Transgender Brains and Mad Scientists—A Question of Identity

Few topics within the contemporary culture wars have generated as much controversy, confusion, and even outright rage, than topics surrounding transgender individuals. From the proper characterization of their gender identities, to their workplace rights, to their place within sports, it seems virtually every facet of their social existence becomes fodder for debate and rife with discord. A perpetual characteristic of the debates surrounding these topics is just how confused everyone seems to be on all sides. Their foes tend to have a childishly simplistic view of sex and gender, which they wrongfully and arrogantly believe is plain fact supported by biological science, and think that anyone who thinks otherwise must be more concerned with feelings than facts. Their would-be friends often seem equally oblivious to the science behind transgender biology, instead preferring to be ecumenical to all perspectives of marginalized LGBT groups, with the result being a way of speaking surrounding these topics that is linguistically clunky, often confusing, and sometimes flatly incoherent.

Of particular importance and centrality, and drawing perhaps the most controversy, is the question of whether we should consider trans people to be the gender they say they are. Are trans women women and trans men men, and in need of medical gender affirming care, or are they hopelessly deluded and in need of some form of psychological treatment? It would do much good, I think, to get a solid handle on some of the relevant basic biological factors at play, then to bring some philosophical tools to the table, so that some light rather than the usual heat can be shed upon certain serious ethical questions involving transgender individuals.

We’ve all heard the cries from members of the anti-trans camp, to the effect of “Facts don’t care about your feelings! There are X and Y chromosomes, and only two biological sexes: XX, and XY. If you’re XX, you’re a woman. If you’re XY, you’re a man, period. It’s basic biology!” Now, the common reply from the pro-trans camp is typically something like “Biological sex is not the same thing as gender.” Now, this is true, but the latter term is confusing for reasons that will become apparent. It also requires some explanation to elucidate the relationship between the two terms and the centrality of the latter to the questions at issue. One important issue is that ‘biological sex’ is itself an ambiguous term. In employing this term, we could mean any of several distinct things that all fall under the umbrella of what one might call ‘biological sex.’ Equivocation amongst them invites confusion, and an understanding of these distinctions is important in understanding what it is to be transgender.

Firstly, there is what could be termed a person’s chromosomal sex, that is, what combination of sex chromosomes a person has. You might think that there are only two possible such arrangements, but you’d be mistaken. In fact, there are far more arrangements of sex chromosomes beyond just XX and XY that occur in humans. The variety of human karyotypes, or combinations of sex chromosomes, includes X (Turner Syndrome), XXY (Klinefelter Syndrome), XXX, XYY, XXYY, XXXY, XXXX, XXXXY, XXXXX, and others. These typically result in intersex or sexually ambiguous phenotypic characteristics.

Secondly, we might talk about reproductive sex, the sex type of the gametes—the haploid cells that combine to form the diploid zygote that becomes the embryo of a new individual in sexual reproduction, which a person produces. In this gametic sense, sex is binary, as there are precisely two types of gametes—sperm and egg. Some people have pointed to this feature of sexual reproduction as a supposed debate stopper, claiming that what makes one a man or woman is simply which type of gametes a person produces, and that’s all that need be said (Bracketing the intersex conditions that involve producing both gametes in a single body).

This, however, widely misses the mark about just what is controversial surrounding trans identity, intersex conditions, and other sex and gender related issues. No one involved in any of the debates surrounding trans issues on either side is primarily concerned with gametes or their role in the sexual reproductive process. They are rather almost exclusively concerned with people, their different sex-related phenotypic traits, and the social expectations surrounding those traits, making this concern with gametes a giant red herring that is irrelevant to most trans issues. It also elides several crucial biological facts that are themselves much more relevant to these issues.

Apropos of the preceding, and most importantly, there is phenotypic sex, or the sex-related bodily characteristics of a fully developed human being, which in almost all cases are what we use to categorize individuals sociosexually. It is important to note that phenotypic sex does not perfectly map to chromosomal sex. XX and XY genotypes usually develop into the typical phenotypes of female and male, respectively, and the atypical chromosomal variants mentioned above often develop into intersex phenotypes, but the typical XX and XY genotypes can also produce intersex phenotypes, due to either other genetic variations or embryological or environmental factors. One such set of conditions involve a person with XY genotype having a genetic insensitivity to androgenic (masculinizing) hormones, which results in the development in an outwardly female phenotype.

Phenotypic sex can itself be broken down into subcategories. There are the outward sexually dimorphic phenotypic characteristics that we typically use to distinguish between typical members of different sexes, e.g. breasts, body shape, fat deposition patterns, genitalia, facial characteristics, hair growth patterns, etc. Then, there are the sexually dimorphic brain phenotypes that lead to various differences in cognitive styles, sexual behaviors, mannerisms, sense of self-identity, etc. between typical human men and women. So we have a distinction between external phenotypic sex and phenotypic brain sex, and the resulting mental properties characteristic of each sex. We can simply refer to this as gender.

At this point, the latter term needs to be further clarified. What I do not mean by ‘gender’ here are certain ancillary things the term has also been used to represent, such as social norms, expectations, and roles associated with each sex. What I’m referring to is mental differences dependent upon sex-differentiated brains. The second sense of ‘gender’ might be in part socially constructed, but the first is simply a biological fact. Conflation of these two senses has made the debate landscape confused. It perhaps would’ve been better to use the term ‘mental sex’ for the biological sense, given the ambiguity of the term ‘gender,’ but the latter is so embedded in the lexicon that to get rid of it one would have to tear down the entire edifice and rebuild anew, and that would invite yet more confusion to an already fraught issue.

In light of the foregoing distinctions, we can understand the science of what it means for a person to be transgender. The biology of human sexual dimorphism has been extensively studied by neurologists, finding that the anatomical structures of certain brain regions differ between typical male and female brains, so that by analyzing these regions of a person’s brain, one can predict the sex of that person to a high degree of accuracy. In light of this knowledge, several studies have been performed looking at these sexually dimorphic regions of the brain in transgender individuals, finding that indeed these sexually dimorphic regions in their brains more closely match those typical of the sex associated with the gender they identify with than those typical of the chromosomal sex or outward phenotype they possess. One study examining a brain region called the bed nucleus of the stria terminalis (BSTc), found that:

“The number of neurons in the BSTc of male-to-female transsexuals was similar to that of the females (P = 0.83). In contrast, the neuron number of a female-to-male transsexual was found to be in the male range. Hormone treatment or sex hormone level variations in adulthood did not seem to have influenced BSTc neuron numbers. The present findings of somatostatin neuronal sex differences in the BSTc and its sex reversal in the transsexual brain clearly support the paradigm that in transsexuals sexual differentiation of the brain and genitals may go into opposite directions and point to a neurobiological basis of gender identity disorder.”

Now, the sample size of this study is quite small, but several such studies, including a previous 1995 study of the same brain region have produced similar findings. Another study from 2011 examining the white matter microstructure in the brains of trans men against that of cisgender men and women as controls, found that:

“the white matter microstructure pattern in untreated FtM transsexuals is closer to the pattern of subjects who share their gender identity (males) than those who share their biological sex (females). Our results provide evidence for an inherent difference in the brain structure of FtM transsexuals.”

Yet another study examining a different sexually dimorphic region of the brain, the interstitial nucleus of the anterior hypothalamus (INAH), found that:

INAH3 volume and number of neurons of male-to-female transsexual people is similar to that of control females. The female-to-male transsexual subject had an INAH3 volume and number of neurons within the male control range…

Again, these and other similar studies have small sample sizes, but the conclusions all point in a single direction to the fact that the structures of sexually dimorphic regions in the brains of transgender individuals are shifted away from what would be expected based on their outwardly presenting phenotypic sex, and towards that of the opposite sex. This gives us a working definition of what it means for someone to be transgender: a person is transgender if their mental phenotypic sex/gender does not match their external phenotypic sex. That is to say, to be transgender is to have a brain closer to those typically found in people with the opposite phenotypic sex. In such individuals, this mismatch can result in a felt sense of gender dysphoria, which can profoundly affect well-being.

With this in mind, we are far better equipped to engage with some of the ethical and social questions often raised in relation to transgender people. Are transwomen women? Are transmen men? The answers would seem to depend upon what the determinant feature of a person’s identity is. Is it the person’s outward bodily features, or the person’s brain and mind that we should look to for the answers to these questions?

A variant of a philosophical thought experiment often brought up in questions of personal identity may help us shed some light on these questions. The setup goes as follows: Imagine two men, Bob and John, are captured by an unscrupulous brain scientist who wishes to perform a trial run of a brain-swap surgical procedure he has been developing. He puts them both under anesthesia, and removes each of their brains, then replaces each of them in the opposite body, so that John’s brain now resides in (what was) Bob’s body, and vice versa. When the two are eventually resuscitated, the scientist calls out Bob’s name, and the person who appears to be John says, “Yes?” the same applies to the converse. We are then invited to consider who is rightfully John and who is rightfully Bob. Overwhelmingly, the intuition most of us have is to take Bob to be the person with Bob’s brain, who of course has Bob’s mind, his memories, his preferences and dispreferences, his unique sense of psychological continuity and self-identity, etc.

Now let us imagine our mad scientist has kidnapped a third victim, a woman named Alice. He repeats the procedure a second time, this time swapping Bob and Alice’s brains with each other. Now when they awaken, each is surprised to find that they have the body of someone from the opposite sex. If we are consistent with our previous intuition, we will say that it is now Bob who has the female body previously belonging to Alice and Alice who has the male body that was Bob’s. Upon realizing what has occurred, Bob is horrified upon seeing his feminine form, protesting “But I am a man!” The same is true for Alice of course. What are we to make in this case? Are Bob and Alice deluded as to their claimed manhood and womanhood? If we are again to be consistent with our former intuitions about self-identity, and we take one’s manhood or womanhood to be a component of said self-identity, then we must say that Bob is indeed a man and Alice indeed a woman, though the former may now be walking around with female sex characteristics and genitals, and the latter with male sex characteristics and genitals.

Given our previous analysis, this is roughly the situation in which trans people find themselves—only it was not brought about by a mad scientist with his brain swap surgery, but by some confluence of genetics, epigenetics, embryology, and environment etc. It is in this sense that trans people really are the gender they say they are—they have brains that are in important ways characteristic of the gender they claim rather than that which would be predicted by looking at either their external phenotypic sex characteristics or their sex chromosome karyotype. Just as our Bob and Alice felt a profound dysphoria by the incongruity of their external body with their own mental sense of self, so too do trans people.

It of course doesn’t follow that trans women and trans men, respectively, are women and men in every possible sense of these terms. Chromosomally, they are not. Phenotypically, they cannot attain the status of a cisgendered person of their gender, though they can come closer to it through medical intervention. They are not reproductively identical to cisgendered people of their gender, either. These other senses are also relevant to certain ethical questions surrounding trans issues, such as how trans people should be included in sport, or how certain reproductive issues particular to their unique situations should be discussed and treated. Nonetheless, in the sense that matters most for personal identity, in their brains and minds, they are similar, and that is ethically relevant to how we ought to treat them as people, and how medicine should treat them for their gender dysphoria.

If one’s brain and peripheral body are mismatched in terms of sex differentiation, and this is a cause for profound psychological distress, there are two options in order to bring them into congruence—change the body or change the brain. At least two factors tell against the latter option. The first is that we simply lack the technology and knowledge to perform such a change in brain morphology, let alone to do so without causing great and irreparable harm. The second is that, as we saw before in our brain swap case, the brain is the seat of the self, not the peripheral body. Even if we could do so, it would seem backwards to change the self to fit the body rather than the converse. It would be as if, upon hearing Bob’s protest against being embodied in Alice’s female body that he is instead Bob, a man, our mad scientist came up with a brilliant new idea. Instead of returning Bob’s brain to his old body, he would instead perform a new nanosurgical procedure on Bob’s brain with the effect that Bob would forget that he was Bob and a man, and instead feel that he is Alice, a woman, and thereby solve the problem. It seems in this case, the mad scientist hasn’t cured Bob so much as he has simply erased Bob’s identity. Similarly, to try to change a trans person’s brain to match their body, rather than the converse, would be to engage in a sort of identity erasure. This leaves the option of changing the peripheral body to more closely match the brain’s sense of gender, which is precisely what gender affirming care does through hormonal and/or surgical treatments.

Aside from such questions of personal identity, there are of course many other questions that have been raised surrounding the social status and ethical treatment of trans people. These include the proper leagues for trans people in competitive sports, whether trans women in particular should be included in spaces hitherto reserved for cisgendered women, designed to shield them from violence perpetrated by male aggressors—places such as womens’ shelters or gender segregated bathrooms and locker rooms, whether having dating preferences for cisgendered people is an unethical prejudice, among other questions. There is also a set of topics that are often lumped into trans issues by people on both sides of the political spectrum which are actually separate issues. These include various political or social ideologies surrounding various theories of gender (often involving the other sense of ‘gender’ and notions of social constructivism), questions about various proposed gender categories, concerns about people claiming to be trans who are not, issues surrounding other gender-norm nonconforming people, etc. Each of these topics deserves in-depth discussion, which is beyond the scope of this article.

What I’ve sought to do here is to clarify certain notions of sex and gender and to shed light on how the neurobiological basis for what it is to be transgender bears upon the philosophical question of the validity of transgender identity claims, and what that says about how they ought to be understood and treated with regard to that identity. In short, because our brains are the primary determinants of our identity, and because brains are sexually dimorphic, i.e. gendered, and because trans brains are shifted toward the gender they claim to be, there is a relevant and important sense in which trans people are just who they say they are.

The Animal Holocaust

It was once said that a single death is a tragedy, but a million deaths is a statistic. How much less morally comprehensible is the statistic of hundreds of billions of deaths? How do you even make something like that real to the mind? Current best estimates have it that humans slaughter over 70 billion land animals per year, not including marine animals or male chicks slaughtered by egg-laying hen hatcheries. This number is an order of magnitude greater than the total human population of Earth. With marine animals and chicks included, the yearly kill count easily exceeds the sum total of humans who have ever lived on Earth at any time in history—over 120 billion. Year after year this continues, and year after year the number grows larger.

The vast majority of these animals lived out their short lives on factory farms, where outright abuse is common, and which are, at best, overcrowded, filthy prisons where animals are either virtually immobilized in small cages or crammed together in large warehouse-like barns. All of them end up in the same place, the slaughterhouse, where they will be killed in one of several ways. They are marched to the "kill floor," stepping through the blood of their predecessors, coaxed by yelling men with electric prods or giant swatters, where they will then either be electrocuted, or bolt gunned in the head, or simply have their throats slit without any such "stunning" in the case of kosher or halal slaughter. Some are forced into gas chambers filled with concentrated CO2, which burns the lungs and mucous membranes.

For smaller animals like birds, they're killed on an even more efficient, industrial scale, in what can only be called "death machines." They're hung by the legs, alive, on an ever moving conveyor, which first drags their heads through an electric bath meant to stun them. Many survive this step by lifting their heads or are otherwise simply ineffectively stunned. On the next step along the conveyor their necks are dragged against automated circular saws to bleed them out. Some are cut ineffectively and still alive reaching the last step. This final step is another bath, this time in boiling water, to remove their feathers. And these are the accepted, "humane" methods in which humans convert other animals into chops, cutlets, and drumsticks. The death machines will never be featured on "How it's Made" but they hum away with the regularity of any factory floor, that number constantly ticking upwards.

If, as Descartes thought, animals are mere automata, without experiential consciousness, then these statistics are only trivia, bereft of moral significance. But if, on the other hand, each of the beings killed did have experiential consciousness, its own subjective experience of life, the issue takes on such a weight of moral significance that it is scarcely comparable to anything else. What does modern science have to say about the question of animal consciousness?

In 2012, a group of cognitive scientists, neurophysiologists, psychologists, and other related specialists gathered at Cambridge University for the Francis Crick Memorial Conference on Consciousness in Human and Non-human Animals to review the bulk of contemporary research on the neurological substrates of conscious states and emotions in humans and other animals. The conference resulted in a joint declaration that became known as the Cambridge Declaration on Consciousness. Among the consensus findings, the declaration included the following:

We declare the following: “The absence of a neocortex does not appear to preclude an organism from experiencing affective states. Convergent evidence indicates that non-human animals have the neuroanatomical, neurochemical, and neurophysiological substrates of conscious states along with the capacity to exhibit intentional behaviors. Consequently, the weight of evidence indicates that humans are not unique in possessing the neurological substrates that generate consciousness. Non-human animals, including all mammals and birds, and many other creatures, including octopuses, also possess these neurological substrates.

It’s worth pausing to ask what we mean here by ‘consciousness’ and what its significance is. When philosophers and cognitive scientists speak of animals being conscious in this manner, they mean experiential consciousness, subjective experience, or as Nagel put it, that there is something it’s like to be that individual animal. Consciousness no doubt takes many forms, but there is at least one feature of conscious experience of the sort that animals, including humans, possess that makes such consciousness morally salient. Valence encapsulates the notion that conscious experiences can be positive or negative for the being that experiences them. Among negatively valenced experiences would be included such states as pain, fear, hunger, unfulfillment of preferences, etc., and among positively valenced experiences would be classed states like joy, comfort, safety, fulfillment of preferences, etc.

Even without lengthy explanations, we intuitively recognize consciousness and valence as morally relevant features when we consider the difference between someone kicking a rock and someone kicking a dog. There is nothing it’s like, either good or bad, for the rock to be kicked. The rock has no experiential consciousness at all. The dog, on the other hand, experiences both pain and emotional distress from being treated in an abusive manner. So, too, do pigs, cows, chickens, some fish, and many other animals subjected to the processes and practices of animal agriculture. Each one added to the tally of the dead was an individual, a subject of a conscious life. Perhaps not one quite like ours, without the same complexities of language and abstract thought, but nonetheless one with its own set of pleasures and pains, joys and sorrows, victories and defeats. Each life had its own story, its own set of unique experiences in the world. Each one was once an individual being, reduced to a number, then a barcode on a package to be purchased for the fleeting pleasurable experience of a human.

Many might acknowledge the mass mistreatment and slaughter of non-human animals as a great tragedy, but nonetheless think there is nothing for it. It’s simply a fact of life that humans need to eat meat, eggs, and dairy, right? Well, no, it isn’t. Not only is a well-planned plant-based diet healthful, it may also reduce the risk factors for the top causes of human mortality. The position of the Academy of Nutrition and Dietetics states that:

appropriately planned vegetarian, including vegan, diets are healthful, nutritionally adequate, and may provide health benefits for the prevention and treatment of certain diseases. These diets are appropriate for all stages of the life cycle, including pregnancy, lactation, infancy, childhood, adolescence, older adulthood, and for athletes.

It goes on to note that:

Vegetarians and vegans are at reduced risk of certain health conditions, including ischemic heart disease, type 2 diabetes, hypertension, certain types of cancer, and obesity.

It is ultimately a false choice between the ethical treatment of non-human animals and the pursuit of human health. The real choice, at least for all of us living in the relative affluence of developed countries, is rather between the ethical treatment of non-human animals and the fleeting satisfaction of a particular taste preference. We make this fateful choice every time we go to a market and choose between the products of humanity’s unethical treatment of non-human animals and alternative products.

As of now, there is a large and ever-expanding range of such alternatives, not to mention whole food staples, with enough culinary variety to satisfy all tastes. So, it is also a false choice between taste pleasure and animal ethics. It does not require a grand sacrifice or the fortitude of a saint, merely a conscious choice to learn, to change ingrained habits, and a willingness to experiment to find new favorite foods and develop new dietary habits. Where do the ethical scales balance when the cost of the temporary, one-time inconvenience of learning new dietary and culinary habits is weighed against the suffering and death of the numerous animals that would otherwise be consumed over the future time-course of a person’s life?

Many ethical questions are difficult, if not nigh intractable, with good arguments that can be adduced for each side, and with each position often involving uncongenial tradeoffs that leave their proponents only partially satisfied in their conclusions. This, however, is not among those difficult questions. A clearer, more one-sided issue could hardly be found among the issues considered in applied ethics. Despite this, habit, culture, and status quo bias are powerful forces indeed, and so the death machines hum on.

Liberalism: What it is and Why it Matters

Note: The following has been adapted from an original post by the author on The American Liberal

Liberalism has often been considered the most successful political ideology in modern history, coinciding with vast and measurable improvements in human welfare, but recently new threats have arisen in the form of various anti-liberal populist and nationalist movements, which have gained some notable victories in liberal democracies in Europe and America. At the same time, some who self-apply the label ‘liberal’ have at times advocated decidedly illiberal ideas and policies, making the job of those who would defend liberalism from its critics that much more onerous. In the wake of these upheavals, we liberals must cogently recapitulate the core principles of our philosophy and contextualize its role in contemporary society in order to defend it both from the external and internal challenges it faces.

First, just what do we mean by ‘liberalism?’ It should be noted that what we mean here is not identical with the more narrow colloquial use of the term common in America, often referring to anything that happens to be advanced by the Democratic party, or a different but similarly constrained usage prevalent elsewhere in the world referring to a more conservative take on market economics. Liberalism is considered here as a broader, more comprehensive philosophy of government from which both of these more narrow traditions sometimes borrow.

Liberal philosophy has its roots in the Age of Enlightenment, but has precedents reaching as far back as ancient Athens. As with many broad ideological categories, liberalism is not so much a single philosophy as it is a family of philosophies united by their possession of some number of shared principles. Liberal philosophers have given different accounts of these principles and come to divergent conclusions about their particular implications. It would hardly be possible to do justice to them all. As our aim is not historical study but defending the liberal tradition, I shall simply try to articulate a broad, non-rigorous bird’s-eye-view conception of liberalism worth defending today.

One of the most central and foundational principles of liberalism involves a general consideration from moral philosophy about what sorts of things matter ethically. Liberalism takes the individual to be the primary object of moral concern. This is not to be confused with egoism or opposition to community and collective action. What is meant here is that what ultimately matters is the good of individuals—those autonomous, sentient beings who have the capacity to experience happiness or suffering, rather than such alternative candidates for moral ends as “The good of the party,” “The will of the king,” “The faith,” “The race,” etc. Liberalism takes as a fundamental principle that the greatest moral good is the flourishing, well-being, or happiness of sentient individuals, and that just political systems are established to further this end.

Next, we come to the namesake of liberalism. Liberalism holds that liberty is necessary for, or at least strongly conducive to, the individual’s achievement of happiness. Just as happiness or well-being is the primary moral good, freedom is the primary political good. Any political system calculated to improve the flourishing of its citizens must secure the freedom of individuals to pursue their own happiness. This principle is immortally enshrined in the American Declaration of Independence, in the phrase, “inalienable rights…life, liberty, and the pursuit of happiness.”

From this very general principle, many particular consequences follow, though exactly which liberties count as legitimate or important is a subject of dispute. Liberal societies have enshrined various freedoms into their constitutions and political cultures, but a few are largely agreed upon, such as freedom of expression, freedom of the press, freedom to vote for one’s leaders, freedom to own property and to engage in commerce.

Of these, the freedom of expression is perhaps the most fundamental. It was considered of such great importance by the liberal philosopher John Stuart Mill that he wrote, “If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind.”

Free expression holds the place it does in liberal philosophy precisely because it creates the framework wherein debate can occur from which truth can be uncovered and by which other freedoms may be argued for and gained. It was this particular feature that Martin Luther King extolled in his “Mountaintop” speech calling for America to live up to her promises when he said, “Somewhere I read that the greatness of America is the right to protest for rights.” Despite the brutal violations of this right by Bull Connor and others, its existence as a norm enshrined in the constitution and in the body politic allowed for King to make this argument, to organize, and to march on Washington in protest. Likewise, the success of numerous other reform movements has been predicated upon the right to freedom of expression.

Notions of equality are also central to the liberal project. Though individuals differ in myriad ways, in natural endowment of abilities, in wealth, ethnicity, or circumstances of birth, we are all alike in the way that matters most, our ability to experience happiness or flourishing on the one hand and suffering on the other. All have an equal stake in the achievement of happiness, thus all ought to possess equal rights under the law and equal access to public opportunities.

The principle of secularism, or separation of state and religion holds an important place in liberal government as well. Government should not impede the private practice of religion, nor should religious dogma impede the public practice of good governance. Reason and empirical science form the basis for good government policy capable of bettering the welfare of citizens.

Another important feature of liberalism is skepticism. Knowledge of the fallibility of human reason entails that previous errors must be able to be corrected by amendments to the constitution and the laws. Skepticism regarding the accumulation and concentration of power means that distribution of power is an important element of the liberal theory of government. Separation of governmental powers among different institutions, with each forming a check to the others, is one practical instantiation of this principle which serves as a safeguard to the freedom of the individual and a bulwark against government corruption. Democratic accountability in the form of representative, deliberative legislative bodies guards against the the tyranny of the few over the many. Constitutionally enumerated civil liberties, along with independent courts capable of striking down laws which violate them, guard against the tyranny of the many over the few.

Another notable feature of the liberal ethos is the open, pluralistic society. What binds a liberal society together is not base tribalism, or ethnic or religious nationalism, but a notion of civic virtue underpinned by a shared commitment to the principles previously enumerated. Liberal patriotism is a patriotism of ideals, capable of extending beyond the boundaries of race, religion, or national origin. Trade and immigration are not seen as threats to a nation’s greatness, but only serve to enhance the overall prosperity, knowledge, and cultural wealth of a nation.

One oft noted characteristic of liberalism is its generic or abstract character. Liberalism has been criticized on this basis as being sterile, cold, not respective of cultural distinctions and notions of group belonging, but I believe this generality in fact to be one of its greatest benefits. Liberalism at its root seeks to understand political freedom with respect to a notion of the individual, abstracted from all morally irrelevant particulars. This conceptualization is intentionally thin, meaning to capture the idea expressed above—that it is the sentient individual which is the seat of moral concern.

Liberalism intends to set out a framework for the freedoms of individuals purely in virtue of their moral status as sentient individuals such that, from these general conceptions, questions of freedom in more particular circumstances can be adjudicated. A woman’s right to terminate a pregnancy, for example, can be said to be a special case of the individual right to bodily autonomy. Not all individuals are women, or are capable of pregnancy, but all individuals have the same stake in bodily autonomy. Similar situations obtain for other rights. Defining liberalism in generic terms, in virtue of something all individuals share, allows liberalism its ethical universality and provides a unifying message that cuts across race, gender, sexuality, nationality, religion, and other such factors ancillary to one’s core nature as a sentient individual of moral value, and unrelated to one’s moral character.

This family of principles thus forms a certain framework through which particular policy questions can be answered, and a set of general premises upon which one can base public policy arguments. We can ask, does a proposed policy tend to enhance the freedoms and opportunities available to the individual citizen? Does a proposed structural government reform promote the sort of governance necessary to reliably and sustainably effect these ends?

Within this framework, the question of what sort of general freedoms apply to individuals as such is debated. One purported distinction which forms the basis of much of the debate is that between negative rights and positive rights. While there are various definitions available, negative rights can be understood as those rights which impose a negative duty on others, i.e. a duty to refrain from doing something, while positive rights are those which impose a positive duty on others, i.e. require something to be provided. Examples of the former are rights like the right to life or the freedom of expression, which require that others refrain from killing or censoring. Examples of the latter would be your right to an attorney or the right to healthcare, which require that the government provide counsel or healthcare for the indigent.

The distinction itself has been questioned both on theoretical and practical grounds, but it does help to illuminate a bifurcation within the liberal tradition between what could be termed its “right” and “left” wings. There are those who accept negative rights but who are skeptical of positive rights, often on the basis that the imposition of the taxes required for the state to provide these rights entails a weakening of the negative right to property. This group comprises various libertarian and fiscally-conservative-but-socially-liberal types. As one moves further leftward within the liberal tradition, more positive rights are included in the canon and property rights are not conceived as absolute, but amenable to exceptions in cases where other rights conflict. Most liberal democracies have in fact enshrined examples of both sorts into their constitutions or statutes, and the unconditional enforcement of many of the standard fare negative rights as a practical matter requires the provision of a system of courts, police, and lawyers—effectively a positive right.

There are as many positions as to the taxonomy of rights as there are liberal philosophers, none without objections. I do not intend here to provide such a comprehensive taxonomy, but to sketch a general framework, a manner of thinking that serves to approximate what I think to be a more promising understanding of individual rights. It begins not with an abstract notion of rights and duties, but with an understanding of freedom based on the first-person lived experience of individuals.

Freedom, from this perspective, is the real ability to choose those things which one values and to live the life one desires, not merely the absence of interference. In order for the freedom to do X to be of any tangible value in the lives of individuals, achieving X must be a real opportunity or power, or capability for that individual, otherwise one might well say that Tantalus is free to drink from the water whenever he likes, or that one is free to sprout wings and fly, provided no other individual or state power is preventing them from doing so. Interference from others can thwart an individual from achieving their desires, but so can structural or natural impediments. Little can be done about the latter, but structural socioeconomic impediments can in many cases ameliorated by political action. An attempt to understand freedoms as real capabilities has been undertaken by economist Amartya Sen and philosopher Martha Nussbaum, who provides a non-exhaustive list of candidate capabilities in her Creating Capabilities: The Human Development Approach, an interesting and worthwhile read for those interested in liberal theory. These understandings of freedom point us in a more leftward direction, seeking to liberate the individual not only from unfreedom imposed upon individuals by state power, but also from unfreedom imposed by private powers or by the consequences of poverty or other structural impediments to self-determination.

A system of political rights can be assessed on this basis by empirical means. Measuring things like freedom and well-being across nation-states is a necessarily imperfect science, but a nonetheless valuable one in which political scientists have made great progress. Various indices such as the Human Development Index, the Freedom in the World report, and others give us means of comparing political systems, and more targeted research into the individual conditions of well being give us better ideas as to what core human freedoms should be valued most highly as political ideals.

The process of refining our understanding of freedom and well-being is a deliberative human process, always imperfect and subject to error, which highlights the importance of the interacting liberal principles previously enumerated—the skepticism of power, deliberative, participatory legislative bodies, checks and balances and the rest. The process of liberal reform is sometimes gradual and imperfect, but tangible and durable over time.

This is precisely what we’ve seen through the history of liberal thought and reforms. To borrow an idea from Dr. King, the moral arc of liberal societies is long, but it bends toward freedom and justice. Once a society enshrines in its character and constitution liberal norms, it affords itself the levers by which generations of reformers to come will be able to effect change. America is a good case study in this phenomenon. Certain basic liberal ideals were enshrined in its constitution and founding philosophy: “Life, liberty, and the pursuit of happiness,” “All men are created equal,” the freedoms of speech, religion, the press, assembly, and petition, the right to privacy, trial by jury, and other protections. Though these principles were not all implemented at the time of their adoption, and are not perfectly realized even now, they have formed the basis for the great reform movements that have defined successive generations of American life. Similar trends have been seen in other countries adopting liberal constitutions, from Western Europe to Asia.

It is a testament to the power of these core liberal ideas that the greatest liberatory reforms in our history have come about not by overturning these fundamental principles, but by recapitulating them, calling out the hypocrisy in the failure of government to live up to them, and taking them to their logical conclusions, thus enlarging their reach. It was thus that Frederick Douglass argued against slavery, excoriating the hypocrisy of a nation who would proclaim liberal principles of equality and liberty while allowing bondage and subjection within its borders. King did the same in the next century, saying:

All we say to America is, "Be true to what you said on paper." If I lived in China or even Russia, or any totalitarian country, maybe I could understand some of these illegal injunctions. Maybe I could understand the denial of certain basic First Amendment privileges, because they hadn't committed themselves to that over there. But somewhere I read of the freedom of assembly. Somewhere I read of the freedom of speech. Somewhere I read of the freedom of press. Somewhere I read that the greatness of America is the right to protest for rights.

Likewise Susan B. Anthony on women’s suffrage:

It was we, the people; not we, the white male citizens; nor yet we, the male citizens; but we, the whole people, who formed the Union. And we formed it, not to give the blessings of liberty, but to secure them; not to the half of ourselves and the half of our posterity, but to the whole people - women as well as men. And it is a downright mockery to talk to women of their enjoyment of the blessings of liberty while they are denied the use of the only means of securing them provided by this democratic-republican government - the ballot.

In the great progressive leaps forward of both the distant and recent past, from abolition to civil rights to the rights of women and LGBT individuals, we find appeals to liberal principles at the very heart of the rhetoric of these reform movements.

Though we have come far from where we started, we have many mountains yet to climb. A thoroughgoing liberalism along the lines expressed above can make the case for continuing radical changes to the status quo, including sweeping criminal justice reform, drug legalization, universal basic income, universal healthcare, humane immigration reforms, sex workers’ rights, death with dignity, as well as structural government reforms such as electoral system reforms, an end to the practice of gerrymandering, and more. The core principles of liberalism thus provide us with a map of unrealized and partially realized reforms, and a flexible but powerful blueprint for continual progress toward a freer, more just, and happier world.

Rethinking the Electoral College

Note: Originally published by the author on The American Liberal blog.

2016 electoral map showing statewide victories

The Electoral College has become a point of contention in the 2020 Democratic presidential primary debate, with several candidates calling for its repeal in favor of a national popular vote for the office of the presidency. This has spurred a renewed interest nationally in the Electoral College, its merits and demerits, and whether it should be scrapped, modified, or left alone. As one might expect, given recent electoral history, most of the support for repeal is coming primarily from Democrats and the left, with support for keeping the system as is coming from Republicans and the right. One might be tempted to write the whole disagreement off as bad-faith partisanship, but there are deeper philosophical questions at stake here, as well as conflicting interests that are not in themselves partisan. In order to decide this matter wisely as a nation, we must consider and evaluate the arguments adduced on both sides of the debate.

Before evaluating the various arguments for and against the Electoral College, it bears asking, “Just what is it?” One could write a treatise on its provenance and evolution throughout American history, but for the twin purposes of brevity and salience, we shall consider it primarily as currently constituted, with only brief mention of relevant historical factors.

The basic structure of the Electoral College is as follows: Each state is apportioned a number of electors equal to the combined number of representatives and senators from that state. How these spots are filled is determined by the laws of each respective state. These electors meet on a certain Monday in December following a November presidential election to vote for the offices of president and vice-president. It is their votes, rather than the national popular vote, which determines the outcome of a presidential election.

The founders originally intended that a state’s set of electors would be chosen by popular vote on a district by district basis. These electors would be non-partisan free-agents, who would meet and engage in a process of rational deliberation to select the most qualified and virtuous candidate. The people at large would not vote for presidential candidates directly, but would instead vote for these electors as intermediaries trusted to make a wise choice. This is manifestly not how the Electoral College functions today. The developments of distinct political parties, general ticket, and winner-take-all state rules have morphed it into something altogether different. As currently constituted, in 48 of the 50 states and DC, the people of a state vote for a presidential ticket, and the candidate winning the majority of the state’s popular vote receives all of the state’s electors. This is what is meant by statewide winner-take-all rules, and it makes the Electoral College effectively a weighted popular vote system, mediated through the states.

This system has many effects, but three are important to note here. One is that this system entails that individuals in the various states do not have equal voting power. Because the number of electors from a state is equal to its Congressional delegation, and each state has two senators and a minimum of one representative to the house regardless of population, an individual’s vote in a less populous state translates (assuming said individual votes for the winning candidate in that state) to a proportionally larger share of the effective electoral vote. The second consequence is that, due to the statewide winner-take-all rules, a good portion of voters in each state have no representation in the electoral vote count whatever. If 50.1% of a state’s voters vote for one candidate and 49.9% vote for a different candidate, the latter voting block will be unrepresented in the electoral vote tally. The third consequence is the fact that a candidate can lose the national popular vote, but win the Electoral College, and thus the presidency. This has happened four times in American history, in the elections of 1876, 1888, 2000, and 2016.

The statewide winner-take-all nature of the present system has the effect of skewing political perception and discourse, leading to talk of “red” and “blue” states and hiding the diversity of opinion within states, when each state is more realistically considered as some shade of purple. It also creates a situation where only a handful of competitive “swing states” are relevant to the outcome of an election. More on this later. To illustrate the effects of the winner-take-all system on the way we perceive the political alignment of the country, consider the contrast between the standard Electoral College map and the following one, which colors each county on a gradient between red and blue based on vote percentages within each:

2016 county by county map

One of the chief objections to the Electoral College is that it runs counter to the philosophical and legal principle of “one person one vote.” As mentioned, individual citizens in different states have unequal representation in the Electoral College, while those in minority voting blocks within each state are completely unrepresented. It violates two fundamental principles of democratic-republican government, representation and equality among citizens.

Another objection that may be levied against the Electoral College is that it does not actually answer to its original purpose and justification, and may in fact have effects contrary to the intentions underlying its initial conception. As originally conceived, the Electoral College’s deliberative process was to insulate the presidency from the whims of populism, preventing the election of an unqualified, incompetent, demagogic, or tyrannical individual to the highest office in the land. Many of the framers feared that popular election might lead to these outcomes, and so devised a system whereby these rational deliberators sit between the populace and the presidency. The current system, however, features no deliberative process, being a state-based popular vote, privileging voters in certain states more than others.

The foregoing fact is, interestingly, often adduced on both sides of the debate. As part of this critique, however, it leads us to the question of what kind of voters are disproportionately privileged by this weighting of different states. Rural, Southern states have electoral power which outstrips their population size. This comes as no surprise to the historian of American governance, who will remember that it was the Electoral College, as well as the Three-Fifths Compromise, which gave the slaveowning South its outsized political power. Slavery was abolished, Jim Crow defeated, but voting majorities in many of these more rural states are still privileged in the Electoral College over the majorities of many other states. One can wonder what effect this may have on the likelihood of electing someone the likes of whom the Electoral College is ostensibly intended to guard against. The though occurs that, if hedging against the tyranny of the majority is the object, perhaps a system that electorally privileges majorities in states which have long documented histories of popular majoritarian tyrannies against minorities might not be the best way to achieve that end.

Moving now to arguments in its favor, we must consider the flip side of this geographical privileging. Proponents of the Electoral College argue that instituting a national popular vote would lead to a situation in which candidates would be incentivized to campaign only in urban population centers, neglecting rural or less populous areas. As a consequence, the interests of these less densely populated areas would fall by the wayside. This concern is often bundled in with broader concerns about the role of federalism in the electoral system, and one sometimes hears this argument couched in talk about rural states vs. urban states’ interests.

First, as a response to this concern, it is not well established that a national popular vote would lead to candidates campaigning only in urban areas, given that it would incentivize generating as many votes as possible, and a sizeable portion of Americans live in rural areas. This concern is largely speculative. Second, we can observe that the current system already incentivizes campaigning only in a very small handful of swing-states, to the exclusion of all others, rural or urban. Whatever the effect a national popular vote may have on campaigning, it could hardly be as exclusionary as the current incentive structure.

Concerns regarding federalism underlie many of the defenses of the Electoral College system, so it’s worth discussing in more depth. Federalism, the distribution of powers between state and the federal governments, has been an integral feature in the makeup of our republic, alongside certain other features such as representative democracy, separation of powers among the tripartite branches, constitutionally enumerated rights, and the independence of the judiciary. Our government is a blend of different and sometimes contraposed elements, intended to distribute power and balance one another so as to protect the rights of individuals, and to promote the unity and longevity of our republic. One can think of the current debate in large part as one of the proper balance between the federalism element and the representative democracy element within our system of government. Both are important to consider, but which element is more relevant here, with respect to the relationship between the individual citizen and the presidency? Which element, in this context, tends more to protect the rights of individual citizens?

Important as it is, there are those who emphasize the role of federalism to a point such that they seemingly forget that it is a means to an end rather than an end in itself, and begin to talk in ways which are philosophically suspect. One hears talk of “states’ rights,” “states’ opinions,” and “states’ interests,” as if states were more than mere nominal objects. Without veering too far into metaphysics, we must note that states aren’t the kind of things that have the capacities of experience and thought, and thus the kind of things that can properly be considered to have rights or opinions or interests of their own accord. It is rather the individuals who live in a state who properly have such things as opinions, rights, and interests. Whatever talk about “interests of a state” means, it must ultimately reduce to interests of the individuals within the state in order to be coherent talk.

With that said, individuals within states do not vote as a single block, but are split percentage-wise. In so called “red states” there are significant “blue” minorities, and in “blue states,” significant “red” minorities. Under the current system, these minorities votes are electorally ineffectual. One must presume that these voters have just as much civic concern for the interests of other people in their states as do those voting with the majorities in those states. Interestingly, the same sort of concern that a rural minority might have its interests neglected in a national popular vote ought to apply equally to the voting minorities within these rural states who are completely voiceless under the current system.

Several factors are important to gleaning the proper relationship between the individual citizen and the presidency, and speak against the concern that a national popular vote would significantly differentially advantage the interests of some voters over others along state-wise divisions. One is that the primary areas of governance in which a president has greatest power to effect change are regarding issues of broad national or ideological concern rather than issues that bear upon voters’ state level interests. Two, whatever contribution one’s state of residency makes to his or her choice of president, one’s ideology makes a far larger contribution. Liberals in Alabama share more interests in common, in terms of electoral preference, with liberals in California, than they do with conservatives in Alabama. The same goes for conservatives in both states. So why be more concerned about the potential to unequally favor voter interests along geographical lines, which makes a relatively small contribution to their voting interests, than the real and current absolute disenfranchisement of vast swaths of voters along ideological lines, which make a far larger contribution to their voting interests?

At this point, the defender of the Electoral College has a rejoinder. The reason geographical interests should take precedence is to prevent regionalism among parties that could lead ultimately to the dissolution of the union. It is not an empty concern, though it is also arguable that regionalism is equally or more likely under the present system. There are regional paths to the presidency within the Electoral College system. Indeed, it is noteworthy that the secession of the southern states leading to the nation’s bloodiest war occurred under the Electoral College. Furthermore, as an empirical fact illustrated by the purple county map above, both major parties have ideological penetration across the nation, and partisan geographical differences are differences in degree rather than in kind. The concern about partisan regionalism seems far more well-placed in a pre-industrial, pre-information age than today, when cultural, social, and political groups are becoming more and more geographically decentralized.

So where does this discussion leave us? The considerations regarding lack of representation under the Electoral College as it currently exists, the disenfranchisement of large numbers of voters within states, the inequality of individual voters across states, and the swing-state phenomena which disincentivizes campaigning in much of America speaks to the need for reform. Worries about the role of federalism in preventing regionalism and urban domination, while not established empirically, are still legitimate concerns.

There are many ways one could go about reforming the Electoral College. Perhaps the simplest type of reform is to replace the Electoral College with a simple national popular vote. Several measures have been proposed for reforming the Electoral College, some requiring a constitutional amendment, and others (arguably) achievable through such means as interstate compacts. Proposals have been advanced in Congress introducing constitutional amendments to institute a national popular vote, but have all fallen short of the two-thirds majority in both houses of Congress needed to pass the amendment to the state legislatures for ratification.

A newer proposal, the National Popular Vote Interstate Compact, hopes to achieve the same end without the need of a constitutional amendment. In the compact, states would allocate all their electors to the candidate winning the national popular vote, rather than the statewide popular vote. To date, fifteen states and DC have signed on to the compact, making up 196 of the 270 needed to win a presidential election. The compact is written so as to go into effect only after enough states have joined to make 270 votes, thereby turning the country into a de facto national popular vote system. Notably, this proposal implements a national popular vote while retaining the framework of the Electoral College, by using the plenary power granted to the states by Article 2, Section 1 of the U.S. Constitution to choose the manner in which electors are appointed. The compact is likely to face legal challenges under the constitution’s Compact Clause requiring Congressional consent for states to enter into agreements and compacts with each other, but it may nonetheless be more easily achieved than a constitutional amendment.

Aside from instituting a simple national popular vote, numerous other possibilities are conceivable. One such possibility involves states allocating electors by districts, either by Congressional Districts or specialized Electoral Districts. The primary impediment to this sort of reform is partisan gerrymandering, which has just been upheld by the Supreme Court. Without Congressional action to ban gerrymandering, any gains in representation would likely be offset by these gerrymandered districts. Partisan gerrymandering would also likely become even worse by joining it to presidential politics. A simpler, fairer system along similar lines is to have states allocate electors proportionally to the various candidates, according to the statewide vote, based on a uniform mathematical formula. Both of these ideas seek to make the Electoral College more representative of the voters within states, eliminating statewide winner-take-all, and thus removing the disenfranchisement of minority voting blocks within states. Unlike the national popular vote, however, they do not go so far as to make all voters equal in voting power. It can be seen as a compromise between those concerned with the one-person-one-vote principle and those concerned with the urban-rural balance of power, as it still retains the current allocation of a number of electors per state which is not directly proportional to each respective state’s population.

Another interesting idea which would enfranchise all voters, institute one-person-one-vote, and also protect against regionalism is to institute a national popular vote with certain conditions. One could stipulate that to win a candidate must win the national popular vote as well as the statewide popular vote in a minimum number of states, or have a minimum percentage support in a certain number of states. The details would have to be fleshed out, but in principle, such a system would possess most of the best features of both the national popular vote and the current system.

No reform is likely to please everyone, and none will be free of negative as well as positive consequences, but one must weigh these consequences and decide which sort of reform stands to best achieve the ends we desire as citizens, that is, to further our individual liberties, make our system more representative, and foster the long-term stability of the republic.