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April 25, 2007

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ctw

"I don't view economic redistribution as violating the rights of the wealthy minority."

agreed, and it's worth noting that for some time now net redistribution of wealth has been decidedly toward the wealthy - a violation of rights to which we can all aspire.

BTW, distorting my opinions is as likely as not to be an improvement, so no apology necessary. (:>)

-c

ctw

"[d]ecisions of this social magnitude ..."

the decision to be made vis-a-vis many such issues is whether a fed constitutional right exists. now a court may decide that in fact the proposed right doesn't exist at the federal level, in which case the issue may be referred back "to the people" (presumably meaning to the states). but once the question of a fed constitutional right has been raised and accepted at the fed level, I see no way to implement the referral prior to addressing that question. and I don't believe fed judges have the option of saying "we think deciding this is too hard, so we're going to punt back to the states". they have to actually decide it isn't a right, and judges can't conscientiously so decide if that's not their true opinion.

so it appears that the mantra "let the people decide" is not only tedious but also vacuous. ie, as some of us have argued all along, the only substantive complaint is the obvious "I think the opinion affirming this right was wrong and here's why". this might lead to some interesting and fruitful discussions, but the mantra (nevermind the mindless "liberal" name calling) is just noise.

and in the case of abortion rights, while I agree that a widely acceptable solution to the abortion rights mess is hopeless near-term at the fed level, it isn't clear to me how referral to the states would be effected if we accept prof george's presumably (per prof beckwith) maximally sophisticated framework based on "justifiable homicide". if the would-be mother has some fed constitional rights that in some specified circumstances makes an abortion justifiable homicide, they need to be identified and guaranteed. if not, then in practice the unjustifiability of the homicide probably means that it will need to be made illegal in all states. (are abortion opponents really going to be happy with some states allowing "unjustifiable homicides"? if not, they can just focus their protests on the offending states.) but then the result seems functionally equivalent to making abortion a federal crime.

perhaps some contentious but less critical issues could be referred to the states with less concern for adverse results. eg, consider teaching ID (for the purpose of this hypothetical discussion, I'm ignoring estab clause issues). if teaching ID (with or without evolution) in HS is seriously harmful, soon enough any adverse effects should show up in reduced SAT scores, lower college admission rates, etc. at that point, the citizens of those states can reconsider the wisdom of that policy in light of the possible detrimental effects on their childrens' futures. if parents don't like the result and have the means, they can move to another state. of course, that would lead to yet another perk of wealth, moving us ever further from even a semblance of equal opportunity.

-charles

golddog

Slate has an article on Justice Kennedy. It mentions Professor Stone's recent post.
http://www.slate.com/id/2165133/

The following is an excerpt from the article:

"In trying to reconcile Kennedy's dual visions of privacy, two possibilities emerge: Either he simultaneously holds two vastly different constitutional notions of privacy and autonomy—one for gay men and one for pregnant women—or all this has nothing to do with the Constitution.

It's reasonable to question whether the issue of abortion, for Kennedy, is personal. His opinion in Gonzales, like his dissent in the 'partial-birth abortion' case that went the other way in 2002, betrays his feeling of special and visceral horror of it. Professor Geoffrey Stone of the University of Chicago recently suggested that the result in Gonzales stems from the religious beliefs of the five-justice majority, who are all Catholics. That calculus may be far too simplistic. (Kennedy was also Catholic when he signed on to Casey, after all). Still, it is certainly true that religious people of many faiths have historically idealized (and also infantilized) pregnant women. Kennedy wrote in Gonzales that 'respect for human life finds an ultimate expression in the bond of love the mother has for her child.' In his view, abortion violates a woman's very nature."

ctw

for those interested in the "when does human life begin?" issue, this review of a doug hofstader book describes hofstader's somewhat unconventional take on that (though in the context of consciousness, not abortion) and a surprising (and pleasant, for those with happy close relationships) attendant conclusion:
http://www.americanscientist.org/template/BookReviewTypeDetail/assetid/55116;jsessionid=aaa4KxL1uKYE6

-charles

ctw

in a rare instance of minor agreement with our conservative commenters, I would suggest that the sort of flowery language apparently favored by kennedy (and others) detracts from any weight that his opinions might have.

for example, when one actually reflects on the meaning and not just the sentiment of "the right to define one's own concept of ... the mystery of human life", one can interpret it as endorsing ignorance. I'll accept that each person is at liberty to define their own sense of life's "meaning". but I see the "mystery of human life" as being a matter of biology, and altho one undeniably is also at liberty to be ignorant of the relevant science, there is no need to glorify being so.

that's why in the absence of an attractive strictly legal argument, I prefer the approach of my "pragmatic judge" who in appropriate situations [1] straightforwardly says "we have a problem here that clearly needs fixing, and this is the best solution we can come up with". the strict constructionists can, of course, still criticize the approach, but at least they can't make fun (IMO justifiably) of "penumbras, of emanations"-type verbiage.

note 1:

griswold is clearly such a situation, almost any aspect of abortion is equally clearly not. to suggest a straight-line path from the former - decided in accordance with my suggested "pragmatic approach" - to the latter is beyond ridiculous.

the problem with griswold was trying to solve a narrow indisputable problem with a broad, ill-defined "privacy right" rather than just stating the obvious, viz, that "the people" had voted with their "feet" (nice euphemism, no?) to overturn an anachronistic law. IMO, lawrence should have been decided on o'connor's EP grounds, not some hodge-podge of privacy and SDP, which would have disconnected it from griswold. ie, it was the griswold attempt to put a patina of legal "reasoning" on an obvious problem that was in error, not the easily pragmatically justified result. (all IMO, of course.)

-charles

Joan A. Conway

Joan, are you a native speaker of English. Much of your previous comment is unintelligible or awkward or both.

Posted by: Roach | April 27, 2007 at 02:17 PM

I do this on the run at the library besides my other business; I doubt if Robert E. Scott's words are unintelligible but for my typing.

Andrew

Professor Stone Sullies the Pages of the Chicago Tribune.

http://www.confirmthem.com/professor_stone_sullies_the_pages_of_the_chicago_tribune

TwoL

Mr. Hamilton,

Your comments show that you are not trying very hard to "understand the intricacies of the law." Try harder, and we'll support

Frederick Hamilton

Twol,
Just trying to make observations on how the law and abortion might be able to have a relatively sane coexistence. I suspect it is not possible. The devil is in those intricacies of the law you talk about.

I suspect the only way to address the issue for denouement would be for the Supremes to reverse Roe v Wade when the appropriate case makes it to their level and then let the issue play out in the varius legislatures and allow such a contentious issue to be outside of the legal arena and within the legislative (public determination) arena where it belongs.

Frederick Hamilton

Twol,
Just trying to make observations on how the law and abortion might be able to have a relatively sane coexistence. I suspect it is not possible. The devil is in those intricacies of the law you talk about.

I suspect the only way to address the issue for denouement would be for the Supremes to reverse Roe v Wade when the appropriate case makes it to their level and then let the issue play out in the varius legislatures and allow such a contentious issue to be outside of the legal arena and within the legislative (public determination) arena where it belongs.

Frederick Hamilton

Twol and others:
I would recommend the following url of yesterdays debate between Prof Stone and Prof Eastman regarding the recent Supreme Court decision on abortion.

It provides the "intricacies of the law" and also the generalized need for legislative deference. Quite good.

http://hughhewitt.townhall.com/Transcript_Page.aspx?ContentGuid=44440832-cbdb-4c02-8b97-2de30f46fdc4

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