Thursday, June 11, 2009
Gay marriage is not a right
There was a time when marriage was about more than mere social approval, so that being barred from marriage could indeed violate a person's natural liberty. For instance, sex outside of marriage used to be a crime, often severely punished. This is no longer the case, not just as a practical matter, as society has become more tolerant, but as a matter of Constitutional law. Justice Kennedy’s ruling in Lawrence v. Texas recognized for the first time (and long overdue) a general right to liberty, grounded in the 9th Amendment’s assertion that the sphere of protected liberty is not limited to the enumerated protections.
In the particular instance, Lawrence v. Texas specifically decriminalized homosexual relations, whether homosexuals are married or not. In one stroke, that stripped away the relevance of marriage to constitutionally required tolerance. The remaining legal concomitants of marriage contain only minor liberties (some of suspect propriety, like allowing spouses not to testify against spouses, regardless of the severity of the crime in question). At the same time, the economic arrangements of marriage can be secured by freedom of contract, without requiring society to do anything more than provide enforcement of contracts.
In terms of assistance, our laws don’t provide any significant advantages to married couples, and what advantages do exist are to support the bearing and raising of children. Supporting children indirectly by assisting parents is always hit or miss, and there is no possibility, never mind any constitutional requirement, that all parents or children be supported equally.
All that is left is the issue of social approval. Given that tolerance and approval are opposites of a sort, it may seem obvious that no one has a constitutional or moral right to approval, but it is still important to work through the moral machinery, beginning with the theoretical question of how to achieve the greatest equal liberty.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
... that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
Mill’s principle of liberty and the right to privacy
Sometimes a person’s interest in engaging in a particular behavior is indirect. He might be specifically interested in other people’s reaction to his behavior, as when San Francisco homosexuals take to the streets for their pornographic parades. On the other side, residents who don’t like these displays have only an indirect interest in having these exhibitionists put their pants back on. The result is a conflict of indirect interests only.
Mill never addressed this case, but logically it should be treated the same as a conflict of direct interests. Since none of the liberty interests that are at stake can be identified as greater or lesser than the others, the greatest-equal-liberty criterion has nothing to say about what should happen. The natural liberty of individuals is not at stake, which means the question must be turned over to majority rule.
Ours is a government of the people, by the people and for the people. The natural liberty of individuals comes first, then come the rights of the majority. So long as the majority does not infringe natural liberty then the democratic ideal holds sway, and the boundary of natural liberty, as far as reason can discern it, is the priority of direct over indirect interests.
In San Francisco majority rule means porno-marches yes. In Fresno, porno-marchers no. The upshot is a right to privacy, created not as a way of protecting a class of inherently private behavior, but as a way of allowing some behaviors to be banned in public.
People DO have a direct interest in being allowed to participate in pornographic acts. It is only engaging in such acts in public that no one has a direct interest in. So long as people have scope to engage in pornographic acts in private, then their direct interests are protected, and only their indirect interests are affected by being barred from this behavior in public, which is not a liberty concern.
Gay marriage is an indirect interest
Since marriage no longer regulates matters of natural liberty, all that is left of the institution of marriage under American law is society's stamp of approval for married couples. A desire for approval is an indirect interest: an interest in what other people think.
On the other side, the granting of approval or disapproval is also an indirect interest. That is, both sides of gay marriage question--both the desire of gay couples for approval, and the question of whether others want to grant that approval--are matters of indirect interest. Nobody has a direct interest in whether homosexuals are allowed to marry.
That means there is no right to homosexual marriage, and the matter should be turned over to majority rule. To impose homosexuals' indirect interests in other people's approval over the indirect interests of the majority is to treat the indirect interests of homosexuals as direct interests, and ultimately to impose them over the direct interests of others, violating Mill's principle of liberty and the natural liberty that Mill's principle elucidates.
Of course majority rule is imperfect. What it approves will never be what everyone approves, and some people will always be forced to go along with public approval for what they do not approve. Still, one of our individual rights is to have a republican form of government, which means that matters that are properly subject to majority rule ARE subject to majority rule, and that minorities do not get to impose their demands for approval on the rest of us. When that is violated, the harms to direct interests that result are wrongs.
Ted Olson's suit in favor of gay marriage
In their interview with Larry King, Ted Olson and David Boise outlined the equal protection argument they are going to make in federal court against Proposition 8 (which amended the California State Constitution to define marriage as between a man and a woman).
They appeal to the precedent established in the aptly named case of Loving v. Virginia, where 42 years ago SCOTUS struck down a Virginia law barring interracial marriage. Loving v. Virginia recognized marriage as a fundamental right. Olson and Boise argue that under the equal protection clause, that right must be recognized equally for all Americans, regardless of sexual orientation, allowing anyone to marry anyone.
This argument begs the exact question that Prop. 8 raises, and answers so succinctly: what is marriage? If it is by definition between a man and a woman, then yes, homosexuals have a right to marry, but they can only marry people of the opposite sex. Otherwise it is not marriage.
Olson and Boise are in-effect trying to use the equal protection clause to change the definition of marriage, but changing the definition of marriage is beyond the purview of the equal protection clause. The definition of marriage as between a man and a woman is established by history and religious tradition, things that the equal protection clause cannot affect. The 14th Amendment can only determine that homosexuals have a right to marry people of the opposite sex, just like everyone else.
Kmiec’s proposal to get government out of the marriage business entirely
Douglas Kmiec thinks the thorny problem of gay marriage can be resolved (or at least swept under the rug) by getting government out of the marriage business altogether. But when government participation in marriage is viewed as a vehicle both for conferring social approval and for directing social assistance mothers and fathers who bear and raise children, abandoning this enterprise is no solution. Kmiec is just dodging the question of what society should approve and disapprove by deciding not to approve or disapprove of anything.
The moral weakness of this approach is well captured by Ed Morrissey's reason for approving of it:
Kmiec has the better argument, mostly because the “state” gave up protecting marriage and children decades ago.We already fail to give proper due to heterosexual marriage, so instead of fixing that failing, lets just dump the whole thing.
From the viewpoint of moral science, getting government out of the business of approving or disapproving anything is a violation of the rights of the majority. So long as natural liberty is protected, majority rule properly holds sway. To say that the majority cannot exercise its properly allocated powers is a tyranny of the minority, overthrowing the largest part of republicanism, which is democracy.
The American meaning of republicanism is the system of liberty under law. Democracy has two roles in this system. It allows us to throw off a tyrant who tramples on the natural liberty of the people (a capacity that looks like it is going to be tested in the next two elections); and it allows the people to decide for themselves how they want to be governed consistent with natural liberty. Thomas Jefferson stated the latter in an 1817 letter to Alexander von Humboldt:
The first principle of republicanism is that the lex majoris parties is the fundamental law of every society of individuals of equal rights; to consider the will of the society enounced by the majority of a single vote as sacred as if unanimous is the first of all lessons in importance, yet the last which is thoroughly learnt.
Tyrannies of majority and minority in California
In the name of anti-discrimination, California has for many years been engaging in both tyranny of the majority and tyranny of the minority. The state government (tyranny of the majority) has passed numerous laws that violate freedom of association and other natural liberties, forcing not just toleration, but actual association with homosexual behavior.
Consider California’s 2003 Fair Employment and Housing Act, which expanded the state’s anti-discrimination laws to include trans-gendered people in employment and housing. What? You didn’t promote that grizzled and graying 250 pound bald man wearing a pink dress and a push-up bra? Yes, I’ve actually seen it, at a local Sear Robuck no less.
Bet he wasn’t dressed like that when he applied, but if they fire him for it, they’ll lose in court. And what sane jury would ever believe that this person's grotesque behavior did not hold back his career? To avoid losing in court, Sears will actually have to promote him. In California, it is now in effect the employer's job, not the employee's job, to keep the employee's career on track, so long as the employee dresses shamefully.
California's Democrat dominated legislature has been larding the state up with this garbage for decades. Homosexuals were added to the anti-discrimination laws several years before the trans-gendered. All of these laws are violations of natural liberty. People are allowed to discriminate on the basis of every behavior except homosexual behavior. Again, the upshot is forced approval on the pretense of individual rights, when there is no right to approval.
These bogus rights claims become tyranny of the minority when they are used to keep the majority from enacting restrictions that withhold public approval for homosexuality. The California Supreme Court did this when it struck down the first anti-gay-marriage proposition on grounds that it violated the state constitution. No it didn’t. California has approximately the same equal protection clause as the 14th Amendment. This clause can’t change the definition of marriage any more than the federal clause can. Homosexuals have the same right to marry people of the opposite sex that everyone else does. They do not have a right, legal or moral, to marry each other.
Californians are fighting back against the tyrannies of majority and minority that are being imposed upon them. I have no problem with conservatives who think that gay marriage SHOULD be approved by society, but to force this approval under the guise of individual rights is perverse.
Gay marriage nothing like interracial marriage
The contrast between interracial marriage and gay marriage goes far beyond the simple fact that marriage has traditionally referred to a man and a woman. Even if there was no pre-existing right to heterosexual marriage, bans on interracial marriage would still not stand up to constitutional scrutiny.
In the absence of a constitutionally recognized fundamental interest, the test for constitutionality is the rational relation test: is a ban on interracial marriage “rationally related” to “a legitimate state interest”?
The answer is “no.” There is a legitimate state interest in maintaining the genetic quality of the next generation, but miscegenation laws are an irrational way to pursue that state interest. (The "rational relation" test is not in general a rationality test. Only the relation has to be rational, not the law itself. But if a law is positively irrational, that can call the rational relationship into question.)
Regarding the genetics of the next generation, individuals are motivated on their own to find the best partner with which to have a family. Since desirable qualities are spread throughout all races, and since the qualities of any individual can only be judged by those who encounter them as individuals, the expected best outcome for the next generation results when individuals are free to pick their own mates as best as they can. Any interference with this free choice will only block some people from accepting their best available choices, which will harm the genetics of the next generation.
Similarly for parenting quality and for every other legitimate state interest relating to mate-choosing. Thus rationality calls for free choice, and any discrimination against free choice is positively irrational. Interracial couples still have no right to approval. It is just that disapproval in this case fails to meet the most basic test that ANY law must meet (or should have to meet) to pass constitutional muster: that it cannot be positively irrational.
No such affirmative argument can be made in the case of gay marriage. On the contrary, limiting marriage to a man and a woman is perfectly rational for an institution designed to foster the bearing and raising of children. The specific accommodations that society makes here and there for married as opposed to unmarried couples are generally aimed at the accommodation of children.
Homosexual couples CAN have children, but do so at a much lower rate than heterosexual couples, and it is perfectly rational for society to focus its approval and its various accommodations for children towards those who for the most part are bearing and raising the children. The object of such laws is to promote the welfare of children, not to assuage the feelings of adults.
Bans on gay marriage are not just rational, but compelling
If homosexual couples are allowed marry, they will have to be given equal access to babies for adoption. After all, if society has determined not just that homosexual marriages should be approved, but that homosexual couples have a RIGHT to approval, then how can that approval be denied by any part of society? But in fact there is plenty of evidence that children need to be raised by a mother and a father. Children don’t always get what they need, but it is certainly rational for society to try to improve their odds.
There is also a huge correlation between male homosexuality and sexual abuse of boys, both pre and post pubescent. That makes homosexual adoption a huge risk, separate from the lack of a normal mother-and-father household. To protect children from homosexual adoption, it would be necessary to ban homosexual marriage, making the case against homosexual marriage not just rational, but compelling.
This is the test that the Court applies when a constitutionally recognized “fundamental interest” is at stake. A law that infringes fundamental interests must be "necessary" to "a compelling state interest." Thus even if the courts were to pretend that equal protection can change the definition of marriage, there would still be a strong case to make for the constitutionality of a ban on homosexual marriage.
In sum, the question is whether we are going to take our fundamental institution for supporting the bearing and raising of children and turn it into something very different, something for everybody, based on the fraudulent idea that homosexuals somehow have a RIGHT to approval.
No. They have a right to be tolerated, which they have been granted in full. Now they answer that liberal generosity with this illiberal demand for approval. I would like to see society move in the opposite direction and use the legitimate powers of the majority to suppress public homosexual displays. That is what the right to privacy is really about. It is the public’s right to put behind closed doors that which society is only required to tolerate.
Make the gang trash pull their pants up in public. Give tickets to the parents of foul mouth teenagers. Keep the porno-parades in San Francisco, and ban gay marriage entirely.
ADDENDUM: Privacy and abortion
The Supreme Court has proclaimed a right to abortion, pursuant to a proclaimed right to privacy that is held to be implicit in the Constitution. Suppose privacy rights were to be understood as I suggest in this essay: as a way to allow some protected activities (activities that do not harm the direct interests of others) to nevertheless be banned in public (when only indirect interests are harmed by such a ban). Would such a right to privacy still imply a right to abortion?
Absolutely not. Abortion involves the most extreme harm to the direct interests of the unborn. That means it is not a protected activity in the first place, which means it cannot be protected by a right to privacy.
The ordinary language meaning of privacy says the same thing. Something is a private matter if it does not harm third parties. A child, born or unborn, is obviously a third party.
This does not mean that there is no natural right to abortion. I think there is such a right, stemming from the fact that in many cases, not terminating a pregnancy will mean that another child who would otherwise have been conceived at a later date will no longer be conceived. This is just an extension of the recognition by anti-abortion advocates that an abortion means a child who would have lived does not live. Carrying the same logic one step further, there are also actual children who some years down the road will not be born if their parents do not have abortions today. In fact, we can name millions of these children. Every child born to a parent who earlier had an abortion is a child who would not have been born otherwise.
These lives can no more be discounted than the lives of the unborn in the womb, and in my probably not humble enough opinion, the only people who can choose between these lives are the parents. That makes it a private decision in the private-sphere vs. government-sphere sense, but not in the common language sense of there being no third party interests that need to be accounted. It is just that the best people to account those third party interests (whether to have children now or later) are the parents.
Abortion is about the last thing that can be fit under the unenumerated rights of the Ninth Amendment. Because the direct interests of the unborn are at stake, it does' not fit under Mill's principle of liberty (and hence not under the rights of the Declaration, which Mill's principle logically articulates), and it was not a historically recognized right, available for the people to "retain." Thus until a constitutional amendment is passed that protects a right to abortion (an amendment I would gladly work for), it ought to be for the states to decide.
The advocates of the "living Constitution" are wrong. The constitution does not say whatever progressive opinion wants it to say. It says what it says, and if we don't like what it says, it is incumbent on us to amend it, not re-interpret it to suit our will.
UPDATED 8/15/12 to clarify how Mill's principle helps to secure maximum equal liberty.
Unbelievable. I also read somewhere that in California school textbooks, they are not allowed to use words like "mom" and "dad" anymore, only gender-neutral pronouns are allowed. I hope that's not real.
The distinction between toleration and approval.
The distinction between direct interests and indirect interests.
While I sense that those distinctions are well-reasoned (and even practical), I'm not going to say I fully understand them, they are in danger of evaporating out of my consciousness and drifting away like a hot-air ballon, unless I hold them down. It doesn't help that I haven't read any John Stuart Mill, who sounds like a good thinker.
The gay marriage lobby I think will focus their efforts on the concept of "equality": they believe that men and women are the same. I know they are wrong, because all my life it's been obvious to me how different men and women are. In fact, to the extent that someone really believes that men and women are the same, I consider that person to be of unsound mind (insane).
I don't know what to say to the gay marriage lobby. Except that I read somewhere that whenever the people vote on gay marriage, it loses.
Alex, for someone who gets almost everything right, you have surprised me here. The actual rights of the admitted "third party" the unborn child, are not rationally subservient to the rights of potential children that might be conceived at a later date. A potential child is not a third party. A partially developed human being IS a third party. There is no natural right to abortion.
It is also incorrect to claim that all children conceived after an abortion wouldn't have been without the abortion. You could make this claim in the case of abortions that protected the reproductive ability of the mother, but there is no evidence that children born after selective abortions would or wouldn't be born relative to their siblings abortion.
The part about "gay marriage" was right on target, as usual.
When you say that a partially developed person IS a non-consenting third party, while a yet to be conceived child is not, I don't think that stands up, any more than when pro-abortion folks say that a born child is a third party but a partially developed child is not. The important thing is that in all these cases we are talking about an actual person who will get a chance to grow up if decisions made today do not interdict that path.
It's even in the Bible, where God says to Jeremiah: "I knew you before I formed you in the womb" (Jeremiah 1:5).
Logically, conception is no more critical than birth. Both do matter, but they are not the only things that matter. Those who would otherwise be conceived and born also matter.
But that does not make a GENERAL case for a natural right to abortion. What about those women who aren't thinking of having a family later rather than now, but simply want to avoid child bearing?
That might still be a natural right, but it is not one that I have provided any argument for. In terms with the arguments I have given, the impossibility of distinguishing a woman's motivation for having an abortion means that we are stuck with a choice between extending legal abortion to some cases where it we don't know that there is a natural right to it, or not allowing abortion in some cases where there does seem to be a natural right.
It is not obvious how such a situation should be handled. I prefer to err on the side of having parents rather than government/society make the choice, but I can't say that that is required as a matter of principle. More analysis is needed.
If so, then the natural right to choose a family later over a family now gets parlayed here into a broader natural right to abortion, regardless of motive.
The active ingredient here is not Mill's principle of liberty, which only applies when the direct interests of third parties are not at stake. Rather, the operative principle is that of leaving decisions up to those who have the private information to best make them. That secures the now vs. later decision to parents, then the untenability of punishing childlessness secures the general case.
Of course the Bible does command childbearing, for those who are able: "So God created man in his [own] image, in the image of God created he him; male and female created he them. And God blessed them, and God said unto them, Be fruitful, and multiply..." (Gen 1:27-8).
But the same verses also demand liberty, precisely because we are created in God's own image, and God, being omnipotent, has free will. This was the Christian foundation for the inalienable rights of the declaration (and for Christianity's championship of liberty generally). We are created in God's image, thus we must have free choice, including the freedom to disobey God, as far as it is possible for us all to have free choice (i.e. maximum equal liberties).
Moral theory arrives at this result in a different way. It starts with the primacy of moral agency, and how liberty is necessary to the empowerment of moral agency. All progress in the discovery and pursuit of value comes through the human capacity to discover and pursue value in the world. If we did not have this capacity, our liberty would be no more important than the liberty of a farm animal, because we would not be able to use it to create progress in the discovery and pursuit of value. Liberty only matters because of the fact of human moral agency, but given the fact of human moral agency, liberty matters everything, because we can only discover and pursue value to the extent that we are free to. Thus from the primacy of moral agency springs the primacy of liberty, which demands maximum equal liberty.
However the requirement of maximum equal liberty is derived, whether from the Bible or from moral reason, one clear implication is that childbearing cannot be legally required. This in turn seems to create a parlay from a natural right to choose a later unborn child over a present unborn child to a general right to abortion.
That may be too strong. Clearly birth makes some difference, so it seems logical that conception should too, but it can't be absolute, or the lives of the unconceived unborn are not accounted at all, which is clearly wrong.
More analysis still needed, but this framework seems pretty solid.
There is no scientific question of when life begins. Just because people wish it were not true doesn't make it so.
No woman can be legally forced to have a child. Equating this with allowing her to abort the child before it is delivered is a straw man. She can cross her ******* legs, can't she?
I will concede that because she has no positive action in a rape she is not responsible, and in this case only might natural law support her right to an abortion.
Since you also seem to apply no responsibilities to natural rights do you also oppose coercing men to "raise children" through forced child support? Or do father's also have the natural right to demand that their children are aborted if they so desire?
How do you square the natural rights of the father?
It all comes down to you denying that an unborn human being has it's own natural rights. This is patently absurd. My dog recognized when my wife was pregnant, that there was a life inside her.
Look at it this way. You are married. Your wife is beaten and becomes sterile as a result. Is this really the same moral level as if your wife was 8 months pregnant and beaten and the child, yes Alex, the child, dies? Of course not. Why?
Science knows exactly when life begins. There are even specific terms used to describe them. First meiosis occurs and then the recombination of the separated chromosomes through fertilization.
There is no scientific dispute of this fact. Life begins at conception.
Considering this irrefutable fact, the question remains when natural rights are endowed?
Apply all of your arguments equally to third trimester fetuses and to three day old children. Why would the woman be denied the "natural right" to choose to have children later simply because the child was a few minutes, days, weeks or months older?
The woman places the child insider her, with a little help, of course. This positive action on her part places a responsibility on her, and the other person who helped her create the child. The child doesn't choose to be conceived, the parents choose it. Once they have created this life they have no natural right to "unchoose" it later.
Not to Goodwin these comments but, for me, I also interchange "unborn" with "Jewish". If obvious human beings can be "aborted" because they are a of a certain type or kind or classification of human, then there is no reason to think that other types or kinds or classifications of humans don't have natural rights, either.
I never suggested any such thing. On the contrary, my whole discussion is about how to account the direct interests of the unborn in order to adjudicate their natural rights. The difference between Marshall and I is that I am accounting the interests of the unconceived unborn, and he is not, even though these are real people who will or will not live depending on whether abortions do or do not take place in the present.
Marshall's grounds for only accounting the interests of those who have already been conceived is no more convincing to me than the position of those abortion advocates who account the lives of born people, but not a life in the womb. Let's grant that a person's life begins at conception. That doesn't mean that rights begin at conception. They can begin before conception.
Natural right just refers to what we can say about how a person's interests must be accounted and to the implications of that accounting for how others are allowed to treat them. Many kinds of life do not give rise to restrictions on how that life can be treated. Plants don't have any rights. Pets have very limited rights not to be abused. The only reason People have rights to life liberty and the pursuit of happiness is because we have moral agency and hence can use our life and liberty to advance the discovery and the securing of value in the world. That moral agency does not begin at conception, thus the fact that life has begun cannot be the source of human natural rights.
Certainly conception is going to be a critical juncture for figuring out how to adjudicate rights, which is all about when to give priority to whose rights when rights are in conflict, but the beginning of life is a purely practical distinction. The newly conceived unborn have no more moral agency, no more of what gives rise to rights, than the unconceived unborn. Neither are newborn babies able to exercise their moral agency in any important way, and won't be able to do so for years. What gives them more rights than pets (who may have a greater intellectual age) is their moral potential. As I argued earlier, if people had no special capacity to create value then there would be no reason in terms of the analysis of value (the foundation of natural right, from the point of view of moral theory), for people to have any more rights than barnyard animals.
Since the unconceived unborn and the conceived unborn and the born are all valued as future moral agents, the value of these lives must be accounted in much the same way. The difference as I see it is that the unconceived unborn can only be considered probabilistically. We can't know in a particular case that an abortion foregone today will mean that a child who would otherwise have been conceived and born in the future will as a result never be conceived. All we know is that this will often be the case, and that when it is the case, all of these lives--the conceived unborn and the unconceived unborn--are equally important, even if to implement a full accounting of value we have to show some special regard to those who are already conceived, and yet more special regard to those who are already born.
Where I do think Marshall raises an important point is on the matter of responsibility. Of course the allocation of responsibilities also has to be addressed.
Responsibilities emerge from the same analysis of value that natural rights do. Where a full accounting of value shows a perverse result if liberty is not protected, there is a natural right to liberty. Where it shows a perverse result if responsibilities are not enforced, there is a natural responsibility.
My point here is that in the analysis of value by which rights and responsibilities are discerned, the lives of the unconceived unborn must be weighed in much the same way as the lives of the conceived unborn and the born.
(Good tussle Marshall. Thanks.)
I still do not understand your basis for the "future moral potential" seeming to equate to an actual, present moral basis? I have a moral basis for life because I Live, not because of some potential future. A just conceived human being has the same basis for a natural right to Life.
My wife would like to have a third child. Does this wish have a bearing on the natural rights of anyone? Since I think that we have had enough children she can cheat on me, trick me or divorce me. Without those actions, it is simply a wish. How does this equate to natural rights?
You admit that we can't know the number of dreamt of future children, how do we know there are any? We can actually count the discarded human fetuses.
Until the "unconceived unborn" are actually conceived they are only the personal desires of the parent. Natural rights are accrued to desires?
The only reason People have rights to life liberty and the pursuit of happiness is because we have moral agency and hence can use our life and liberty to advance the discovery and the securing of value in the world.
But isn't the key Life? Doesn't the natural right to live trump the natural right to Liberty? The already conceived life is an expression of actual life. The woman's Liberty, indeed anyone's Liberty, comes second to another's Life. Haven't we already agreed that life begins not when a 12 year old child dreams of having children, but at the actual moment of conception?
[Off topic, I want to thank you for your efforts in regards the Heroes of Flight 93. Considering the ridicule I have personally received as a being conspiracist I can't imagine what it must be like for you. The Heroes of that day would be proud to have you carrying their banner. Thank you.]
I have had email and telephone exchanges with a number of supposed fact-checkers and debunkers, thinking that they would jump at a chance to either confirm evidence of an enemy plot, or expose me as a fraud, but I have been wrong every time. As soon as they see that my claims are accurate, they want nothing to do with the memorial story. Turns out they are just a bunch of anti-conspiracy-nuts, every bit as fixated on their presumptions as the worst of the people they claim to debunk.
There have always been conspiracy theories that don't stand up to scrutiny, but as al Qaeda demonstrated on 9/11, we are engaged in a war with an enemy that does in fact hide out amongst us conspiring the worst that they can conjure. Flight 93 in particular is supposed to be the symbol of our woken vigilance: we know now the conspiratorial nature of our terror war enemy, and will be on guard henceforth to uncover hidden enemy plots. Yet here are our so-called fact-checkers, whose reaction when they see real evidence of an actual plot is to try to keep it hidden, the better to maintain their no-such-thing-as-a-real-conspiracy presumptions. Shameful. Maybe at some point I will publish these exchanges.
On the abortion issue, Marshall asks: “You admit that we can't know the number of dreamt of future children, how do we know there are any? We can actually count the discarded human fetuses.”
Those who are born after their mothers were allowed to use abortion to choose having a family later over having a family earlier are also real people, who number in the many millions at this point. How many children are born to mothers who had abortions before they met the man they would eventually marry and have children with? I haven’t seen a statistic on this, but it has to be a significant percentage of the population.
The difference between these children and a life in the womb is that, when considering abortion, the life in the womb already exists, while the unconceived unborn can only be talked about probabilistically, but these are still real people who will or will not be born depending on what decision is made, the same as for life in the womb.
But I don’t necessarily have to convince you or you me. Republicanism does not anticipate that the more abstract deductions of natural right must all receive constitutional or absolute protection. For one thing, natural right is also informed by tradition, and where moral reason seems to demand a change in traditional views, any such step is to be heavily scrutinized for what wisdom tradition may embody that reason is failing to properly account.
This is where federalism comes in. Contentious questions should as far as possible be left to the states. Different states will try different experiments, and the comparative wisdom of reason vs. tradition will emerge from the results. If an innovation proves sound, this experience amends tradition over time, but very rarely should tradition be chucked on the basis of deduction alone.
I think Lawrence drew the correct line. States should not be allowed to throw people in jail for private homosexual behavior, and this particular should can quite reasonably be regarded as one of the unenumerated rights of the 9th Amendment. (Otherwise the should becomes to pass a constitutional amendment, not to go reading things into the Constitution that are not there.)
Not so with abortion, which is quite clearly not protected in the Constitution, regardless of whether it should be. The 9th can reasonably be read as calling for direct interests to be given priority over indirect interests, which requires tolerance for private homosexual behavior, but it says nothing about how to adjudicate conflicts of direct interests, as arise in the case of abortion.