How is constitutionalism possible, when people disagree on so many questions about what is good and what is right? The answer lies in two kinds of incompletely theorized agreement - both reached amidst the sharpest disagreements about the fundamental issues in social life. The first consist of agreements on abstract formulations (freedom of speech, equality under the law); these agreements are crucial to constitution-making as a social practice. The second consist of agreements on particular doctrines and practices; these agreements are crucial to life and law under existing constitutions. Incompletely theorized agreements help illuminate an enduring constitutional puzzle: how members of diverse societies can work together on terms of mutual respect amidst intense disagreements about both the right and the good. Such agreements help make constitutions and constitutional law possible, even within nations whose citizens cannot concur on the most fundamental matters.

A sketch of a way of characterizing multidimensional value commitments and the way they can come into conflict derived from my book Hard Choices is presented and applied to the question of how to characterize the relevance of identity to value commitments and conflict. The views of A.K. Sen and A. Bilgrami are examined in the light of these ideas.

What makes a choice difficult, beyond being complex or difficult to calculate? Characterizing difficult choices as posing a special challenge to the agent, and as typically involving consequences of significant moment as well as clashes of values, the article proceeds to compare the way difficult choices are handled by rational choice theory and by the theory that preceded it, Kurt Lewin's "conflict theory." The argument is put forward that within rational choice theory no choice is in principle difficult: if the object is to maximize some value, the difficulty can be at most computational. Several prototypes of choices that challenge this argument are surveyed and discussed (picking, multidimensionality, "big decisions" and dilemmas); special attention is given to difficult choices faced by doctors and layers. The last section discusses a number of devices people employ in their attempt to cope with difficult choices: escape, "reduction" to non-difficult choices, and second-order strategies.

The New Orleans catastrophe and the subsequent allegation of homicides at Memorial Medical Center have complicated our thinking about end-of-life care. Can the conditions in a collapsed health care system ever excuse euthanasia? Following a review of current legal and ethical standards for the causation of death in the clinical setting, and an assessment of the most common argument for euthanasia — the argument from intractable suffering — a different argument is set out for the excusability of euthanasia, one based on forced abandonment. While more familiar in battlefield medicine, this line of reasoning may have applied in post-Katrina New Orleans. When health care professionals are compelled to leave a hazardous clinical setting, and where it is impossible to evacuate patients who are not expected to survive, clinicians must choose between abandoning these patients to die unattended and unmedicated, or euthanizing them before leaving themselves. Because each of these options stands as an egregious violation of an important health care norm, and because there is no third option, neither violation can be rightly condemned.

This essay argues that considerations of justice that govern the morality of self-defense are also relevant in some cases in which organs are allocated for transplantation in conditions of scarcity. The essay's main substantive claim is that in general alcoholics are morally liable to be assigned a lower priority in the distribution of livers for transplantation because of their own responsibility for their need for a transplant. There are, however, practical obstacles to giving lower priority in the distribution of medical resources generally to those who are responsible for their own illnesses, and it may seem unfair to single out alcoholics but not others for lower priority.

Rationing is the allocation of a good under conditions of scarcity, which necessarily implies that some who want and could be benefitted by that good will not receive it. One reflection of our ambivalence towards health care rationing is reflected in our resistance to having it distributed in a market like most other goods—most Americans reject ability to pay as the basis for distributing health care. They do not view health care as just another commodity to be distributed by markets. Despite this widespread view, we are the only developed country without some form of universal health insurance, and so for the 46 million Americans without health insurance their access to health care often does depend on their ability to pay for it. Rationing largely remains a topic that the public, their elected leaders, and many health care professionals prefer to avoid. Ever-growing costs of health care will increasingly force the practice and issue of health care resource prioritization and rationing into the open for public, professional, and political attention. This paper explores some of the features of those practices and issues that make them especially ethically and politically difficult. Those issues will not be easily resolved, but avoiding them will not avoid the need or reality of rationing, it will only mean that it will go on covertly and unexamined. That will lead neither to better or more legitimate prioritization and rationing decisions.

Torture has become the subject of intense debate in recent years. One facet of that debate is whether there are any circumstances during which it might be an appropriate response by a respectable government. One might wonder precisely why torture receives so much more attention than, say, the "collateral damage" that is an inevitable aspect of contemporary warfare. But the debate also involves what counts as "torture," as distinguished from "cruel, inhuman, and degrading" methods of interrogation or even "coercive but acceptable" methods. This article argues that we sometimes overemphasize the significance of particular acts — i.e., x either is or is not torture — as against the importance of the phenomenology of torture, which involves creating a structure of complete domination and, therefore, complete vulnerability. This is similar to the phoenomenology of slavery. Indeed, in this 150th year since the Supreme Court's decision in the Dred Scott case, it is important to contemplate the full meaning of Chief Justice Taney's declaration that blacks had "no rights" that whites were "bound to respect." Can a liberal political order ever carve out a set of persons — such as suspected terrorists — who indeed have "no rights" that the state is obligated to respect? If the answer is no, then what are the implications for the process by which the United States, presumably a liberal political order, conducts interrogations even of those suspected of being "the worst of the worst"?

"Humanitarian intervention" as used below means action by international actors across national boundaries including the use of military force taken with the objective of relieving severe and widespread human suffering and violation of human rights within states where local authorities are unwilling or unable to do so. This essay will attempt better to understand decisions about humanitarian intervention from the narrow perspective of looking at the proximate considerations attendant to the intervention itself, particularly focusing on the priority of ground_level implementation and the recognition of the integral relationship between military action and reconstruction. Since what is confronted on the ground will be determinative, it is important to see if the decisions above can be better connected to the realities below. The inherent complexity of the subject will be confirmed here using selected cases with which the author has experience in the field; concepts and constructs identified which have been developed in attempts to frame the problem; constraints faced by the policy_makers indicated; and moral aspects of the enterprise considered.

The author applies Albert Hirschman's "Exit, Voice and Loyalty" framework to the dilemmas faced by humanitarian aid workers in complex settings where local or international political and military realities may "taint" the purposes and uses of aid. She reviews the pro and con arguments surrounding the difficult choices of whether to go or not, whether to stay or leave and whether to speak out or remain silent in such circumstances. Because international humanitarians insert themselves into circumstances that are not their own where they see there is need for a humanitarian response, the author suggests a fourth category of choice should be added to Hirschman's three - namely that of "engagement." This option involves entering and/or staying, coupled with a quiet, off-the-record voice intended to work with and try to change from within nefarious circumstances. Concluding that none of the four options is "pure" in that all have direct impacts on the welfare and likelihood of survival of suffering people, the author argues for making each decision on its own particular merits, weighing both the personal/moral and practical/political realities of that situation. She offers guides for how such decisions may best be made, relying on differences of analyses and opinion offered by colleagues to provide grounding for one's own difficult choice.

Most whistleblowers talk as if they never had a choice about whether to blow the whistle. This doesn't mean they acted suddenly, or impulsively, only that they believe they could not have done otherwise. Trying to make sense of this near universal answer to the question "Why did you do it?" the essay draws on narrative theory. Narrative theory distinguishes between actant and sender—that is, between actor and his or her values. This distinction helps to explain what it means to face a difficult choice over something about which one feels one never had a choice.