Irony

[Paul Finkelman]

I am thrilled to hear that medical science is "absolutely certain" of
something. This may be a first.

Paul

Rick Duncan wrote:

> I think Eugene has nicely answered most of Paul's
> questions about what conservatives think about
> executing innocent people. I don't believe Justice
> Scalia has ever said he doesn't care if innocent
> people are executed. Paul, quote me volume and page
> supporting your assertion about Scalia's views.
>
> I am a conservative who supports repeal o all capital
> punishment laws (although, as a conservative, I
> believe the change should come from legislatures, not
> by judicial amendment of the Constitution).
>
> I won't get going on an abortion argument with Paul,
> so all I will say is I believe he is absolutely wrong
> about whether medical science understands that
> "fetuses are human beings." Medical science is
> absolutely certain that the unborn offspring of human
> beings are human. If the issue is determined by the
> answer to this issue, the case is over and the Court
> is wrong.
>
> Medical science may well be divided upon the
> *non-scientific question* of whether a fetus is a
> *person* (whatever that means), about whether an
> unborn human being shall be assigned the protections
> we give to other human beings, but scientists do not
> speak with authority on non-scientific questions.
>
> Indeed, the issues of abortion and execution are quite
> similar in two important respects--they both involve
> legally-sanctioned violent death , and they both ask
> how should society resolve reasonable doubts in life
> or death cases. In the death penalty cases, there is
> reasonable doubt about whether a condemned prisoner is
> "innocent;" in the abortion case, there is reasonable
> doubt about whether millions of children about to be
> put to death are "persons" entitled to human dignity
> and the protection of law. Should those doubts be
> resolves inclusively (to stop the killing of possibly
> innocent prisoners or possible persons in the womb),
> or should reasonable doubts be determined exclusively
> to allow the killing to go forward?
>
> Back to grading!  --Rick Duncan
>
> --- Paul Finkelman  wrote:
> > 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
> >
> > > 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
> >
> === message truncated ===
>
> =====
> Rick Duncan (conlawprof at yahoo.com)
>
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--
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