Irony
Greg Sisk
greg.sisk at DRAKE.EDU
Fri Dec 15 09:02:01 PST 2000
Let's be careful, whatever our opinions about abortion, to be clear
about definitions, terminology, and empirical claims, separating
urban myth or conventional wisdom from fact. There is no medical
dispute about the fact that fetuses are human; that's a simple and
obvious fact of independent genetic makeup that is plainly human.
The dispute is the non-scientific moral or legal one about whether
those human beings are worthy of being called persons or entitled to
the legal protections extended to human beings outside the womb. The
suggestion that the long traditions of Anglo-American law support
abortion is belied by the fact that Roe v. Wade struck down the laws
of all 50 states -- even those states with liberal abortion laws were
not sufficiently liberal to satisfy the Supreme Court. Nor is it
correct to say that a majority of Americans disagree with Rick that
abortion is wrong. To the contrary, polls consistently show that
most Americans believe abortion is wrong as a moral matter, with that
majority rising substantially when exceptions are permitted for
special circumstances, like life of the mother. The point of
departure in the polls is whether abortion should be made illegal
altogether or under most circumstances, on which the polls are all
over the map and depend very much on how the question is asked.
>I am sure that Sandy can answer this for himself, but there is one
>serious difference here: you (Rick) are cerain that fetuses are human
>beings (thus weak and oppressed) whereas most of medical science is not
>convinced of that; the long traditions of Anglo-American law have
>rejected that notion and a good number of theologians reject it.
>Furthermore, while you may be certain abortion is wrong, the majority of
>Americans disagree with you; and some religions *require*
>(YES,*require*) an abortion to save the mother's life, just as other
>faiths oppose an abortion, even to save a mother's life.
>
>On the other hand, I suspect that the vast majority of Americans,
>whatever their faith or political views, do not believe in executing
>innocent people, oppose executing people who did not get a fair trial
>(such as the man on death row in Texas whose lawyer slept through his
>trial, but whose appeal was rejected by the Court of Appeals, and who
>has so far had no luck with getting any sort of due process out of
>either the Texas Courts or, of all people, the compassionate
>conservative, Gov. Bush, who allegedly laughed when told of the case).
>
>Now, perhaps I am wrong in thinking that even conservatives like
>yourself are against executing innocent people or executing people
>without knowing if they are guilty or not because they did not get even
>a minimally fair trial. So, please forgive me if I am putting words in
>your mouth on this one. I know Justice Scalia is on record as saying
>that the U.S. Supreme Court is unconcerned with guilt or innocence, but
>I keep hoping that he does not speak for all conservatives.
>
>-
>Paul Finkelman
>Chapman Distinguished Professor
>University of Tulsa College of Law
>3120 East Fourth Place
>Tulsa, OK 74104
>
>918-631-3706
>Fax 918-631-2194
>
>E-mail: paul-finkelman at utulsa.edu
>
>
>
>Rick Duncan wrote:
>
>> Sandy: If conservative justices are guilty of
>> hypocrisy for being concerned about about fairness in
>> counting votes but (presumably) not in administering
>> the death penalty, does this mean that liberals are
>> guilty of hypocrisy when they express concern for the
>> weak and oppressed in some cases, but are unconcerned
>> about protecting weak and oppressed fetuses from the
>> violence of legal abortion? See, e.g. Stenberg.
>>
>> --Rick Duncan
>>
>> --- Sanford Levinson <SLevinson at MAIL.LAW.UTEXAS.EDU>
>> wrote:
>> > I do not believe it is either "unfair" or
>> > "irresonsible" to say that the
>> > current majority of the United States Supreme Court
>> > has little concern
>> > about the fairness by which we administer the death
>> > penalty, including the
>> > possibility that factually innocent people have been
> > > put to death. See,
>> > e.g., Gary Graham. Or, to put it another way, I
>> > don't think this impugns
>> > the majority of the Supreme Court to a greater
>> > degree than the regular
>> > reference to the Florida Supreme Court as a rogue
>> > court that willfully
>> > manipulated Florida law in the service of Vice
>> > President Gore. If legal
>> > realism applies to the Florida court (and maybe it
>> > should), there is no
>> > reason not to apply it to the United States Supreme
>> > Court. If we are asked
>> > to respect the current majority of the Supreme Court
>> > as thoughtful
>> > individuals who are trying their best to figure out
>> > the mysteries of the
>> > Constitution, then I would ask the same respect for
>> > the Florida Supreme court.
>> >
>> > sandy
>> >
>> > At 11:45 AM 12/14/2000 -0500, you wrote:
>> > >Professor Sanford Levinson wrote:
>> > >
>> > >"it is so impossible to take seriously the
>> > commitment of the particular
>> > >justices in the majority to the concern for
>> > equality and human dignity that
> > > >is the rhetorical centerpiece of the opinion. This
>> > is the group, after
>> > >all, that basically believes that prisoners have no
>> > rights to decent
>> > >treatment and that state procedural niceities
>> > certainly take priority over
>> > >the possibilty of executing an innocent person."
>> > >
>> > >I am quite confident that the members of the
>> > majority to which you refer
>> > >have a great deal of concern for equality and human
>> > dignity, and your
>> > >mischaracterization of their views regarding
>> > prisoners' rights and the death
>> > >penalty are unfair and irresponsible. Obviously
>> > you have a different view
>> > >regarding the Constitution, but one can disagree
>> > without impugning others.
>> > >
>> > >Brad Clanton
>> > >
>> > >-----Original Message-----
>> > >From: Sanford Levinson
>> > [mailto:SLevinson at MAIL.LAW.UTEXAS.EDU]
>> > >Sent: Wednesday, December 13, 2000 6:06 PM
>> > >To: CONLAWPROF at listserv.ucla.edu
>> > >Subject: Re: Irony
>> > >
>> > >
>> > >I trust that the death-dealing majority will take
>> > heed of the sentence:
>> > >
>> > >"A desire for speed is not a general excuse for
>> > ignoring equal protection
>> > >guarantees."
>> > >
>> > >What is so completely disgusting about the per
>> > curiam is not that none of
>> > >the arguments make sense--the equal protection
>> > argument certainly does--but
>> > >that it is so impossible to take seriously the
>> > commitment of the particular
>> > >justices in the majority to the concern for
>> > equality and human dignity that
>> > >is the rhetorical centerpiece of the opinion. This
>> > is the group, after
>> > >all, that basically believes that prisoners have no
>> > rights to decent
>> > >treatment and that state procedural niceities
>> > certainly take priority over
>> > >the possibilty of executing an innocent person. I
>> > cannot believe that
>> > >anyone on this list believes that the current
>> > majority will ever again make
>> > >use of this opinion in a context that runs counter
>> > to
>> > >their ideological preferences manifested in the
>> > federalism cases and the
>> > >death cases.
>> > >
>> > >sandy
>> > >
>>
>> =====
>> Rick Duncan (conlawprof at yahoo.com)
>>
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>
>-
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