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January 24, 2006

Comments

"It is still possible to read the bill."

After it's been passed. Not terribly useful, that. I grant that it's a step above keeping it secret forever (or for the next decade or so, at least).

On the other, to note the obvious, a willingness to engage in a hunger strike unto death of course says nothing whatever about the correctness or wisdom of the cause involved; it does, as Katherine notes, demonstrate the depth of sincerity of the striker in their belief.

It's an attempt to shock the conscience, and nothing more. Naturally, those without conscience will be bothered not at all.

Those with conscience may still entirely disagree with the cause, but might still care to engage their humanity, for just a moment, before striding onwards, sure of their righteousness.

Rilkefan, I'm afraid I didn't understand your post: are you equating "sincerity" with "validity"? If not, what is it you're saying isn't obvious to you? I'm probably just being obtuse.

"That Gandhi sure was a freaking idiot."

Apparently not--he succeeded. Probably because his cause was a lot more merit than that of the Gitmo hunger strikers, and the Brits ultimately were more sympathetic to the suffering of their colonial subjects than, say, Americans are for enemy combatants who were trying to kill Americans when they were captured.

Just a thought, Gary.

Hil, my position is, the reason so many more issues are now obviously federal and impossible for the states to effectively regulate is that so much more commerce is now either interstate commerce, or intrastate commerce that it is necessary and proper to regulate in order to regulate interstate commerce.

"That's what I mean: Take the liberal Supreme Court decisions to their logical conclusion, and you can regulate absolutely anything."

You have a small logic problem here. Any proposition can be extended "to [its] logical conclusion" and anything can therefore, by this methodology, be "proven" extremist unto absurdity.

The fact is that it is not a necessity to to extend a given proposition so, absent a specific reason, and thus your conclusion fails.

"...than, say, Americans are for enemy combatants who were trying to kill Americans when they were captured."

And, indeed, I quite lack sympathy for such people, myself, although moreso if they were previously involved in attacking Americans, rather than in merely defending themselves. I'll assume that's what you meant.

However, if you'd care to demonstrate that all the prisoners at Guantanamo Bay are in that category, I'd be absolutely fascinated.

I'll wait. Feel free, if you prefer, to just demonstrate it of those who are hunger striking. That should make it even easier.

M. Scott--

is your position that they're all "enemy combatants", or that an innocent person's objection to being detained forever lacks merit?

And by "they were trying to kill Americans when they were captured", do you mean that in the traditional sense that they were actually physically trying to kill Americans, or do you mean it in some vague metaphysical way?

Gary, I think CC's claim was too sweeping. Of course a HS is intended to bring an issue to the public - but whether or not the pity of the situation is meant to sway public opinion is not knowable.

(this post from November is relevant, as are a bunch of the others in that series.)

enemy combatants who were trying to kill Americans when they were captured

Obviously, some further attention to the cause is called for -- even the government does not claim that this is an accurate description of all its Guantanamo prisoners.

Of course, the object is not to get your attention/sympathy anyway. For people in your position, MSE, the question is as I put it. Even if you assume that everyone arrested is guilty of something, are we not still better off having trials/tribunals that demonstrate this to the world, rather than stubbornly clinging to the propositions that we don't have to prove anything to anyone (including ourselves) and that our government is infallible in selecting people to imprison, while prisoners kill themselves out of desperation.

Hilzoy: Notice something. You dared to suggest that the Commerce Clause has limits, and (gasp) that the state and local governments might regulate local waters that don't touch upon other states. And Katherine's response was to suggest that maybe you believe the Clean Water Act and CERCLA are unconstitutional.

This is utterly typical. Katherine is not the outlier among liberals -- you are.

Indeed, if you were ever nominated for a federal judgeship, we'd see People for the American Way running ads (to then be echoed by Democratic Senators) about how you are an extremist radical right-winger who wants to gut environmental and civil rights laws. Heck, you've given liberal groups and Senators much more excuse to use such language than did Roberts and Alito (neither of whom expressed any disagreement with Wickard).

"Of course a HS is intended to bring an issue to the public - but whether or not the pity of the situation is meant to sway public opinion is not knowable."

Well, clearly mind-reading caps are still unavailable, despite the seeming frequent use of them in discussions here by some.

Could you perhaps try restating what you're suggesting the alternative motivations might be? I'm afraid I didn't follow the distinction you seemed to be trying to make with the Gloriana example. Again, I'm perfectly willing to believe I'm just being somewhat dense. (Since it's clearly necessary: the previous statement is meant to mean what it says; it is not ironic; it has no other implications; it does not mean other than what it says; it means "I'm perfectly willing to believe I'm just being somewhat dense.")

"Katherine is not the outlier among liberals -- you are."

I've stayed out of the substance of the debate on the Commerce Clause so far, but I'll certainly say that if we're counting liberals and taking names, I'll stand up to be counted as one, and to say that I certainly believe their are limits on the Commerce Clause and what it can be invoked to grant federal power to regulate to.

No, I'm not going to discuss it further. But if Hilzoy is an "outlier" in believing there are limits, so am I.

Any other liberals care to say whether or not they agree that there are limits to said power? (Note, Niels: absent a direct "yea," you are not entitled to assume a "nay.")

I must not have been clear - and the issue is unimportant - but:

The question was about the goal or goals of a HS. Two possibilities were considered above: to gain popular awareness, to gain popular sympathy. CC denied the latter, saying HSers intended the merits to be discussed independent of the emotional situation. I claimed that HSers might well have both possibilites in mind.

The example I gave was of a suicide taken to prove sincerity when it could have occurred out of manipulativeness.

Do I think that's the case at Gitmo? No, but what do I know.

Thanks Bernard -- finally someone addressed the question I was interested in. And you've got a point: Publicness of the governmental action makes a difference.

Glad to be helpful. I do think, though, that another matter I raised - potential for harm - is even more important. Laws that attempt to regulate economic activity that not interstate commerce are not inherently undesirable. After all, state legislatures could constitutionally pass them. They may violate our rules about jurisdiction, but they are unlikely to offend our moral sense.

Presidential overreach, on the other hand, will often occur in the national security arena, where the stakes are higher. It is one thing to be told how much wheat to grow; it is quite another to be imprisoned indefinitely because the President thinks you are dangerous.

On a different matter, leaving hilzoy's careful example of a body of water aside, I fail to see how environmental laws in general can be objected on the grounds that they are not "interstate commerce." If the Acme Corp spews pollution into the air that winds up in another state it is indisputably engaged in "interstate commerce," because it is using property - clean air - obtained from another state. That it is taking it without paying is irrelevant. This is neither an extreme nor a particularly liberal idea.

In another remarkable coincidence and amazing example of something else Hilzoy and I turn out to have in common, I, too, also throw water on my face every morning!

I forgot to mention that I'm an outlier there, too. Sorry for the extra comment noting this.

Not just too, but also! ;)

Guess I could say "I, too, also", but I don't in fact throw water on my face, preferring to set the shower to cold and immerse my head in the stream.

Some morning thoughts
It is a particularly silly misreading to claim that I said that the Commerce Clause is "the root of all liberal evil."

Sorry to have misread you, so I guess this is just a Safire-like diatribe on uninterested versus disinterested. Given that the last century saw two World Wars, the creation of the creation of the United Nations, the Bretton-Woods system and any number of initiatives, it would seem that an increase in the power of the federal entity at the expense of the states was unavoidable. I also hope that legislators are not going to spend all their time talking about what legislation they can't write, but maybe that's just me and whatever outlier I represent.

I thought I would never say this, but that god the lawyers have taken over this thread.

Sebastian: that's why I mentioned my well.

Geez Louise, is there anything that Hilzoy ever misses in an argument? (that's a rhetorical question, please don't give me a rejoinder about missing things all the time, Hil)

And as a liberal, let me stand up and say that I think there are some cases that shouldn't be regulated by the commerce clause. But maybe the objection is that I am willing to let someone make the argument and let whatever court ajudicate if it actually is, no matter how far out I may consider it. I guess I'm just funny like that. Like that water thing that we all do.

"CC denied the latter, saying HSers intended the merits to be discussed independent of the emotional situation."

Okay, now I understand what you're saying, but also why I was confused. Because Charley Carp didn't say that until after you'd made your first remark. What he said that you replied to was this:

"As you surely know, the point of a HS is not to demonstrate the validity of the cause, it is to get people to notice the cause -- and let the validity question be resolved on the merits."

There's nothing there whatever about "the emotional situation." I'm maybe missing something, but you seem to be applying an ex post facto explanation based upon the statement CC made after you first brought up your Gloriana example. Unless the time-stamps are fouled again, or, of course, the possibility that I'm simply somehow confused.

In any case, it doesn't seem important enough to bother with further scrutiny; feel free to further clarify or not, and I doubt I'll respond further on it; thanks for explaining what you had in mind.

Back on the topic of how the modern Republican Congress does business, by the way. Ah, modern conservatism in action! Gotta admire those principles!

"...so I guess this is just a Safire-like diatribe on uninterested versus disinterested."

No, I really am unconvinced as yet that Niels is making an incredibly useful distinction.

and let the validity question be resolved on the merits.
There's nothing there whatever about "the emotional situation." I'm maybe missing something, [...]

Seems to me that one hand are the merits and on the other the piteous starvelings (or my two possibilites above). Unless I'm confused, CC by process of elimination originally meant what I claimed.

As seen before, we have rather different approaches to the interpretation of sentences, so it shouldn't be surprising that our inferences differ.

Point taken, Gary.

"As seen before, we have rather different approaches to the interpretation of sentences, so it shouldn't be surprising that our inferences differ."

I blame George W. Bush.

"I don't in fact throw water on my face, preferring to set the shower to cold and immerse my head in the stream."

I have a process, but anything further would be TMI. You're all welcome.

Squeezing it in under being another example of our return to monarchy, the Republican war on science marches on.

lj: remember, a lot of my teaching involves the construction of examples, for an audience of very bright students who love -- LOVE -- to catch me having overlooked the odd well. I have a lot of practice.

(Designing grading and extension policies for them helps, too. I really have had students who have shown up at my door, at home, a few minutes before midnight, saying "well, you never said what TIME the paper had to be turned in...) (And forever after, I have specified the time.)

Other than a comment at the very beginning of this thred, which seems like ages ago, I have stayed out of this. The reasons are multiple, but a few are that IANAL, my knowledge of the Constitution is only slightly above the average, and most of the cases mentioned are known by name only.

However, if I understand Niels right, he is trying to point out the hypocrisy of liberals who, in his belief, think the Commerce Clause gives the Congress unlimited power, but who at the same time are saying that the Cosntitution limits the President. Of course, as Gary as pointed out to me in the past, I may be mind reading, so I clarify that this is my reading of the case.

Based on that, Katherine is wrong in asking Niels to state his belief of what the Commerce Clause means.

First of all, I am a liberal, who, added to Gary and Hilzoy, do believe there are limits. Secondly, to the best of my knowledge, Specter can hardly be called a liberal or a Democrat.

Here is where Niels argument falls apart. I don't know of any Democrats or liberals who say that the President does not have the right to veto any bill they send to him for signing. Additionally, although they may disagree with a SC decision, I don't know of any who would say the SC does not have the right to strike down the law.

Therefore, they may say they have the power to write any legislation they want, and use the Commerce Clause to justify the constitutionality of said law.

However, what this current administration is saying is that the President has the right to bypass any laws Congress may pass and which he signs without any oversight or consequences.

And, to some degree, based upon my understanding (which may be faulty) that the courts have no ability to interfer with his decisions. The concern with Alito is that he appears to agree with that way of thinking.

Okay, that is all very simplistic, so come after me.

Hilzoy, I don't think the well saves your hypothetical. Wickard grew plants on his own property for use on his own property. Your water example could be regulated by Congress in the post-Wickard pre-Lopez (which is to say the liberal jurisprudence version) of the Commerce Clause. You failing to buy water for your own use is exactly like Wickard failing to buy grain for his own use. It effects the scarcity of the grain/water on the open market and thus effects the interstate prices. The sad thing about your hypothetical is that it should be self-evidently ridiculous to classify it as pertaining to inter-state commerce, but under the actual cases it is at best a close call--and probably something that could be regulated by Congress.

Gary, you aren't writing to me but when you say:

"You have a small logic problem here. Any proposition can be extended "to [its] logical conclusion" and anything can therefore, by this methodology, be "proven" extremist unto absurdity.

The fact is that it is not a necessity to to extend a given"

you are right in a platonic ideal of argument, but wrong with respect to the commerce clause. You don't have to take it to some extremist conclusion. The pre-Lopez jurisprudence is already at the absurd conclusion.

That is why this whole discussion is so sad. Many of the liberals in the discussion want to say that of course the commerce clause allow regulation of everything. But under the current liberal understanding of jurisprudence it really does. I don't know what to say. You are right, it is ridiculous. And that is one of the reasons I say things like: under modern liberal jurisprudence almost anything goes, even if it expressly contradicts the Constitution.

Katherine, most CERCLA projects are either a result of interstate commerce or effect it afterwards. We could probably be fine not dealing with those that don't. Same with most of the Clean Water and Clean Air act. Most large polluting plants are engaged in interstate commerce. It wouldn't be horrifying to limit the federal governments reach to only those. Do you think Exxon is going to stop its interstate commerce to avoid the Clean Air act?

Many of the liberals in the discussion want to say that of course the commerce clause allow regulation of everything.

I can't speak for every other liberal in this discussion, but I certainly don't want to say this. I don't think there is any principle that is so all encompassing as to have me want that in any way shape or form, unless it is some variant of the Golden Rule, which I don't think can be a basis for legislation, except in some sort of ethereal sense.

"Many of the liberals in the discussion want to say that of course the commerce clause allow regulation of everything."

I've not followed this discussion closely. We have at least three liberals who disagree. Could you name three liberals in this thread who say as above?

IANAL, and I've not at all closely followed Commerce Clause history or debate, although I have some limited knowledge of it.

I'm reasonably sure, however, that I'm on safe ground in suggesting that United States v. Lopez drew a line in the sand, as did United States v. Morrison. And I have no problem with that, speaking as a liberal.

As for Gonzales v. Raich, which I do have a problem with, that wacky liberal Justice Scalia concurred, and wacky liberal Chief Justice Rehnquist and wacky liberal Clarence Thomas affirmed Parts I and II, and that wacky liberal John Ashcroft prosecuted the case. How this makes for "liberal jurisprudence" is unclear to me.

But, as I said, IANAL, and I'm definitely no expert on Commerce Clause history.

"We have at least three liberals who disagree."

Four, with LJ. To demonstrate that more liberals disagree, you actually now need to cite five who have already commented in this thread, Sebastian.

Of course, you said "many," not "most." Although I'm unclear that a demonstrated minority is significant, I'm also unclear what an appropriate measure of "many" would be in this context. More than three, though, I think. Am I being unreasonable or unfair?

Presumably, though, if there are lots of liberals running around who agree with John Ashcroft and Rehnquist and Scalia and Thomas, those out-of-control liberal scalawags, it should be easy to find at leave five who have raved on here, right?

It's not as if there's a shortage of liberals posting to ObWings, after all. Why, we just refer to "Bushitler" all the time, according to some, after all (not you, of course; but according to at least one self-identified conservative who has posted a lot here).

Karnak alert: I read Seb's sentence: "Many of the liberals in the discussion want to say that of course the commerce clause allow regulation of everything. " -- as having lost a 'doesn't' somewhere in the typing. But I've been wrong before ...

"I read Seb's sentence: 'Many of the liberals in the discussion want to say [...]' as having lost a 'doesn't' somewhere in the typing."

Looking again, a reasonable possibility given the following sentence, but I wouldn't know until he says. Don't you hate when that happens, though?

"Many of the liberals in the discussion want to say that of course the commerce clause allow regulation of everything."

I think it is more accurate to say that people in general want Congress to regulate the things they want regulated, and are prepared to base their arguments on the Commerce Clause or anything else that comes handy.

It probably is true that liberals take a looser view of the Commerce Clause than conservatives, but that is likely because liberals generally are more inclined to favor government intervention in the economy. But I doubt that conservatives are any less willing to justify the results they favor based on the Commerce Clause.

Somewhere up above, Sebastian, you identified abortion as not being subject to regulation as interstate commerce. Suppose, hypothetically, that Roe is overturned and that Congress then considers a national ban on abortion. How much conservative opposition do you expect to see on constitutional grounds?

Five liberals. If people are getting the impression I don't believe in any limits....I'm not sure I even disagree with Lopez--if anything I lean towards agreeing. I'd have to reread Morrison. What I wanted to get across was that the reason Lopez and Morrison caused alarm is that liberals want to make sure there's a clear, well marked exit between Lopez and Hammer v. Dagenhart before they decide to pull onto the highway. And if you decide that "no purely instrastate activities are limited", I'm not sure there's an exit.

What I was also trying to get across, which was directly responsive to Niels' original argument, and which he has completely ignored, was that even if I thought it was a general police power, it would still not be true that I thought there were no limits:

And it is simply false to say that liberals want an absolute commerce power, because, again, they are not arguing that the commerce power makes Dennis Hastert the commander in chief of the armed forces or gives Harry Reid or Bill Frist the veto power, or strip the federal courts of power to judge the legality of Congress' actions, or pass ex post facto laws or bills of attainder, or suspend the writ of habeas corpus except in time of rebellion or invasion, or the 1st amendment, or the 4th amendment, or the 5th amendment, or the 6th amendment, or the 7th amendment, or the 8th amendment, etc. etc. ad infinitum. And no one's saying Congress can pass laws in secret, either. At most, liberals argue that the commerce clause has become a general grantlike the states' "police power". But the states' police power is very far from absolute. The power that Bush is claiming as commander in chief, on the other hand, is very very close to absolute.

"How much conservative opposition do you expect to see on constitutional grounds?"

I'm neither conservative, nor Seb, but I'll toss in my own opinion that it would split the conservatives between those who are actually conservative, who would oppose, and those who are social Christian conservatives, who would largely approve. Percentages and numbers I wouldn't even offer to pull out of my rear, and I'm surely stating the obvious, but sometimes I do that.

"If people are getting the impression I don't believe in any limits...."

I try to never assume anything unstated, is all. (I really should write down my Rules For Approaching Life in one place sometime; that's one; another is to try more or less to not believe anything until I've personally cross-checked it and found four -- at least three, anyway, but preferably four -- different sources that I find credible that affirm it, and to then still be tentative and skeptical; if it's a real life thing, personally check it and try it that many times before tentatively believing it is so, and the keep in mind that time and circumstances change things.) (This also overlaps with the "Vital Freedom Lost In Uzbekistan" thread, and why I was, if I do say so myself, good at running conventions.)

Unless I'm confused, CC by process of elimination originally meant what I claimed.

I didn't mean to rule out purely emotional appeal, based on pity. What I meant to rule out was the notion that validity of the cause itself is supposed to be demonstrated by the strike. Which responded to MSE saying that he thought hunger strikers fail to demonstrate the validity of their cause by going on hunger strike.

Whether pity is supposed to be a goal of hunger strikers in general I'm not sure. The piteous nature of the circumstances in which the Gitmo prisoners find themselves -- prisoners for life, no way out, no law -- is not really separable from the merits of their cause.

I thought a couple of times earlier today about saying I agreed with RF, but then I wasn't exactly sure what he's saying.

"Karnak alert: I read Seb's sentence: "Many of the liberals in the discussion want to say that of course the commerce clause allow regulation of everything. " -- as having lost a 'doesn't' somewhere in the typing. But I've been wrong before ..."

Sorry the sentence should have the doesn't.

But you all are making my point for me. You want to say that of course the commerce clause means something. Fine, I'm thrilled we agree. But that is most definitely not the strand of thought that is actually in play.

1942-1995 the liberal strain of jurisprudence and the legal minds who justify it in law articles were pretty much for the blank check Wickard approach. In 1995, Breyer, Stevens, Souter and Ginsburg voted to affirm that view. I'll let you determine for yourself whether or not they represent the liberal side of the argument more than Rehnquist, O'connor, Kennedy, Scalia, and Thomas. The same four reiterated their view in U.S. v. Morrison in 2000.

Both were reported on with horror by many law professors and were reacted to negatively by many Democrats in the Senate.

See for example:

Feinstein ;

Biden;

National Women's Law Center;

Professor Demleitner as called to witness by Senator Leahy.

Katherine, you constantly admonish me to engage the Republican senators I have instead of the ones I wish I had. On jurisprudence the proponents you have for liberal jurisprudence really are the ones who are also proponents for a blank check view of the commerce clause. It is an ugly fact, but it is a fact.

Ok, there are three possible ideas behind a hunger strike: gain attention, prove righteousness (swaying public opinion), be piteous (swaying public opinion). My example above of a confession note sealed by suicide was more apropos of idea 2, which I take it CC was referring to, and I conflated ideas 2 and 3. So that's all crystal clear. Hurrah.


SH: "I'll let you determine for yourself whether or not they represent the liberal side of the argument more than Rehnquist, O'connor, Kennedy, Scalia, and Thomas." Depends on the case which side is which, I suspect. Or perhaps you were being facetious.

For the record, I'm quite sure that you'll find no trace anywhere on the internet of my ever having had a kind word for Senator Feinstein. (I could give you a list of other Democratic Senators of whom I can say the same.)

I have at times had a kind word for Biden, however. And certainly I would take Feinstein over a considerable number of Republican Senators, while holding my nose, and eyeing the figurative gun at my head. That's the kindest thing I've had to say about her yet. Just noting.

It's not a matter of how "liberal" or not she or a Senator is, incidentally. It's a matter of how much of an idiot and panderer she is or not. I have a fair number of kind words for Russ Feingold, for instance, despite a number of differences of opinion. Ditto Bernie Sanders.

"Ok, there are three possible ideas behind a hunger strike...."

Four. You left out an almost fanatical devotion to the Pope.

I was in fact grasping for that reference, assuming that's the reference I was grasping for.

"Somewhere up above, Sebastian, you identified abortion as not being subject to regulation as interstate commerce. Suppose, hypothetically, that Roe is overturned and that Congress then considers a national ban on abortion. How much conservative opposition do you expect to see on constitutional grounds?"

As someone who is fond of suggesting that a federally protected right of abortion should be based on the Thirteenth Amendment, let me suggest that a far more obvious and defensible ground for a constitutional ban on abortion would be a reversal of Roe's ruling that a fetus is not a person as far as the Fourteenth Amendment is concerned--with the consequence that a fetus would have a constitutionally protected right to "life." Though, IMO, that right would still be subject to a balancing test against the absolute right to be free of involuntary servitude under the Fourteenth Amendment, it would still be a far more reputable and defensible ground for banning abortion than yet another intellectually bankrupt extension of the Commerce Clause. Also--given that the specific language in Roe that fetuses are not "persons" under the Fourteenth Amendment has been a subject of vitriolic attack in the pro-life movement--I would expect that any federal abortion-banning legislation after a hypothetical reversal of Roe would feature a repudiation of that language prominently.

Ooops, typo there--the absolute right to be free of involuntary servitude is found under the Thirteenth Amendment, not the Fourteenth.

The kindest thing I've ever said about Senator Feinstein is that she is much better than Senator Boxer. :)

Sebastian,
I'm really sorry that I jumped on your typo, but after listening to Commerce Clause on and on and on, when I saw 'That is why this discussion is so sad' followed by that sentence, it sort of short circuited the rest of what you were saying.

I agree completely with Bernard's point that people want legislators to deal with the matters that bother them, and I think that the increase of federal power has been historically unavoidable. This is why I like Pushaw's observation that the problem of the Commerce Clause is using it for 'crowd-pleasing' legislation, which points not to a liberal problem but a human nature problem, exacerbated by the full-time campaign that has evolved. That the Commerce Clause has been the primary rationale for this is historically interesting, but if it hadn't been the Commerce Clause, I think there would have been something else, so taking this as proving your point is a bit unfair, I think.

Scott,
As someone who is fond of suggesting that a federally protected right of abortion should be based on the Thirteenth (correct to 14th) Amendment I'm really confused by this, because this makes it sound like if the decision were based on different precendents, you wouldn't object. I can imagine in the abstract of there being a case like this, but for something like abortion, I'm having a difficult time imagining it.

a far more obvious and defensible ground for a constitutional ban on abortion would be a reversal of Roe's ruling that a fetus is not a person as far as the Fourteenth Amendment is concerned--with the consequence that a fetus would have a constitutionally protected right to "life."

We have a law to regulate abortions. That law is limited by another, seperate, law that says that killing a fetus that might be expected to live outside of the body of the mother is equal to killing someone else or a baby just before/after birth.

It seems to me that basing a national ban on Amd XIV would entail exactly the kind of stretch of the meaning of words that so bothers our principled conservatives (as opposed to unprncipled conservatives). If an ordinary garden variety private abortion is "state action," then maybe a whole lot of other things are state action too. I'm not sure how you'd get to Hil splashing her face in the morning, but then I'm also not sure how you'd get to abortion either.

Similarly, I think basing a right to abortion (but obviously not a ban!) on Amd XIII raises interesting further meanings of the provision. Is requiring any parent to support a child (including a non-custodial parent) a violation of Amd XIII? Jury duty?

LJ, the point is really that if it hadn't been the CC, it wouldn't have been anything else. We'd just not have the federal state we have now.

I've always favored basing a ban on abortion on two separate grounds: first, the ninth amendment, but let's not argue about that, and second, the first amendment. I believe that all the arguments against abortion that hold water are either explicitly religious, or stand in the same relation to religious views as, say, intelligent design.

DM, states here are allowed to treat the intentional killing of a viable fetus in the same manner, but must allow an exception for necessity. (And I would guess that your Dutch law does the same . . .)

This, Hil, brings us to the problem with using the First Amendment. How do you factor viability into it? And how do you continue to maintain the criminal prohibition on third party killing a non-viable fetus (mugger -- or abusive boyfriend -- pushes pregnant woman down stairs, brings on miscarriage)?

I wouldn't say, today, that we should base the right on the Ninth Amendment. But that doesn't make Amd IX totally irrelevant: it stands for the proposition that fact that you don't see the words 'right to privacy' in the Constitution doesn't mean squat. It's not a license to make stuff up, but means that in any close call, you go with the individual rather than with the state.

To be clearer: I think one can support a ban on abortions before the fetus develops the capacity for sentience or consciousness (somewhere around midway through the pregnancy, last time I checked) on 1st amendment grounds, the basic argument being that there is no reason, outside religion, to regard a being that is not sentient or conscious, and has never been sentient or conscious, as having rights or interests.

I think that the way to punish people for killing a fetus earlier is to regard it as a harm to the mother. Injuring a fetus (without killing it) before this point could of course be prosecuted as a harm to the child, since in that case there would ultimately be a child.

Later abortions are, I think, a matter of balancing the rights of the fetus against those of the mother. But I don't think earlier ones are.

"It's not a license to make stuff up, but means that in any close call, you go with the individual rather than with the state."

But as usual with abortion that doesn't answer the question of what an individual is. As a general rule your formulation might resolve some issues, but with respect to abortion it doesn't.


Hilzoy,

"I believe that all the arguments against abortion that hold water are either explicitly religious, or stand in the same relation to religious views as, say, intelligent design."

I would be very leary of changing the first amendment jursiprudence in the direction you seem to suggest. Basically it involves second guessing why people vote the way they do. If you believe they vote because of religion, you would have it not count. As a practical matter that seems like it could be a very dangerous weapon. How would you judge if they were voting religiously? Who would be the arbiter of acceptable religious beliefs (things you can vote for) and unacceptable religious beliefs (things you can't vote for)? At the moment it is governed by other conflicts with the Constitution. So if you have a religious belief that black people should be slaves, you can't legitimately vote that way because it contradicts what the Constitution says on the subject of slavery. But if you were a Muslim and had a religious belief that the poor should be given food, you don't run afoul with any provision in the Constitution so you can vote as your religion dictates. Your interpretation of the 1st amendment would seemingly (and by that I mean that I don't have to play any 'taken to its logical conclusions' reductio game) disallow a law for feeding the poor if the people who voted for it were informed by religion. I'm not a relativist substantively, but procedurally I don't think you can have judges deciding which views make for legitimate votes based purely on whether or not they are informed by religion.

And do you really mean this that all arguments against abortion are explicitly religious or so close to religion as to be non-rational? Maybe you are talking about complete bans on abortion (all 9 months)? An argument for a ban in the late stages is no more religious than a ban on infanticide.

Oops, I'm seeing that we cross-posted. So you can ignore my last paragraph.

I'm more in agreement with Sebastian than Hil here, though I would guess she would say: religious arguments against anti-poverty and anti-slavery laws are fine because there are also justified based on secular reasons, whereas for abortion--I guess she thinks that if you don't make it about nervous activity, the only basis for thinking the fetus is a person is belief in an incorporeal soul.

I think "extreme caution about mistakenly deeming people to be non-people and allowing them to be killed" works pretty well as a secular purpose under the Lemon test.

I'd be appalled if the Court used the establishment clause to say that abortion is constitutionally protected. I know we talk about "rational basis" but I don't think it means that if your views don't pass muster with brilliant Kantian philosophy professors, then the Court can simply overrule them. I mean, there are relativist philosophers who argue that all moral beliefs are ultimately "irrational", consequentialist types who would say it's irrational to believe the ends don't justify the means....there is a need for humility here. Supreme court justices are not immune to irrationality.

And if it is that clear that abortion before brain activity is fine, then you don't need the 1st amendment, because you're in essentially the same situation as Eisenstadt v. Baird and Griswold v. Connecticut.

I guess con law is the one area where hil and I disagree all over the place.

OT (or back to the original topic): Newsweek has an interesting new article about the internal politics in the administration about the torture memos, etc.

Here was the most interesting sentence:

"Addington and Gonzales had both wanted to make [John] Yoo head of the OLC when Bybee went off to take a federal judgeship in March 2003, but Attorney General John Ashcroft balked."

!!!!!

LJ:

I'm just pointing to the most logical way of passing a ban if you wanted to justify it in the strongest way possible, given the actual language of the Constitution, as opposed to the "bootstrapping from stuff we made up less than ten years ago" method that Roe used to protect abortion rights. As it happens, I still think that it would be open to attack--on far stronger grounds than Roe's orginal reasoning--but at least it would be structured around something that everyone agrees is there in the Constitution. It's mostly a case all around of my preferring that constitutional law be constructed competently--I'm pro-choice, but would still like to see the other side put their laws and legal doctrines together competently--as I have long been wishing for regarding the pro-choice side, only to be disappointed.

CharleyCarp: And how do you continue to maintain the criminal prohibition on third party killing a non-viable fetus (mugger -- or abusive boyfriend -- pushes pregnant woman down stairs, brings on miscarriage)?

Harm to the woman. Do you really suppose that in a country where a woman's right to choose to terminate her pregnancy was legally supported from 0 to 40 weeks, that this would mean it would be perfectly legal for someone to hit a pregnant woman hard enough - or push her downstairs - so as to induce a miscarriage?

"!!!!!"

Indeed. Thanks, as usual, for the pointer.

M. Scott: "I'm pro-choice, but would still like to see the other side put their laws and legal doctrines together competently...."

Without stipulating to anything else, and without getting into the obvious practical difficulties, nor conceding that there isn't a right to privacy presently to be found in the Constitution, I do find the argument that we might consider simply going ahead and passing an explicit one as an amendment to have a certain abstract interest.

If I could snap my fingers and have it passed and there, I'd certainly do so. However, this seems faintly beyond my power as an option.

We have a law to regulate abortions. That law is limited by another, seperate, law that says that killing a fetus that might be expected to live outside of the body of the mother is equal to killing someone else or a baby just before/after birth.

That's about where I am personally, as far as would would be a "fair" abortion law. Once we're into the third trimester, the only things that should justify an abortion are a genuine threat to the life of the mother or a threat to the physical health of the mother significantly greater than that presented by childbirth or cesarean section surgery itself--or a fatal birth defect that would prevent live birth in any case. The justification should be exhaustively documented by photographic and laboratory evidence and supported by affidavits executed by all involved in the procedure,allowing review and for consequences should the grounds be found to be lacking by a disinterested party.

Without stipulating to anything else, and without getting into the obvious practical difficulties, nor conceding that there isn't a right to privacy presently to be found in the Constitution, I do find the argument that we might consider simply going ahead and passing an explicit one as an amendment to have a certain abstract interest.

Well:

--I'm saying that an amendment shouldn't logically be required, particularly from the pro-choice side, and arguably from the pro-life side, unless one believes that the Fourteenth Amendment's right to "life" *can't* logically be applied to fetuses, whether viable or pre-viable. An amendment would be the most final way to resolve these issues, certainly.

--Whether an overarching right of privacy can reasonably argued to exist under the Constitution--and whether it does or not, Douglas' Griswold opinion remains a bunch of addled nonsense that can be only loved by those in sympathy with its result--that construct was always a pathetically inadequate ground for protecting abortion rights. If that weren't the case, it wouldn't have been necessary to throw in the inflammatory language about fetuses not being people under the Fourteenth Amendment.

--as for practical difficulties, all roads lead to them. I'm just proposing the best plan for creating law that most people will regard as legitimate in origin even if they disagree with it--that would be significantly better than the situation we have now.

"Once we're into the third trimester, the only things that should justify an abortion are a genuine threat to the life of the mother or a threat to the physical health of the mother significantly greater than that presented by childbirth or cesarean section surgery itself--or a fatal birth defect that would prevent live birth in any case. The justification should be exhaustively documented by photographic and laboratory evidence and supported by affidavits executed by all involved in the procedure,allowing review and for consequences should the grounds be found to be lacking by a disinterested party."

Amen to that (in a generally secular sense of 'Amen' merely showing very strong agreement).

I think the key phrase for me is: "greater than that presented by childbirth or cesarean section surgery itself". One of the problems I have with the life of the mother exception in the third trimester is that the late-term abortion often has the same physical trauma characteristics of childbirth or cesarean section. Killing the fetus doesn't reduce the risk to the mother at that point.

K: my basic view on this works via an analogy, which is silly because it's meant to make things obvious, NOT because I think that e.g. abortion is no more serious than this.

It is possible to think that, say, a given statue (or for that matter a table or a pencil) is a living, feeling being. To anyone who asks why (for instance) the statue gives no sign of noticing what's going on, you can just say: well, it doesn't feel like moving now. Or even: in general, it prefers not to move, for millennia at a stretch.

To the objection: but it has no nervous system, no anything that enables us to see how it notices what's going on around it, or thinks, or whatever, one can always respond: well, who says we understand all the possible ways to be conscious? So it doesn't have a nervous system: what does that show, if you don't take our finite understanding to be the be-all and end-all of everything? I mean: why not suppose that Diet Coke cans are laughing at me, or that my computer is secretly wishing I would leave it alone, or that pebbles mind being kicked down the road?

The answer, I think, is that any of these things might in principle be the case, but we have absolutely no positive reason to think that they are. -- Ah, but someone might say: I do. I have had a revelation, in which I learned that Diet Coke cans are conscious, and must be appeased! I have founded a Diet Coke can religion, and I want to write this into law! That, I take it, gets struck down on first amendment grounds.

What happens if we subtract the bit about the revelation, and have the person say: I want to write this law, which is based on the hypothesis that Diet Coke cans are conscious, but I'm not telling you why I think so. (There should be a question mark here somewhere, but my grammatical faculties have deserted me.) Then, as -- was it Sebastian? -- said, we're left guessing at his intent, on one reading of 'establishing religion'. I propose instead the idea that if there is no earthly reason to think that some proposition P is true, other than something like revelation, or some other form of non-shareable access to the truth, (even if P cannot be proven false), and someone believes that P, and wants to write it into law, they be taken to have a religious basis. (You can add that P should have some connection to recognized religions, if you want.)

"I'm more in agreement with Sebastian than Hil here, though I would guess she would say: religious arguments against anti-poverty and anti-slavery laws are fine because there are also justified based on secular reasons..."

One thing to note about this concept is that anti-slavery laws look secular to us now, but just before the civil war most anti-slavery political activity was deeply enmeshed with religion.

And now, time for beach volleyball.

I completely understood that hilzoy & basically agree--that's what I was trying to get across to Sebastian. That's why I agree with the cases on "creation science" & intelligent design.

What I was disputing is the application to abortion.

Ohh, just caught your comment hilzoy, so before I go play volleyball I want to throw something out there about:

"I propose instead the idea that if there is no earthly reason to think that some proposition P is true, other than something like revelation, or some other form of non-shareable access to the truth, (even if P cannot be proven false), and someone believes that P, and wants to write it into law, they be taken to have a religious basis. (You can add that P should have some connection to recognized religions, if you want.)"

The problem for me with this kind of formulation is that it doesn't work well with morality--which is a huge part of what laws end up being based on. If I were a Congressman I could vote against CEO pay exceeding 1000x the janitor's pay if I wanted to because I just felt it was wrong. I don't have to prove it to anyone except to get their votes. The utilitarian argument for the US signing on to an anti-genocide treaty is pretty low and is probably very close to non-existant (the US isn't going to be subject to genocide any time in the near future and the people being killed in the Sudan aren't really effecting us). Nevertheless if a Congressman wanted to appropriate money to help stop the genocide, I don't think he is obliged to say any more than: "It is just horribly, awfully, morally wrong to commit genocide". I think it would be very difficult to prove that it is horribly, awfully, morally wrong without assuming a basic sanctity of human life premise--which is really just an appeal to moral intuition/revelation. And him saying "my religion teaches that genocide is horribly, awfully, morally wrong" is no better or worse than saying "my personal moral intuition is that genocide is horribly, awfully, morally wrong". (In fact for many though not all people I suspect the two statements are functionally equivalent).

Applying some sort of rational basis test to the first amendment seems to put personal moral intuition in an undeservedly special place over religiously informed moral intuition.

On that note over-serious note, now I'm really going to play volleyball.

I swiped your link (with credit), Katherine. Thanks again.

(So where are Slart and Edward, anyway?)

"(There should be a question mark here somewhere, but my grammatical faculties have deserted me.)"

Try:

What happens if we subtract the bit about the revelation, and have the person say: "I want to write this law, which is based on the hypothesis that Diet Coke cans are conscious, but I'm not telling you why I think so"?
There's a reason we often use quotation marks. One is to be able to work outside of them.

Please forgive me for this. It's just the pain, the pain!

"(the US isn't going to be subject to genocide any time in the near future and the people being killed in the Sudan aren't really effecting us)."

Affecting. Affecting us.

Thanks. Enjoy the beach (we still have some snow on the ground here, as has been the case for a few weeks now, although it's also been clear and sunny most of the past couple of weeks, and surprisingly warm some days for a January).

Nevertheless if a Congressman wanted to appropriate money to help stop the genocide, I don't think he is obliged to say any more than: "It is just horribly, awfully, morally wrong to commit genocide".
It would be different for a female Congressional representative?

Sorry, couldn't resist. It seemed odd to address only men, but perhaps you believe "Congressman" includes women.

Do you really suppose that in a country where a woman's right to choose to terminate her pregnancy was legally supported from 0 to 40 weeks, that this would mean it would be perfectly legal for someone to hit a pregnant woman hard enough - or push her downstairs - so as to induce a miscarriage?

Of course not. The question is whether the charge is a simple assault, or attempted murder. Suppose the sole motive is termination of the pregnancy: iirc, this is chargeable as murder in a great many places in the US today, and I think that's just fine. Hil's postulate that there's no 'personhood' other than as a religious construct -- necessary to ground a right to abort on the First Amendment -- seems to me to put such laws into serious question.

Charley: The question is whether the charge is a simple assault, or attempted murder.

If you hit a woman hard enough to induce a miscarriage, there's no reason not to make that assault attempted murder of the woman. It is perfectly possible for a woman to die of a violently-induced miscarriage, and the idea that her assailant should be able to get away with a charge of simple assault if he "only" meant to induce a miscarriage is slightly absurd.

Unless the point is to trivialize the woman as a mere container for a fetus, that is.

(er, the "you" in the above comment - "If you hit a woman" is an impersonal, indefinite you, not by any means directed as Charley, and I apologize for any unintended implication. Should have rephrased as "If someone hits a woman"...)

"Hil's postulate that there's no 'personhood' other than as a religious construct -- necessary to ground a right to abort on the First Amendment -- seems to me to put such laws into serious question."

It's not clear to me why a legislature might not be free to statutorily make clear that a woman has a Constitutional right to terminate her pregnancy ("kill the baby," if some prefer), but certainly no one else does. (Obviously I mean the woman has the legal right to authorize and delegate the conducting of the procedure ("murder," as some would have it).

If you hit a woman hard enough to induce a miscarriage, there's no reason not to make that assault attempted murder of the woman.

Incorrect--attempted murder requires the finder of fact (the jury, or the judge if a bench trial is involved) to find beyond a reasonable doubt that the defendant had a specific intent to kill the victim with his attack--extreme recklessness--akin to, say, firing a gun through the window of an occupied house without concern for the consequences--is not enough, though it is enough to support a second-degree murder charge if the victim dies.

You seem to be arguing that society has no right to impose a criminal penalty for the killing of a fetus that the woman actually wanted to carry to term and give birth to (please feel to correct me if I am misreading you). If I am correct in that reading, on what basis are you making that claim? How does the right of a woman not to carry a pregnancy to term logically make it improper for society to punish someone for the act of preventing that same woman from exercising her choice to become a mother by committing an act of illegal violence upon her person?

It's rather amazing to me that anyone could think that the only reason(s) to be against abortion are religious. Many pro-lifers are religious, of course, but not all. Are you really contending that there is no such thing as an atheist pro-lifer? If there is such a person (and there most certainly is), what might he/she be thinking?

Proposition 1: No innocent post-birth human being should be killed at will.

Proposition 2: No innocent entity that is a human being at the early stages of development and that has a lifetime of sentience ahead of it should be killed at will.

Who says that Proposition 2 is any more religious than Proposition 1?

It's funny, I wanted to say something about the Alito filibuster attempt, and was thinking: "hmm, too bad, there's no thread for it."

I can't decide whether to be annoyed at Kerry for not doing this like someone who's at all serious about it, or at Obama for his impressive display of Not Getting It today on ABC:

"We need to recognize, because Judge Alito will be confirmed, that, if we're going to oppose a nominee that we've got to persuade the American people that, in fact, their values are at stake," Obama said....

"There's one way to guarantee that the judges who are appointed to the Supreme Court are judges that reflect our values. And that's to win elections," Obama said....

"There is an over-reliance on the part of Democrats for procedural maneuvers," he told ABC's "This Week."

What on earth is he thinking, repeating this "we lost, we should shut up" stuff? I agree that the Democrats should make the case about Alito not reflecting American values, but here he is, with a golden opportunity to just that, and this is what he comes up with.

People only pay attention to the Democrats' making the case if the press does. The press only pays attention if there's some chance of Alito not being confirmed. The only way to do that is to filibuster. And that would be true no matter how much the Democrats did to convince Americans that their values were at stake--you could have 60% opposing the nomination in opinion polls and it would still take a filibuster to stop it.

And, "we need to win elections" is not actually a platform that explains why anyone should bother voting for you.

Argh. I guess I'm more annoyed at Obama. I expected more of him than Kerry.

I mean seriously, is there something in the water in D.C.?

also:

compare the NY Times editorial on the NSA wiretapping to Obama's stirring response.

Obama didn't talk like this in the primaries. Gore doesn't sound like it now. But when they are actually running general election campaigns, or in office....Liberal senate democrats should not be making the editorial page of a newspaper nicknamed "the old gray lady" sound like a bunch of uncomprising radicals. These NSA hearings are going to be dismal.

Sebastian Holsclaw: One thing to note about this concept is that anti-slavery laws look secular to us now, but just before the civil war most anti-slavery political activity was deeply enmeshed with religion.

Perhaps, but I doubt that most anti-slavery sentiment was based primarily in religion. The people who had the greatest active interest in ending slavery felt the way they did for overwhelmingly secular reasons (regardless of whether they found support for their point of view in religion), they just didn't have access to the political process.

Katherine: I can't decide whether to be annoyed at Kerry for not doing this like someone who's at all serious about it, or at Obama for his impressive display of Not Getting It today on ABC:

This whole episode is driving me up the wall. This Digby post and comment thread covers pretty much everything that is wrong with the modern Democratic party in my view.

"Perhaps, but I doubt that most anti-slavery sentiment was based primarily in religion."

Do you have a cite on that? It's pretty well-grounded in historical fact and research as to how significant and large was the religiously Christian element in the abolitionist movement.

"The people who had the greatest active interest in ending slavery felt the way they did for overwhelmingly secular reasons (regardless of whether they found support for their point of view in religion), they just didn't have access to the political process."

I'm not 100% sure if you're referring to slaves, but certainly there was a large degree of Christianity amongst them, as well.

So Niels responds to a request that he stop being so condescending, and stop posting strawmen . . . by being condescending and posting strawmen. Ok . . .

Don't send me a million dollars, Niels. I'd be very angry if you did that.

I really haven't researched it since high school, but frankly I would have sworn remembering that the abolitionist movement was deeply Christian.

There were deeply Christian people on both sides of the abolition debate, Sebastian.

"There were deeply Christian people on both sides of the abolition debate, Sebastian."

That doesn't really speak to the issue. The abolitionist movement was deeply Christian in character and justified itself in religious terms. It didn't just happen to have religious people in it.

SH and GF are right. There's a reason that abolitionist organizations had names like the "American Missionary Association."

So where are Slart and Edward, anyway?

Speaking strictly for myself: celbrating my thirteenth wedding anniversary, plus trying to figure out how I can get my job plus a couple of other full-time jobs done, given that I've got to train a couple of guys to even get started on the other two. Or three, maybe, depending on who wants what, when.

And celebrating Chinese New Year; can't forget about that.

Kung Hei Fat Choi!

Bringing up the abolitionists gives me an excuse to plug my favorite biography--"All on Fire", which is about William Lloyd Garrison. There's another book out which I haven't read by Adam Hoschild (sp?) about the British abolition of slavery. Anyway, SH is right--in both countries the motivation for abolishing slavery was very much Christian.

It's also correct that many Christians were on the other side, of course, but there's never any great mystery as to why people would support a system that they see as beneficial to themselves--what's unusual are people who devote their lives to overcoming some injustice which doesn't necessarily effect them personally.

Bringing up the abolitionists gives me an excuse to plug my favorite biography--"All on Fire", which is about William Lloyd Garrison. There's another book out which I haven't read by Adam Hoschild (sp?) about the British abolition of slavery. Anyway, SH is right--in both countries the motivation for abolishing slavery was very much Christian.

It's also correct that many Christians were on the other side, of course, but there's never any great mystery as to why people would support a system that they see as beneficial to themselves--what's unusual are people who devote their lives to overcoming some injustice which doesn't necessarily effect them personally.

Sorry about the double post. Going further back, the earliest human rights movement that I know of was the one launched by Bartolome Las Casas to end Indian slavery in the Spanish colonies. Later in his life he also turned against black slavery as well (though not initially). Christian motives too.

Is Anarch going to hear Jonah Goldberg Wdnesday night?

Gary Farber: Do you have a cite on that? It's pretty well-grounded in historical fact and research as to how significant and large was the religiously Christian element in the abolitionist movement.

There was more to anti-slavery sentiment than the abolitionist movement. I'm talking about the slaves themselves, who numbered nearly four million in 1860 according to the census. For some reason survey data is hard to find, and maybe I'm being presumptuous, but I think it's fair to say that a good number of the slaves had a pretty negative opinion of the practice, institutional dependency notwithstanding. And however strong in faith they might have been, their inspiration didn't come, first and foremost, from the Bible.

And none of this is to denigrate the contribution of Christianity to abolitionism. Just to point out that there were some completely secular motives for wishing to outlaw the practice of holding people in bondage, namely first-hand knowledge of just what a cruel and miserable practice slavery is.

"There was more to anti-slavery sentiment than the abolitionist movement. I'm talking about the slaves themselves, who numbered nearly four million in 1860 according to the census. For some reason survey data is hard to find, and maybe I'm being presumptuous, but I think it's fair to say that a good number of the slaves had a pretty negative opinion of the practice, institutional dependency notwithstanding. And however strong in faith they might have been, their inspiration didn't come, first and foremost, from the Bible."

I honestly don't understand your point here. Clearly slaves didn't like slavery. They also didn't get to vote, so their thoughts on the matter of what motivates a vote against slavery didn't matter. But if the question is whether or not religiously motivated political views ought to be invalidated by the First Amendment, the religiously motivated portion of the abolitionist movement (which is to say most of it at the time) could be in serious trouble.

"Just to point out that there were some completely secular motives for wishing to outlaw the practice of holding people in bondage, namely first-hand knowledge of just what a cruel and miserable practice slavery is."

Right, but ideas like 'cruel and miserable' are the kind of moral judgment that isn't based on mere facts. It is basically a moral intuition. I see no reason whatsoever to give special privilege to people who claim that their moral intuition is not religiously based or to exclude the moral intuition of people who admit they have a religious grounding for it.

I hate to take the thread further from stopping Alito, but as a supplement to Gromit's point: In 1847 my great-great-great-grandfather Henry Ruffner made a noted speech against slavery for the 'wrong' reasons: a political, pragmatic, non-religious, non-moral perspective that had to do with the effect on the white labor force. He made a gradualist proposal to end it. Ruffner was a slaveholder himself, and as racist as any other white members of his community. Nonetheless, his speech was reprinted as a pamphlet and distributed widely by anti-slavery organizatons.

The abolitionist movement was deeply Christian in character and justified itself in religious terms.
Much of the support of slavery was deeply Christian in nature, as well, and also justified itself in religious terms. I'm just sayin'.

Sebastian, Katherine's wrote:

"I'm more in agreement with Sebastian than Hil here, though I would guess she would say: religious arguments against anti-poverty and anti-slavery laws are fine because there are also justified based on secular reasons..."

to which you replied:

"One thing to note about this concept is that anti-slavery laws look secular to us now, but just before the civil war most anti-slavery political activity was deeply enmeshed with religion."

I'm pointing out that there are very deep-rooted secular reasons for banning slavery. Simply put, slavery is horrible for those who are enslaved. If it takes some religion to get people to stop ignoring this simple fact, then so be it. But that doesn't make the impetus for such a law primarily religious. It just makes it a secular cause for which there are also religious arguments.

Nell, cool personal history. I'm a bit envious of people whose ancestors had the foresight to live in stable countries where their names and deeds would make it down the stream of days to their descendents.

"Katherine's wrote"

Blech. Make that "Katherine wrote". I revised the wording of that sentence, but neglected to take off the possessive.

"Much of the support of slavery was deeply Christian in nature, as well, and also justified itself in religious terms. I'm just sayin'."

Yes. And I'm just saying that the 1st Amendment to the US Constitution shouldn't be read as discriminating against moral beliefs because they have religious origins or discriminating for moral beliefs because they don't have religious origins.

"I'm pointing out that there are very deep-rooted secular reasons for banning slavery. Simply put, slavery is horrible for those who are enslaved."

That is a moral judgment. In my view it is a correct moral judgment. You reach moral judgments like that through a variety of possible processes. None of those processes are really subject scientific proof. If you reach your moral judgments 'independently' (scare quotes intentional) you really aren't in a much better position in terms of objective proof than someone who reaches his moral judgements from a religious background. The First Amendment doesn't ask judges to sort people's moral intuitions into "religious" and "non-religous" and then reject those whose moral intuitions are "religious". Non-religiously informed moral intuitions aren't more obviously grounded in independently verifiable truth than religiously informed moral intuitions.

Now I am not a moral relativist. I think morality is subject to a dimension of truth. But I also suggest that it is really really difficult to sort through such things. As a procedural matter only(which is what we are talking about with respect to the First Amendment) I don't think anybody's moral intuitions as expressed by their votes ought to be put out of bounds. You say some people opposed slavery for secular reasons. Some for religious reasons. Some supported it for secular reasons. Some supported it for religious reasons. Fine. People ground their moral judgments in all sorts of different places. Grounding them in religion does not suddenly ban a person from acting (through government) on those judgments.

And once again, the majority of the political opposition to slavery was religiously based. The fact that some people had secular objections doesn't change that fact.

I think the point boils down to the fact that the "secular reasons" are moral reasons. I don't think you privilege formally non-religious moral reaosons over formally religious reasons based on the First Amendment. Nor do I think it would be wise to do so on any other basis because having someone determine the acceptable formal moral reasons is asking for disaster. Furthermore, once that were put into place people would disguise their real reasons, leading to a dangerous inquiry about the "real" reasons people believe things and vote the way they choose to vote.

Sebastian Holsclaw: People ground their moral judgments in all sorts of different places. Grounding them in religion does not suddenly ban a person from acting (through government) on those judgments.

I'm not sure that anyone is saying otherwise. Certainly I don't think this what Hilzoy is proposing.

People can base their political decisions on whatever floats their boats, for all I care. But for a law to pass muster it needs to serve a secular interest. We can't require that all babies be baptized. We can't outlaw taking the Lord's name in vain. We can make it illegal to tell a falsehood under oath. We can also require that drivers keep to the right side of the road.

There is a difference between the biblical prohibition against, for example, theft and the prohibition against, say, weaving cloth from two different kinds of thread. The first is, at its root, motivated by the fact that nobody wants their stuff taken, an idea that still resonates today, whether you are religious or not. The second might have once had a nonspiritual basis, but it is now, given the present cultural context, a wholly religious edict. If someone were to introduce a law tomorrow banning cotton/polyester garments, citing only their faith in support of the law, are you saying you wouldn't object on First Amendment grounds?

"Speaking strictly for myself: celbrating my thirteenth wedding anniversary, plus trying to figure out how I can get my job plus a couple of other full-time jobs done, given that I've got to train a couple of guys to even get started on the other two."

Excuses, excuses. Next you'll be mentioning petty and lame reasons like "my arm was cut off" and "I was killed last week." Pathetic!

(I was not asking you to provide a note from your doctor, in fact; merely expressing the missing, and wondering.)

Congrats on the anniversary!

(You might or might not find anything of interest science fictional wise, or relating to some of your commenters' bios, and a question you once asked me, on the "Vital Freedom Lost In Uzbekistan," which wandered, or was aggressively wrested, into being something of an open thread on such matters, despite their lack of relevance to Uzbekistan, by the way.)

"And celebrating Chinese New Year; can't forget about that."

And Anarch chimed in "Kung Hei Fat Choi!"

I paid my respects yesterday and welcomed the Year of the Dog.

(Bunch of subsequent posts at that blog, several fresh today; I won't itemize, just sayin'.)

"Going further back, the earliest human rights movement that I know of was the one launched by Bartolome Las Casas to end Indian slavery in the Spanish colonies."

1540's or so.

Although about a century later, and so not offered in any disagreement whatever, I'd also point to, as a significant development in mass consciousness of human rights, George Light and the origins of the Society of Friends, better known as the "Quakers," who were also largely abolitionists.

Gromit: "I'm talking about the slaves themselves...."

Yes, I wasn't actually trying to speak in an obscure code when I wrote: "I'm not 100% sure if you're referring to slaves, but certainly there was a large degree of Christianity amongst them, as well."

"And however strong in faith they might have been, their inspiration didn't come, first and foremost, from the Bible."

Not originally in most cases, no.

Nell: "...a noted speech against slavery for the 'wrong' reasons: a political, pragmatic, non-religious, non-moral perspective that had to do with the effect on the white labor force. He made a gradualist proposal to end it."

I could actually relate this to Alito and the filibuster, but I'm keeping my mouth shut on that topic for now.

"It just makes it a secular cause for which there are also religious arguments."

Y'know, I'm a completely secular person, and always have been, despite the Sunday Hebrew school I was sent to until I was 13, at which time I informed my parents that I'd done my bar mitphah, and now I was done.

But one might say with equal accuracy that "It just makes it a religious cause for which there are also secular arguments."

I find the idea of, apparently, feeling some need to diminish the considerably religious nature of the abolitionist movement a bit peculiar.

Whatever we ourselves feel about religion, and its meaning and use today, it's been one of the most powerful forces in human history; ignoring or denigrating that fact would lead to a less accurate understanding of history and human nature.

And I'm just saying that the 1st Amendment to the US Constitution shouldn't be read as discriminating against moral beliefs because they have religious origins or discriminating for moral beliefs because they don't have religious origins.
Setting aside the fact that this had no apparent relation to what I was talking to you about for the tme being, who, pray tell, are you arguing against with that statement?

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