices people make in a free market (the libertarian view)or the hypothetical choices people would make in an original position of equality(the liberal egalitarian view). The third says justice involves cultivating virtue and reasoning about the common good. I favor a version of the third approach. Let's look at the reasons why.
   The utilitarian approach has two defects : First, it makes justice and rights a matter of calculation, not principle. Second, by trying to translate all human goods into a single, uniform measure of value, it flatters them, and takes no account of the qualitative differences among them. 
   The freedom-based theories solve the first problem but not the second. They take rights seriously and insist that justice is more than mere calculation. Although they disagree among themselves about which rights should outweigh utilitarian considerations, they agree that certain rights are fundamental and must be respected. But beyond singling out certain rights as worthy of respect, they accept people's preferences as they are. They don't require us to question or challenge the preferences and desires we bring to public life. According to these theories, the moral worth of the ends we pursue, the meaning and significance of the lives we lead, and the quality and character of the common life we share all lie beyond the domain of justice.
   This seems to be mistaken. A just society can't be achieved simply by maximizing utility or by securing freedom of choice. To achieve a just society we have to reason together about the meaning of the good life, and to create a public culture 
hospitable to the disagreements that will inevitably arise. 
   It is tempting to seek a principle or procedure that could justify, once and for all,  whatever distribution of income or power or opportunity resulted from it. Such principle, if we could find it, would enable us to avoid the tumult and contention that arguments about the good life invariably arouse. 
   But these arguments are impossible to avoid. Justice is inescapably judgmental. Whether we're arguing about financial bailouts or Purple Hearts, surrogate motherhood or same-sex marriage, affirmative action or military service, CEO pay or the right to use a golf cart, questions of justice are bound up with competing notions of honor and virtue, pride and recognition. Justice is not only about the right way to distribute things. It is also about the right way to value things. 

Square Pegs and Round Holes

                                    SAME-SEX MARRIAGE

     Consider the debate over same-sex marriage. Can you decide whether the state should recognize same-sex marriage without entering into moral and religious controversies about the purpose of marriage and the moral status of homosexuality ? Some say yes, and argue for same-sex marriage on liberal, nonjudgmental grounds : whether one personally approves or disapproves of gay and lesbian relationships, individuals should be free to choose their marital partners. To allow heterosexual but not homosexual couples to get married wrongly discriminates against gay men and lesbians, and denies them equality before the law.
   If this argument is a sufficient basis for according state recognition to same-sex marriage, then the issue can be resolved within the bounds of liberal public reason, without recourse to controversial conceptions of the purpose of marriage and the goods it honors. But the case for same-sex marriage can't be made on nonjudgmental grounds.  It depends on a certain conception of the telos of marriage --- its purpose or point.  And, as Aristotle reminds us, to argue about the purpose of a social institution is to argue about the virtues it honors and rewards. The debate over same-sex marriage is fundamentally a debate about whether gay and lesbian unions are worthy of the honor and recognition that, in our society, state - sanctioned marriage confers.  So the underlying moral question is unavoidable. 
   To see why this is so, it is important to bear in mind that a state can take three possible policies toward marriage, not just two.  It can adopt the traditional policy and recognize only marriage between a man and a woman ; or it can do what several states have done, and recognize same-sex marriage in the same way it recognizes marriage between a man and a woman ; or it can decline to recognize marriage of any kind, and leave this role to private associations.
   These three policies can be summarized as follows : 

   1. Recognize only marriage between a man and a woman.

   2. Recognize same-sex and opposite-sex marriages.

   3. Don't recognize marriage of any kind, but leave this role to private associations, which, of course, includes churches. 

   In addition to marriage laws, states can adopt CIVIL UNION OR DOMESTIC PARTNERSHIP LAWS that grant legal protections, inheritance rights, hospital visitation rights, and child custody arrangements to unmarried couples who live together and enter into a legal arrangement.  A number of states have made such arrangements available to gay and lesbian partners. In 2003, Massachusetts, by a ruling of its Supreme Court, became the first state to accord legal recognition to same-sex marriage (policy 2). In 2008, California's Supreme Court also ruled in favor of a right to same-sex marriage, but a few months after the ruling, a majority of the electorate overturned that decision in a statewide ballot initiative. (Lawyer David Boies is handling the constitutional challenge to the initiative. He should win.) In 2009, Vermont became the first state to legalize gay marriage by legislation rather than by judicial ruling. 
   Policy 3 is purely hypothetical, at least in the United States ; no state has thus far renounced the recognition of marriage as a government function. But this policy is nonetheless worth examining, as it sheds light on the arguments for and against same-sex marriage. 
   Policy 3 is the ideal libertarian solution to the marriage debate. It does NOT abolish marriage, but it does abolish marriage as a state-sanctioned institution. It might best be described as the disestablishment of marriage. Just as disestablishing religion means getting rid of an official state church (while allowing churches to exist independent of the state) , disestablishing marriage would mean getting rid of marriage as an official state function.
   The opinion writer Michael Kinsley defends this policy as a way out of what he sees as a hopelessly irresolvable conflict over marriage. Proponents of gay marriage complain that restricting marriage to heterosexuals is a kind of discrimination. Opponents claim that if the state sanctions gay marriage, it goes beyond tolerating homosexuality to endorsing it and giving it "a government stamp of approval." The solution, Kinsley writes, is "to end the institution of government-sanctioned marriage," to "private marriage." Let people get married any way they please, without state sanction or interference : 


      Let churches and other religious institutions continue to offer marriage ceremonies. Let department stores and casinos get into the act if they want . . . Let couples celebrate their union in any way they choose and consider themselves married whenever they want. . .  And, yes, if three people want to get married, or one person wants to marry herself, and someone else wants to conduct a ceremony and declare them married, let 'em. 


   If marriage were an entirely private affair, " Kinsley reasons, "all the disputes over gay marriage would become irrelevant. Gay marriage would not have the official sanction of the government, but neither would straight marriage." Kinsley suggests that domestic partnership laws could deal with the financial, insurance, child support, and inheritance issues that arise when people co-habit and raise children together. He proposes, in effect, to replace all state-sanctioned marriages, gay and straight, with civil unions. 
   From the standpoint of liberal neutrality, Kinsley's proposal has a clear advantage over the two standard alternatives (policies 1 and 2) : it does not require judges or citizens to engage in the moral and religious controversy over the purpose of marriage and the morality of homosexuality. Since the state would no longer confer on any family units the honorific title of marriage, citizens would be able to avoid engaging in debate about the telos of marriage, and whether gays and lesbians can fulfill it. 
   Relatively few people on either side of the same-sex marriage debate have embraced the disestablishment proposal. But it sheds light on what's at stake in the existing debate, and helps us see why both proponents and opponents of same-sex marriage must contend with the substantive moral and religious controversy about the purpose of marriage and the goods that define it. Neither of the two standard positions can be defended within the bounds of liberal public reason.
   
          Here Comes A Discussion of the Opinion of the 
          Massachusetts Supreme Court on Same-Sex 
          Marriage ----'Tis An Interesting Opinion 

 Of course, those who reject same-sex marriage on the grounds that it sanctions sin and dishonors the true meaning of marriage aren't bashful about the fact that they're making a moral or religious claim. But those who defend a right to same-sex marriage often try to rest their claim on neutral grounds, and to avoid passing judgment on the moral meaning of marriage. The attempt to find a nonjudgmental case for same-sex marriage draws heavily on the ideas of nondiscrimination and freedom of choice. But these ideas cannot by themselves justify a right to same-sex marriage. To see why this is so, consider the thoughtful and nuanced opinion written by Margaret Marshall, chief justice of the Massachusetts Supreme Court, in the case of Goodridge v. Dept of Public Health (2003), the same-sex marriage case. 
   Marshall begins by recognizing the deep moral and religious disagreement the subject provokes, and implies that the court will not take sides in this dispute :

       Many people hold deep-seated religious, moral, and ethical convictions that marriage should be limited to the union of one man and one woman, and that homosexual conduct is immoral. Many hold equally strong religious, moral and ethical convictions that same-sex couples are entitled to be married, and that homosexual persons should be treated no differently than their heterosexual neighbors. Neither view answers the question before us. "Our obligation is to define the liberty of all, not to mandate our own moral code. 

   As if to avoid entering into the moral and religious controversy over homosexuality, Marshall describes the moral issue before the court in liberal terms ---as a matter of autonomy and freedom of choice. The exclusion of same-sex couples from marriage is incompatible with "respect for individual autonomy and equality under law," she writes. The liberty of "choosing whether and whom to marry would be hollow" if the state could "foreclose an individual from freely choosing the person with whom to share an exclusive commitment." The issue, Marshall maintains, is not the moral worth of the choice, but the right of the individual to make it ---that is, the right of the plaintiffs "to marry their chosen partner."
   
                       Autonomy and Freedom of Choice --- Insufficient 

    But autonomy and freedom of choice are insufficient to justify a right to same-sex marriage. If government were truly neutral on the moral worth of all voluntary intimate relationships, then the state would have no grounds for  limiting marriage to two persons ; consensual polygamous partnerships would also qualify. In fact, if the state really wanted to be neutral, and respect whatever choices individuals wished to make, it would have to adopt Michael Kinsley's proposal and get out of the business of conferring recognition on any marriages. 
   The real issue in the gay marriage debate is NOT freedom of choice but whether same-sex unions are worthy of honor and recognition by the community---whether they fulfill the PURPOSE of the social institution of marriage. In Aristotle's terms, the issue is the just distribution of offices and honors. It's a matter of social recognition.

SQUARE PEGS AND ROUND HOLES

            Moral And Religious Convictions : Private or Public ?

   Why should we not bring our moral and religious convictions to bear in public discourse about justice and rights ? Why should we separate our identity as citizens from our identity as moral persons more broadly conceived ? Rawls argues that we should do so in order to respect "the fact of reasonable pluralism" about the good life that prevails in the modern world. People in modern democratic societies disagree about moral and religious questions ; moreover, these disagreements are reasonable. "It is not to be expected that conscientious persons with full power of reason, even after free discussion, will all arrive at the same conclusion."
   According to this argument, the case for liberal neutrality arises from the need for tolerance in the face of moral and religious disagreement. "Which moral judgments are true, all things considered, is not a matter for political liberalism," Rawls writes. To maintain impartiality between competing moral and religious doctrines, political liberalism does not "address the moral topics on which those doctrines divide."
   The demand that we separate or identity as citizens from our moral and religious convictions means that, when engaging in public discourse about justice and rights, we must abide by the limits of liberal public reason. Not only may government not endorse a particular conception of the good ; citizens may not even introduce their moral and religious convictions into the public debate about justice and rights. For if they do, and if their arguments prevail, they will effectively impose on their fellow citizens a law that rests on a particular moral or religious doctrine. 
   How can we know whether our political arguments meet the requirement of public reason, suitably shorn of any reliance on moral or religious views ? Rawls suggests a novel test : "To check whether we are following public reason we might ask : how would our argument strike us presented in the form of a supreme court opinion ?" As Rawls explains, this is a way to make sure our arguments are neutral in the sense that liberal public reason requires : "The justices cannot, of course, invoke their own personal morality, nor the ideals and virtues of morality generally. Those they must view as irrelevant. Equally, they cannot invoke their or other people's religious or philosophical views." When participating as citizens in public debate, we should observe a similar restraint. Like Supreme Court justices, we should set aside our moral and religious convictions, and restrict ourselves to arguments that all citizens can reasonably be expected to accept.
   This is the ideal of liberal neutrality that John Kennedy invoked and Barack Obama rejected. From the 1960s through the 1980s, Democrats drifted toward the neutrality ideal, and largely banished moral and religious argument from their political discourse. There were notable exceptions. Martin Luther King invoked moral and religious arguments in advancing the cause for civil rights ; the anti-Vietnam War movement was energized by moral and religious discourse : and Robert F. Kennedy, seeking the Democratic presidential nomination in 1968, tried to summon the nation to more demanding moral and civic ideals. But by the 1970s, liberals embraced the language of neutrality and choice, and ceded moral and religious discourse to the emerging Christian right.
   With the election ofRonald Reagan in 1980, Christian conservatives became a prominent voice in Republican politics. Jerry Falwell's Moral Majority and Pat Robertson's Christian Coalition sought to clothe the "naked public square" and to combat what they saw as the moral permissiveness ofAmerican life. They favored school prayer, religious displays in public places, and legal restrictions on pornography, abortion, and homosexuality. For their part, liberals opposed these policies, not by challenging the moral judgments case by case, but instead by arguing that moral and religious judgments have no place in politics.
   This pattern of argument served Christian conservatives well, and gave liberalism a bad name. In the 1990s and early 2000s, liberals argued, somewhat defensively, that they, too, stood for "values," by which they typically meant the values of tolerance, fairness, and freedom of choice. But these were the values associated with liberal neutrality and the constraints of liberal public reason. They did not connect with the moral and spiritual yearning abroad in the land, or answer the aspiration for a public life of larger meaning. 
   Obama's claim that progressives should embrace a more capacious, faith-friendly form of public reason reflects a sound political instinct. It is also good political philosophy. The attempt to detach arguments about the good life is mistaken for two reasons. First, it is not always possible to decide questions of justice and rights without resolving substantive moral questions ; and second, even where it's possible, it may not be desirable.

              THE ABORTION AND STEM CELL DEBATES 

   Consider two familiar political questions that can't be resolved without taking a stand on an underlying moral and religious controversy --- abortion and embryonic stem cell research. Some people believe that abortion should be banned because it involves the taking of human life. Others disagree, arguing that the law should should not take sides in the moral and theological controversy over when human life begins ; since the moral status of the developing fetus is a highly charged moral and religious question, they argue, government should be neutral on that question, and allow women to decide for themselves whether to have an abortion. 
   The second position reflects the familiar liberal argument for abortion rights. It claims to resolve the abortion question on the basis neutrality and freedom of choice, without entering into the moral and religious controversy. But this argument does not succeed. For, if it's true that the developing fetus is morally equivalent to a child, then abortion is morally equivalent to infanticide. And few would maintain that government should let parents decide for themselves whether to kill their children. So the "pro-choice" position in the abortion debate is not really neutral on the underlying moral and theological question ; it implicitly rests on the assumption that the Catholic Church's teachings on the moral status of the fetus ---that it is a person from the moment of conception---is false. 
   To acknowledge this assumption is not to argue for banning abortion. It is simply to acknowledge that neutrality and freedom of choice are not sufficient grounds for affirming a right to abortion. Those who would defend the right of women to decide for themselves whether to terminate a pregnancy should engage with the argument that the developing fetus is equivalent to a person, and try to show why it is not wrong. It is not enough to say that the law should be neutral on moral and religious questions. The case for permitting abortion is no more neutral than the case for banning it. Both positions presuppose some answer to the underlying moral and religious controversy. 
   The same is true of the debate over stem cell research. Those who would ban embryonic stem cell research argue that, whatever its medical promise, research that involves the destruction of human embryos is morally impermissible. Many who hold this view believe that personhood begins at conception, so that destroying even an early embryo is morally on a par with killing a child. 
   Proponents of embryonic stem cell research reply by pointing to the medical benefits that research may bring, including possible treatment and cures for diabetes, Parkinson's disease, and spinal cord injury. And they argue that science should not be hampered by religious or ideological interference ; those with religious objections should not be allowed to impose their views through laws that would ban promising scientific research.
   As with the abortion debate, however, the case for permitting embryonic stem cell research cannot be made without taking  stand on the moral and religious controversy about when personhood begins. If the early embryo is morally equivalent to a person, then the opponents of embryonic stem cell research have a point ; even highly promising medical research would not justify dismembering a human person. Few people would say it should be legal to harvest organs from a five-year-old child in order to promote life-saving research. So the argument for permitting embryonic stem cell research is not neutral on the moral and religious controversy about when human personhood begins. It presupposes an answer to that controversy ---- namely that the pre-implantation embryo destroyed in the course of embryonic stem cell research is not yet a human being. 
   

SQUARE PEGS AND ROUND HOLES

                         JUSTICE AND THE COMMON GOOD 

Religion in politics. 

   In 1960, John F. Kennedy, a Catholic, feared his religion might be a hindrance in his campaign for the presidency. To allay this fear, he gave a speech in which he said his religion would play no role in his presidency. "I believe in a president whose religious views are his own private affair, " Kennedy stated. " "Whatever issue may come before me as president --- on birth control, divorce, censorship, gambling, or any other subject --- I will make my decision . . . in accordance with what my conscience tells me to be the national interest, and without regard to outside religious pressures or dictates." 
   Forty-six years later, Barack  Obama, soon to become a candidate for his party's presidential nomination, gave a very different speech on the role of religion in politics. He began by recalling the way he dealt with the religious issue in his U.S. Senate campaign two years earlier. Obama's opponent, a rather strident religious conservative, had attacked Obama's support for gay rights and abortion rights by claiming he was not a good Christian, and that Jesus Christ would not have voted for him. 
   "I answered with what has come to be the typically liberal response in such debates," Obama said, looking back. "I said that we live in a pluralistic society, that I can't impose my own religious views on another, that I was running to be the U.S. Senator of Illinois and not the Minister of Illinois. "
   Although Obama easily won the Senate race, he now thought his response had been inadequate, and "did not adequately address the role my faith has in guiding my own values and my own beliefs."
   
   He proceeded to describe disown Christian faith and to argue for the relevance of religion to political argument. It was a mistake, he thought, for progressives to "abandon the field of religious discourse" in politics. "The discomfort of some progressives with any hint of religion has often prevented us from effectively addressing issues in moral terms." If liberals offered a political discourse emptied of religious content, they would they would "forfeit the imagery and terminology through which millions of Americans understand both their personal morality and social justice." 
   Religion was not only a source of resonant political rhetoric. The source to certain social problems required moral transformation. "or fear of getting 'preachy' may . . . lead us to discount the role that values and culture play in some of our most urgent social problems,"Obama said. Addressing problems such as "poverty and racism, the uninsured and the unemployed," would require "changes in hearts and a change in minds." So it was a mistake to insist that moral and religious convictions play no part in politics and law. 

     Secularists are wrong when they ask believers to leave their religion at the door before entering into the public square. Frederick Douglas, Abraham Lincoln, William Jennings Bryan, Dorothy Day, Martin Luther King---indeed, the majority of great reformers in American history --- were not only motivated by faith, but repeatedly used religious language to argue for their cause. So to say that men and women should not inject their "personal morality" into public policy debates is a practical absurdity. Our law is by definition a codification of morality, much of it grounded in the Judeo-Christian tradition. 

                     THE ASPIRATION TO NEUTRALITY

   Kennedy's view of religion as a private, not public, affair reflected more than the need to disarm anti-Catholic prejudice. It reflected a public philosophy that would come to full expression during the1960s and '70s---a philosophy that held that government should be neutral on moral and religious questions, so that each individual could be free to choose his or her own conception of the good life. 
   Both political parties appealed to the idea of neutrality, but in different ways. Generally speaking, Republicans invoked the idea in economic policy, while Democrats applied it to social and cultural issues.  Republicans argued against government intervention in free markets on the grounds that individuals should be free to make their own economic choices and spend their money as they pleased ; for government to spend taxpayers' money or regulate economic activity for public purposes was to impose a state-sanctioned vision of the common good that not everyone shared. Tax cuts were preferable to government spending,  because they left individuals free to decide for themselves what ends to pursue and how to spend their own money.
   Democrats rejected the notion that free markets are neutral among ends and defended a greater measure of government intervention in the economy. But when it came to social and cultural issues, they, too, invoked the language of neutrality. Government should not "legislate morality"in the areas of sexual behavior or reproductive decisions, they maintained, because to do so imposes on some the moral and religious convictions of others. Rather than restrict abortion or homosexual intimacies, government should be neutral on these morally charged questions and let individuals choose for themselves. 
   In 1971, John Rawls's A Theory of  Justice offered a philosophical defense of the liberal conception of neutrality that Kennedy's speech had intimated. In the 1980s, the communitarian critics of liberal neutrality questioned the vision of the freely choosing, unencumbered self that seemed to underlie Rawls's theory. They argued not only for stronger notions of community and solidarity but also for a more robust public engagement with moral and religious questions. 
   In 1993, Rawls published a book, Political Liberalism, that recast his theory in some respects. He acknowledged that, in their personal lives, people often have "affections, devotions, and loyalties that they believe they would not, indeed could and should not, stand apart from . . . They may regard it as simply unthinkable to view themselves apart from certain religious, philosophical, and moral convictions, or from certain enduring attachments and loyalties." To this extent, Rawls accepted the possibility of thickly constituted, morally encumbered selves. But he insisted that such loyalties and attachments should have no bearing on our identity as citizens. In debating justice and rights, we should set aside our personal moral and religious convictions and argue from the standpoint of a "political conception of the person," independent of any particular loyalties, attachments, or conceptions of the good life. 

Can Loyalty Override Universal Moral Principles ?

                               Brothers' Keepers I : The Bulger Brothers 

     A recent test of loyalty's moral weight involves two brotherly tales : The first is the story of William and James "Whitey" Bulger. Bill and Whitey grew up together in a family of nine children in a South Boston housing project. Bill was a conscientious student who studied the classics and got a law degree at Boston College. His older brother,Whitey, was a high school dropout who spent his time on the streets committing larceny and other crimes. 
   Each rose in his respective world. William Bulger entered politics, became president of the Massachusetts State Senate (1978-1996) , then served for seven years as president of the University of Massachusetts. Whitey served time in federal prison for bank robbery, then rose to become leader of the ruthless Winter Hill Gang, an organized crime group that controlled extortion, drug deals, and other illegal activities in Boston.  Charged with nineteen murders, Whitey fled to avoid arrest in 1995. He is still at large, and occupies a place on the FBI's "Ten Most Wanted" list. 
   Although William Bulger spoke with his fugitive brother by phone, he claimed not to know his whereabouts, and refused to assist authorities in finding him. When William testified before a grand jury in 2001, a federal prosecutor pressed him without success for information on his brother. "So just to be clear, you felt more loyalty to your brother than you did to the people of the Commonwealth of Massachusetts ?"
   "I never thought about it that way," Bulger replied. "But I do have an honest loyalty to my brother, and I care about him. . . It's my hope that I'm never helpful to anyone against him . . . I don't have an obligation to help everyone catch him."
   In the taverns of South Boston, patrons expressed admiration for Bulger's loyalty. "I don't blame him for not telling on his brother," one resident told The Boston Globe. "Brothers are brothers. Are you going to squeal on your family ?" Editorial boards and newspaper reporters were more critical. "Instead of taking the righteous road," one columnist wrote,"he chose the code of the street." Under public pressure for his refusal to assist in the search for his brother, Bulger resigned as president of the University of Massachusetts in 2003, though he was not charged with obstructing the investigation. 
  Under most circumstances, the right thing to do is to help bring a murder suspect to justice. Can family loyalty override this duty ? William Bulger apparently thought so. But a few years earlier, another figure with a wayward brother made a different call. 

                         Brothers' Keepers II : The Unabomber

   For more than seventeen years, authorities had tried to find the domestic terrorist responsible for a series of package bombs that killed three people and injured twenty-three others. Because his targets included scientists and other academics, the elusive bomb maker was known as the Unabomber. To explain the cause behind his deeds, the Unabomber posted a thirty-five-thousand-wordanti-technology manifesto on the Internet, and promised to stop bombing if The New York Times and The Washington Post both printed the manifesto, which they did. 
   When David Kaczynski, a forty-six-year-old social worker in Schnectady, New York, read the manifesto, he found it eerily familiar. It contained phrases and opinions that sounded like those of his older brother, Ted, age fifty-four, a Harvard-trained mathematician turned recluse. Ted despised modern industrial society and was living in a mountain cabin in Montana. David had not seen him for a decade. 
   After much anguish, in 1996 David informed the FBI of his suspicion that the Unabomber was his brother. Federal agents staked out Ted Kaczynski's cabin and arrested him. Although David had been given to understand that prosecutors would not seek the death penalty, they did. The prospect of bringing about the death of his brother was an agonizing thought. In the end, prosecutors allowed Ted Kaczynski to plead guilty in exchange for a sentence of life in prison without parole. 
   Ted Kaczynski refused to acknowledge his brother in court and, in a book manuscript he wrote in prison, called him "another Judas Iscariot." David Kaczynski tried to rebuild his life, which was indelibly marked by the episode. After working to spare his brother the death penalty, he became a spokesman for an anti-capitalpunishment group. "Brothers are supposed to protect each other," he told one audience, describing his dilemma, "and here, perhaps, I was sending my brother to his death." He accepted the $1 million reward offered by the Justice Department for helping apprehend the Unabomber, but gave most of it to the families of those killed and injured by his brother. And he apologized, on behalf of his family, for his brother's crimes. 
   What do you make of the way William Bulger and David Kaczynski contended with their brothers ? For Bulger, family loyalty outweighed the duty to bring a criminal to justice ; for Kaczynski, the reverse. Perhaps it makes a moral difference whether the brother at large poses a continuing threat. This seemed to weigh heavily for David Kaczynski : "I guess it's fair to say I felt compelled. The thought that Another person would die and I was in a position to stop that --- I couldn't live with that."
   However you judge the choices they made, it is hard to read their stories without coming to this conclusion : the dilemmas they faced make sense as moral dilemmas only if you acknowledge that the claims of loyalty and solidarity can weigh in the balance against other moral claims, including the duty to bring criminals to justice. If all our obligations are founded on CONSENT, or on UNIVERSAL DUTIES WE OWE PERSONS AS PERSONS, it's hard to account for these fraternal predicaments. 

                         JUSTICE AND THE GOOD LIFE

   We've now considered a range of examples meant to challenge the contractarian idea that we are the authors of the only moral obligations that constrain us : 
   1. public apologies and reparations 

   2. collective responsibility for historical injustice 

   3. the special responsibilities of family members, and fellow citizens, for one another  

  4. solidarity with comrades 

   5. allegiance to one's village, community,or country

   6. patriotism

   7. ride and shame in one's nation or people

  8. fraternal and filial loyalties. 

The claims of solidarity seen in these examples are familiar features of our moral and political experience. It would be difficult to live, or to make sense of our lives, without them. But it is equal difficult to account for them in the language of MORAL INDIVIDUALISM.  They can't be captured by an ethic of consent. That is, in part, what gives these claims their moral force. They draw on our encumbrances. They reflect our nature as storytelling beings, as situated selves.
   What, you may be wondering, does all this have to do with justice ? To answer this question, let's recall the questions that led us down this path. We've been trying to figure out whether all our duties and obligations can be traced to an act of will or choice. We've argued that they cannot ; obligations of solidarity or membership may claim us for reasons unrelated to choice --- reasons bound up with the narratives by which we interpret our lives and the communities we inhabit. 
   What exactly is at stake in this debate between the narrative account of moral agency and the one that emphasizes will and consent ? One issue at stake is how you conceive human freedom. As you ponder the examples that purport to illustrate obligations of solidarity and membership, you might find yourself resisting them. If you are lie many of my friends, you might dislike or distrust the idea that we're bound by ties we haven't chosen. This dislike might lead you to reject the claims of patriotism, solidarity,collective responsibility, and so on ; or to cast these claims as arising from some form of consent.  It's tempting to reject or to recast these claims because doing so renders them consistent with the familiar idea of freedom. This is the idea that says we are UNBOUND by any moral ties we haven't chosen ; to be free is is to be the author of the only obligation that constrains us. 
   It's been suggested, through these and other examples we consider throughout this whole discussion, that this conception of freedom is flawed. But freedom is not the only issues at stake here. Also at stake is how to think about justice. 
   Recall the two ways of thinking about justice we've considered. For Kant and Rawls, the right is prior to the good. The principles of justice that define our duties and rights should be neutral with respect to competing conceptions of the good life. To arrive at the moral law, Kant argues, we must abstract from our contingent interests an ends. To deliberate about justice, Rawls maintains, we should set aside our particular aims, attachments, and conceptions of the good. That's the point of thinking about justice behind a veil of ignorance. 
   This way of thinking about justice is at odds with Aristotle's way. He doesn't believe that principles of justice can or should be neutral with respect to the good life. To the contrary, he maintains that one of the purposes of a just constitution is to form good citizens and to cultivate good character. He doesn't think it's possible to deliberate about justice without deliberating about the meaning of the goods -- the offices, honors, rights, and opportunities--that societies allocate. 
   One of the reasons Kant and Rawls reject Arirtotle's way of thinking about justice is that they don't think it leaves room for freedom. A constitution that tries to cultivate good character or to affirm a particular conception of the good life risks imposing on some the values of others. It fails to respect persons as free and independent selves, capable of choosing their ends for themselves. 
   If Kant and Rawls are right to conceive freedom in this way, then they are right about justice as well. If we are freely choosing, independent selves, unbound by moral ties antecedent to choice, then we need a framework of rights that is neutral among ends. If the self is prior to its ends, then the right must be prior to the good.
   If, however, the narrative conception of moral agency is more persuasive, then it may be worth reconsidering Aristotle's way of thinking about justice. If deliberating about my good involves reflecting on the good of those communities with which my identity is bound, then the aspiration to neutrality may be mistaken. It may not be possible, or even desirable, to deliberate about justice without deliberating about the good life.
   The prospect of bringing the conceptions of the good life into public discourse about justice and rights may strike you as less than appealing --even frightening. After all, people in pluralist societies such as ours disagree about the best way to live. Liberal political theory was born as an attempt to spare politics and law from becoming embroiled in moral and religious controversies. The philosophies of Kant and Rawls represent the fullest and clearest expression of that ambition. 
   But this ambition cannot succeed. Many of the most hotly contested issues of justice and rights can't be debated without taking up controversial moral and religious questions. In deciding how to define the rights and duties of citizens, it's not always possible to set aside competing conceptions of the good life. And even when it's possible, it may not be desirable. 
   Asking democratic citizens to leave their moral and religious convictions behind when they enter the public realm may seem a way of ensuring toleration and mutual respect. In practice, however, the opposite can be true. Deciding important public questions while pretending to a neutrality that cannot be achieved is a recipe for backlash and resentment. A politics emptied of substantive moral engagement makes for an impoverished civic life. It is also an open invitation to narrow, intolerant moralisms. Fundamentalists rush in where liberals fear to tread.