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April 20, 2007

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Erasmussimo

Mr. Hamilton, I will suggest that your biases are exposed by the following:

1. continuing to refer incorrectly to a fetus as a baby, even after the error has been pointed out.
2. perceiving that most constitutional scholars consider Roe v Wade a joke. If this were so obvious, why didn't the conservative majority on the court take this opportunity to reverse Roe? It is evident that most constitutional scholars on the Supreme Court don't consider Roe v Wade a joke.

There is nothing to be accomplished by discussing issues with somebody as biased as you are, because your biases will always distort your reasoning.

Frederick Hamilton

Eras,
I suppose I can agree that the correct term would be fetus. Does that make killing the fetus easier for you? Pregnant mothers call the person they are carrying a baby. As in my baby is 6 months along. But sure if you like, fetus instead of baby. So just minutes before a live baby you kill the fetus. Sounds more humane.

Eras, you should know that this particular case did not allow a reversal of Roe. This was about crushing skulls just before birth. A wholly different matter than Roe.

I am sorry you can't discuss/debate issues with someone biased against partial birth abortion. Why would you want to discuss/debate anything with someone who disagrees with you? I see your point. On this issue you are on the wrong side. Sorry.

How is this for an interesting question. Which decision will be overturned sooner by the Supreme Court: Roe v Wade or Gonzales v Carhart?

To my feeble legal mindset, I think Roe v Wade will be overturned before the decision to make legal again killing the fetus on its way down the birth canal. Might be wrong but just my thought on the matter. But since I don't agree with you, you can ignore it. Sorry if I interupt your clear thinking days.

OregonGuy

My son lied to me. I told him I would cut off his college money if he continued to see an under-aged girl.

Caught in the lie, my son protested because my decision was based upon the Fifth Commandment, and as such, was "faith based." And doubly wrong, being faith based by both Jews and Christians.

Thanks to Professor Stone I can now see that my decision was based upon personal prejudices. I must not have opinions that coincide with religious views of right and wrong.

Francis Beckwith

LAK writes:

"Legal rights are a function of consciousness and capacity. The "individual" whose liberty that we as a country seek to protect constitutionally is defined almost universally by political philosophers as some kind of function of self consciousness, physical autonomy, capacity for independent reason and agency, and sensory autonomy."

By claiming that these characteristics are essential to legal rights, LAK is making a claim about the nature of rights and its relation to philosophical anthropology. But this is precisely the sort of question that "religious" views answer as well. Now, these answers may not be persuasive to LAK, but they are no less sophisticated and certainly no or more less "religious" than the answers offered by LAK. After all, the case for fetal personhood is typically made by appealing to conclusions that are supported by reasons that are not appeals to sacred scripture or any other religious authority. Consider this example, from my forthcoming book, Defending Life: A Moral and Legal Case Against Abortion Choice (Cambridge University Press, 2007):

"...What would be wrong in a developmental biologist manipulating the development of an early embryo-clone in such a way that what results is an infant without higher brain functions, but whose healthy organs can be used for ordinary transplant purposes or for spare parts for the person from which the embryo was cloned? Given the dominant accounts of moral personhood—views that claim that a being’s possession of intrinsic value is contingent upon some presently held property or immediately exercisable mental capacity to function in a certain way—it is not clear how intentionally creating such deformed beings for a morally good purpose is morally wrong. I suppose one could argue that it is morally wrong because the unborn is entitled to her higher brain functions. But as abortion-choice proponent Dan Brock argues, “this body clone” could not arguably be harmed because of its “lack of capacity for consciousness.” Yet, he concedes that “most people would likely find” the practice of purposely creating permanently non-sentient human beings “appalling and immoral, in part because here the cloned later twin’s capacity for conscious life is destroyed solely as a means to benefit another.” This, however, only makes sense if the cloned twin is entitled to his higher brain functions. But according to the view embraced by most [abortion-choice advocates], one cannot have rights (including entitlements) unless one has interests (and interests presuppose desires), and the pre-sentient fetus has no interests (because she has no desires). So, the entitlement account does not do the trick for the ACA. It seems to me that the substance view is the account of human personhood that best explains the moral repugnance that one feels when one first appreciates the propect of these activities becoming common place in our society under the rubric of reproductive rights: it is prima facie wrong to destroy the physical structure necessary for the realization of a human being’s basic, natural capacity for the exercisability of a function that is a perfection of its nature. Although this provides moral warrant for the legal prohibition of intentionally producing deformed human beings for an apparently good purpose, it also grounds significant legal restrictions on abortion, a procedure that destroys the physical structure necessary for the realization of a human being’s basic, natural capacity for the exercisability of a function that is a perfection of its nature."

Geoffrey, if you're reading, hello. You may not remember me, but my wife, Frankie, and I shared a house with your daughter Molly in 2002-2003 while I was a visiting fellow at Princeton. Give our best to Molly when you see her.

Frank

Josh

Erasmussino,

You wrote:

"Legal rights are a function of consciousness and capacity. The "individual" whose liberty that we as a country seek to protect constitutionally is defined almost universally by political philosophers as some kind of function of self consciousness, physical autonomy, capacity for independent reason and agency, and sensory autonomy. These are universally observale human traits, and indeed, the less capacity you have the fewer rights you have in our country, for good reason. Children, the mentally impaired have fewer legal rights than those of us will full capcity, or all of those traits that make us uniquely human, as a matter of universally avialable reason.

So to consider a fetus a moral subject in the absence of any of these traits, to consider it worthy of some kind of legal protection that can be at odds with the legal rights and freedoms of an already living human being with full human capability is to necessarily invoke and inject faith and/or notions of the soul into the moral consideration.
"

Which of your "universally observale human traits" are magically imparted upon the malignant fetus as it crosses through the birth canal and instantly becomes fully human? Or are you in favor of infanticide as well?

How many of these traits do you posses when you're asleep? When you're drunk? Perhaps we consider a sliding band of punishment for murder based upon consideration of how "human" the victim was at the exact time of the crime.

"since the victim hadn't had his morning coffee yet, he undoubtedly possed a diminished "capacity for independent reason and agency" - therefore the court sentences the defendant to 2-5 year. Wait, he was blind too? Time served. Next case."

isabel pietri

Eras,
By reading your comments, your blog name should be Erastusmussimo (Thomas).

Let's keep pushing principles and morals away from every place in which we live, (including the womb) and let's not include the third -fourth commandament in it at all, because after all, we are SUPERIOR to the one one who created all.
But let's just keep those which will benefit us the most.
For goodness sake, the guy just wanted to be recognized!
No wonder why we're in the shape we are.

The essence of law IS goodness and the first three and fourth recognize that.
And they are in order of importance, in ANY counting system.

Erasmussimo

Mr. Beckwith, your imaginary scenario is certainly good at casting some of these problems in their starkest form. I'd like to offer a thesis that takes it even further:

I think the essence of this problem lies in the conflict between our desire to perceive ourselves as something better than a species of animal on a small planet. For the last 500 years, science has been steadily whittling away at our sense of special entitlement. First it took away our position at the center of the universe. Then it showed that we're not fundamentally different from the other animals that inhabit this planet. Then it started showing that our mental functions aren't quite as flawless as we thought. Now it's advancing on a broad front, demonstrating quite clearly that we are nothing more then extremely complicated chemical reactions.

This thought is profoundly offensive to many people. Science and medicine are inexorably forcing us away from the notion that we're special. And it's creating all sorts of horrible ethical dilemmas. Of course, these are ethical dilemmas ONLY if you perceive human beings to be something more than just material structures. If you accept the conclusions that science is driving us toward, those ethical dilemmas evaporate.

At this point, superstitious people will object that, if we abandon the notion that humans are special, then chaos will break out, morality will dissolve, society will collapse, dogs will cohabit with cats, and all manner of other bad things will happen. Perhaps this is in fact what will happen. But that does not make the foregoing false -- it means that our society is built on a false foundation. Perhaps the solution here is to stop fighting the message that science is telling us and start learning from it.

Josh, you too have fallen prey to the deceptive practice of this BBS software, which places a dotted line and author BELOW the author's piece, leading you to reasonably -- but incorrectly -- attribute writings to the wrong person. I say, let's shoot the programmer! ;-)

Isabel Pietri, I was going to ignore your comment, but a truly devilish response popped into my mind. While it truly represents my thinking, I hope you can read it in the spirit of wicked humor.

"Why yes, I *AM* superior to God. After all, I exist and He doesn't."

Francis Beckwith

"This thought is profoundly offensive to many people. Science and medicine are inexorably forcing us away from the notion that we're special. And it's creating all sorts of horrible ethical dilemmas. Of course, these are ethical dilemmas ONLY if you perceive human beings to be something more than just material structures. If you accept the conclusions that science is driving us toward, those ethical dilemmas evaporate."

It's worse than that. You don't even have any unilemmas, acts that are intrinsically bad.

Imagine the world you envision, one in which certain humans are cast as inferior and may be exploited for the "good" of others. It seems we forget that the survivors--those for whom others were terminated--change as well. Their characters are altered because now they think of human beings, including themselves, as the instruments of their wills, entities that can be constructed or deconstructed as "rights bearers" based on "personhood criteria" that treat the being as distinct and unimportant in comparison to the cluster of properties that he or she exhibits throughout his or her life. The question is not how these ideas exploit persons--which is bad enough. The real question is how that understanding of ourselves diminishes our self-understanding and the quality of our virtue. I'd rather be a good person acting virtuously than an autonomous chooser seeking my interests. I'm glad parents were more Bishop Fulton Sheen than Ronald Dworkin.

josh

Eras,

You're right, my apologies. Shoot the programmers. Since the programmers cleary exhibited diminished "capacity for independent reason and agency", the sentence should be 2-5 years =)

Here's my response to a point correctly attributed to you though - you wrote:

"I ask Mr. Leif why ickiness should be the standard for deciding law, and he answers,

"Because the elected representatives of the people determined that this procedure is so far beyond the pale that it should be outlawed."

I have two problems with that answer. First, the notion of something being "beyond the pale" is unacceptably vague.

Actually, far from being vauge, the legislative process is pretty straight forward. Pass the house, pass the Senate, presidential signature - Bam, it's a law. You'll find that there are very seldom any disagreements over whether or not a bill in fact became a law.

The vagueness comes into play when judges fail to exhibit the restraint that is their most cruicial duty and choose instead to legislate from the bench.

No amount of sophistry changes that basic truth.

Josh

Frederick Hamilton

Eras, your post "Of course, these are ethical dilemmas ONLY if you perceive human beings to be something more than just material structures. If you accept the conclusions that science is driving us toward, those ethical dilemmas evaporate."

That is an interesting and provocative philosophical point that most would dismiss out of hand.

From the political and practical standpoint, the specialness of human kind and the need to have a set of laws other than what the science of chemical reactions allows, is and will be the determining ethos for the next few millenium at a minimum. Your view of ethics will not come to the front of the line for the next 30 to 40 generations. Eras, your just ahead of your time.

BAC

Eras -- have you considered where your "humans are just extremely complicated chemical reactions" leaves you on the abortion issue? It seems that the inexorable conclusion to such a philosophy is that a fetus is human and must be protected.

I would share my views, but because they are based in part on religious beliefs Stone would have me silenced and excluded from the debate. Just look what happened when we allowed Catholics to sit on the Supreme Court . . . Can't let that happen again, right Comrade Stone?

Zumkopf

LAK, stop slinging Jewish law assertions around as if you know anything about them. Jewish law prohibits abortion, full stop. The only exception is to save the life of the mother. It is the utmost of intellectual dishonesty to assert that the Jewish belief that a baby becomes a full person at birth condones ending his or her life six seconds, six days, or six months earlier.

Sydney Carton

These comments might be interesting, but have largely digressed from the main topic: that Professor Geoffrey Stone is an anti-religious, specifically anti-Catholic, bigot. He is a bigot. There is no defense of that.

Erasmussimo

Well, I knew I'd touch off a lot of comments with my heresy, and I'm doubly guilty for having gone beyond the pale of the reasonable confines of this topic. Nevertheless, I shall stubbornly forge ahead!

Mr. Beckwith raises an advanced form of the antimaterialist argument that, without some special place in the universe for humanity, there is no foundation for morality. I respond by dismissing this argument as an unjustified assumption. I consider myself to be a pile of chemicals -- yet I have very strong ethical standards. I have no problem setting myself such high standards because I *choose* to establish high moral standards. There's nothing in science that says I can't choose to do so.

The problem antimaterialists have is establishing a foundation for ethical standards to be applied to other people. If I can choose to be honest, why can't you choose to be dishonest? If I can choose to be nonviolent, why can't you choose to be violent? And the answer is: yes, you can. You can choose any moral standards you want, and there's nothing I can say to convince you that you're wrong.

"Horrors! It's the end of civilization!" I hear you cry. But no -- there's a big difference between personal morality and social law. We as a civilization can write laws expressing our group moral beliefs. Indeed, the very essence of the democratic system is the notion that there are NO fundamental moral precepts and that the only way to translate moral perceptions into laws is by -- guess what -- a "social contract".

Yes, they wrote "We hold these truths to be self-evident". But that wasn't what gave force to their conclusions. What gave force to their results was the set of signatures at the bottom of the document. Both the Declaration of Independence and the Constitution derive their value from the agreement of the participants, not from divine authority.

Hence, you can dismiss the idea of human specialness, the concept of the soul, and all the other ego-coddling concepts that we have erected around ourselves. We don't need them. We can stand on our own two feet. That doesn't mean that you have to dismiss them. If you prefer to believe that you have an immortal soul, that after you die you'll be strumming a harp while comfortably esconced on a cloud among saints and angels, go for it! Embellish that fantasy any way you want! Just don't try to tell me that your fantasy is in any way objectively true.

Josh doesn't like my dismissal of 'ickiness' as too vague. He argues that a law can be as vague as we like. This rejection of vagueness is well-established and has an important functional value: if a law is vague, then its application can be arbitrary and capricious. One cop arrests a doctor because he feels that D&E is icky. Another cop arrests another doctor because he sees blood and thinks that blood is icky.

Mr. Hamilton, I agree that it is unlikely that our species will come to recognize the truth of its existence anytime soon. We are, after all, Paleolithic hunter-gatherers dressed in business suits. And therein lies the doom of our species. But, life goes on. Have you ever wondered what life on this planet will look like 50 million years from now? Are you really confident that homo sapiens (or its descendants) will still be in existence at that time?

Mr. BAC, I disagree with your statement that a materialist approach concludes that a fetus is identical to a human. Yes, the full-grown human is an extremely complex set of chemical reactions. The fetus is a LESS complex set of chemical reactions. The materialist view acknowledges that there is no 'bright line' between human and fetus, just a smooth continuum. In past times we used birth as the bright line, but medical technology has smeared that bright line out over three months, rendering it useless. So now we're faced with the task of drawing a line where there's just gray. Yep, it's difficult. But the whole process of lawmaking is a matter of precise elucidation of the desired moral intention. Without elucidation, you don't got law.

ctw

"Your view of ethics will not come to the front of the line for the next 30 to 40 generations. Eras, your just ahead of your time."

the latter may be true, but the former is almost surely not. go back a millenium and you're several centuries pre-renaissance; go back two centuries and slavery is in full swing and evolution; go back slightly more than one century and transportation, communication, computation, et al have only marginally advanced since the emergence of organized society; etc, etc. a lot has happened in the last millenium and (at least in the west) it didn't really even take off for the first few centuries.

given the much greater pace over just the last century of understanding in every field, it seems quite possible that the view eras voices will prevail (at least among the scientifically literate) much, much sooner than a millenium - possibly in a generation or two. and contrary to the fears of prof beckwith et al, if it does there is nothing more to fear from that eventuality than from the unforeseen - and probably unforseeable - consequences of any major advance in understanding. many of us already hold exactly that view and lead perfectly conventional and fulfilling lives: love our families, delight in our friends, support the community, worry about the decline of behavioral norms, etc. as Camus argued in Myth of Sisyphus (and demonstrated in his own life), one can live with "virtue" and joy even without "hope" (or fear, as the case may be).

-charles

josh

Eras,

You've answered my challenge with a straw-man argument.

Your original point was not "laws should not be vague". It was that the standards for deciding laws should not be vague. Specifically, that the elected branches of the government needed more than a vague reason to pass a law. And, presumably, that they needed to satisify your objections that their reasons were vague.

No one seriously argues that laws themselves should be vague. In fact, that's one of the reasons that we argue against legislation from the bench - One never knew what the "vague" constitution meant until Sandra O'Conner told them what it meant to her at that particular sitting. Now that's vague.

The people should let the elected branches of government know what laws they demnad. The elected branches of government should pass laws. And the judicial branch should interperet those laws in individual cases, and nullify them where they directly conflict with the plain language of the constitution.

And by the way, that which "gave force" to the Declaration of Indepence was the resolve and the blood of freedom-loving patriots. No red-coat was frightened back across the sea by the sight of so many signatures at the bottom of a peice of paper.

Josh

Frederick Hamilton

It appears the post by Prof Stone is getting a thrashing in the non-law blogosphere. Check out Hugh Hewitt at Townhall.com

Francis Beckwith

"Mr. Beckwith raises an advanced form of the antimaterialist argument that, without some special place in the universe for humanity, there is no foundation for morality. I respond by dismissing this argument as an unjustified assumption. I consider myself to be a pile of chemicals -- yet I have very strong ethical standards. I have no problem setting myself such high standards because I *choose* to establish high moral standards. There's nothing in science that says I can't choose to do so."

What does it mean to say that you "choose" high "moral standard" unless you are saying that the standards you choose measure up to a standard you don't choose. After all, if you had chosen "low moral standards" we would think less of you. To say that your standards measure up to another standard is to imply that there is a standard by which we can test your standard. If this is not what you mean, then I think your claim lacks coherency.

Suppose I said that I chose "Nazi moral standards." Would that be a bad choice? If the answer is "yes," then one is not really choosing moral standards. What one is doing is choosing a way of life that is judged by moral standards that by their very nature we do not choose.

Moreover, you seem to be saying that we should honor your choice as authentic. But that further implies that you are the sort of being that is entitled to be honored when you make authentic choices. But chemicals have none of thes properties. So, you must be more than chemicals.

In addition, your claim that "there's nothing in science that says I can't choose to do so" implies that all claims must be tested by science. But the claim "all claims must be tested by science" is not a scientific claim. It is a philosophical claim about science that by its very nature can't be tested by science. So, your claim is self-refuting and thus self-referentially incoherent, and that's not a good thing.

Tim

I would hope that--especially at a school world-reknown for its economics and other "hard" sciences--the good Professor Stone could realize that there is a difference between correlation and causation. It may well be an interesting correlation that all five Justices in the majority were Catholic, but that hardly means their Catholicism caused their votes.

LAK

Zumkopf,

I've siad nothing in my previous post about condoning abortion, nor have I, to my knowledge, said anyting wrong about Jewish law. I know Judaism prohibits abortion, pause, except if the life of the mother is at risk, which you'll acknowledge. Now if you'll notice, the partial birth abortion ban does not have an exception for the health of the mother. So if that is the only way for a pregnant woman to remain alive, it would be allowed by Jewish law and not by our Government. Hmmm, that gives me pause, full stop.

Further, under Jewish law you can abort any fetus up to the point of birth to save the life of the mother. Further Jews traditionally don't mourn stillborn children or infants who die up to thirty days after birth. That's not the same thing as saying Judaism condones abortion or allows it.

If you dispute something I've said, than say so. Because I certaily do not "assert that the Jewish belief that a baby becomes a full person at birth condones ending his or her life six seconds, six days, or six months earlier."

Again, all I offered this info for was to highlight how different religions disagree about these notions of when "life" and "personhood" starts, but more importantly how this is fundamentally a religious issue in the first place and that anyone who considers a fetus as worthy of legal rights that can trump a woman's right to control her own body and health is motivated by religious faith.


Erasmussimo

Josh, I went back and re-read my original "vague" post and I just don't see any substance to the distinction you make. Fortunately, this disagreement does not bear on our main point.

Mr. Beckwith, the word "high" in my statement was peripheral to my meaning -- I was stating only that you cannot dismiss a materialist point of view as barbaric. The main point here is that moral standards are utterly personal and utterly subjective -- and this is the point that you don't seem to appreciate. You talk about bad choices and good choices -- I answer that there is no such thing as a bad choice or a good choice. Each person makes his own choices and nobody can objectively judge their choice. Of course, we CAN judge their BEHAVIOR!

I'm not arguing that you should honor my choices. I really don't care what you think of my own choices, nor do I care about your choices, nor should anybody care about anybody else's choices. It's only their behavior towards others that is subject to social or legal sanctions.

No, my claim that "there's nothing in science that says I can't choose to do so" means the opposite of what you claim it means. Science simply has no bearing on spiritual or ethical choices. It is mute on the subject precisely because these are utterly personal and subjective choices -- and science concerns itself only with objective truth.

BAC

Thanks FH. A well-deserved thrashing indeed. Unless Stone retracts the post, this year's law school donation is going to Catholic Charities instead.

Eras, do you really think abortion rights should be decided on the jurisprudence of complex chemical reactions? This adds clarity to the law?

And, I call you bluff. You have absolutely no idea whether the chemical reactions in a fetus are more complex than those in any other human. If you do, then please enlighten us all regarding when the chemical reactions become sufficiently complex that you can no longer kill a fetus.

Erasmussimo

Mr. BAC, I am surprised that you would question the higher complexity of the fully realized version -- it really should be obvious to the most casual observer. I can offer two demonstrations of this simple truth: quantity and quality.

Quantity arises from the fact that an adult human being is bigger than a fetus. Bigger means much more metabolic activity going on. Lots more reactions, and inevitably a greater diversity of reactions.

Quality is the real proof, though. An adult human can reproduce, a fetus cannot. An adult human can think complicated thoughts, a fetus cannot. An adult human has a functioning digestive tract, and a fetus does not. An adult human eats, and a fetus does not. It should be obvious that an adult human engages in more complex behaviors and is therefore a more complex structure.

Frederick Hamilton

The chemical reactions ongoing in a fetus may actually be more than a living person. At one point in the develepmental process of the fetus the maturing brain is adding billions of nerve cells hourly.

Reducing mankind to better living though chemistry is good for Dow Chemical but I dare think a little dangerous for humanity. Although, I must admit I am waiting and have written about the right chemical that will keep humans from aging. Now that will be a great chemical leap. It will destroy Social Security and Medicare as we know it, but what the hell, I do wish to live to be a healthy 175 year old. On Medicare and Social Security for 110 years. And you think taxes are high now!

BAC

Don't stop now, Eras, you are on a roll with your jurisprudence of the chemical reaction complexity! So, can you tell me when, exactly, the chemical reactions become sufficiently complex to justify not killing a fetus?

I figure it's not the complex thoughts (or else I could abort my three-week-old bundle of material that only nurses and sleeps).

I doubt it's reproduction (although we might like having a live option to dispose of our young until puberty!)

So I guess its some combination of eating and digestive functions that tells us whether we can kill a fetus. Am I right?

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