response to Greene

stoke001 at stoke001 at MAROON.TC.UMN.EDU
Tue Jan 28 07:41:34 PST 1997

I'm not ducking you, Abner.  Rather, I think your questions deserve
serious thought and a serious reply, and Civil Procedure beckoned.
For those who may have lost track (or interest) in this thread, Abner
Greene asks if it gives me pause that people I respect disagree with
me, both as to abortion question and (if I might enlarge his question
to pose an even more difficult issue) among those who agree with
me on abortion, as to the implications of a pro-life position in terms
of obligations to obey the state (or to be circumspect in the tone of
one's rhetoric, which seems to be Abner's main point).  I trust
that those who are interested in the posts to which Abner was
responding will scroll back.  I do think that the snippet Abner
excerpted in his latest attempt to prod me is more fairly read in
its full context.  My remarks in that post were not a *call* for
quasi-insurrectionary violence against the regime, but a description
of the political and moral circumstances that would tend to justify
revolution against an unjust regime rather than attempting to "work
within the system."  I think that is a serious question.  (If need be
I can resend, but I don't know how to "clip" and attach.)

Some tentative answers to Abner:

1.  Yes, certainly it gives me pause when people I respect disagree
with me on any issue (just as Abner's message did!).  In particular,
it gives me particular pause when persons whom I respect, who share
the same faith tradition and world view, disagree as to the
implications of that religious faith on one's actions.  Within my
particular Christian community of faith (conceived broadly), it is
deemed important for Christian brothers and sisters to both work as a
"check" on one another's judgments and as a "prod" against
complacency.  We are to provoke one another and to guard each other
against error.  I have several Christian friends of long standing --
including at least three on this list -- who serve this function for
me.  Note that this does not imply disrespect for the views of
non-Christians, but that it accords a special status for those who
share the same basic faith commitments, as to the proper
understanding of the requirements and implications of that shared

2.  As to abortion in particular:  I do not wish to sound haughty,
or narrow-minded, or unthoughtful, or to be off-putting about this,
but I have, literally for 25 years or so -- all my adolescent and
adult life -- thought, prayed, and studied about the issue of
abortion, which I believe to be the most important moral-legal
issue of our time and place.  I am fully persuaded, and at this
point in my life I think unshakably so, that the practice of
abortion, in nearly all circumstances, is the deliberate wrongful
killing of innocent human life for purposes of the convenience,
comfort, or cost of accommodating someone else's ordinary human
concerns.  People of good will disagree with me (including Abner),
and I am able to respect the fact that they have those views and
still value them as friends and colleagues, notwithstanding that
they hold an opinion on this extremely significant issue that is,
well, simply wrong!  The fact that they disagree with me, without
more, does not cause me to reconsider my conclusions about
abortion.  On the other hand, I hope to remain open-minded as to
their reasoned arguments and to discuss their premises, to see if
there is anything that should cause me to reconsider my position.
No one should be so arrogant as to think that there is no argument
or perspective that could cause them to reconsider their view of an
important issue (and I would hope that pro-choicers feel the same
way!).  On this issue, to this point, I have seen, heard, or read
nothing to cause me to reconsider my position.  (I know, Mark
Graber, I haven't read your book yet!  It's on my to-do list,
somewhere after finishing grading my first semester seminar papers
and turning in the two late articles due to law review editors.)

3.  What does one do when one is fully persuaded on a particular
issue?  To my mind, persuasion requires conduct consistent with
one's conclusions.  This is so in matters of faith and in other
matters as well.  (Faithfulness consists of loyalty to the persons or
God in whom one reposes trust and integrity in following one's
convictions.)  The fact that others disagree with those convictions
should NOT cause one to trim one's sails, in the sense of failing to
act in accordance with one's convictions and principles, where one
is fully persuaded as to the correctness of one's convictions.  The
fact that I have many Jewish friends does not lead me to question my
Christian faith.  The fact that persons whom I respect are not
pro-life -- perhaps a majority of elite, academic types -- does not
itself lead me to conclude that I should temper my pro-life
commitment.  I surely must be willing to entertain the possibility
that I am wrong.  But I also must be willing to entertain that
those with whom I disagree are wrong!  Where the latter is the
case, I must strive to act in accordance with my conclusions and
convictions, and hope that those with whom I disagree will
understand and respect my attempts to act with integrity.  To be
sure, some feel uncomfortable with anyone's assertion that there is
such a thing as being objectively "right" or "wrong."  Even then, I
would hope that they would respect my sincere conviction that there
are such things, and that I regard some of their positions as
objectively, morally *wrong*.

4.  The hardest case for me is when persons who appear to share my
convictions and principles disagree as to what the proper
implications are for one's personal conduct.  This is the case
among my evangelical protestant and Catholic Christian friends
over abortion.  I have had *serious* (albeit academic)
discussions among such friends as to why one's conviction that
abortion is a species of homicide, and the Abortion Republic a
cousin of the Nazi Holocaust, does *not* lead one to firebomb
abortion clinics.  Please do not confuse serious discussion of a
serious moral and philosophical issue with advocacy, Abner!  The
fact that I am in my cozy office (hiding from the -13 degree cold
this morning), means that I have *not* concluded that revolution
is in order.  I find the reassurances of my evangelical friends
that I am serving my proper role of advocacy, persuasion, etc.
*terribly* (and *very* conveniently) comforting -- in a way
that makes me wonder about whether it is really and truly
acting with integrity to my stated principles.  If one truly
believes that abortion is homicide, and that millions are being
slaughtered each year, and that the legal regime that sustains it
-- indeed, makes it a fundamental constitutional right -- has done
so illegitimately -- what the hell (pardon the expression) is one
doing sitting in an office writing e-mails?!?!?  What makes that
feeling of comfort so uncomfortable is that I have not yet heard, from
anyone, the persuasive *argument* for acquiescence to the authority of
this present Regime on the basis that it is principled to do so (as
opposed to Sandy's "pragmatic").  So what does one do?  Defer to the
judgment of respected friends and colleagues and hope that, if they're
wrong, we will all at least be able to comfort each other in hell
(where it will at least be substantially warmer than Minnesota)?!  At
this point, that is essentially what I am doing.  But I am not at all
certain that I am doing right.

5.  Finally, Abner's posts seem also to raise the question of whether
it is in some sense improper and dangerous for me so openly to raise
the issues raised by this post and my previous ones.  It is true that
ideas and words are dangerous things.  But on the narrower question of
whether I should pull my *rhetorical* (non-violent!) punches in an
academic discussion provoked by Antonin Scalia's words about whether
one owes a duty of loyalty to a state that suppresses the faith or
sanctions the killing of the innocent, I probably am not very open to
persuasion:  There is nothing wrong about candidly stating one's
views.  The fear of misconstruction is not sufficient justification
for silence, in my view.  The fear of impairment of one's own career
or status does not come close to a justification.

Michael Stokes Paulsen
University of Minnesota Law School

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