"Kirk Gordon" wrote in message
s.com...

I'll accept the idea of conflicting rights as a matter of semantics,
I guess; but I can't think of how or why I'd have come into conflict
with someone else's rights when I was 13 years old and needed a job;

Children have always been subject to protections by the state, from
exploitation and other abuses. It's embedded deep in common law. It's
best
to stick to adults if you want to reason your way through this.

or if I'd wanted to smoke cigarettes before I was 18.

You're still dealing with children.

These were minor points and examples, so I don't plan to dwell on
them; but it sounds like you're saying (or interpreting the law to say)
that my needs or desires came into conflict with the plans and policies
of the people who were responsible for protecting me. That's not at all
the same as a conflict between my rights and those of someone else.

As a child, you don't have the legal authority to make those decisions for
yourself. Your parents and/or the state presume to make many decisions for
you. That principle is ancient, is embedded in common law, and has been
upheld by the courts.

If you want to argue against it in the abstract, you won't be the first. But
the legal principles under which such decisions are made are beyond any
question of common law. The Constitition wasn't created in a vacuum. The
principles of human rights existed before it was written. The Constitution
protects rights, it doesn't create them.


And dealing with children is sorta necessary if we're to talk
sensibly about abortion issues.

No. Children are not fetuses, and there is no historical reason to believe
that fetuses should be treated as children. The idea that they might be is
novel, is relatively recent, and was not accepted at the time the
Constitution was written. If you're going to grant human rights to fetuses,
you have to create a new principle of rights under law. In the US, that
means you need an amendment.

BTW, to keep things on track, I'm not arguing whether the result of Roe is
morally right. I'm trying to discuss how our legal mechanisms work, and how
they produced the Roe decision. A large minority of the people of the US, or
maybe a modest majority, doesn't like the result of Roe. Their problem is
with the Constitution and the way our legal system itself works, not with
the Supreme Court's decision. Most constitutional scholars feel that Roe was
legally right, whether or not they also think it was morally wrong.

It happens. Sometimes we have a majority that's unhappy with a Court
decision concerning rights. They want a different decision. But if they try
to get their decision by making up a right that has no basis in law, all
they do is bugger up the system. Then, when you really need a system that
protects rights, you find that you don't have it anymore. You buggered it up
for the sake of getting a particular result, and you damaged the system in
the process. That's what Bork means by "adjudication for results." And it's
why people who care about the law hate the idea of making legal decisions
that way.

Our system for changing big Constitutional issues and mechanisms is the
process of amendment. It's hard to pass an amendment. In general, it ought
to be hard. It ought to reflect the opinion of a *large* majority, not a
bare one. If you change the Constitution on the basis of simple majority
opinion, you wind up with no rights at all. Everything then becomes subject
to the whim of a bare majority -- possibly one that swings back and forth
over time.

That's all I'm saying about the result of Roe. I haven't commented on
whether I like the result. I'll try to avoid doing so as long as we're
having this discussion.

If a fetus is ever legally defined as
human...

Ok, you want to define it on the basis of what is "human." That's a term
that exists in the scientific realm, based on genetics and scientific
taxonomy. If you have an argument that the Enlightenment concepts of human
rights is a biological issue, you have an uphill battle to argue it. Sooner
or later you will confront the question of why rights should be defined on
the basis of biology, and you will find yourself making it all up, because
there is nothing to back up that idea.

BTW, that's the first tack that animal-rights supporters take. They point
out that the scientific basis of rights for humans is purely arbitrary. It
is. But rights aren't a biological question.

The whole concept of rights resides in a philosophical/spiritual
dimension -- not necessarily religious, but very close to it. So the issue
of when life begins, from a scientific point of view, is unrelated to when a
person acquires a right to due process. The scientific issue doesn't address
the moral, legal, or spiritual issues that actually have determined our
principles of rights.


Other legal questions which deal logically and
successfully (or not) with the specific needs of minors might give some
valuable clues to the proper approach (if there is one) to the rights,
needs, or general legal standing, of the unborn.

Well, give it a try. See what those clues are, and where they take you.


And issues of
discrimination are only conflicts if you accept the idea that a consumer
who walks into my place of business has a "right" to shop there.

That's a question of how far civil liberties go. Notice, in contrast to
Roe,
there is no question that there are civil rights involved here, and that
people have a right to equal treatment under law. You can argue,
however,
whether extending that to treatment in places of public accomodation
(your
place of business) is appropriate.

I'm arguing that the definition of "civil liberties" as "rights" for
consumers is a de facto abrogation of the rights of businesspeople.

That's fine, you can argue that. In fact, that's a principle of contemporary
libertarian thought, which places freedom of association very high on their
list of rights. In the current legal realm of rights, most of their
arguments have lost the legal battles, for reasons with which anyone over
the age of 50 or 55 probably has personal experience, whether or not they
agree with them, or whether they like them.

That's not just a conflict. It's an example of laws which have
effectively defined a class of people to whom certain rights don't
apply.

Nope. Their rights have been limited because the courts have decided that
federal legislation limiting the right of association is justified by a
compelling state interest, which is providing equal opportunity in every
pertinent aspect of our society. It doesn't say you don't have a right of
association, only that your right to discriminate is limited in any place of
public accommodation you may own.

You point out that the constitution and the legislative process
aren't supposed to define rights. And Harlan's "right to be left alone"
is exactly right in my mind. But our laws DO establish definitions,
whether they should or not. They also, routinely, establish "rights"
which are little more than codified social conventions.

In one sense, all rights are codified social conventions, or socially
accepted principles of moral right. The Constitution defines the realm of
rights, which includes, through the 9th and 10th Amendments, rights that may
not yet be defined. There are rights that aren't written down yet, in other
words. But it doesn't limit what those rights are -- or it shouldn't, in the
opinion of most of us.

The common example is the right to privacy, which has been supported in
small ways through many Court decisions, and in a bigger way by Griswold v
Connecticut sometime in the mid-'60s. The Court tries to determine which
unwritten rights fit into the pattern and the principles of our system of
rights -- the right to be left alone, if you're so inclined.

The definitions you are talking about usually aren't rights under law.
They're laws. They're subject to court review. The courts may uphold or
reject them. If they're eventually upheld as a right, it's because the
courts have determined that these are among those "rights not enumerated,"
covered by the 9th and 10th.

I'm well aware of the popular attitude toward all of this, but it's mostly a
pile of baloney. If you want, give us an example of these "codified social
conventions," and let's see if it's a right or not; that is, if it ought to
be a right, or if it's really treated as a right by the courts, or merely a
law that our legislators are Constitutionally authorized to write.


In Roe, there is no established right on one side of
the issue. The Court also held that there is no constitutional basis on
which one could be established.

Exactly. The constitution wasn't originally construed to include
negroes as human, or women as fully human.

I'm troubled by your use of "human" in this context. I don't think you mean
"human." You really mean "entitled to due process." I don't think the
Founders would have denied that women are fully "human." g

It took constitutional
ammendments (13, 15, and 19) to expand the definition. But the civil
rights act of 1964, and all the derivative legislation that's expanded
civil "rights" to include matters of gender, age, physical disabilities,
etc., were just laws - passed by congress, signed by presidents, and
upheld repeatedly by the courts. And current legal battles of a similar
type are being fought over gay "rights", among other things. And there
will surely be other such battles in the future. Aren't those examples
of "rights" being extablished by legislation, and NOT by the
constitution?

For the most part, no. The right they address is the right to equal
treatment. The laws enacted to effect equal treatment are simply laws. They
can change through further legislation or through court review of their
constitutionality. For example, college affirmative-action admission
policies are in a state of flux right now because of Court decisions.

And haven't the courts been supportive?

Usually. If the courts recognize a right (the right to equal treatment, for
example), they tend to defer to Congress and the state legislatures when
they write laws designed to ensure the right is upheld under law. In
general, the courts leave the legislatures alone unless they write laws that
the courts determine have infringed upon individual rights. Then they have
to decide what has to be done -- if anything -- about the law that so
infringes.



The unknown is the point at which a gestating fetus acquires the human
right
to due process under law. One traditional point of view is that this is
a
matter for elected legislatures to decide. Roe contradicted that by
saying
that there is no constitutional authority for legislatures to make such
a
decision *that would conflict with another, established right*. In other
words, state legislatures can make laws as long as they doesn't conflict
with rights. (Congress can only make laws that are within their
authority as
spelled out in the Constitution.)

Sure. The argument is almost entirely a religious one, which becomes a
philosophical one in a secular government. If there is no constitutional
basis to establish a right, then the philosophical position that fetuses
have rights can only be effected by way of an amendment to the
Constitution.

It's also worth considering, I think, that any attempt to actually
define an unborn baby as human, and to respect even a limited set of
rights, is an absolutely unique and unparalleled problem for a more
basic reason than just precedent or religious/moral matters. There are
no other legal questions I can think of in which two different entities,
each with rights and each entitled to legal protection, happen to
inhabit the same body.

My hand has no legal standing to sue my ear. My face can't file a
criminal complaint against my foot, if the foot happens to slip off the
brake pedal and cause my face to get mashed against the steering wheel.
In fact, even parts of me that are separated from my body (blood
donations, or cells stored in a semen-bank, or tissues removed by
surgery - which might have been viable if they hadn't been separated
from the rest of me), aren't considered by law to have rights of their
own, which might come into conflict with my rights as a whole human
being.

Well, all of that is interesting, but it begs the question. If you take
that
point of view you're saying, simply, that an unborn fetus is part of the
mother, and nothing more, until the time of birth.

I can imagine two potential definitions that might be the basis for
reasonable decisions about when/if a fetus could be recognized as human.
The first would be that a fetus IS nothing more than part of its
mother until the time of birth, or at least until the time that it COULD
be born alive and viable, and could be expected to survive without its
mother.

That's the traditional view under common law. I believe it also is the
majority opinion today, but I don't know the current state of public opinion
on it for sure.

If a competent medical doctor can say with a high degree of
confidence that an unborn child, at any point in it's development,
remains a part of its mother only by choice, convenience, or convention,
and that it WOULD be a viable human child if delivered (as by C-section,
maybe), then the law might treat it as human, regarless of where it
lived. Prior to becoming viable (or potentially viable) on its own, the
fetus would be considered indistinct from its mother.

Again, that's the traditional view, based on conventional morality. In Roe,
it faces the problem that there is no *legal* basis for making that
determination. When moral beliefs conflict with the law, whether the "law"
we're talking about is a piece of legislation or an established right under
the Constitution, then the proper recourse is to change the law, or the
Constitution.


The second definition is one suggested by Carl Sagan in "The Dragons
of Eden." During the early stages of gestation - approximately the
first twelve weeks - a human fetus is in many fundamental ways more like
a fish or an amphibian than a human being. Sagan suggests that the
fetus doesn't become human, or even something that biologically
resembles a human being, until it develops the particular anatomical
feature which distinguishes humans from other animals at ALL stages of
its life. That feature is the neocortex. In Sagan's view, the
beginnings of neocortical activity in the developing brain (which can be
detected by EEG technology) marks the moment at which a fetus first
becomes more like a human being than like a fish or a frog. I find it
interesting, if incidental, that this idea coincides with our current
thinking about abortion being "preferable" during the first trimester of
pregnancy, but problematic later on.

It's an interesting view, but just a scientific codification of the
moral/philosophical question that exists prior to the science. You still
need a basis for deciding why this developmental differentiation is the
critical one that embues a fetus with human rights: as the Court puts it, a
right to due process. You're still dependent upon a spiritual, moral, or
philosophical justification.

Obviously, neither of these ideas is all that simple or
straightforward; but there needs to be SOME logical standard on which
debate and decisions are grounded.

Not necessarily. Morality, spirituality, and some would say, philosophy,
don't necessarily require logic. A mother doesn't apply logic when she feels
love for her child. You don't apply logic when you decide that you will die
to defend your country. You need a well-grounded basis, spiritual to at
least some degree, for distinguishing right from wrong. Or you need human
instinct, as in the case of the mother and her child.

When you peel away the layers of sophistry that are applied to explain the
"logic" of human rights, you wind up in a place like one of those above.
There is no other place that isn't arbitrary. There is no other place that
serves as a center of gravity, to which all arguments return. What you need
more than logic, in other words, is something close to a consensus of
sympathy for the idea that something is a "right."


It seems to me that we're in agreement about what Roe v.Wade is, Ed,
and about why. But I don't share your optimism about our goverernment
being truly and consistently guided by the principles of the
constitution.

It isn't a belief that it always adheres to its own standards. It's a
question of whether you're going to support those standards, or excuse
yourself from the responsibility of self-governance because you don't like
some of the results.

And a debate that's so deeply intertwined with issues of
faith, personal sensitivities, and political posturing, is one that is
NEVER likely to be handled logically, or with anything other than the
most selective and subjective references to constitutional precedents.
Roe was a remarkable exception to that, which is part of why I find it
so important and powerful. But exceptions aren't enough, and I really
do believe that this will go on forever.

And no, I don't think it really matters whether people are always
evenly divided. The debate was a loud and nasty one when states DID
have laws limiting or prohibiting abortion. And it's been loud and
nasty SINCE 1973. And it'll continue to be loud and nasty if/when the
pendulum swings the other way.

Cheers!

Ok, cheers to you, too. d8-)

Ed Huntress