the last shall be first

[Volokh, Eugene]

   I would certainly welcome some "analysis and consistency" on this
subject, but the post below strikes me as primarily sloganeering and
personal attacks.  Surely it's not news that the words "oppression" and
"shoving your ideology down the throats of others" do little to resolve
constitutional arguments, because they beg the question of what is
oppressive and what ideologies should or should not be shoved down the
throats of others.

   Rick Duncan obviously thinks that abortion is among the worst possible
forms of oppression; one doesn't have to agree with him (I don't) to
recognize that this is his view, and that the word "oppression" doesn't
resolve the issue either way.  Likewise, I suspect that he thinks that the
Court's decision in Roe and the minority's argument in Bowers was an attempt
to "shove [the Justices'] ideology down the throats of others," but
obviously that wouldn't resolve the issue either way, either, since the
question is whether it's the right ideology.  After all, all of us are happy
with laws that "shove our anti-infanticide ideology down the throats of
others" or "shove our anti-slavery ideology down the throats of others,"
because certain ideologies *should* be shoved down others' throats.  The
interesting question is whether anti-abortion ideology or
anti-homosexual-conduct ideology qualify -- but that's a matter that slogans
like "don't shove your ideology down the throats of others" famously fail to
resolve.

   This should not, I think, be surprising stuff to legal academics like us;
nor do I think is the discussion benefited by debate at this level.

   As to trying to taint Rick by suggesting that his view is somehow related
to endorsing Dred Scott and Plessy, it seems to me that this is both a
shameful slur and a patently unsound non sequitur.  The argument, it seems
to me, is "I think X's proposal would oppress people; Dred Scott and Plessy
oppressed people; so let me throw in an innuendo linking X with Dred Scott
and Plessy."  What kind of argument is that?

   I apologize if this sounds stuffy or self-righteous, but it seems to me
that arguments like this must be responded to.  They are regrettably too
common in lay debate; but we know better, and can do better.

   Eugene


-----Original Message-----
From: Paul Finkelman
To: CONLAWPROF at listserv.ucla.edu
Sent: 3/9/01 5:45 PM
Subject: the last shall be first

Well, Rick may have them right, but of course in the wrong order as he
fully knows!  Rick seems to argue that it is good to oppress the living
while it
is wrong to allow the living and thus he likes Bowers and hates Roe
cases;
Oppress gay people and does not like it when the courts say you shall
not
oppress women.  At least he is consistent in oppressing minorities and
those with less power than white straight  men.  Logically, we might add
as
Great opinoins, Dred Scott and Plessy and as a bad one Brown, since they
too oppressed
people.  Now, I am sure Rick will not like this comparison, but the
logic seems clear.
His great case oppresses a small minority; his "bad" case is one that
provides freedom to
large numbers of women in America to control their bodies, and to some
extent their
earning power and their economic  status.

Alternatively, Rick's "great" case imposes his version of religious
morality on everyone and his "bad" case is "bad" in part because it
allows other people to do what they think is religiously and morally
correct (and in some cases absolultely required by their own faith), and
does not allow him to impose his morality on them.  Oddly enough, if his
good case had been decided the other way (then he would have two bad
cases) he would not be endangered, his liberty would not be harmed in
the slightest way; but if both were decided the way he likes, the
liberty of others would be harmed.

It is curious that Rick was so unhappy with Buck v. Bell  -- because it
took liberty and self-determination away from Carrie Buck -- which is in
part why I think it a wrong case, but he applauds other cases that to it
to individuals (gays) he dislikes and complains about cases that give
liberty to women to decide *exactly* what Carrie Buck wanted, which is
the right to decide whether to go through pregnancy and bear children.

The ironies are so much fun when you susbtitute analysis and consistency
for mere prejudice or the desire to shove your religion and ideology
down the throats of others.

. . .

--
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
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