"Presumptuous" is the appropriate word to describe any lawyer who essays to discuss "Ethics & Government" in an academic environment today. The profession which produced Nixon, Mitchell, Erlichman, Dean, Colson et al. can hardly justify itself merely by pointing to Archibald Cox, Henry Ruth, John Sirica, Sam Ervin, Peter Rodino and their colleagues. And the trauma of Watergate, bad though it was, is only one symptom of the malaise infecting many parts of the Bar. As a profession we lawyers have not maintained the sense of principled idealism exemplified by your famous and learned Professor of Jurisprudence here at N.Y.U. -- the beloved Edmund Cahn. As a profession we seem to have given up the pursuit of justice as the highest goal of our work. That philosophical objective disappeared with the dawn of legal realism in the first quarter of this century, and grew more and more irrelevant to the affairs of the real world of practical men as "the bottom line" changed from what's right, to what works, to what's legal, to what will the community accept, to what can we get away with.
As a lawyer, therefore, I appear before you tonight with some trepidation. Moreover, I am keenly aware that I am neither ethicist nor philosopher, nor career public servant, nor political scientist, nor elected public official. I haven't even got a Ph.D.
So, why am I here? I guess it's because Walther Casper and John Sawhill convinced me that only sinners truly know sin. You've been there, they said -- tell us why you think we need ethics in government; and if we need ethics, tell us how ethics can become an informing influence in the political process. So I have accepted their invitation -- remembering, as I do so, G.K. Chesterton's aphorism that "anything worth doing well is worth doing poorly".
Some would say that the title of my talk "Ethics & Government" is a mismarriage or contradiction. Machiavelli never permitted Aristotle's ethical principles or Thomas Aquinas' theological insights to influence the advice he gave his Prince. Nor were any of the makers of the modern state -- Bismarck, Cavour, Metternich, Catherine the Great, Elizabeth the First -- preoccupied by ethical considerations. They concentrated on getting and keeping power. For them power was the name of the game. With power anything is possible; without power nothing. Getting to power and staying in power was their ethic. And so it has always been. From Alexander and Caesar to Stalin and Hitler, to Idi Amin and the dictators, military or political, who rule much of our world, power needs no justification. Power is its own reward. Or as Henry Kissinger so typically said: -- "Power is the ultimate aphrodisiac."
But is it?
Surely it has not been the ultimate aphrodisiac to all men of political power. Moses, Thomas More, Gandhi, Washington, Lincoln. Even the imperious Charles deGaulle could define his terms for staying in power and quit when the electorate demurred. The jury is still out on Stalin's sneering question, "How many divisions has the Pope?" And most rulers today try to give an altruistic coloration to their struggles to get or retain power. They may rationalize their power lust in tribal or nationalistic terms; in Marxist terms or dogmas; in Adam Smith's, Biblical or Muslim rhetoric; or even in the cool, antiseptic language of policy science. But whether it is rationale or rationalization, a matter of appearances or conviction, those who hold power feel a need to justify it. The most successful of them can fool most of the people most of the time. Television and mass psychology, manipulative advertising and control of communications give them new, effective, technological tools to keep the powerless content or at least benumbed. But still the fact remains: -- the rulers exhibit a felt need to justify or legitimatize themselves, their policies, and their actions. Even the most tyrannical of rulers call themselves Presidents, Prime Ministers or General Secretaries and their states, democracies or republics, usually peoples' republics.
Why do they act this way?
Why do they feel compelled to legitimatize their power?
The answer must be that all power does not come from the muzzle of a gun. Something else, -- or a number of other things, must be the source -- the voters, the natural law, the dialectic of materialism, God. Whatever the claimed basis, the need to claim a basis for power and for authority suggests, I submit, an acceptance of the fundamental principles of accountability and legitimacy.
If power -- its acquisition and exercise -- must be justified, ethics has a necessary place in the political process. Pascal saw that this is the essence of our humanity. "Our whole dignity," he wrote, "consists in thought. Let us endeavor, then, to think well; this is the principle of ethics." Or in the words of a contemporary observer, ethics is the intellectual process and skill by which we engage in analyzing and reasoning about the rights and wrongs involved in any decision we face: -- Not exclusively the financial aspects, or scientific aspects, or military aspects, or geopolitical aspects, but the moral aspects of any decision we face.
Real-politique would reply that ethics and ethicists have nothing to contribute to such questions; after all, ethicists can't even agree among themselves about what is right. But economists can't agree about what will work, as President Ford found when they squabbled through his economic seminar in 1974. Lawyers disagree about meaning of statutes, doctors about the diagnosis of disease. Even the physicists who set off the first atomic test disputed in" advance whether it would be a dud or a bomb -- and a few of them worried that it might be instant doomsday. In the end, all the experts finally are forced to rely on their judgment. Ethicists are different in degree, not kind: they go to the fundamental questions immediately. They openly profess to be making, stating, and debating their value judgments.
This is a difference which should give them a special influence. But in today's debate doctors, lawyers, economists (and I should add scientists and military leaders) are the gurus whereas moralists, philosophers, and ethicists are relegated to the sidelines - maybe even to the grandstands. They are spectators, not participants, when practical decisions have to be made by practical men. Whoever hears of a moral philosopher being invited to a meeting of the National Security Council? What could he/she add to the wisdom provided by the generals, politicians, lawyers, bankers, and cost accountants?
The reigning theory and practice in Washington, and in our society generally was beautifully summarized recently by former Assistant Director of the F.B.I., William Sullivan. Mr. Sullivan said: "...In my thirty years with the F.B.I. never once did I hear anybody raise the question: Is this course of action lawful, is it legal, is it ethical and moral? We never gave any thought to this line of reasoning, because we were just naturally pragmatic".
Practical men gave us the practicality of Vietnam, the pragmaticism of law enforcement agencies as lawbreakers, the tough, sensible policies of the last decade that corrupted our Power abroad and disillusioned our own people. It was phyrric pragmaticism: and our experience with it may have prepared us to accept the idea that ethicists and even moral philosophers should have a role to play in government. The number has greatly decreased of persons who believe that ethics expresses merely the way we feel about things, that ethics is non-objective, non-factual, and hence solely personal and idiosyncratic.
There is an uneasy awareness that our problems cannot be solved on purely pragmatic, scientific grounds. The solutions, if indeed they are any, seem to transcend national frontiers, Keynesian theories, military power, Freudian analysis, or Marxist dogmas. We may try to reach objective, value-free decisions and offer proposals that' should recommend themselves to well-informed and well-motivated rational persons. But human perversity, greed, ignorance, ambition, or obstinacy seem to frustrate our efforts. Our motives are misunderstood. Witness the Third World's rejection 'of our methods of economic aid, population control, and military assistance. People and nations don't seem to tilt the way we think they should. Even within the United States Blacks and Chicanos and ethnics don't react the way some people think they should. "Why don't women behave more like men?" complained Henry Higgins in "My Fair Lady". I submit that one reason is that Henry Higgins did not understand women, made no effort to see their side, and failed totally to explain his proposals in ways they would understand. Higgins' presentation of his own suggestions was egocentric, culture-bound and sexist. He never explained himself in broad, universal, human, yes, moral terms.
To illustrate what's needed let's look at some practical cases from the real world of government.
Case #1 – Education
When I was President of the Board of Education in Chicago, we spent $360 per child in average daily attendance. At the same time, the suburban Winnetka board spent $1,500 per child. Chicago had two-thirds of all the public school children in Illinois in its classrooms. School districts like New Trier Township had approximately 5%. The remainder was spread out in between.
The question confronting us in Chicago then, and con- fronting all of us in America today is simple: How is it possible to provide quality education to two-thirds of our public school children with one-fifth the amount of money needed to provide quality education in our best public schools.
This problem was faced by the California courts a few years ago. They ruled that the property tax could not be the sole source of money for public schools because, the inequality in the property tax base between school districts guaranteed unequal expenditures for educational purposes. I rejoiced in that decision, but my joy was short-lived. The U.S. Supreme Court reversed the California Supreme Court. Ultimately the California Supreme Court relying on the State Constitution alone reaffirmed its original decision. But in other States, the issue is still not resolved and the struggle continues. Why? Because richer people in rich political subdivisions don't want to pay more to educate the children of poorer people in poor political subdivisions. They will pay something more -- yes -- but not enough to equalize expenditures, let alone enough to spend more for the children of the poor who usually need more schooling, guidance, counseling, food and health care than the rich who get many of these "extras" within their own homes. But, why should the rich be taxed an extra amount to help the poor to a disproportionate degree? That's hard to explain to suburbanites who are having a difficult time paying their own bills. I tried it. Others have tried it. And we haven't succeeded.
Or, in the Bakke case, why should minorities receive affirmative help? And if minorities do receive affirmative help, how will we decide who qualifies as a minority group member? How Black must one be? Law courts -- jurists -- are now being asked to answer these questions. But the questions are not solely, or, even principally, legal in nature. That's why the Supreme Court darts from one theory to another, -- stretching this one, narrowing that one, "finding" an intention in the minds of the authors of the Constitution on subjects unknown to the 18th Century mind.
Turning to the domain of medicine and even of pure science, we find comparable complexities, which we are not "solving".
One way, for example, to eliminate the problem of mental retardation is simply to abort every fetus shown by amniocentesis or ultrasonography to be afflicted with Down's Syndrome or some other handicapping conditions. Fetuses suffering from cleft palate, spinal bifida, muscular dystrophy, multiple sclerosis, and similar genetic and metabolic diseases could all be eliminated by abortion. We would not have cured the disease or the handicap but we would have eliminated the unwanted individuals. A preventive strike so to speak.
Such procedures might be scientific, cost effective, and legal if some court says they are legal. Would they be ethical? Would they be in accord with "the national interest?" Who decides what is the national interest in such cases? The Secretary of H.E.W.? A new counterpart of the National Security Council - perhaps the Domestic Security Council?
These questions may seem far-fetched. But the debate on recombinant - DNA research has brought into existence national guidelines devised by N.I.H. and its advisors and promulgated by the Secretary of H.E.W. and his advisors. No elected official participated directly in that process. Since then "the scientific community" has aroused itself. Congress is being besieged by scientists who argue that no one should be permitted to inhibit the freedom of scientific research or the pursuit of scientific truth by establishing guidelines. Certainly no laws should be passed they say. The continued existence of the National Commission for the Protection of Human Subjects in Medical Research is now in question not because the Commission made any mistakes, hut because its existence symbolizes the right, not just the power, of the public to control science when science experiments on human beings. That thesis is not universally accepted, -- especially by some scientists. Since scientists and the public don't completely agree, government bureaucrats, and of course, members of Congress, are being asked to decide who can do what to whom under what circumstances and for what purposes.
How will they decide? Why not experiment on human beings, especially if science can be advanced by the knowledge obtained?
What's so special about a human being anyhow, asked a Harvard Medical student recently?
Like that medical student I often faced serious ethical questions in government service.
Would I permit taxpayers' money in the War Against Poverty to be used in a Neighborhood Health Center for contraceptive devices? for sterilizations? for abortion? for minors seeking such service without parental knowledge? We had to write regulations on those issues, without any expert help. Would I leave Peace Corps Nurses in the center of the city of Santiago in the Dominican Republic when our U.S. Marines were wading ashore and bombarding the very neighborhood where the nurses were working with and for the poor? Suppose one of those Peace Corps Nurses was killed by our Marines? How could I explain to her father that I had left his daughter in such danger when with ease I could have withdrawn her to safety? What could I say to the poor and wounded if I took her out. Were we a Peace Corps or not?
How could I explain to the Secretary of Labor when young Legal Service lawyers paid by me as Director of O.E.O. brought an injunction against him preventing him from carrying out what he thought were his official duties? In this case I succeeded in convincing Bill Wirtz - then Secretary of Labor and a former professor of labor law. But I never convinced George Wallace, Ronald Regan, or John Bell Williams that federally financed Legal Service lawyers should be able to sue elected public officials and compel or restrain their executive action by successful invocation of the judicial power.
None of these situations was solely legal in nature, or economic, or scientific. All of them were ethical and philosophical. And every desk of every current government official lies swamped with similar ethical problems which he has little or no technical training to resolve.
Who in government is qualified to make these decisions? "No one" is my answer. But it doesn't have to be that way. Universities, high schools, even grammar schools could begin to produce qualified ethicists, moralists, philosophers. It would take time -- ten years probably, maybe a generation, maybe a century. But there's no reason for the United States to remain a philosophic wasteland. Madison, Jefferson, Hamilton, John Adams, Benjamin Franklin -- all were men who in a serious way tried to deal coherently with the separate but inter-related Problems of man, God, nature, and society. Ethics was a preoccupation of many leaders at the time of our Revolution, and this interest turned most of the best minds of that time to the philosophical analysis of morality. When the Soviets launched Sputnik, President Eisenhower could respond with a massive national effort to produce more and better physicists, chemists and engineers. Kennedy could follow with a breathtaking decision "to put a man on the moon in this decade". Why? To prove that we were number one in science and outer space. Maybe the time has come to re-establish our position as number one in inner space -- the domain of the spirit within every person -- the realm of men's minds and hearts.
Even to suggest such an undertaking sounds romantic, softheaded, idealistic, old fashioned, childish, nostalgic -- every word and every thing we have been taught to deprecate, even ridicule. But suppose just one great intellect with moral courage had raised, early on, the question, "Should we wage war in Viet Nam?” Not can we win? Not how much will it cost? Not what will the Soviet reaction, the Chinese position be? Not how many lives will be lost? How long will it take? Can it be done without raising taxes? None of these questions -- only the most fundamental one of all: "Should we?" By what right did we assert our military strength in that place? Who gave us permission to kill? Were we threatened? by whom? Did we even take a Gallup poll among the people? Why were we heirs of the American Revolution helping autocrats like Ngo Dien Diem? A moral philosopher in the White House in that situation might even have been cost effective!
A few embryonic attempts to inject ethics into government are underway. There are even attempts to re-structure university and preparatory education so that •ethics and moral philosophy can infuse all specialized training. It will take time - to produce a person who can think legally takes three years after college plus a few years of practice; to produce a medical person requires four years after college, plus one as an intern plus two or three more for a specialty; to produce an economist requires four years after' college plus four years of graduate work. And those people all can get fancy jobs. The best philosophers, however, may get only a cup of hemlock. Nevertheless, some new efforts have been started.
At Harvard there is now an Interfaculty Committee on Medical Ethics. About three years ago for the first time in the' history of the Harvard Medical School grand rounds were devoted to an extended analysis of the ethical aspects of a problem case in the Massachusetts General Hospital. Ethicists are now personae gratae at the Boston City Hospital -- and by ethicists I do not mean MDs who take a six months course. Nor do I mean a chaplain. I mean a bona fide Ph.D. with practical experience in a medical or scientific environment. Members of the Interfaculty Committee at Harvard include experts in public health, law, divinity, and history as well as medical doctors and scientists. And in the undergraduate college at Harvard, more than 250 students per annum are signing up for ethics courses specifically focused on medical and scientific problems not just for abstract, academic ethics.
An even more ambitious effort is in progress at Georgetown University in Washington, D.C. At that University, "The Kennedy Institutes of Ethics" have been established. They constitute a sort of intellectual "central heating system" for the entire University. The Kennedy Institutes' faculty includes philosophic ethicists, religious ethicists, social ethicists; Protestants, Jews, Muslims, Catholics, Agnostics, medical doctors, lawyers, nurses, demographers, sociologists, psychiatrists, philosophers. This central core faculty -- like the enriched Uranium-235 Core for a nuclear power plant -- is supposed to do the basic research in ethics theory for the entire University. And they are supposed to apply these theories jointly with the specialists in all parts of the University. They hold dual professorial appointments in various schools and departments to facilitate the process of practical application of ethics to real problems. The members, publish, lecture, or teach as they see fit. They attend no compulsory meetings; there's no rank-and-tenure committee; they have no departmental responsibilities. They are responsible to no dean -- only to the President of the University. Many of them have tenure. All of them have absolute freedom.
The results of this experimental design are heartening. Faculty members have been invited to serve on permanent, advisory boards to the Director of N.I.H.; to the Technology Assessment Committee of the Congress; to the Director of Georgetown Hospital, to the Secretary of H.E.W. who has recently established an official "Ethical Advisory Board" with twelve members including doctors, lawyers and ethicists. Yes, please let me emphasize, ethicists.
The Kennedy Ethics Institute at Georgetown has also organized a Washington Area Ethics Symposium composed of 35 persons from the Congress and various agencies of the Executive Branch, all of which have responsibility for the ethical aspects of contemporary, practical problems facing the government. This group meets monthly for discussion of ideas and problems.
The Georgetown scholars write technical papers. They teach. But they live in no ivory tower. They are required to immerse themselves in practical problems as well as theoretical discussions. They work in the clinics and operating rooms, premature baby nurseries, with the psychiatrists, with the dying and suffering with the handicapped, the mentally retarded, the aged. They have come to know the smell of poverty, the distress of parents, the agony of cancer first hand. Some of them are medical doctors as well as philosophers, geneticists as well as moralists, psychiatrists as well as ethicists. None of them are technocrats. All of them are humanists. And they are attracting a following.
This year out of thirteen candidates for the Ph.D. in Philosophy in the Georgetown Graduate School, eight are seeking a Ph.D. in Bioethics...a new combined discipline. And the students include persons who already hold Doctorates in medicine, mathematics, public health, nursing.
With Bioethics, The Kennedy Institutes at Georgetown have established a prototype structure capable of re-introducing ethics not only into medicine and science but into every intellectual discipline. Georgetown plans now to replicate that model by applying the same formula and structure to law, to foreign policy, population, business, and perhaps to military problems. Applying ethics does not mean writing "Codes of Ethics" or convoking discussion groups, or issuing position papers, or arguing on TV. It does entail a laborious effort to select and finance permanent scholars of world stature and personal integrity who are willing to concentrate themselves on the re-establishment of ethics and philosophy as disciplines capable of analyzing and integrating the vast body of new information and technology pouring forth from every part of the world. This effort does entail also new ways of introducing ethics and moral reasoning into the teaching of all subjects -- because ethics must become an influencing factor in the analysis of nearly all problems and the making of all decisions. This requires extraordinary cooperation by faculty members throughout the University -- and of course, the University Administration must endorse the effort unequivocally, and for the long haul. Because, ultimately, we must put ethics into people, not just into a government process. With ethically trained and sensitized people, we'll have ethically sensitized government.
These are promising starts, but we need to do much more. We need to mobilize more universities. We need to intro- duce moral education (not religious education) into the grade and high schools. We need higher moral quotients at least as much as higher I.Q.s. Professor Larry Kohlberg has developed a systematic method for improving moral quotients through education. And we need to encourage the rest of government to follow H.E.W.'s example by establishing committees of ethical advisors. And if the President needs a Council of Economic Advisors, a Science Advisor, a Legal Counselor, a staff of National Security Advisors, why not a Council of Ethics Advisors? The members can be utilitarians, Kantians, Ralsians, Platonists: what would matter is that they could offer an ethical perspective -- that together they could ask: "Should we?" Before we have another Viet Nam, Watergate, Koreagate some one should be able to ask, "Ought we do this?"
The task of re-establishing ethics in government is a Herculean task, but there seems to be no alternative.
"Our culture", writes Philip Rieff, "is in crisis today because no creed, no symbol, no militant truth is instilled deeply enough now to help men constrain their capacity for doing and trying everything." They have lost the capacity to say "no". Anything goes.
One indication of the truth of Professor Rieff's analysis, as he points out, is the currency of two old words: Why Not?
Why not tell lies?
Didn't Richard Helms tell lies and didn't Edward Bennett Williams -- a famous lawyer -- say: -- "I've never been prouder in my 30 years as a lawyer than I am standing next to this man -- a loyal citizen who knows the meaning of obedience, discipline, and patriotism". Fortunately President Carter has replied by stating succinctly..."A public official does not have a right to lie". But in many high quarters the President's dictum is not fully accepted. For many persons the dogma of my country right or wrong now reaches to my government agency right or wrong. Who can criticize the Communists when they say my party right or wrong?
Why not break contracts?
Don't big-name athletes break contracts every year and get more money as a result?
Why not commit suicide?
"Ethical suicide" - Kurt Vonnegut, Jr. called it in his essay, "Welcome To The Monkey House", -- ethical it was implied, to deal with the population problem.
What about nuclear war? How do we prepare the President to decide whether to press or not press the button? How does he prepare himself?
If ever that moment should arrive, God forbid, the President -- one mere man -- will have 10, 15, 20 minutes to decide.
Who will be with him in those minutes?
Will his advisors be military men alone? Or will it be the National Security Council -- lawyers, diplomats, generals, scientists, politicians -- not a woman among them -- who will decide whether to end it all for all of us?
Will it be a matter of machismo? Will the President be an Abraham Lincoln, or a more typical President trying to do his best, intending no harm, a family man who afterward might say --
"I couldn't think of anything else to do. They started it. What else could I do?"
Nothing, probably, unless between now and then, we begin to think with absolute seriousness about our ethical and moral responsibilities ... about the question of when and why we will risk the life of the world. Otherwise, America's last contribution may be the killing of half the human race.
Can such thinking, arguing, and discussing take place within the Government as a whole, not just in the Pentagon? Who can be sure? Would it be effective? Who can predict?
Despite the uncertainty, I am sure we must live in the spirit of Socrates. When he was condemned to death for heresy, he had the chance to suggest an alternative sentence. Socrates asked to be given room and board in the City Hall of Athens because there, at the seat of government, he would be in the best place to influence the world.
Once again the Greeks had a word for it. There is no substitute for a continuing effort to introduce ethics into the processes of Government. Only one place takes precedence, the inside space within each one of us, within each person in this democracy. If by education and example we can produce human beings who are ethically sensitive inside themselves they will produce an ethically sensitive government.