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April 20, 2007


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Chicago 3L

Hey Professor Stone,

When I write my Con Law III exam, will you expect the exam answers to follow your mischaracterizations and falsely state that the Justices "reversed" Stenberg and "accepted" Congress's findings?

Are you going to deduct points if an answer accurately describes the Court's opinion, which distinguished Stenberg and refused to place dispositive weight on Congress's findings?

Maybe you can tell us in class next which approach we should take.


Chicago 3L,

It's not clear how one should write an exam for a partisan hack professor who publicly misrepresents the Supreme Court's opinions.

My advice: If it's an open-book exam, just be sure to bring a copy of NARAL's talking points. You can probably leave your casebook at home.



What an interesting lack of analysis of this case. Without getting into Prof. Stone's analysis of the Catholic issue, I am amazed at the number of you who bought into Lakawanna's analysis of the case (from the cherrypicked quote) instead of the professor's.

Over and over again, it is clear that the Court is deferring to Congress and their stated claims in the Act (rational basis for passing the legislation). This is contrary to the previous tests for abortion (intermediate/undue burden).

There are so many problems with this opinion that should be manifest with anyone with a passing degree of familiarity with previous abortion decisions. Part of the problem is that it was written by Kennedy (cf. Lawrence, as an example of the most poorly-worded and reasoned opinion you could read).

Ginsburg is spot-on in her dissent. This decision, even if you believe it makes *moral* sense, goes against the very principles that were put down in the prvious Stenburg decision of a few years ago. Thanks to god-awful wording AND reasoning, it upends the entire area of jurisprudence for levels of scrutiny, standing (facial challenges) and 'health of mother' issues.

Also, it doesn't actually change the number of abortions. Just forces women to have riskier types of abortions.

Kennedy-style jurisprudece: if it makes me feel squeamish, I'm against it. If it makes me feel good (Lawrence*), I'm for it. Even if my opinions offer absolutely no guidance for future cases and totally upset years of balance.

(Note- I exempt Thomas from this harrangue. I think he's wrong, but at least he's consistent. He doesn't think Congress has any power to regulate in this area.)

*BTW, not that I think the holding in Lawrence is wrong... not that there's anything wrong with that. But the opinion's all over the place. There's a fundamental right of consensual sex in the home, but the statute is irrational? Wuh? Just base it on a 14th Am. (the sodomy statute would have to apply to gays and straights equally) and the political process would take care of the problem.


Hey loki13,

You sound like you are saying that the professor is correct when he says "In the majority’s view, the critical difference was that in enacting the federal law Congress made several findings to support the legislation."

Anyone who makes that claim really shouldn't be practicing law.

The quote is not cherry-picked. Prof. Stone got it wrong.

Prof. Stone was talking about the findings re whether the procedure is medically necessary. On that issue, the majority is quite clear that it does not accept them as a critical or dispositive factor -- and that, contrary to Prof. Stone's implication, it recognizes that some of the findings are simply wrong.

You try to muddy the waters by talking about the applicable standard, or whether the majority is deferring to Congress in some generalized sense.

Nice try at obfuscation, but the issue is the findings re medical necessity. Stone said the Court found them critical. The Court most assuredly did not.

Admit it, or watch your credibility crater like the Professor's has.



Read the opinion. No, really, read it.

I know, it's Kennedy, it's hard. It's easier to go by the quote above.

Scott Forster

I cannot understand why our society decides medical issues in a Courtroom and not in the legislature. As I was reading the transcript of the oral argument in this case, I kept thinking that we could just call Justice Kennedy, ask him what he thinks about the law, and be done with it. It is incomprehensible that one person, unelected and with life tenure, decides what the law is on what is probably the most contentious political issue in this country. Why do we even need legislators? Roe was a terrible opinion (and I am basically pro-choice). All Roe did was remove this issue from the democratic process. If NARAL et al is correct and 75% of the nation is pro-choice, then reversing Roe would be no big deal b/c the pro-choice side would win the votes 75 to 25.


I must say, the intensity of criticism leveled at Mr. Stone is ludicrous. His crime, whatever it may be, is at worst a misrepresentation based on his own interpretation. I can say of a certainty that many of those criticising Mr. Stone have committed far worse crimes here. I suggest that some of you should heed these words of wisdom: "Let he who is without sin cast the first stone."

Mr. Forster asks why we rely on judges to make this decision for us. The answer is simple: because we refuse to make the decision ourselves. All it takes is for Congress to work out a Constitutional amendment defining when during gestation human life begins, for purposes of legal analysis. At a stroke, the problem would be solved. But the two sides are held hostage by the extremists on each side, and so we just stand paralyzed, doing nothing, hoping that somebody else will have the moral courage to tackle the problem.



"Read the opinion. No, really, read it.

"I know, it's Kennedy, it's hard. It's easier to go by the quote above."

I read the opinion the day it came out.

That's how I was able to recognize Prof. Stone's error the second I saw it.

I am not going off of the quote above. I wrote a post about it on my own blog, and then came over here to leave the same post. Lackawanna had beaten me to the punch.

Other than saying "read the opinion" can you offer a single quote from the opinion that supports Prof. Stone's contention that the majority found Congress's findings to be the "critical difference"?

I already know the answer. No, you can't. Because no such language exists in the opinion.

So you are reduced to hand-waving, and telling me to read the opinion, implying I haven't.

We have given the quote that puts the lie to Prof. Stone's interpretation. If that quote is truly cherry-picked, as you claim, then it should be child's play for you to provide language from the opinion that shows Prof. Stone is correct on the issue of the importance of Congress's factual findings to the Court's decision.

You cannot do that because we are correct, and you and Prof. Stone are not.

The First Rule of Holes is to stop digging. No doubt you aren't concerned about your credibility because you're anonymous. (I'm not, by the way -- my name is all over my blog.) If you're shown up here -- and make no mistake, you are being shown up -- it won't hurt your reputation because nobody knows who you are. Still, to the extent that "loki13" wishes to retain any credibility under that moniker, loki13 should really, really consider stopping with the digging.


"I must say, the intensity of criticism leveled at Mr. Stone is ludicrous. His crime, whatever it may be, is at worst a misrepresentation based on his own interpretation."

His crime is being compounded, because he hasn't corrected his misinterpretation.

I e-mailed him about it, and he's still trying to defend it.



My comments were cut off, unfortuately.

What was cut off is that the references to the Act in Kennedy's opinion are too numerous to mention (were I to cite, it would be passim), but you could start with p. 25, and esp. 26-27 in that he is giving deference to the Congress's findings.

Again, you can say that you're not giving deference. But you have to look at what the Justice in question does, not what he says he is doing.

This is a consistent problem with J. Kennedy. Look to Lawrence. I could say that Lawrence found that the law was unconstitutional based on rational review. Or I could say that there was a SDP right to consensual private acts in the home. Both readings are correct.

In the instant case, J. Kennedy says that he is giving no deference to the findings of Congress. Yet, throughout the opinion, he does just that. He finds a medical controversy when the only one created was due to the findings of the Legislature (aka the Act, p. 26-27).
cf. 'when the regulation is rational..." p. 37 (this directly follows lackwanna's quote)

It is one thing to believe that abortions have no protection under the Constitution (I disagree, but that is a valid belief). It is another to uphold Casey (as Kennedy did) and yet find some rationale for this case. Consistency is the hallmark of good jurisprudence.

Just because you choose to sling mud doesn't mean you know what you're talking about. A cursory read of the opinion will quickly disabuse you of your notions. Again, RTFO.



Thanks for a graciously-delivered dissent!

I'm not entirely clear which part of religious belief is the "narrowest" part...perhaps examples would be in order? ...so I'm not convinced you've found a real hole in my argument. But I'm not convinced you haven't, either.

Let me see if I can break down your statement and tease out of it a better understanding of your objection:

"He starts out by broadening his definition of religion to include all philosophy..."

That's almost right, as some things that are commonly called "religion" make no reference to the supernatural (I think a reference to Confucianism is called for, though I'm no expert in it) and consist purely of philosophical utterances and exhortations to clean living, delivered in a distinct ritualized way.

On the other hand, my definition was also intended to include things which assert the supernatural without clearly asserting any particular epistemology or cosmology, and with the most varying kinds of ethics. (New Age dabblers in crystals, and some Neo-Pagans or Wiccans could be described this way also.)

And, naturally, there'll some faiths that hit five out of five points. Judaism, Christianity, and Islam are in that category, certainly; I'm unsure whether Hinduism is, also, but it seems likely. And there may be others. But since not everything commonly called a "religion" bothers with all the "modules" of religious life and practice, I allowed my definition to stretch to those items fulfilling a minimum of three or four out of the five items.

"OK, that's fine, and it's certainly correct to observe that a judge's decisions cannot but reflect their philosophy."

That's intended to me a summing-up of something I said. Is it a summing up, or have you left something out? I'm not sure; it depends on what all you're including under the term "philosophy."

I suppose I'm okay with your restatement, so long as one stretches the word "philosophy" so as to include cosmology and metaphysics in addition to epistemology and ethics. Philosophies don't always address these. So now we're defining both religion and philosophy broadly!

But when both "religion" and "philosophy" are construed broadly, the two things largely overlap. (My mental image is of a Venn diagram from middle-school math class, with two mostly-intersecting sets.)

The reason I think such a broadening of definitions is appropriate when analyzing the role of the judge's religion in the judicial process is this: The parts of his religion which are getting used in rendering a decision are exactly those which overlap with philosophy, and none of those which don't. He is acting within "the intersection of the two sets."

For, nobody accuses Scalia of catechizing from the bench; no one is complaining that Thomas took time out during the proceedings to say the rosary or visit a confessor. And certainly no one is claiming John Roberts instructed a court officer to say a blessing before he took the first bite of his lunch! In short, it is not the practice or instruction or ritual of their faiths to which anyone objects, but instead the thought-processes which are informed by and honed within those faiths.

That is what I mean when I say that, to the degree to which the majority were engaged in "religious" thought when making a judgement, well, if that thought is "religious," then the other four were equally engaged in religion in the writing of their dissenting opinions. The only way they could avoid it is by avoiding using any kind of philosophy at all.

"...after generalizing religion to the broadest degree possible, and demonstrating that this broad level of thinking is unavoidable, he then applies the unavoidability to the narrow definition of religion."

This is where I don't quite follow. I did not, in fact, claim that it was unavoidable that Catholic justices would be lighting candles to St. Anthony in session, or insisting that anyone else should do so.

So it seems to me that it is only the assumptions-and-logic-and-principles component that are unavoidable. That is the portion which overlaps with philosophy, and the portion which becomes unavoidable in a clear-thinking individual.

"In other words, he argues that, since we must require judges to bring their philosophies to the bench, we must permit them to impose the smallest particulars of their religious beliefs upon their decisions."

Can you give me an example of a "smallest particular[] of [a] religious belief" which would (a.) bear upon a decision, and yet which (b.) does not have a corresponding assertion in non-Catholic philosophy, which could just as easily be labeled "religious?"

I can see that, in a case involving robbery or libel, it would be inappropriate for a judge to include in his decision, in a list of undisputed facts about the case, the "fact" that the Omnipotent Inventor of space and time once opted to play the tourist, incognito, in first-century Palestine.

But the most ridiculous thing about the inclusion of such a sectarian statement in a judge's decision would not be its sectarian nature, but its irrelevance to the question of the robbery or the libel!

So, we're not really concerned overmuch about judges enacting rituals in court, nor about them making sectarian assertions that are irrelevant to the case, which could be ruled out on the basis of sheer irrelevance.

Our primary concern is: Has this judge based his decision on a distinctly sectarian assertion, which (a.) IS relevant to the case, and which (b.) he could not have avoided referring to without simultaneously abandoning his own philosophy in favor of some other philosophy that was equally, though differently, religious?

For example, can one imagine a case in which the judge's decision hinges on whether he believes that human beings have a soul which outlasts the death of the human body? (I'm intentionally using an example which is perhaps similar to an issue raised in the abortion debate, but which is not directly related.)

Now, that's a sectarian assertion, in the sense that some religions explicitly believe it, some explicitly deny it, and some make no claim one way or the other.

Now, the Law makes no assertion on this statement one way or the other: We have no "finding of fact." So, it is not the Law which requires an Alito or a Thomas, who presumably think the existence of the soul to be factual, to pretend they think otherwise.

Meanwhile, a Ginsburg or a Souter might (though I have no way to be certain) think the existence of souls unlikely. They might then render a decision in such a case under the influence of their belief. (Always assuming it was truly pertinent to the case.)

Now, either way, this is a question of fact about which the Law says neither yea nor nay. And Justice X's assertion "souls" is obviously in the same category as Justice Y's assertion "no souls." Either claim could easily be the foundational statement of an organized religion. Either one might just as easily be adopted by an individual as part of his personal beliefs without reference to any organized practice.

But Stone, in such circumstances, would have us label one of these two statements as "religious" and the other "non-religious", and thereby have the first Justice either recuse himself formally, or engage in intellectual dishonesty while rendering his decision.

It is that categorization of "religous" and "non-religious" of two equally philosophical statements, followed by an immediate dismissal of whatever has received the "religious" label, to which I object. I think it creates an artificial bias in jurisprudence; if regularly implemented it would create an artificial monopoly in the marketplace of ideas; if institutionalized it would violate the "no religious test" phrasing quite brazenly.

One can easily imagine a United States in which Confucian* thought were the norm, and in which the "no souls" view was the "religious establishment" and the "souls" view was postulated only by persons trying to reason out an extra-temporal location for the "observer" required in some interpretations of quantum mechanics.

That we should then call the Confucian view "religious" and exclude it from consideration, without realizing that the same could be said for the opposing view, would be ludicrous. And so is the exclusion Stone wants, for the same reason.

Both assertions are about the same topic; they belong in the same category. The only grounds for excluding one as part of a chain of judicial reasoning, but not the other, is if the Law has made a solid assertion about those facts. Under such circumstances (Which I don't foresee in the abortion debate in my lifetime -- a Constitutional Amendment stating bluntly that fetuses are persons? Not likely!) a justice might have to recuse himself or pretend that what he thinks is, ain't.

Absent that, he'll just have to work from within his philosophical underpinnings, whether Stone shares them, or not.

* I note here that Confucianism may not actually assert "there are no souls" so much as remain mum on the matter. I nearly used "Satanism" -- in reference to the explicitly Naturalist and Materialist creed which sometimes goes by that name in the U.S. -- instead of Confucianism for my example. It would have been more exact. But I thought that would lead to too much misunderstanding, as the name of the creed in question rather suggests a belief in evil supernatural beings, instead of Materialism, to most people. So, I hope the practitioners of Confucianism will forgive me for using their creed rather inexactly in my example.


R.C., you have raised so many interesting issues that I'd like to mull over their significance. You make some excellent points. Thanks for providing such thought-provoking analysis! I'll think this over and post a response later.



You have made some good points- I think the most intersting of which is how a judge should make his decision in the absence of controlling law. This is, of course, what the appellate process is often about.

We can surmise (from his writings and speaking engagements) that J. Thomas believes in natural law, and the D.ofIndependence was 'incorporated' into the Constitution. But this 'natural law' that he finds has more in common with Grotius than Aquinas, so its foundations would go to Christian, but not Catholic, thought. Nevertheless, he would view a case like this with a minimalist perspective (hence his concurrence invoking the Commerce clause).

Unfortunately, this case is outrageous to some because of *how* it was decided, instead of what was decided. Stare decisis is an important value, for it conserves judicial resources and enhances predictability. While I might disagree with a decision that overturned Roe v. Wade, I could understand it. What I can't understand is how this decision is upheld, with the same basic fact pattern (plus 'Congressional Findings') from the previous Stenberg case.

It seems, in this case, the law had spoken, but because of a single switch of justices, we are revisiting and overturning recently-established precedent for no clear reason. Again, viewed as an invitation to re-examine Roe (or, more correctly, Casey), it is excusable. But it isn't.

Again, though, when dealing with the S. Ct., what is the influence of religion? When you examine Griswold (or Eisenstadt), you can say that privacy between married couples is a Constitutional right, or just privacy is a right, or that there is no penumbra or emenation, but would you agree with a jurist who upheld the laws because his relgion taught him/her contraceptives were sinful? You religion may affect your normative view of what you want the Constitution to be, but it shouldn't affect your jurisprudence in individual cases (IMHO).



Look. If society can claim a legitimate right not to have to scrape my brains off my windshield and thus "burden" me with wearing a seatbelt it has a legitimate right to not allow the vacuuming out of a baby's brains and thus "burden" his whore of a "putative" mother to sign adoption papers.


OK, R.C., I think I have gelled some of my thoughts on the problem. The crux of the issue is the dividing line between the broad philosophical stance that a judge brings and the particulars of his religion. We both agree that, say, lighting candles to St. Anthony would be on the wrong side of that line; we both agree that broad perceptions of the human condition would fall on the right side of that line. The problem then becomes, on which side of that line does a religious judgement on D & E fall? I realize that this is not an easy decision -- there are good arguments either way. My own basis for placing it on the wrong side was twofold:

1. Different religions provide different answers, and so the answer that any one judge applies is specific to that judge's religion and therefore pretty far down on the hierarchy of beliefs.

2. No religions have any fundamental restriction on abortion. That is, the objections to abortion are derived from original materials, not direct. Neither Christ, nor the Buddha, nor Mohammed declared, "Thou shalt not abort they fetus." Some will object that the Ten Commandments dictate that "Thou shalt not kill", but when those commandments were established, the very concept of fetal life was nonsensical and the commandment could not possibly have been interpreted to apply to an inconceivable situation. The modern conclusion that abortion is immoral is precisely that -- a MODERN conclusion applying ancient rules to modern situations. Hence, I don't think that a religious objection to abortion is fundamental to any religious philosophy.

I do recognize that belief in the existence of a soul is getting pretty far up there in the hierarchy of foundational beliefs, and such a belief leads rather directly to conclusions about abortion -- if you accept that a fetus is a human. This is messy enough for me to acknowledge it as a weakness in my argument.

I'm not comfortable with your assertion that theism and atheism are both religious beliefs, and that there's a basic symmetry between the two. I see a major source of asymmetry: the element of faith, or, as seen from the other side, the element of rationalism. The contest between theism and atheism is fundamentally a conflict between faith and reason, and I see this as a fundamental asymmetry. Yes, you can join the two at a fairly high level of philosophical abstraction ("How do you know that rationalism is correct?"). But that argument just doesn't sway me -- it's just too ethereal. I don't think that there's anybody here who will argue that rationalism is philosophically indistinguishable from sufiism or the religion of the Moonies.

So while I will concede that the drawing of the line between broad philosophical beliefs and particular religious beliefs is a tricky business not amenable to hard statements, I'm not willing to place rational atheism on the same table with faith-based theism.


Um, nk, there's a flaw in your logic, I agree that scraping a baby's brains out is unethical, but the decision in question doesn't refer to babies, it refers to fetuses. That's a whole different ball game. It's fair to argue your assumption that a fetus is morally indistinguishable from a baby, but that's an assumption, and in any case you really should keep your terminology precise.



"But would you agree with a jurist who upheld the laws [in Griswold or Eisenstadt] because his religion taught him/her contraceptives were sinful?"

No. Or, not unless the Law of the United States already legislated that it was illegal to do anything sinful, and had not spoken on the question of whether contraceptives were sinful.

Under such circumstances (where the law was clear that sinful equals automatically illegal, but unclear on whether contraceptive use was sinful) it is the gap in the law itself which creates a situation wherein the judge may, and perhaps must, insert his own opinion about that fact.

(Of course, this example is freakish and flawed: One could not have, absent a conquest by Sharia-imposing Islamists and a removal of the Constitution, a law stating that something was illegal because it was sinful. Such a law, sans a definition of "sin" and a delineation of what was and wasn't sinful, would be unconstitutionally vague. But as soon as the legislative branch specifically stated what was or was not sinful, and defined the word "sin", they would be adopting the role of an organized religious body and immediately instituting an establishment of religion! So it's a "Catch 22.")

It is interesting to consider what a judge should do when he encounters such a gap. He may insert his own opinion about a fact which has not been legislated upon. Should he?

Stone says, in essence, that if the judge is a Catholic, he's not allowed to use his own opinion, but if he holds a view Catholics wouldn't agree with, then that's somehow less religious, even though this contrary opinion is every bit as much a matter of religious or philosophical belief, and could just as easily be central to some other faith.

It's obvious by now I don't have much respect for that view. It's self-contradictory and intellectually lazy. Stone's "religious"/"non-religious" dichotomy won't hold water, but what then?

Should the judge fill the gap with his own view? Well, the gap must be filled somehow. He must adjudicate within his philosophy. Is there any alternative to his doing so?

Can he issue an order to the legislature requiring a bill which would formally define the start of personhood? What legislature would have the Constitutional authority to do so? Would such a law, by issuing bluntly an opinion about a metaphysical matter, constitute an establishment of religion, itself?

If it would, then it can't be enacted. If not, then it could, but would the result be worse, or better, for the country than the insertion of the judge's opinion? Which is a worse establishment of religion: A formal, in-your-face assertion of government opinion about a topic on which religions typically opine...but subject to change at the next election, should the electorate disagree? Or would it be better that a judge insert his opinion in a particular case -- perhaps a difficult one, the kind that always makes for bad law -- and thereby create something that can only be overturned by another judge, on a higher-level court (or a later Supreme Court) with an opposing view? In such a situation, the decision will typically take longer to overturn; it will not be subject to the next election's results. Is that a good thing, or not? Stability, or sensitivity to the will of the people?

I don't have immediate answers. But the questions are worth asking. I don't know if they're "deep," exactly. But I think they are, at least, more to the point than most of what Stone wrote, above.



"I'm not comfortable with your assertion that theism and atheism are both religious beliefs, and that there's a basic symmetry between the two. I see a major source of asymmetry: the element of faith, or, as seen from the other side, the element of rationalism. The contest between theism and atheism is fundamentally a conflict between faith and reason, and I see this as a fundamental asymmetry."

I know where you're coming from re: faith and reason, and perhaps many religious people see a dichotomy of that kind, but you're incorrect to think that they all hold that dichotomy. Christians sometimes hold that dichotomy to be a real distinction, but mostly do so primarily in ignorance of their own religion's history. (Which is ironic, since it's from contact with exactly these Christians, particularly in the U.S., that has caused the idea to become popular among self-professed scientific rationalists!)

The term "faith" when used in the Christian tradition and scriptures almost uniformly reflected a sense of reliability, and was not so much interested in credulousness. Thus God is also described as "faithful": In the same sense that a friend or a dog or a steed or a wife is faithful; i.e., able to be relied upon. When "faith" in the Christian tradition does acquire a sense of credulousness, it is never regarded as belief despite contrary evidence, but trust in the reliability of a person (usually God) on the basis of the past reliability of their character.

Thus, in the Christian tradition, the person who consistently obeys God (on the perfectly rational basis that God can be trusted not to mislead him) is rewarded in the afterlife with the commendation "Well done, my good and faithful [reliable] servant."

This is why the apostle Paul went to great lengths to exhort the readers of his letters to understand their faith and to "stand ready to defend [it]" ...where the word "defend" is the Greek apologeia, meaning, argue through logic. And "apologetics" has been part of Christian tradition from that time on -- though I myself think some such apologists shoot themselves in the foot with faulty arguments! But that's a different issue.

Nevertheless, from Thomas Aquinas and Grotius (mentioned in an earlier post) the West should have become familiar with the idea that serious Christian theologians regard their faith as imminently rational; in many ways, they argue that they have more faith in the validity of human reason than those who profess to be rationalists. They might admit to there being confusing aspects to their faith (especially the difficulty, for location-bound, time-bound beings, of the attempt to imagine the perspective of an eternal and omnipresent God, for whom "all times are Now" and "all places are Here") but hold that these aspects are confusing only because human reason is insufficiently powerful, or human data insufficiently complete, to fully grasp such things save through (inevitably imperfect) analogies.

These are sadly not the Christians encountered day-to-day, of course. Not every Christian may be a trained theologian, any more than every $75-an-hour contract electrician can explain the quantum properties of electrons (or the "holes" they create to produce current).

So what does the average Christian grocer or auto-mechanic say when challenged a question about his faith he can't answer? If he's immature as a Christian he gets defensive, to his mild discredit. If he's a more mature, likable chap, he might say, "I can't answer that, but I have faith."

Now, what in hell does he mean by that maddening, conversation-ending remark?

He may not know, himself. He may, through sheer cultural exposure, have been duped into thinking that the Christian term faith refers to belief in the face of conflicting evidence -- a definition for the term contrived, as far as I can determine, by atheists in the 18th century or thereabouts, corresponding to their own opinion of Christianity. But that definition should not be applied to the role of "faith" in the fundamentals of the Christian religion; there, it is an anachronism.

What the "I have faith" remark may actually mean, if not the anachronism, is this: "I spoke with God earlier today, and He with me. You say the fellow doesn't exist, but He was fine this morning. That's why, although your question is a good one, and I don't know the answer myself, I'm not particularly concerned. He's been reliable previously, and I expect He'll continue to be someone I can rely on. He's faithful, in that way."

NK, I apologize for taking the conversation so far afield. But this is why I thought the point worth making:

A non-Christian finds Christianity irrational, or, if he knows its arguments better but is still not persuaded, he finds it unconvincing. A Christian finds non-Christianity similarly unconvincing. Now, either side may disparage the other's arguments by calling them irrational, but that's mere heavy-handed rhetoric.

The only situation in which one could fairly call one side "irrational" rather than merely "unconvincing" would be if that side intentionally abandoned rationality, and specifically held human reason to be actually invalid (not just prone to error).

Such a view may truly be called irrational (or perhaps a-rational?). But you find more tendency to that amongst nihilists and some existentialists, and some forms of Materialism, than among Christian theologians. The latter are not at all happy with the suggestion that they live outside the realm of reason.

(Look up a biography of Aquinas and see for yourself: The "heresy" which maddened him most was not the argument that what Christianity claimed was not so (he could debate that, and win or lose the debate fairly, and with such opponents he could be urbane and gracious). No, the "heresy" that inspired him to true vitriol was the idea that something could be "religiously true" without simultaneously be objectively factual; that fact and truth were not synonyms. He rejected the idea, dismissing it with prejudice; the bulk of Christian tradition followed suit.)

So, I think it unwise to base a distinction between what is "religious" and what is "non-religious" on a distinction between what is "rational" and "non-rational". Label a group "non-rational" and they may try to prove their rationality through force of logic: A sign of belief in rationalism. You may find their argument unpersuasive, but maybe that's your problem, not something intrinsic to them! How can we be sure? Shall we disqualify their philosophical viewpoint as jurisprudence because you find it to be unpersuasive as evangelism?

One final apology (meaning, admission of deficiency): I have studied, and know best, the Christian tradition. So I have limited myself, in describing affection for rationality amongst common organized religion, to the Christian side of things.

I think similar things could be said in about Judaism (which has a fine rationalistic scholarly tradition) and about moderate Islam, which also has a tradition of apologetics (I exclude the radical Islamists because their arguments are apparently limited to "or else we'll saw your head off and videotape the event": A persuasive argument in some ways, but not through force of logic!).

But I lack the experience in either Judaism or Islam to make a broad argument about religions in general. Perhaps a more informed person could step in, there.


"What was cut off is that the references to the Act in Kennedy's opinion are too numerous to mention (were I to cite, it would be passim), but you could start with p. 25, and esp. 26-27 in that he is giving deference to the Congress's findings."

Regarding the *rationale* for the law, not the health findings, which is what the professor was talking about in the post.

"In the instant case, J. Kennedy says that he is giving no deference to the findings of Congress. Yet, throughout the opinion, he does just that. He finds a medical controversy when the only one created was due to the findings of the Legislature (aka the Act, p. 26-27)."

Flatly wrong. He finds a medical controversy based upon *evidence* presented to the Legislature and the courts.

Not the *findings*.

Do you understand the difference?


Re Congress's Erroneous Findings: Do we really want courts second guessing Congress on findings? I'm guessing the folks at Cato would only be too happy to invalidate nearly all economic regulation since the New Deal using Prof. Stone's methodoloy.


R.C., you have been taken in by poor graphic design. You have been conversing with me, Erasmussimo, but you have been addressing others, because you (quite reasonably) interpret the dotted line at the bottom of each post to be the dividing line between posts. I chide you for having entirely too much faith in the rationalism of software people. ;-)

Interesting thoughts on the history of rationalism in theology. Yes, Aquinas' attempt to bring theology into harmony with Aristotelianism was impressive (it followed similar efforts by Islamic and Jewish theologians whose names I can never remember). However, don't forget that Aquinas' efforts led to scholasticism, which my namesake dismissed as "logic-chopping". While it goes too far to say that Aquinas ultimately failed, I think it fair to say that his efforts didn't truly resolve the intrinsic conflicts between faith and reason.

That, by the way, is a fundamental difference between us -- I perceive an intrinsic conflict between faith and reason and you do not. I acknowledge the merit of your arguments but ultimately remain unconvinced. But I won't insist upon the point because, after all, we're divagating pretty far from the theme of this blog.

Unfortunately, this distinction is central to the asymmetry that I perceive that you reject. Which means that we'll have to live without resolving this issue -- unless you can come up with some whizbang one-paragraph proof that I'm wrong! ;-) I know that I certainly can't come up with a whizbang one-paragraph proof that I'm right.


I do not see how one can read the decision and miss the fact that the Court does accept Congressional findings in justifying the Act and distinguishing it from the one involved in Stenberg:

“The Act's ban on abortions that involve partial delivery of a living fetus furthers the Government's objectives. No one would dispute that, for many, D&E is a procedure itself laden with the power to devalue human life. Congress could nonetheless conclude that the type of abortion proscribed by the Act requires specific regulation [*61] because it implicates additional ethical and moral concerns that justify a special prohibition. Congress determined that the abortion methods it proscribed had a "disturbing similarity to the killing of a newborn infant," Congressional Findings (14)(L), in notes following 18 U.S.C. § 1531 (2000 ed., Supp. IV), p. 769, and thus it was concerned with "drawing a bright line that clearly distinguishes abortion and infanticide." Congressional Findings (14)(G), ibid.” Carhart at 60.

“Congress stated as follows: "Implicitly approving such a brutal and inhumane procedure by choosing not to prohibit it will further coarsen society to the humanity of not only newborns, but all vulnerable and innocent human life, making it increasingly difficult to protect such life." Congressional Findings (14)(N), in notes following 18 U.S.C. § 1531 (2000 ed., Supp. IV), p. 769.” Carhart at 58.

"Partial-birth abortion . . . confuses the medical, legal, and ethical duties of physicians to preserve and promote life, as the physician acts directly against the physical life of a child, whom he or she had just delivered, all but the head, out of the womb, in order to end that life." Congressional [*59] Findings (14)(J), ibid.” Carhart at 58-59

“It is objected that the standard D&E is in some respects as brutal, if not more, than the intact D&E, so that the legislation accomplishes little. What we have already said, however, shows ample justification for the regulation. Partial-birth abortion, as defined by the Act, differs from a standard D&E because the former occurs when the fetus is partially outside the mother to the point of one of the Act's anatomical landmarks. It was reasonable for Congress to think that partial-birth abortion, more than standard D&E, "undermines the public's perception of the appropriate role of a physician during the delivery process, and perverts a process during which life is brought into the world." Congressional Findings (14)(K), in notes following 18 U.S.C. § 1531 (2000 ed., Supp. IV), p. 769.” Carhart at 64.

And as Prof. Stone suggests, the dissent amply demonstrates the majority’s unreasonable reasoning by showing that congressional rationalizations styled as “findings” do not hold water:

“Today's ruling, the Court declares, advances … the Government's "legitimate and substantial interest in preserving and promoting fetal life." … But the Act scarcely furthers that interest: The law saves not a single fetus from destruction, for it targets only a method of performing abortion.” Carhart at 100.

“As another reason for upholding the ban, the Court emphasizes that the Act does not proscribe the nonintact D&E procedure. See ante, at 34. But why not, one might ask. Nonintact D&E could equally be characterized as "brutal," ante, at 26, involving as it does "tearing [a fetus] apart" and "ripping off" its limbs, ante, at 4, 6. "The notion that either of these two equally gruesome procedures . . . is more akin to infanticide than the other, or that the State furthers any legitimate interest by banning one but not the other, is simply irrational." Carhart at 101.

“Delivery of an intact, albeit nonviable, fetus warrants special condemnation, the Court maintains, because a fetus that is not dismembered resembles an infant. Ante, at 28. But so, too, does a fetus delivered intact after it is terminated by injection a day or two before the surgical evacuation, ante, at 5, 34-35, or [*102] a fetus delivered through medical induction or cesarean, ante, at 9. Yet, the availability of those procedures -- along with D&E by dismemberment -- the Court says, saves the ban on intact D&E from a declaration of unconstitutionality.” Carhart at 101-102.

“Ultimately, the Court admits that "moral concerns" are at work, concerns that could yield prohibitions on any abortion. See ante, at 28 ("Congress could . . . conclude that the type of abortion proscribed by the Act requires specific regulation because it implicates additional ethical and moral concerns that justify a special prohibition."). Notably, the concerns expressed are untethered to any ground genuinely serving the Government's interest in preserving life. By allowing such concerns to carry the day and case, overriding fundamental rights, the Court dishonors our precedent.” Carhart at 102.

As to the “reversal,” the Court may say Stenberg is distinguishable (and thus still good law) all it wants, but the results speak for themselves: under Stenberg, a health exception was a prerequisite for the constitutionality of the statute; under Carhart, it obviously is not.

deacon john m. bresnahan

These 5 justices worked their way up through the judicial pile espousing an all-American judicial originalist position and got to the top with the votes and support of many, many people who are not Catholic. Everyone knew their judicial philosophy was one which would in the end blend in with a pro-life judicial outlook. To me, for someone to NOW bellyache that the 5 with this judicial philosophy are Catholic reeks of sour grapes expressing itself in what appears to most Catholics (and many others) as possibly being nothing but anti-Catholic bigotry. It's a good thing President Bush is a Methodist and not Catholic or the Klan conspiracy brigade would really be going bezerk.

Scared of the anti-Catholic bigot

I am in Professor Stone's Con Law III class and am a Catholic.

His bigotry against Catholics is not limited to this board. I and two other Catholic students have filed complaints (really, one complaint with all of us signing) with Dean of Students Michele Baker Richardson.

We do not really expect to see any response or vindication, but we do have audio tape of comments he has made in class to the effect that Catholics are incapable of rendering decisions unless the Pope directs and specifically names the 5 Justices mentioned above. He specifically mentioned his clerkship to Justice Brennan, who he described as "the only thinking Catholic I ever knew", the implication being most or all Catholics do not think and, in keeping with his other comments, simply do what the Pope directs.

Please do not let the media bury our story.


"Scared of the anti-Catholic bigot" raises some interesting new information. This evidence, especially the quotation, definitely suggest that there is substance to the accusations previously made. Those accusations were not justified by the thin evidence of Mr. Stone's blog entry, but the other evidence is far more convincing. Now the problem is to evaluate the reliability of the evidence. How can we determine whether it is true?

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