tag:blogger.com,1999:blog-5687347459208158501.post4853574514872505900..comments2024-03-29T03:19:09.227-04:00Comments on The Philosopher's Stone: ONCE AGAIN, PHIL GREEN SAYS IT BETTER THAN I CANRobert Paul Wolffhttp://www.blogger.com/profile/11970360952872431856noreply@blogger.comBlogger95125tag:blogger.com,1999:blog-5687347459208158501.post-54165851961769609152022-05-16T21:12:19.263-04:002022-05-16T21:12:19.263-04:00aaall
Thanks for the link. Read it.aaall<br />Thanks for the link. Read it.LFCnoreply@blogger.comtag:blogger.com,1999:blog-5687347459208158501.post-35164556567733225932022-05-16T19:18:14.559-04:002022-05-16T19:18:14.559-04:00"If a state bans abortion completely, that wd..."If a state bans abortion completely, that wd be, istm, an unwarranted intrusion in the sense that it forces some women to have children they don't want."<br /><br />https://balkin.blogspot.com/2022/05/fishkin-on-dissent-transcendent.htmlaaallnoreply@blogger.comtag:blogger.com,1999:blog-5687347459208158501.post-44138881446554097162022-05-16T09:56:03.135-04:002022-05-16T09:56:03.135-04:00MS
I agree with you on the point that Alito is no...MS<br /><br />I agree with you on the point that Alito is not respecting the case-law language re "free from unwarranted governmental intrusion into matters [etc.]" though, as usual w const law, a lot hangs on words like "unwarranted" and "intrusion." But for sure, the dissents will refer, properly, to that language. If a state bans abortion completely, that wd be, istm, an unwarranted intrusion in the sense that it forces some women to have children they don't want.<br /><br />The particular language in Casey about defining one's own concept of existence and the mystery of life doesn't, however, add anything, and Alito brushes that particular passage aside by saying that one is free to define one's own concept of the mystery of life but not always to act on it.LFChttps://www.blogger.com/profile/13551197682770555147noreply@blogger.comtag:blogger.com,1999:blog-5687347459208158501.post-47414782814020381822022-05-16T09:32:41.206-04:002022-05-16T09:32:41.206-04:00I don't have any idea about U.S. Constitutiona...I don't have any idea about U.S. Constitutional law, but in general I follow John Stuart Mill's proposal that free speech be unlimited except in the case of clear, direct and immediate incitement to violence.<br /><br />However, I can see that in a climate of increible political polarization and violence, some curbs on hate speech even when there is not a clear, direct and immediate incitement to violence should be instituted. I don't know exactly where the line should be drawn and how.<br /><br />By the way, such rules work both ways. If we institute laws which prohibit Tucker Carlson from spouting whatever racist nonsense he spouts because it can indirectly incite to violence, those laws will also limit the right to hate speech which indirectly incites to violence against the cops, etc.<br /><br />s. wallersteinhttps://www.blogger.com/profile/17448905469871566228noreply@blogger.comtag:blogger.com,1999:blog-5687347459208158501.post-32212557969570426272022-05-16T07:57:14.261-04:002022-05-16T07:57:14.261-04:00Post-script:
Absolutists who support the 1st Amen...Post-script:<br /><br />Absolutists who support the 1st Amendment right of free speech, like the ACLU, hate the Beauharnais decision, and maintain that it should no longer be considered good law, even though it has not been overturned. The question is, is hate speech which denigrates Blacks, Jews, Latinos, etc., protected by the 1st Amendment? Should hate speech which uses the N- word be protected by the 1st Amendment? Should Congress pass a federal law like that which was enacted in Illinois and which the S. Ct. held was not unconstitutional to prevent the further dissemination of such speech on the internet? Does hate speech like that which inspired the shooter to kill in Buffalo serve the purpose of the 1st Amendment to facilitate communication and dialogue among people? Does hate speech constitute the kind of speech the 1st Amendment was adopted to protect?<br />Marc Susselmannoreply@blogger.comtag:blogger.com,1999:blog-5687347459208158501.post-80749696465353019012022-05-16T07:45:05.770-04:002022-05-16T07:45:05.770-04:00Maybe the estates of the 10 deceased individuals w...Maybe the estates of the 10 deceased individuals who were gunned down in Buffalo on Saturday should sue Fox News and Tucker Carlson for proselytizing Replacement Theory, the theory which inspired the shooter and which claims that minorities and immigrants are replacing Caucasians and taking away from them the country which is rightfully theirs.<br /><br />Are Fox News and Tucker Carlson protected by the 1st Amendment’s right of free speech? Perhaps not. 42 U.S.C. § 1985(3) prohibits any group of individuals to conspire to deprive any group of people of their rights under the Constitution where the conspiracy is based on “class based animus.” What is unique about 42 U.S.C. § 1985(3) is that it does not require state action. It applies to individuals who act in concert, without the involvement of the state. The conspiracy would be between Fox News and Tucker Carlson. In Beauharnais v. Illinois, 343 U.S. 250 (1954), the Supreme Court held that an Illinois statute which criminalized the dissemination of literature which “exposes the citizens of any race, color, creed or religion to contempt, derision, or obloquy or which is productive of breach of the peace or riots” was not unconstitutional. The use of the disjunctive indicated the statute applied even in the absence of a breach of the peace or riot. The Court rejected the petitioner’s claim that his dissemination of hand-bills in Chicago which called for the mayor of Chicago to prevent African-Americans from continuing to move to Chicago was protected by the 1st Amendment. Beauharnais is still good law - it has never been overturned by the Supreme Court.<br />Marc Susselmannoreply@blogger.comtag:blogger.com,1999:blog-5687347459208158501.post-5373822631019926972022-05-16T02:54:05.757-04:002022-05-16T02:54:05.757-04:00LFC,
Correct, the 14th Amendment does not define ...LFC,<br /><br />Correct, the 14th Amendment does not define “liberty.” But its scope has been delineated in prior S. Ct. decisions, decisions which Alito ignores. In a comment on a previous post, I quoted the following language from the plurality opinion in Planned Parenthood v. Casey:<br /><br />“Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. … Our cases recognize ‘the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.’ … Our precedents ‘have respected the private realm of family life which the state cannot enter.’ … These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of he universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” (Case citations omitted.)<br /><br />This quotation relies on prior S. Ct. precedents which have held that the concept of liberty encompasses “the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” In overturning Roe v. Wade by the ipsi dixit that there is no constitutional right to an abortion, Alito is not just overturning Roe v. Wade; he is overturning all the case precedents cited in Casey which have held the decision whether to bear or beget children is a fundamental right protected by the 14th Amendment. If that decision is not protected by the 14th Amendment, then a state could pass legislation akin to that in China prohibiting a married couple from having more than 2 children. That would clearly be unconstitutional. So, if a state cannot limit how many children a family can have, how can it by the same token demand that a woman give birth to a child the woman does not want? Which brings us to the second word that Alito is ignoring – “person.” It is clear that a pregnant woman is a person under the 14th Amendment. Alito could not possibly deny this. Consequently, as a person under the 14th Amendment, she is “free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.’ But that liberty interest does not give her the right to take the life of another person, like her cheating husband. So, ultimately, the issue comes down to whether by having an abortion, is the mother, whose liberty interest is protected by the 14th Amendment, taking the life of another person. Alito’s ipsi dixit that there is no constitutional right to an abortion ignores this question, which comes down to whether a fetus is a person which has a liberty interest comparable to the mother’s liberty interest. I maintain that just as it is obvious that the mother is a person under the 14th Amendment, it is equally obvious that a zygote is not a person entitled to the protection of the 14th Amendment. A zygote is a potential person. But the 14th Amendment does not protect the liberty interest of a potential person. It only protects persons, not potential persons. So Altio’s ipsi dixit does in fact ignore the language of the 14th Amendment.<br />Marc Susselmannoreply@blogger.comtag:blogger.com,1999:blog-5687347459208158501.post-26408403517389910412022-05-16T02:18:38.376-04:002022-05-16T02:18:38.376-04:00To remove ambiguity, that shd read: the two "...To remove ambiguity, that shd read: the two "substantive due process" criteria.LFChttps://www.blogger.com/profile/13551197682770555147noreply@blogger.comtag:blogger.com,1999:blog-5687347459208158501.post-24565285152661679032022-05-16T01:42:20.638-04:002022-05-16T01:42:20.638-04:00Btw, Marc has said that one of the things that'...Btw, Marc has said that one of the things that's wrong w Alito's draft is that it ignores the "very language" of the 14th amendment. However, the language (or as lawyers sometimes say, the plain language) of the 14th amendment can't resolve this case, bc the 14th amendment, while it uses the word "liberty," does not, as far as I'm aware, define "liberty."<br /><br />So what's wrong w Alito's draft is not that it *ignores* the language but rather how it *interprets* the language, and more specifically how it interprets the two substantive due process criteria.LFChttps://www.blogger.com/profile/13551197682770555147noreply@blogger.comtag:blogger.com,1999:blog-5687347459208158501.post-66356281181089616052022-05-15T22:11:26.846-04:002022-05-15T22:11:26.846-04:00A lot of amicus briefs were filed in the abortion ...A lot of amicus briefs were filed in the abortion case, and there is a post at the SCOTUS blog that rounds up and summarizes some of them.<br /><br />In the part of Alito's draft that I've read (first 40 pp or so), he mentions an amicus brief filed on behalf of the American Historical Assn and the Organization of American Historians on the side of affirming Roe and Casey (obvs. Alito mentions it only to dismiss its arguments). This amicus brief is quite short, about 30 pp, and counsel on it are Hogan Lovells, a big Wash. D.C. law firm.<br /><br />There is a link from which one can download this brief (as I just did), if interested.<br /><br />Here:<br />https://www.historians.org/news-and-advocacy/aha-advocacy/aha-amicus-curiae-brief-in-dobbs-v-jackson-womens-health-organization-(september-2021)LFCnoreply@blogger.comtag:blogger.com,1999:blog-5687347459208158501.post-65622354093932085782022-05-15T13:44:52.582-04:002022-05-15T13:44:52.582-04:00Howie,
Thank you for the suggestion. I will chec...Howie,<br /><br />Thank you for the suggestion. I will check it out.Marc Susselmannoreply@blogger.comtag:blogger.com,1999:blog-5687347459208158501.post-31003390973843187892022-05-15T13:00:43.285-04:002022-05-15T13:00:43.285-04:00Marc you might want to look at a blog on ethical i...Marc you might want to look at a blog on ethical issues by a philosopher with street cred online: The Philosophers Beard.<br />You might even want to debate him on some of his provocative posts.<br />He operates under the assumption that ethics is objective.<br />I believe Locke figured ethics is like mathHowiehttps://www.blogger.com/profile/12474061778220524205noreply@blogger.comtag:blogger.com,1999:blog-5687347459208158501.post-2583277856056781632022-05-15T12:52:44.178-04:002022-05-15T12:52:44.178-04:00I stand corrected. Prof. Judith Jarvis Thomson.I stand corrected. Prof. Judith Jarvis Thomson.Marc Susselmannoreply@blogger.comtag:blogger.com,1999:blog-5687347459208158501.post-12627891012410795242022-05-15T12:37:28.675-04:002022-05-15T12:37:28.675-04:00Judith Jarvis ThomsonJudith Jarvis ThomsonFritz Poebelnoreply@blogger.comtag:blogger.com,1999:blog-5687347459208158501.post-43145970099560902592022-05-15T11:49:58.900-04:002022-05-15T11:49:58.900-04:00DDA,
I have a book titled, "The Rights And W...DDA,<br /><br />I have a book titled, "The Rights And Wrongs Of Abortion," a collection of pro- and anti-abortion essays. The first essay is by Prof. Jarvic, professor of philosophy at MIT. The essay is superb.Marc Susselmannoreply@blogger.comtag:blogger.com,1999:blog-5687347459208158501.post-66542212299193316042022-05-15T11:21:16.029-04:002022-05-15T11:21:16.029-04:00Here's a link to what I regard as a classic ab...<a href="https://rintintin.colorado.edu/~vancecd/phil215/Thomson.pdf" rel="nofollow">Here's a link to what I regard as a classic about abortion. </a>DDAhttps://www.blogger.com/profile/04563878282038308662noreply@blogger.comtag:blogger.com,1999:blog-5687347459208158501.post-82947742704256143912022-05-15T11:11:28.750-04:002022-05-15T11:11:28.750-04:00Further on the Ninth:
Stewart wrote: "all ri...Further on the Ninth:<br /><br />Stewart wrote: "all rights and powers not delegated to it were retained by the people and the individual States." <br /><br />That would seem to open the way to substantive Ninth Amendment jurisprudence: it concedes that there are such rights and would seem to invite an argument that abortion or whatever is one of them.<br /><br /><br />David Palmeterhttps://www.blogger.com/profile/01895092366685079046noreply@blogger.comtag:blogger.com,1999:blog-5687347459208158501.post-55412326392136788312022-05-15T11:08:06.838-04:002022-05-15T11:08:06.838-04:00s. wallerstein,
Thank you for your comment and th...s. wallerstein,<br /><br />Thank you for your comment and the story about the restoration of your wallet. These incidents do help to restore one’s hope in humanity, but they are all too rare. The two people who stopped to help my wife and myself are such an example. They possess an inner voice which told them that they had to act. Rather than let the immediate task which they were engaged in, - getting groceries for the grandmother – they put that task aside to help two strangers. Before they stopped to help us, 100s of other cars had passed us by whose drivers were focused on some immediate task, but none of them stopped. This couple stopped, and their willingness to do so sets them apart form most other people.<br /><br />I started watching the lecture by Prof. Rorty that you linked to, but given its length I will have to finish watching it later, but his opening example of how the traditional ethical principles which are taught in philosophy courses – the principle of utilitarianism and the categorical imperative – would not help the Frenchman considering to join the resistance during WWII what to decide. They would leave him without direction. I will finish watching it later on, and thank you for the link.<br /><br />On CBS This Morning, there was a segment about Chef Jose Andres’, the founder of the World Central Kitchen. The WCK goes to countries where there has been a natural disaster to prepare meals in the native cuisine to feed the starving. He is now in Ukraine, preparing meals for the refugees. He is fairly wealth, since he own several prestigious restaurants around the world. But he doesn’t have to do what he does. He does it because he believes it is the right thing to do. Would utilitarianism or the categorical imperative tell him to do this? As Prof. Rorty points out in the opening to his lecture, they do not. The balancing called for by utilitarianism gives no answer, because one cannot measure the net happiness against the net unhappiness that one’s actions cause. If Chef Andres’ did not go to Ukraine to feed the starving, he would not be treating the Ukrainians he would never have met as means rather than ends, because he would never have met them. He said during the interview, “It is at times when humanity is at its worst, that humanity can reveal itself at its best.” A cynic might respond that it should not take the worst of humanity to bring out the best of humanity. But he has responded even when he is feeding those who have been the victims of a natural disaster which has not been caused by man’s inhumanity. The bottom line is, I guess, that some people have an inner voice that tells them what is the ethical thing to do, regardless what other commitments one has, a voice which many others lack. As Jimminy Cricket said, “Let your conscience be your guide.”<br />Marc Susselmannoreply@blogger.comtag:blogger.com,1999:blog-5687347459208158501.post-11095549117631433332022-05-15T11:00:06.966-04:002022-05-15T11:00:06.966-04:00Marc,
A great story, and thanks for the briefing ...Marc,<br /><br />A great story, and thanks for the briefing on the 9th Amendment.David Palmeterhttps://www.blogger.com/profile/01895092366685079046noreply@blogger.comtag:blogger.com,1999:blog-5687347459208158501.post-75692083786673268072022-05-15T09:34:01.886-04:002022-05-15T09:34:01.886-04:00Marc,
Nice story, one of those rare incidents th...Marc,<br /><br />Nice story, one of those rare incidents that restore one's lost faith in others. Trying to think of one myself, I keep recalling so many dog walkers who don't restrain their beloved pets by tightening the leash on narrow sidewalks and drivers who turn aggressively forcing me to increase my pace as I walk legally within the crosswalks. I came up with one: a few years ago I dropped my keys in the supermarket while taking my wallet out to pay and I didn't not notice that. I had already walked about a block from the supermarket (I have no car) when a young man, another customer, came running up to me with my keys. Basic decent gestures are rare these days and maybe they always were.<br /><br />Here's a talk by Richard Rorty: do we need ethical principles?<br />https://www.youtube.com/watch?v=SDAdveMYHFs<br /><br />s. wallersteinhttps://www.blogger.com/profile/17448905469871566228noreply@blogger.comtag:blogger.com,1999:blog-5687347459208158501.post-85742173625085720642022-05-15T04:23:40.472-04:002022-05-15T04:23:40.472-04:00They left and we thanked them again and told them ...They left and we thanked them again and told them to stay safe. As I rested in the house after the long walk, I thought, would a Caucasian couple stop to help two elderly African-Americans whom they saw walking along a highway? Perhaps, but given racial profiling, probably not. Actually, I felt good that we were in a position to have received a favor from an African-American couple, and thought, maybe, just maybe, there is still hope for this country. But some white punk in New York has just made things much more difficult.Marc Susselmannoreply@blogger.comtag:blogger.com,1999:blog-5687347459208158501.post-5546726486392989552022-05-15T04:22:51.137-04:002022-05-15T04:22:51.137-04:00In light of the horrid, racist mass killing in Buf...In light of the horrid, racist mass killing in Buffalo yesterday, I have a brief story about inter-racial relations that my wife and I experienced last night.<br /><br />We were driving at around 7:30 P.M. to meet another couple for dinner in Hazel Park, Michigan. As I drove onto the entry ramp to access the highway, I heard a loud bang, and my car began to skid. I succeeded in getting control of the vehicle and pulled onto the shoulder of the highway. I assumed I had blown a tire, but when I got out of the car to check my tires, there was no blown tire. When I got back in the car and put the transmission into drive, the car shuddered. I realized something more serious than a blown tire had occurred. I got out my cell phone to call AAA, but, as luck (or negligence) would have it, my cell phone was dead. So my wife and I got out of the car and walked back up the ramp to the nearby Dunkin’ Donuts . I asked if I could borrow a cell phone (I actually first asked if they had a pay phone, and the employees looked at me as if I were an alien). I tried to call Uber, but there was no answer. I tried to call a taxi company, but there was no service in the town we live in. So we decided we had to walk home, which was about 4 miles away. I bought a half-dozen donuts, and we were on our way, my younger wife in the lead, as I stumbled along clinging to the box of donuts.<br /><br />The walk home was compounded by the fact that there were no sidewalks along the avenue we were traversing, just grass embankments. I tried to keep up our spirits by cracking jokes and singing songs – like I Broke the Law. My wife did not find any of this amusing. At one point I suggested that she should pull a Claudet Colbert stunt from the movie “It Happened One Night.” (I am sure that David and s. wllerstein will recall the scene, probably considered sexist today.) My wife was wearing slacks, and she did not think that her calves would have the same impact as Claudet Colbert’s, so she declined.<br /><br />At one point I tripped and fell, clutching the box of donuts to my chest. We were about 1/3 of the way home by 9:00 P.M., when we had to start walking on the narrow shoulder, as cars whizzed by us. Suddenly, a car pulled up and a woman asked if we were OK. There was another passenger in the car, but we could not see them, we only heard their voices . We told them what had happened to our car, and that we were walking home. They said they had been driving in the opposite direction, and when they saw these two elderly people walking on the road, they turned around. They expressed concern that what we were doing was dangerous. I told them that we lived nearby, and asked if they would be willing to drive us home. They said, absolutely, get in. My wife got in the back seat; the man in the front passenger seat moved to the back seat, and told me to sit in the front passenger seat. As I got into the car, I saw that they were African-American. I was, frankly, overjoyed to see that two African-Americans would stop to help two elderly Caucasians. My wife offered a twenty-dollar bill to the woman who was driving, but she declined to take the money. My wife insisted, and she finally accepted, saying she could use it to pay for gas, since the gas prices were so high. She told us that she is a care-giver for her grandmother, who is 104 years old and that this caused her to worry about us. I did not know at this point about the shooting in Buffalo. I do not know if they knew. They drove us to our home, and I invited them in, but they declined – they had to buy groceries for the grandmother. I asked them to wait so I could go in the house and get paper to write down their names, addresses and phone numbers. I gave the male passenger, whose name was Will, my business card and told them that if they ever needed a lawyer, to give me a call.<br /><br />(Continued)Marc Susselmannoreply@blogger.comtag:blogger.com,1999:blog-5687347459208158501.post-43017510119341959842022-05-15T03:12:21.496-04:002022-05-15T03:12:21.496-04:00David, s. wallerstein,
Remember this profound son...David, s. wallerstein,<br /><br />Remember this profound song about the law from 1965?<br /><br />https://www.youtube.com/watch?v=ci3AQqSKirA<br /><br />Marc Susselmannoreply@blogger.comtag:blogger.com,1999:blog-5687347459208158501.post-40581686117272945822022-05-15T02:40:29.137-04:002022-05-15T02:40:29.137-04:00David,
Despite your oblique aspersion regarding t...David,<br /><br />Despite your oblique aspersion regarding the length of my comments, I have decided to accommodate your request.<br /><br />The short answer is that the Supreme Court has never rested any decision exclusively or primarily on the 9th Amendment. Whenever it has been referred to in a decision, the 9th Amendment has been referred to in conjunction with several other Amendments, primarily the 14th, and the 9th Amendment gets lost in the mix. Prof. Laurence Tribe, no conservative, has said of the 9th Amendment: “It is a common error, but an error nonetheless, to talk of ‘ninth amendment rights.’ The ninth amendment is not a source of rights as such; it is simply a rule about how to read the Constitution.”<br /><br />Reliance on the 9th Amendment in concurring opinions by J.’s Douglas and Goldberg (remember him?) were cast aside as ludicrous by J. Stewart in his dissent:<br /><br />“…to say that the Ninth Amendment has anything to do with this case is to turn somersaults with history. The Ninth Amendment, like its companion, the Tenth … was framed by James Madison and adopted by the States simply to make clear that the adoption of the Bill of Rights did not alter the plan that the Federal Government was to be a government of express and limited powers, and that all rights and powers not delegated to it were retained by the people and the individual States. Until today, no member of this Court has ever suggested that the Ninth Amendment meant anything else, and the idea that a federal court could ever use the Ninth Amendment to annul a law passed by the elected representatives of the people of the State of Connecticut would have caused James Madison no little wonder.”<br /><br />Since Griswold was decided in 1965, the 9th Amendment has not been invoked by any majority decision to justify its ruling. I am quite sure that if Roe v. Wade had been based on the 9th Amendment, J. Alito would have dismissed it just as he has dismissed the reference to liberty in the 14th Amendment. He would say that the term “people” may refer to the pregnant mother, but it all refers to the fetus she is carrying in her womb, and the fetus has just as much right to the rights reserved to the people as she does.<br /><br />There, done. A mere 392 words, a Susselman record.<br />Marc Susselmannoreply@blogger.comtag:blogger.com,1999:blog-5687347459208158501.post-18493446954996999432022-05-14T22:41:44.476-04:002022-05-14T22:41:44.476-04:00An interesting point is that in Roe, Justice Dougl...An interesting point is that in Roe, Justice Douglas, who concurred with the majority, wrote that he would have based the decision not on the 14th Amendment but the 9th: "The enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people."<br /><br />I know absolutely nothing about 9th Amendment jurisprudence, and how those words have been interpreted. But on their fact they acknowledge rights not otherwise specified in the Constitution. How those rights are determined, I don't know, but I find Douglas' argument intriguing.<br /><br />Marc--if you are familiar with 9th Amendment jurisprudence I'd appreciate a brief (I emphasize BRIEF!) tutorial. David Palmeterhttps://www.blogger.com/profile/01895092366685079046noreply@blogger.com