Thursday, October 06, 2005
Stopping Logic
This is an intentionally dispassionate and critical view. My subject matter has nothing to do with my point, but you'll see that if you keep reading to the end – remember, just keep reading, you’ll get there. Tricksy... that Lemur.
Logic can bite you... in the end.
After years of thought, I've decided that the fear of anti-abortion rulings issuing from the Supreme Court is actually a fear of democracy and an apparent admission that pro-choice ideology is a small minority position not held by most Americans. I think this stems from the logical foundations of the argument. This seems a contrary starting point upon which to base the logic for an otherwise effective argument.
This conclusion crystallized while watching the recent Supreme Court nominations. The abortion issue has single handedly polarized the political process of nominating supreme court justices and turned the nomination process into an over-politicized nightmare.
On that note, a small digression. Legal thinkers (including judges), for the most part, compartmentalize their thinking. So, let's make a few separations: First, it IS possible to separate a person's belief in the right to life from a belief that others have the right to make their own choice. This is called liberalism (the true liberalism as opposed to our modern socialism or "left-ism" that actually limits personal freedoms - an interesting word game, that) in which a person believes in the right of individuals to choose their own path.
Second, it IS possible to separate the belief in a person right to choose from the belief that the Federal Government (specifically the Article Three courts) do not have the power to dictate to the State legislatures how they may pass laws on the abortion issue. This is both a federalist, conservative, and liberal view. Federalist in preserving states rights, conservative in choosing a limited role for the courts (as opposed to activist - the opposite of conservative), and liberal in preserving the people's rights, via their state legislature, to choose. Ah, hopefully my battle cry that “conservative” and “liberal” are meaningless monikers begins to gel, yes?
Enough digression.
Now, let me set up the hypothetical that most pro-choice persons seem to fear:
1. New Justices are put on the Supreme Court who are both “right-ist” and activist.
2. The Supreme Court breaks with the tradition of stare decisis and overturns the Roe/Casey line of decisions that extended due process rights to include the rights to have access to abortion procedures.
3. States now have the ability returned to them to limit access to abortion by law within their borders.
4. States do so.
What happens next? If the people hate the hypothetical new anti-abortion laws, they can elect new representative who will change the new laws. If they can't wait until the next election, they can recall their representatives and elect a new one immediately (most state constitutions/legal systems have a provision along these lines).
Therefore, to be rational and justified, the pro-choice fear scenario outline above must also include the following fear:
5. They won't be able to replace or recall their representatives.
Why not?
It follows that they fear they won't have the votes to do it. They must fear that the majority of Americans really would like to see access to abortion limited and would not vote their way. That, or they fear most Americans really don't care (the most likely scenario). Be it apathy or opposition, either way, they fear it to be a death knell.
That fear of majority rule boils down to a fear of democracy. A reasonably healthy fear that even the Greeks (the inventors) realized early on: democracy is, quite simply, rule by the majority and majorities can be quite brutal to minorities. Yes, philosophically, democracy and freedom do not always go hand in hand. Fascinating, no? This is why most modern democracies have tried (are still trying with an arguable level of success) to stabilize the majority's most brutal effects on the minorities. Curiously, though, it still takes a majority to enact these types of reforms (anti-discrimination reforms, etc.) so it is still, technically, rule by the majority - its just that this time, a different minority is not getting their way. In the end, the majority - a majority - is protecting a minority from another minority.
So, the majority would have to decide: is the pro-choice minority's view worthy of protection? Tying this back to the pro-choice fear hypothetical outlined above, the pro-choice movement seems to not only fear that they are a minority and not be able to get the representation they desire, but they also fear they are not large enough to align with another minority and gain a majority. This fear seems to indicate that the pro-choice movement (as a whole) fears not only that their position is a minority, but a very small minority. This must have been a concern all along, which is why they went to the courts, not the polling both (where their argument, admittedly political and legislative in nature, seems more apropos). Moreover, the Courts seemed to have guessed it, which does much to explain their stretch to grasp the rulings.
Seems to me, that this is the wrong place to begin your logic argument, but it seems to have worked despite that.
There is a problem with logic, though: once it is applied somewhere, the legal system will mine it for application elsewhere.
Consider this scenario:
Does the pro-gun lobby have a due process right to limit laws restricting gun ownership? Put aside your personal belief (whatever side it is) and compare a state's requirement of a short waiting period before an abortion to a waiting period before a gun purchase. What about notification rules? Or the flat-out right to abortion with the flat-out right to a own a gun. They are surprisingly similar when compared - and, the gun lobby has an actual constitutional amendment to argue with, something sadly lacking in the pro-choice argument.
What about right-to-die? The abortion due process argument seems very similar to the right-to-die argument, yet the court has picked one and not the other.
What about sodomy laws? The "moral underpinning" theory of the Constitution was struck down in Lawrence and then bridged to the states. How does this affect adultery laws? Fornication laws? Incest laws? The same argument applies to them all. When do you stop? How do you stop?
In fact, the court seems to have been walking a minefield with their logic. That’s something they are normally loath to do. For good reason, because valid arguments, like a virus, have a way of jumping from host issue to host issue. I fear that there may not be much more double speak that the basic logic here can endure before it must be extended or defeated.
The moral is: be careful with which decisions you applaud. Watch your logic closely. It does not die with your argument. Once accepted, it lives on forever and you very well may find it stuck in your own back one day.
Logic can bite you... in the end.
After years of thought, I've decided that the fear of anti-abortion rulings issuing from the Supreme Court is actually a fear of democracy and an apparent admission that pro-choice ideology is a small minority position not held by most Americans. I think this stems from the logical foundations of the argument. This seems a contrary starting point upon which to base the logic for an otherwise effective argument.
This conclusion crystallized while watching the recent Supreme Court nominations. The abortion issue has single handedly polarized the political process of nominating supreme court justices and turned the nomination process into an over-politicized nightmare.
On that note, a small digression. Legal thinkers (including judges), for the most part, compartmentalize their thinking. So, let's make a few separations: First, it IS possible to separate a person's belief in the right to life from a belief that others have the right to make their own choice. This is called liberalism (the true liberalism as opposed to our modern socialism or "left-ism" that actually limits personal freedoms - an interesting word game, that) in which a person believes in the right of individuals to choose their own path.
Second, it IS possible to separate the belief in a person right to choose from the belief that the Federal Government (specifically the Article Three courts) do not have the power to dictate to the State legislatures how they may pass laws on the abortion issue. This is both a federalist, conservative, and liberal view. Federalist in preserving states rights, conservative in choosing a limited role for the courts (as opposed to activist - the opposite of conservative), and liberal in preserving the people's rights, via their state legislature, to choose. Ah, hopefully my battle cry that “conservative” and “liberal” are meaningless monikers begins to gel, yes?
Enough digression.
Now, let me set up the hypothetical that most pro-choice persons seem to fear:
1. New Justices are put on the Supreme Court who are both “right-ist” and activist.
2. The Supreme Court breaks with the tradition of stare decisis and overturns the Roe/Casey line of decisions that extended due process rights to include the rights to have access to abortion procedures.
3. States now have the ability returned to them to limit access to abortion by law within their borders.
4. States do so.
What happens next? If the people hate the hypothetical new anti-abortion laws, they can elect new representative who will change the new laws. If they can't wait until the next election, they can recall their representatives and elect a new one immediately (most state constitutions/legal systems have a provision along these lines).
Therefore, to be rational and justified, the pro-choice fear scenario outline above must also include the following fear:
5. They won't be able to replace or recall their representatives.
Why not?
It follows that they fear they won't have the votes to do it. They must fear that the majority of Americans really would like to see access to abortion limited and would not vote their way. That, or they fear most Americans really don't care (the most likely scenario). Be it apathy or opposition, either way, they fear it to be a death knell.
That fear of majority rule boils down to a fear of democracy. A reasonably healthy fear that even the Greeks (the inventors) realized early on: democracy is, quite simply, rule by the majority and majorities can be quite brutal to minorities. Yes, philosophically, democracy and freedom do not always go hand in hand. Fascinating, no? This is why most modern democracies have tried (are still trying with an arguable level of success) to stabilize the majority's most brutal effects on the minorities. Curiously, though, it still takes a majority to enact these types of reforms (anti-discrimination reforms, etc.) so it is still, technically, rule by the majority - its just that this time, a different minority is not getting their way. In the end, the majority - a majority - is protecting a minority from another minority.
So, the majority would have to decide: is the pro-choice minority's view worthy of protection? Tying this back to the pro-choice fear hypothetical outlined above, the pro-choice movement seems to not only fear that they are a minority and not be able to get the representation they desire, but they also fear they are not large enough to align with another minority and gain a majority. This fear seems to indicate that the pro-choice movement (as a whole) fears not only that their position is a minority, but a very small minority. This must have been a concern all along, which is why they went to the courts, not the polling both (where their argument, admittedly political and legislative in nature, seems more apropos). Moreover, the Courts seemed to have guessed it, which does much to explain their stretch to grasp the rulings.
Seems to me, that this is the wrong place to begin your logic argument, but it seems to have worked despite that.
There is a problem with logic, though: once it is applied somewhere, the legal system will mine it for application elsewhere.
Consider this scenario:
Does the pro-gun lobby have a due process right to limit laws restricting gun ownership? Put aside your personal belief (whatever side it is) and compare a state's requirement of a short waiting period before an abortion to a waiting period before a gun purchase. What about notification rules? Or the flat-out right to abortion with the flat-out right to a own a gun. They are surprisingly similar when compared - and, the gun lobby has an actual constitutional amendment to argue with, something sadly lacking in the pro-choice argument.
What about right-to-die? The abortion due process argument seems very similar to the right-to-die argument, yet the court has picked one and not the other.
What about sodomy laws? The "moral underpinning" theory of the Constitution was struck down in Lawrence and then bridged to the states. How does this affect adultery laws? Fornication laws? Incest laws? The same argument applies to them all. When do you stop? How do you stop?
In fact, the court seems to have been walking a minefield with their logic. That’s something they are normally loath to do. For good reason, because valid arguments, like a virus, have a way of jumping from host issue to host issue. I fear that there may not be much more double speak that the basic logic here can endure before it must be extended or defeated.
The moral is: be careful with which decisions you applaud. Watch your logic closely. It does not die with your argument. Once accepted, it lives on forever and you very well may find it stuck in your own back one day.
R.T. Lemur 1:13 PM
5 Comments:
Well said... I think the masses love the idea of a democracy because they like to feel like they could have control if they wanted it - the whole fantasy of a revolution. But at the end of the day, I have always said we operate more as a Republic in that the masses still like to be told what to do and so look to their courts to decide such things instead of their votes.
True, we are a republican democracy... or is that a democratic republic?
Interesting, I wonder if it matters which one is the noun and which is the adjective?
I would say that democracy is the type of government and republic is the form of government. The descriptor "republic", by itself, does not fully describe the government type (democracy, autocracy, etc.), just that rule is accomplished by representatives in a senate. The senators could be appointed by a dictator (a republican autocracy ala Rome) or appointed by the high priest (republican theocracy) or elected by a majority of the people (republican democracy). Many combinations would exist.
Ah, but throw in that we are also a Federation and now we are a republican democratic federation. Or is that federal democratic republic?
Forget it, the permutations become to numerous to list...
Interesting, I wonder if it matters which one is the noun and which is the adjective?
I would say that democracy is the type of government and republic is the form of government. The descriptor "republic", by itself, does not fully describe the government type (democracy, autocracy, etc.), just that rule is accomplished by representatives in a senate. The senators could be appointed by a dictator (a republican autocracy ala Rome) or appointed by the high priest (republican theocracy) or elected by a majority of the people (republican democracy). Many combinations would exist.
Ah, but throw in that we are also a Federation and now we are a republican democratic federation. Or is that federal democratic republic?
Forget it, the permutations become to numerous to list...
It's true. I do worry (and often) that the vast majority of my locality is made up of people who want to take away my legal access to abortion performed by medical professionals.
If I let it, that fear keeps me up at night. I imagine them sitting at home, eating fried chicken in front of the TV, knowing nothing about me, but vehemently believing that, if I want an abortion, I should have to perform it myself.
Unfortunately, keeping Roe v Wade in place doesn't make those people stop existing, does it?
Sometimes I am afraid of democracy, because most of the people I know are stupid and hateful.
I fantasize about living on a planet filled with better people, where democracy can be a beautiful thing.
If I let it, that fear keeps me up at night. I imagine them sitting at home, eating fried chicken in front of the TV, knowing nothing about me, but vehemently believing that, if I want an abortion, I should have to perform it myself.
Unfortunately, keeping Roe v Wade in place doesn't make those people stop existing, does it?
Sometimes I am afraid of democracy, because most of the people I know are stupid and hateful.
I fantasize about living on a planet filled with better people, where democracy can be a beautiful thing.
This was not the point of post, but so long as we’re belaboring the vehicle that got me to my real conclusions, the possibility that the hypothetical pro-choice fear outlined above is not at all likely should be considered. Personally, I find the overturning of the 30+ cases in the Roe/Casey line very unlikely – even if right-ist justices are put on the court. Right-ist justices tend not to be judicial activists and would be unlikely to retread more than 30 years of cases. Even if they did, I do not actually think that pro-choice is a minority view that could actually be defeated in the legislatures.
So, why is this such a polarizing point in the Justice nomination process?
Honestly, it concerns me that the constant repetition of this unlikely and hypothetical fear in the media is being used as a polarizing rally point to defer attention from other issues.
So, why is this such a polarizing point in the Justice nomination process?
Honestly, it concerns me that the constant repetition of this unlikely and hypothetical fear in the media is being used as a polarizing rally point to defer attention from other issues.
I hear your conclusion, and you reached it brilliantly.
But I wanted to point out that the fear really *is* there, and it overcomes logic, almost always.
But I wanted to point out that the fear really *is* there, and it overcomes logic, almost always.