Partial Birth Act Upheld
VOLOKH at law.ucla.edu
Thu Apr 19 13:39:46 PDT 2007
(1) I'm not sure why it's unreasonable for those who generally
oppose positive constitutional rights to distinguish prisoners from
nonprisoners -- just as it's hardly unreasonable even for Establishment
Clause maximalists to endorse some government-provided (or at least
government-licensed) prison chaplains and prison-run religious services,
even when they'd oppose such government-provided practices in other
contexts. When the government locks someone up, it may well incur extra
positive obligations to protect him from certain threats that it
wouldn't have in other contexts.
(2) It should be easy "to resist calling self-professed 'pro
life' politicians anti-poor or insincere in their professed commitment
to 'life' when they carry their objection and hostility to 'positive
rights' from the courthouse to the legislature by pushing a legislative
agenda that is hostile to government 'safety nets' for the poor (and
especially children living in poverty)."
First, one can quite reasonably believe there is a greater moral
obligation to fight private violence against others than to protect
people from privation. One might be mistaken in this, but that hardly
makes one's views insincere.
Second, many people do believe, as best I can tell entirely
sincerely, that various safety-net programs are counterproductive. I
stress again: They may be factually wrong on this. But being wrong is
not the same as being insincere.
> -----Original Message-----
> From: Henry K Prempeh [mailto:prempehe at shu.edu]
> Sent: Thursday, April 19, 2007 12:58 PM
> To: Judith Baer
> Cc: CONLAWPROF at lists.ucla.edu;
> conlawprof-bounces at lists.ucla.edu; 'Malla Pollack'; Volokh, Eugene
> Subject: RE: Partial Birth Act Upheld
> The "conservative" objection to constitutionally guaranteed
> "positive rights" is apparently not total !!!
> Per Chief Justice Rehnquist's opinion for the Court in
> Deshaney, there is one sure way for the poor in America to
> become constitutionally entitled to a "positive right" (to
> minimum subsistence from the Government): get convicted for
> a crime and become a prisoner. See Deshaney (". . . when
> the State takes a person into its custody and holds him there
> against his will, the Constitution imposes upon it a
> corresponding duty to assume some responsibility for his
> safety and general well-being. The affirmative duty to
> protect arises not from the State's knowledge ofn the
> individual's predicament or its expressions of intent to help
> him, but from the limitation which it has imposed on his
> freedom to act in his own behalf") (Rehnquist, C.J.).
> Of course it's not necessarily unreasonable or anti-poor for
> anyone to insist (implicitly) that the problem of poverty
> must be a problem for democracy (politics), not for
> constitutionalism (courts). But it is difficult to resist
> calling self-professed "pro life" politicians anti-poor or
> insincere in their professed commitment to "life" when they
> carry their objection and hostility to "positive rights" from
> the courthouse to the legislature by pushing a legislative
> agenda that is hostile to government "safety nets" for the
> poor (and especially children living in poverty).
> Yes, there is the policy argument about perverse incentives.
> But what is more perverse than guaranteeing "constitutional"
> positive rights to the poor only when they become criminal
> convicts but not when they are
> law-abiding citizens outside the prison walls!! Little wonder many
> unrehabilitated ex-convicts, finding "life" on the outside
> materially intolerable, get themselves back to prison where
> "some" hot meal or "some"
> shelter is guaranteed!!
> H. Kwasi Prempeh
> Associate Professor of Law
> Seton Hall University School of Law
> One Newark Center
> Newark, New Jersey 07102-5210
> (973) 642-8837
> Judith Baer
> <JBAER at politics.t
> Sent by: "'Malla Pollack'"
> conlawprof-bounce <mpollack at ajsl.us>,
> s at lists.ucla.edu Eugene'"
> <VOLOKH at law.ucla.edu>,
> CONLAWPROF at lists.ucla.edu
> 04/19/2007 12:01
> RE: Partial Birth Act
> However, look at the legislative agenda of anti abortion
> polticians and activists. Their polemics do not include
> anything about making sure that the chlidren they push women
> to deliver will be well taken care of -- instead the standard
> "conservative" line is to both cut abortion and cut saftey
> nets for the poor.
> I refer everyone toJean Reith Schroedel, IS THE FETUS A
> PERSON? (Cornell,
> 2000.) She finds that state anti-abortion legislation is not
> positively correlated with safety nets or oltherlaws that
> treat the fetus as a persdon, such as criminalpenalties for
> third-party fetal killing. However, restrictive abortion laws
> were negatively correlated with laws protecting the rights of
> Judy Baer
> To post, send message to Conlawprof at lists.ucla.edu To
> subscribe, unsubscribe, change options, or get password, see
> Please note that messages sent to this large list cannot be
> viewed as private. Anyone can subscribe to the list and read
> messages that are posted; people can read the Web archives;
> and list members can (rightly or
> wrongly) forward the messages to others.
More information about the Conlawprof