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#441
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OT- Vast Left Beginners Guide to Fibbing
G. Wood wrote:
That was very good, KG, and I learned a lot from it. I can only offer another personal opinion, that right now the unborn have just about zero rights. In a country where our founders wrote that it is "self evident" that everyone has the right to LIFE, liberty and the pursuit of happiness, it seems to me that we completely overlook the life part and focus on the pursuit of happiness as far as the abortion question is concerned. Shouldn't a little attention be paid to life? We ALL have personal opinions, GW. But those aren't the proper basis for laws. If they were, then we'd all end up living with the consequences of BILLIONS of personal opinions held by other people, whether we liked them or not. (We already get too much of that, of course; but it's not something to be encouraged.) The right to life may have been self evident; but the definition of "everyone" clearly was not. If you rely too literally or narrowly on the exact words written by Jefferson, et al, then slavery should still be legal, and women shouldn't be allowed to vote. (And, it might be worth noting that the Declaration Of Independence is NOT the same as the constitution.) Remember that many of the men who signed their names to the documents you're quoting of were slave owners at the time. The most important thing about what they wrote was their assumption that they DIDN'T and COULDN'T know the answers to every question, or even what the questions might be, some time in the future. They instead made sure that we had a structured means for growing and changing our government in ways that might not be forseeable to them, and that the government would be limited by the people, instead of the other way around. And no, we shouldn't pay "a little" attention to life. We should pay a LOT of attention to it. I don't think there's much about the abortion debate (in the legal arena at least) that truly includes anyone pursuing happiness at the expense of life. The problem is defining what "life" is, and whether the definition applies to an unborn child. I suggested a couple possible definitions in a response to Ed's thoughts, just a few minutes ago. If you're interested int MY personal opinions, those might be worth a quick look. KG |
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OT- Vast Left Beginners Guide to Fibbing
"Kirk Gordon" wrote in message s.com... Jeff McCann wrote: Excellent analysis! Big round of applause for Ed! nodding Yup. Ed's got a pretty good head on him. That's why I find it so interesting, and so much fun, to wrestle with him when I can. KG It's good to see the occasional intelligent discussion or debate on the ol' infobahn once in a while. So many are so certain that they have cornered the market on truth and enlightenment, and therefore adopt the view of "I'm right just cuz I sez so, and you're not just wrong, but evil, too" that reading, much less participating, becomes almost pointless. Thank you. Jeff |
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#443
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OT- Vast Left Beginners Guide to Fibbing
Jeff McCann wrote:
It's good to see the occasional intelligent discussion or debate on the ol' infobahn once in a while. So many are so certain that they have cornered the market on truth and enlightenment, and therefore adopt the view of "I'm right just cuz I sez so, and you're not just wrong, but evil, too" that reading, much less participating, becomes almost pointless. Thank you. You mean I'm not always right, just 'cause I say so?? Damn! That changes everything! Now I'm gonna be grumpy all day. KG |
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Barren ground: (was Gunner's medical bills)
Gunner wrote:
We were discussing the killing of the unborn baby. Which is legal to do. So if its legal to kill his daughter before she pops out the chute..and you would not stop him from killing her while still in the womb, why would you stop him one minute later after she has popped out? Because that one minute during which she "popped out" is legally defined as the moment when she becomes human, and therefore HAS a right to life that can't properly be taken away. It's not the length of time that matters, but the all-important transition from non-human to human, in the eyes of the law. As Ed and I have been discussing elsewhere, the determination of whether a fetus is human is the real core of this whole debate. I've mentioned a couple suggestions about how and when humanity actually begins, or what might be legally treated as its beginnings. If you're interested, those might be worth a look. KG |
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Barren ground: (was Gunner's medical bills)
On Wed, 07 Jul 2004 22:23:15 GMT, Friday wrote:
And it (the Constitution) is the sole basis upon which we can form laws. If we make one exception for morality (and whose morality do we choose?), then the while thing goes to hell. Consider then that the whole thing has gone to Hell. Friday |
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Barren ground: (was Gunner's medical bills)
On Wed, 07 Jul 2004 17:38:47 GMT, Kirk Gordon
wrote: Gunner wrote: We were discussing the killing of the unborn baby. Which is legal to do. So if its legal to kill his daughter before she pops out the chute..and you would not stop him from killing her while still in the womb, why would you stop him one minute later after she has popped out? Because that one minute during which she "popped out" is legally defined as the moment when she becomes human, and therefore HAS a right to life that can't properly be taken away. It's not the length of time that matters, but the all-important transition from non-human to human, in the eyes of the law. As Ed and I have been discussing elsewhere, the determination of whether a fetus is human is the real core of this whole debate. I've mentioned a couple suggestions about how and when humanity actually begins, or what might be legally treated as its beginnings. If you're interested, those might be worth a look. KG How many people have been charged with invountary manslaugher, in the last ten years, for causing the death of a pregnant woman's fetus? How many have been charged with animal abuse for killing the unborn puppies of a pregnant dog? Mike |
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Barren ground: (was Gunner's medical bills)
On Wed, 07 Jul 2004 22:23:15 GMT, Friday wrote:
We were discussing the killing of the unborn baby. Which is legal to do. So if its legal to kill his daughter before she pops out the chute..and you would not stop him from killing her while still in the womb, why would you stop him one minute later after she has popped out? Friday Gunner Just between you and me, Gunner, I'm against abortion on moral grounds. BUT the Constitution of the United States of America, while far from perfect, is the BEST framework for a civilized, free society that anyone has come up with yet. And it (the Constitution) is the sole basis upon which we can form laws. If we make one exception for morality (and whose morality do we choose?), then the while thing goes to hell. Friday Which constitution? The state constitutions.. or the modern interpretation of the federal constitution that has been used to undermine and control the state constitutions? Mike |
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#448
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OT- Vast Left Beginners Guide to Fibbing
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#449
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OT- Vast Left Beginners Guide to Fibbing
"Ned Simmons" wrote in message
... In article idTGc.69545$kz.13495676 @news4.srv.hcvlny.cv.net, says... Firstly, only humans have rights under law in the US. There is no constitutional basis for establishing rights for anything other than a human. 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.) I admit I've not read Roe, and don't know whether this figures into the reasoning behind it, but the Constitution and Bill of Rights make no mention of human or humans. Rights are accorded to people, persons, or The People, not humans. It seems to me, based on the dictionary definition of human, that Roe could have gone the other way if the word "human" was found in the Constitution in the proper context. It's not there. Ned Simmons Right. When the word "human" appeared in this thread, I was going to say something, but anything I could think of to say was doomed to send us off into an irrelevant tangent, so I shut up about it. d8-) Ed Huntress |
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Barren ground: (was Gunner's medical bills)
On Wed, 07 Jul 2004 22:23:15 GMT, Friday wrote:
Gunner Just between you and me, Gunner, I'm against abortion on moral grounds. BUT the Constitution of the United States of America, while far from perfect, is the BEST framework for a civilized, free society that anyone has come up with yet. And it (the Constitution) is the sole basis upon which we can form laws. If we make one exception for morality (and whose morality do we choose?), then the while thing goes to hell. Frankly..Im actually Pro Choice. However..I dont let the other folks forget that they are (court mumble jumble aside) killing a human being quite legally. I detest folks who think that meat comes from the store in those little plastic containers, and abortion doesnt kill babies. Hence Im the thorn that pricks their concience. Gunner "The entire population of Great Britain has been declared insane by their government. It is believed that should any one of them come in possession of a firearm, he will immediately start to foam at the mouth and begin kiling children at the nearest school. The proof of their insanity is that they actually believe this." -- someone in misc.survivalism |
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#451
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OT- Vast Left Beginners Guide to Fibbing
"G. Wood" wrote in message
om... "Ed Huntress" wrote in message et... As a conservative yourself, G.W., I'm surprised and disappointed to see that you apparently grant only those rights that are spelled out in the Constitution. The Constitution doesn't have to say that abortion, for some reason or any reason, is "right." What it has to say is that it's wrong; or, at the very least, it has to say explicitly that the government is granted authority to legislate about the subject in question. One way it could do that is to define when a fetus acquires the right to due process, but it makes no comment upon that at all. Thus, there is no such legislative authority granted in the Constitution. So a case like this reverts to a question of rights, potentially rights in conflict. The basis on which the case was decided, and the present law of the land, is that there is no basis for the government to decide the controversial question of when life begins. And so it defaults to the rights that *are* established, which includes the right to life of the mother and her privacy. This sounded good until I thought about it. Do you mean to say that all things which are against the law must be specifically spelled out in the constitution? Are incest or polygamy or child porn or a hundred other things rights? I don't believe that the constitution specifically says they are wrong but we still have laws against them. Maybe since they aren't specifically spelled out in the constitution we could legalize them under rights which *are* established like the right to life of the perpetrator or his privacy. You're right, I expressed that badly. I was trying too hard to hoist the conservative position on its own petard. g I'm really wary of boiling this down to a few principles because it can start an endless string of arguments about exceptions and caveats, etc., but, for the sake of correcting that impression I gave above, let me try: Regarding the authority of Congress to make laws under the Constitution, the purist point of view is the one I gave above. Congress's authorities are theoretically explicit and severely limited. In practice, however, the Court has almost always deferred to Congress's authority except when it conflicts with a right. If there is no conflict with established, individual rights, or a conflict between federal authority and states' "rights," the Court usually won't hear a case challenging a law. Congress or the state gets to legislate as it wants to in those situations. There always seems to be some plausible interpretation of Congress's authorities and responsibilities, often expressed as the need to administer some law or agency or to effect some government responsibility, which can be construed to grant Congress constitutional authority to legislate. This drives some libertarians up a wall, but it's the way the Court has always decided such cases and it's a long-established fact of US law. But someone will claim a violation of their right for almost anything that Congress legislates. If they bring a case, the Court first decides if the case is substantive, if the plaintiff has legal standing to bring such a case, and if there is a right involved. If there is, the Court may regard the infringement as something substantial enough to try. If it's tried, the Court decides if the State has a compelling interest to limit or to deny the individual right. This is NOT a conservative-versus-liberal issue. In fact, conservative courts are somewhat more likely to defer to Congress than liberal courts are in these cases. Without getting into the more complicated area of states' rights, that's the historical/legal environment in which cases like Roe are decided. If there was no conflict between anti-abortion laws and a mother's rights, it's unlikely the Court would even have heard the case. The anti-abortion legislation would have been allowed to stand. But the Roe case had a strong basis on which to determine that a right potentially had been infringed -- the mother's life and her health -- and a somewhat weaker one, which is her right to privacy. Justice Rehnquist (rightly, IMO) said this is stretching the concept of privacy rights too far. But he failed to show any basis for a compelling interest on the part of the state to limit that right, so even an equivocal right, like privacy, will prevail against no right at all. His dissenting argument in Roe was logically good but legally weak. There appears to be no strong argument against the crucial point of the Roe decision, which is that the state has no Constitutional basis on which to establish rights for the unborn. So far, that is. If you have a legal argument that opposes this, rather than just an opinion about how things ought to be, it will be interesting to hear it. Right now I'm kinda short on legal opinions but I have no shortage of personal opinions. It just seems to me that basic logic says it's not right to kill an innocent human being. The same logic tells me that when you have two conflicting rights the greater one should take precedence. The right to be born should be more important than the lifestyle or the privacy of the parent(s). That's a common point of view, and moral opinions are the things that drive our concept of rights in the first place. So I'm not arguing against your opinion. It could one day become the strongly prevailing one, and it could then become ensconsed in a Constitional amendment, establishing rights for the unborn. In fact, that's how the common law evolved: as the set of prevailing opinions about what is fair versus unfair, good versus bad, right versus wrong. Unless you believe in some mystical or supernatural basis for the rights we have identified in our Constitution, that's where they all came from to begin with. But we more than most people in the world tend to defend the rights we've identified, in our Bill of Rights and through the actions of the courts to uphold individual rights, against the whims of popular opinion. We try to stick to that principle even when it hurts. It makes a lot of people angry at the courts. That, BTW, is a good indicator that they're sticking to principle in a lot of cases where it would be easier to pander to popular opinion. Lots of people hate one thing or another about the way courts decide cases of rights. If you buy our concept of individual rights and if you're prepared to accept decisions that you don't like, but which adhere to strict and honest interpretation of constitutional principles, and to the logic that derives from them, you have one hell of a job ahead of you to deny the validity and the decision of Roe v. Wade. The legal reasoning of it is considered hard to fault. The *result* is faulted by many people. But unless they're willing to throw principle out the window and to *adjudicate for results* (a disparaging phrase used to describe courts that pander to opinion, rather than sticking to constitutional principle), the only legitimate recourse for them is to work for passage of a Constititional amendment. -- Ed Huntress (remove "3" from email address for email reply) |
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#452
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OT- Vast Left Beginners Guide to Fibbing
On Thu, 08 Jul 2004 05:02:21 GMT, "Ed Huntress"
wrote: *adjudicate for results* (a disparaging phrase used to describe courts that pander to opinion, rather than sticking to constitutional principle), Oh...like California! Gunner "The entire population of Great Britain has been declared insane by their government. It is believed that should any one of them come in possession of a firearm, he will immediately start to foam at the mouth and begin kiling children at the nearest school. The proof of their insanity is that they actually believe this." -- someone in misc.survivalism |
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#453
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Barren ground: (was Gunner's medical bills)
In article , Gunner
writes: Frankly..Im actually Pro Choice. Then you are voting for Kerry, right? However..I dont let the other folks forget that they are (court mumble jumble aside) killing a human being quite legally Nope. First you must define "human being" and provide solid foorp. It may compare more to trimming a hangnail or getting a haircut. -- Cliff |
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#454
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OT- Vast Left Beginners Guide to Fibbing
"G. Wood" wrote in message
m... Kirk Gordon wrote in message ws.com... snip The debate will NEVER end, of course, because we're not even arguing about the right things. KG That was very good, KG, and I learned a lot from it. I can only offer another personal opinion, that right now the unborn have just about zero rights. In a country where our founders wrote that it is "self evident" that everyone has the right to LIFE, liberty and the pursuit of happiness, it seems to me that we completely overlook the life part and focus on the pursuit of happiness as far as the abortion question is concerned. Shouldn't a little attention be paid to life? What is "everyone"? What "life"? You make these statements as if you have the answers. Where did you get those answers? Ed Huntress |
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#455
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OT- Vast Left Beginners Guide to Fibbing
"Ed Huntress" wrote in message . net...
"G. Wood" wrote in message om... "Ed Huntress" wrote in message et... As a conservative yourself, G.W., I'm surprised and disappointed to see that you apparently grant only those rights that are spelled out in the Constitution. The Constitution doesn't have to say that abortion, for some reason or any reason, is "right." What it has to say is that it's wrong; or, at the very least, it has to say explicitly that the government is granted authority to legislate about the subject in question. One way it could do that is to define when a fetus acquires the right to due process, but it makes no comment upon that at all. Thus, there is no such legislative authority granted in the Constitution. So a case like this reverts to a question of rights, potentially rights in conflict. The basis on which the case was decided, and the present law of the land, is that there is no basis for the government to decide the controversial question of when life begins. And so it defaults to the rights that *are* established, which includes the right to life of the mother and her privacy. This sounded good until I thought about it. Do you mean to say that all things which are against the law must be specifically spelled out in the constitution? Are incest or polygamy or child porn or a hundred other things rights? I don't believe that the constitution specifically says they are wrong but we still have laws against them. Maybe since they aren't specifically spelled out in the constitution we could legalize them under rights which *are* established like the right to life of the perpetrator or his privacy. You're right, I expressed that badly. I was trying too hard to hoist the conservative position on its own petard. g I'm really wary of boiling this down to a few principles because it can start an endless string of arguments about exceptions and caveats, etc., but, for the sake of correcting that impression I gave above, let me try: Regarding the authority of Congress to make laws under the Constitution, the purist point of view is the one I gave above. Congress's authorities are theoretically explicit and severely limited. In practice, however, the Court has almost always deferred to Congress's authority except when it conflicts with a right. If there is no conflict with established, individual rights, or a conflict between federal authority and states' "rights," the Court usually won't hear a case challenging a law. Congress or the state gets to legislate as it wants to in those situations. There always seems to be some plausible interpretation of Congress's authorities and responsibilities, often expressed as the need to administer some law or agency or to effect some government responsibility, which can be construed to grant Congress constitutional authority to legislate. This drives some libertarians up a wall, but it's the way the Court has always decided such cases and it's a long-established fact of US law. But someone will claim a violation of their right for almost anything that Congress legislates. If they bring a case, the Court first decides if the case is substantive, if the plaintiff has legal standing to bring such a case, and if there is a right involved. If there is, the Court may regard the infringement as something substantial enough to try. If it's tried, the Court decides if the State has a compelling interest to limit or to deny the individual right. This is NOT a conservative-versus-liberal issue. In fact, conservative courts are somewhat more likely to defer to Congress than liberal courts are in these cases. Without getting into the more complicated area of states' rights, that's the historical/legal environment in which cases like Roe are decided. If there was no conflict between anti-abortion laws and a mother's rights, it's unlikely the Court would even have heard the case. The anti-abortion legislation would have been allowed to stand. But the Roe case had a strong basis on which to determine that a right potentially had been infringed -- the mother's life and her health -- and a somewhat weaker one, which is her right to privacy. Justice Rehnquist (rightly, IMO) said this is stretching the concept of privacy rights too far. But he failed to show any basis for a compelling interest on the part of the state to limit that right, so even an equivocal right, like privacy, will prevail against no right at all. His dissenting argument in Roe was logically good but legally weak. There appears to be no strong argument against the crucial point of the Roe decision, which is that the state has no Constitutional basis on which to establish rights for the unborn. So far, that is. If you have a legal argument that opposes this, rather than just an opinion about how things ought to be, it will be interesting to hear it. Right now I'm kinda short on legal opinions but I have no shortage of personal opinions. It just seems to me that basic logic says it's not right to kill an innocent human being. The same logic tells me that when you have two conflicting rights the greater one should take precedence. The right to be born should be more important than the lifestyle or the privacy of the parent(s). That's a common point of view, and moral opinions are the things that drive our concept of rights in the first place. So I'm not arguing against your opinion. It could one day become the strongly prevailing one, and it could then become ensconsed in a Constitional amendment, establishing rights for the unborn. In fact, that's how the common law evolved: as the set of prevailing opinions about what is fair versus unfair, good versus bad, right versus wrong. Unless you believe in some mystical or supernatural basis for the rights we have identified in our Constitution, that's where they all came from to begin with. But we more than most people in the world tend to defend the rights we've identified, in our Bill of Rights and through the actions of the courts to uphold individual rights, against the whims of popular opinion. We try to stick to that principle even when it hurts. It makes a lot of people angry at the courts. That, BTW, is a good indicator that they're sticking to principle in a lot of cases where it would be easier to pander to popular opinion. Lots of people hate one thing or another about the way courts decide cases of rights. If you buy our concept of individual rights and if you're prepared to accept decisions that you don't like, but which adhere to strict and honest interpretation of constitutional principles, and to the logic that derives from them, you have one hell of a job ahead of you to deny the validity and the decision of Roe v. Wade. The legal reasoning of it is considered hard to fault. The *result* is faulted by many people. But unless they're willing to throw principle out the window and to *adjudicate for results* (a disparaging phrase used to describe courts that pander to opinion, rather than sticking to constitutional principle), the only legitimate recourse for them is to work for passage of a Constititional amendment. What a pleasure it was to read this thoughtful response. I hope others will notice that people can have a discussion without using personal attacks. G.W. |
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#456
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OT- Vast Left Beginners Guide to Fibbing
"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 |
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"G. Wood" wrote in message
om... What a pleasure it was to read this thoughtful response. I hope others will notice that people can have a discussion without using personal attacks. G.W. Thanks, G.W., but it's too darned hard to do that very often. It's a lot easier to just tell someone to go f**k their pet goat. That's our default position on this NG. g Ed Huntress |
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"Ed Huntress" wrote in message et... "G. Wood" wrote in message om... What a pleasure it was to read this thoughtful response. I hope others will notice that people can have a discussion without using personal attacks. G.W. Thanks, G.W., but it's too darned hard to do that very often. It's a lot easier to just tell someone to go f**k their pet goat. That's our default position on this NG. g Ed Huntress So Ed hows the "Maching" Magazine doing? Though I do not often agree with you, you do write well |
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"MushHead" wrote in message
et... So Ed hows the "Maching" Magazine doing? Though I do not often agree with you, you do write well Thanks, MushHead. I'm only a contributing editor to Machining these days, but it looks like things are picking up there, after a long dry spell. They have some interesting people contributing articles, too. Ed Huntress |
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Ned Simmons wrote:
In article idTGc.69545$kz.13495676 @news4.srv.hcvlny.cv.net, says... Firstly, only humans have rights under law in the US. There is no constitutional basis for establishing rights for anything other than a human. 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.) I admit I've not read Roe, and don't know whether this figures into the reasoning behind it, but the Constitution and Bill of Rights make no mention of human or humans. Rights are accorded to people, persons, or The People, not humans. It seems to me, based on the dictionary definition of human, that Roe could have gone the other way if the word "human" was found in the Constitution in the proper context. It's not there. Ned Simmons Seems to be a general overlooking of the background to Roe v. Wade. Check out San Antonio v. Rodriguez and Buck v. Bell. In Buck v. Bell, 274 U.S. 200 (1927), the Court refused to recognize a substantive constitutional guarantee of the right to procreate. In San Antonio v. Rodriguez, 411 U.S. 1 (1973), the Supreme Court held that there is no federal constitutional right to an education. A bit more obtuse in it's relation to Roe v. Wade, you would need to read the court's decision for the reasoning, I am afraid I would just butcher it. |
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"Bob Yates" wrote in message
nk.net... Ned Simmons wrote: In article idTGc.69545$kz.13495676 @news4.srv.hcvlny.cv.net, says... Firstly, only humans have rights under law in the US. There is no constitutional basis for establishing rights for anything other than a human. 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.) I admit I've not read Roe, and don't know whether this figures into the reasoning behind it, but the Constitution and Bill of Rights make no mention of human or humans. Rights are accorded to people, persons, or The People, not humans. It seems to me, based on the dictionary definition of human, that Roe could have gone the other way if the word "human" was found in the Constitution in the proper context. It's not there. Ned Simmons Seems to be a general overlooking of the background to Roe v. Wade. Check out San Antonio v. Rodriguez and Buck v. Bell. In Buck v. Bell, 274 U.S. 200 (1927), the Court refused to recognize a substantive constitutional guarantee of the right to procreate. In San Antonio v. Rodriguez, 411 U.S. 1 (1973), the Supreme Court held that there is no federal constitutional right to an education. A bit more obtuse in it's relation to Roe v. Wade, you would need to read the court's decision for the reasoning, I am afraid I would just butcher it. If those have been cited as precedent for Roe, it's over my head. San Antonio was heard the very day before Roe was re-heard (the first Roe v. Wade hearing fell apart because both attorneys screwed up). It was decided a couple of months after Roe. Buck was a case in which the state *was* presumed to have a compelling interest, which is almost the opposite of what was decided in Roe. So, you've got me. Roe cites a number of precedents, Griswold being a key one, but I wasn't aware of these two. Ed Huntress |
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Ed Huntress wrote:
"Bob Yates" wrote in message nk.net... Ned Simmons wrote: In article idTGc.69545$kz.13495676 , says... Firstly, only humans have rights under law in the US. There is no constitutional basis for establishing rights for anything other than a human. 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.) I admit I've not read Roe, and don't know whether this figures into the reasoning behind it, but the Constitution and Bill of Rights make no mention of human or humans. Rights are accorded to people, persons, or The People, not humans. It seems to me, based on the dictionary definition of human, that Roe could have gone the other way if the word "human" was found in the Constitution in the proper context. It's not there. Ned Simmons Seems to be a general overlooking of the background to Roe v. Wade. Check out San Antonio v. Rodriguez and Buck v. Bell. In Buck v. Bell, 274 U.S. 200 (1927), the Court refused to recognize a substantive constitutional guarantee of the right to procreate. In San Antonio v. Rodriguez, 411 U.S. 1 (1973), the Supreme Court held that there is no federal constitutional right to an education. A bit more obtuse in it's relation to Roe v. Wade, you would need to read the court's decision for the reasoning, I am afraid I would just butcher it. If those have been cited as precedent for Roe, it's over my head. San Antonio was heard the very day before Roe was re-heard (the first Roe v. Wade hearing fell apart because both attorneys screwed up). It was decided a couple of months after Roe. Buck was a case in which the state *was* presumed to have a compelling interest, which is almost the opposite of what was decided in Roe. So, you've got me. Roe cites a number of precedents, Griswold being a key one, but I wasn't aware of these two. Ed Huntress http://members.aol.com/abtrbng/410us113.htm Roe v. Wade multiple pages to go through here http://caselaw.lp.findlaw.com/cgi-bi...=274&invol=200 Buck v. Bell http://caselaw.lp.findlaw.com/script...ol=411&invol=1 San Antonio v. Rodriguez As I said a bit obtuse and not directly mentioned,so I probably should not have mentioned it. |
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"Bob Yates" wrote in message
nk.net... Ed Huntress wrote: "Bob Yates" wrote in message nk.net... Ned Simmons wrote: In article idTGc.69545$kz.13495676 , says... Firstly, only humans have rights under law in the US. There is no constitutional basis for establishing rights for anything other than a human. 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.) I admit I've not read Roe, and don't know whether this figures into the reasoning behind it, but the Constitution and Bill of Rights make no mention of human or humans. Rights are accorded to people, persons, or The People, not humans. It seems to me, based on the dictionary definition of human, that Roe could have gone the other way if the word "human" was found in the Constitution in the proper context. It's not there. Ned Simmons Seems to be a general overlooking of the background to Roe v. Wade. Check out San Antonio v. Rodriguez and Buck v. Bell. In Buck v. Bell, 274 U.S. 200 (1927), the Court refused to recognize a substantive constitutional guarantee of the right to procreate. In San Antonio v. Rodriguez, 411 U.S. 1 (1973), the Supreme Court held that there is no federal constitutional right to an education. A bit more obtuse in it's relation to Roe v. Wade, you would need to read the court's decision for the reasoning, I am afraid I would just butcher it. If those have been cited as precedent for Roe, it's over my head. San Antonio was heard the very day before Roe was re-heard (the first Roe v. Wade hearing fell apart because both attorneys screwed up). It was decided a couple of months after Roe. Buck was a case in which the state *was* presumed to have a compelling interest, which is almost the opposite of what was decided in Roe. So, you've got me. Roe cites a number of precedents, Griswold being a key one, but I wasn't aware of these two. Ed Huntress http://members.aol.com/abtrbng/410us113.htm Roe v. Wade multiple pages to go through here http://caselaw.lp.findlaw.com/cgi-bi...=274&invol=200 Buck v. Bell http://caselaw.lp.findlaw.com/script...ol=411&invol=1 San Antonio v. Rodriguez As I said a bit obtuse and not directly mentioned,so I probably should not have mentioned it. I'm going to have to leave this one to you. I see that Douglas, in his separate, concurring opinion, brings up Buck. But only as an aside, talking about the establishment of the state's compelling interest in this area. And then he rejects the interest of the state in the first trimester, as did the majority opinion as written by Blackmun. I didn't see San Antonio anywhere in the citations. So I'm guessing that you're talking about some lawyers' analysis and exegesis of the Roe case that I'm not aware of. This is a good time to remark that I am not a lawyer. g Ed Huntress |
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