Hugo: Anyone on the pro-choice side want to make a case that what this woman did was morally defensible?

Yes. If you think (as I do) that abortion is part of a woman’s moral right to control her own body, then why would you have any particular indignation about Amy Richards’ decision?

Your reaction makes sense on one common anti-abortion view (the view that abortion is a grave evil, but that women who feel constrained to choose it by dire circumstances deserve compassion rather than condemnation). It doesn’t make very much sense on the most common pro-choice views. It seems to me that the disagreement on this case will have a lot to do with general attitudes towards abortion and very little to do with Amy Richards’ circumstances specifically.

The pro-choice position does not depend on whether you feel sorry for the poor girl or not. It’s based on respect for women’s choices.

candace: And the sad thing is, I would bet that Amy Richards’ little boy would, too.

This is preposterous arrogance. You don’t know Amy Richards and you almost certainly will never know her “little boy.” He didn’t ask you to speak on his behalf and I can’t see where you got any particular knowledge or authority that would make it appropriate for you to do so. If you want to make a case against abortion you should feel free, but using a stranger’s child as a ventriloquist’s prop in trying to make it only undermines your efforts.

joe: In getting off the topic, I was hoping to draw a comparison to those of affluence (education) and those less affluent (little education) and its impact on society. Do the enlightened ideals of abortion and contraception, which are probably used mostly by the well-to-do, a benefit to society?

There’s no need to speculate about who “probably” uses abortion and contraception. Data is publicly available. As it happens, you’re correct about contraception but mistaken about abortion: poor and low-income women are more likely than “well-to-do” women to have abortions (see: Alan Guttmacher Institute: Patterns in the Socioeconomic Characteristics of Women Obtaining Abortions in 2000-2001 in the Findings under “Women’s Characteristics”); the rate of abortion per 1,000 women decreases fairly steadily as annual income increases. Anyway, I’m unclear what any of this has to do with whether abortion should or should not be legal. If birth rates decline in proportion to increases in female literacy and education, then that must mean that women, given the resources and options to make a meaningful choice, are choosing not to have as many children as they had previously had. The women making these choices are human beings, not machines for maximizing whatever demographic statistics you happen to find important; each and every one of the women in question has her own life and her own reasons for choosing to have fewer children, and I can’t imagine where policy-makers would get the knowledge or the virtue or the right to tell her that she needs to abandon those reasons in order to make quota.

murky thoughts: Are philosophers of law allowed to look for rights outside the constitution?

Sure, unless all legal inquiry terminates decisively at the prescriptions of the Constitution. You might think that it obviously does (or ought); but obvious or not, it is a substantive position within the philosophy of law, which needs a reasoned defense. The final authority of the Constitution is not unquestionable, and in any case it’s both contingent and parochial (we could have had different small-c constitutions, and other people do have them). If you want to argue that in our territory, as things actually turned out, the Constitution is decisive on all legal questions on which it speaks (and maybe even some on which it does not), then you can argue that, but you will need just that—an argument. And the reasons given in the course of the argument would themselves be reasons within the province of the philosophy of law. (As you may have guessed by this point, they should not be reasons taken from within the text of the Constitution itself, since the authority of the Constitution is precisely what’s in question; you can’t just cite the Supremacy Clause without begging the question in a particularly crass manner.)

murky thoughts: Isn’t Article 1 the end of the story about why we have intellectual property rights?

No. If you do take the text of the Constitution to be decisive on legal questions within its scope then that at most only authorizes Congress to devise intellectual protectionism schemes; it doesn’t mandate any particular scheme, or any scheme at all, and it doesn’t recognize a “right” that the government or anyone else is bound to respect. You can have plenty of arguments over whether Congress ought to make use of the power that it is granted, and whether it ought to make use of it in this way or that.

If, on the other hand, you don’t take the Constitution to be decisive in any final way, then the text of Article I has no special authority to settle the matter anyway. (This happens to be my view; Bell is right to suggest that intellectual protectionism may undermine property rights in ordinary tangible property, and as a very famous lawyer once argued, “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, —That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” Constitutions are not prior to natural rights, and have no proper authority outside of recognizing and protecting them.)

Well, I think it’s obvious that there is some problem to be considered here, but I’m a bit puzzled that you treat “teaching and evaluating” all of a piece. I took a class in statistical methods that my father taught several years ago; the arrangement that we worked out was to ask the Department Chair, as a favor (since it concerned a single student only, and the course was in his area of specialty, it wasn’t that big of one to ask) to grade the exams that I took. It may not be possible to arrange something of the sort in every situation; but if it’s not possible to arrange a third-party auditor for the kid’s grades, well, that’s as good a reason as any to have the kid enroll in somebody else’s section.

It seems likely to me that there are some parts of the student-teacher relationship that are worth taking a harder line on than others.

If the referendum was free of fraud, would that make the statist constitution drafted by a Vichy regime any more legitimate?

Since when did anarchists start believing in government elections?

Just out of curiosity, have you ever read any of Andrea Dworkin’s books? (I mean, actually read the whole thing from cover to cover.) If so, which ones?

But I would like you to consider the Rwanda scenario or some other humanitarian scenario. … I think what you would like to say here is that we are fighting a defensive war on behalf of the citizens of Rwanda. Which sounds kind of right, but it also seems very odd to call such a war a “defensive” war.

Well, would it sound any less odd to call it an “aggressive” war? “A war in defense of the Tutsis,” on the other hand, doesn’t sound odd at all.

As a side note, I do agree with you that there are cases — and the genocide in Rwanda is one of them — where massive violations of human rights could, in principle, justify war by third parties in defense of the victims. But it is important to remember that there are lots of different ways of conducting wars, and that signing on, in principle, to a war by third parties doesn’t mean signing on to any kind of war by any kind of third party. (For example, liberal interventionists usually use cases like Bosnia-Hercegovina or Rwanda as exhibit A in the argument for justifying large-scale wars by alliances of governments, especially the global powers, with aerial bombing and typically a period of foreign occupation. But all of these terms are debatable. Wars don’t need to be sponsored or conducted by governments, let alone alliances of them, and don’t need to be conducted by means of the usual full-scale military assault that the Great Powers typically engage in. Maybe the genocide in Rwanda would justify a military intervention by NATO or a UN-sponsored coalition, but I think that’s very much less obvious than many people seem to think, because it is much stronger than the claim that some kind of war or another would be justified than many people realize.)

“So I see three options when discussing appointments by the other team: a) brilliance is always more important than policy-moderation. b) Policy-moderation is always more important than brilliance c) It depends on the position.”

Can I freely substitute “correct positions on questions of policy” for “policy-moderation,” if I don’t think that the correct positions are usually “moderate” ones? If not, then I have to think that all of (a)-(c) seem to me to miss the point; after all, why should anyone care about moderation for moderation’s sake, and if there is no reason to care about it, then why should we worry about what sort of trade-offs to make between it and legal brilliance? If, on the other hand, I can substitute, then I’ll bite: the answer seems obviously to be either B or C. I’m inclined to think C, but for the moment I don’t intend to try to settle the issue between the universal (B) and the existential (C) claims.

“For C, I’m kinda curious what people think what positions we should value competence or moderation more?”

Here’s a couple of plausible candidates that have, in the past, come before the Court, and where clever men did a lot of harm through some audacious legal reasoning:

1. Slavery (cf. Dred Scott v. Sanford)
2. Genocide and ethnic cleansing (cf. Cherokee Nation v. Georgia et al.)

If you believe that abortion is murder or some other form of gross violation of human rights, you should probably add abortion and Roe v. Wade to the list. I don’t, so I won’t; but since I do regard banning abortion as a form of slavery, I would put any hypothetical reversal of Roe v. Wade, no matter how brilliantly argued, under (1).

(You could probably add torture and extra-judicial killing onto the list of issues where having the right position is more important for a judge than a brilliant legal argument on the topic.)

I think there’s a general principle here: human rights are more important than sharp legal argument, and there are at least some issues on which being on the wrong side of the line just has to be a defeater for being entrusted with any kind of power to enforce your legal reasoning.

In any case, from what I can gather, Miers is neither on the right side of most issues nor possessed of a brilliant legal mind, so what are we arguing about, anyway?

Patrick,

The primary claim above is not that all wars of aggression are unjust (although I do, as it happens, think that that’s analytically true). It’s that “aggressive” and “defensive” are contrary terms, whether the object of the defense is yourself or others, so that if your justifications for a war all appeal to the defense of others, then you are presenting evidence that the war wasn’t aggressive, not that it is both aggressive and just.

As for whether wars in defense of others could in principle be just under some set of circumstances or another, I suspect that very few people would disagree with you. But it does seem to me that there are pretty good reasons for saying that when a war is not justified by self-defense, there’s a correspondingly higher standard that needs to be met in order to justify military action (for a lot of reasons, moral, epistemic, and practical). And all that the anti-war movement needs to make a general case against these kinds of interventions is to show that the standard that needs to be met is high enough that governments intending to go to war generally don’t meet it. (And if that is their point, I think they are quite right.)

Patrick,

Just out of curiosity, if “Stalinists” leading the organizing of anti-war protests is the problem, why don’t good sensible liberals in the Democratic leadership quit crying about it and organize their own public demonstrations that they can show up to in good conscience? It’s not like we are talking about people without organizational resources to draw on here.

Geoff,

“Aside from Corn’s reporting that “Paul Donahue, a middle-aged fellow who works with the Thomas Merton Peace and Social Justice Center in Pittsburgh, shouted, ‘Stalinist!’” at a WWP-affiliated speaker at a rally several years ago, he nowhere offers anything resembling evidence for saying that the WWP consists of Stalinists; indeed, nowhere else does he even mention Stalin or Stalinism.”

This requires some digging into the complicated and sometimes rather silly history of sectarian Communist parties in the United States.

The Workers’ World Party is a dissident Communist sect that was founded under the leadership of Sam Marcy in 1959, when it formally split from the Socialist Workers’ Party, the leading Trotskyist organization in the U.S. at the time. For a few years before the formal break the Marcyites had been a dissident faction within the SWP. The split was the result of political turmoil within the Fourth International (due to the failure of World War II to produce global revolution as Trotsky had predicted); the Marcyites decided, with the postwar revolutions in China, North Korea, and Yugoslavia, and the creation of Communist governments in Eastern Europe, that global revolution was on anyway, and aligned themselves with the newly-existing Communist governments, especially in China (and later in Cuba). Since all of these governments except for Yugoslavia’s were Stalinist, that meant aligning themselves with Stalinist parties and Stalinist regimes as the leading edge of the global revolution; thus, while still professing to be Trotskyists in doctrine, they downplayed their opposition to Stalinism. They also came to endorse important tenets of Stalinism, such as the theory of national-state socialism (as opposed to the more strictly internationalist view held by the Trotskyists). The formal break with SWP was mainly caused by Marcy’s support for the Soviet invasion of Hungary (most Trotskyists condemned it as an imperialist assault on workers’ autonomy; the Marcy faction condemned the Hungarian councils and the SWP’s support for them as counterrevolutionary). Over time, WWP support for Trotsky and Trotskyism was even further downplayed (mostly in order to make alliances with Stalinist groups easier). Nevertheless, they never merged with official Stalinist organs (such as the Communist Party USA), and they continue to promote the works of Trotsky, as well as Stalin and Mao, in print. Their official label these days is just “Marxist-Leninist.”

So Corn and the rest are sort of right and sort of wrong when they describe WWP as “Stalinists.” What WWP really are is a rather insular and bizarre Stalinist-Trotskyist hybrid, with a substantial number of positions that are fixed by pure opportunism. In any case the standards of evidence they typically employ are so low that where they’re right, you might as well say they are right by accident. WWP can (sort of) be described as Stalinists, but the mere fact that they issued sycophantic praise for Kim Il Sung no more proves that they are Stalinists than “A Plea for Captain John Brown” proves that Thoreau was a Puritan.

In terms of origins and influences, the WWP are Communists, Marxist-Leninists of a sort, and combine Stalinist, Maoist, and Trotskyist influences. The most apt description for them, though, would probably be “freelance nutcases.”

Hope this helps.

Patrick,

I’ve re-read Leiter’s post and I now think your interpretation is more reasonable than when I quickly read things over this morning. I don’t know if it’s right—and I think that not considering clear alternative readings was a mistake on your part—but calling it a “wilfull misreading” was out of line on mine.

My bad.

That said, I’m a bit puzzled by your and zwichenzug’s discussion of the U.S. role in World War II. For example, when you say:

“Hell, FDR basically fought a low-key war of aggression against Germany for practically a year before Hitler declared war on the US. I mean, Hitler was absolutely right to complain that the US was bascially fighting against him without declaring it.”

Which you then follow by saying:

“I was merely pointing out that some wars of choice are justifiable. Some wars of aggression are justifiable. Some wars which involve the conquest of the sovereign territory of other nations are justifed. WW II is one of them from America’s standpoint.”

But if the U.S.’s role in World War II was morally justified (something that I don’t, incidentally, take to be nearly as clear as you do, in light of the actual conduct of the war), surely the reason that it was justified is that it was a defensive rather than aggressive war. Not in self-defense, prior to Pearl Harbor (and arguably never in self-defense in the European theater), but in defense of others against aggression. You may have an argument that this makes it a “war of choice” (thus a justified one, if justified) — since I don’t know what the hell “war of choice” means, I’d be glad to concede the point anyway. But it is certainly not an argument that it is a “war of aggression” (thus a justified one, if justified). Unless you intend to offer some pretty weird theory about why the U.S.’s role was justified, it seems that insofar as you give justifying reasons, you undermine the reasons for calling it a “war of aggression.”

zweichenzug,

“Very briefly on Afghanistan — if they nation of Afghanistan had attacked the U.S. then the case would be clear. The nation didn’t, so the case is muddy. I’m not claiming to be certain that such a war is unjustified.”

Do “nations” ever attack? If so, what constitutes an attack by a “nation”? (Does everyone have to attack? All at once, or one at a time?) If not, then does that make the case for all wars “muddy”? (I think that it does, but I don’t know whether you’d be willing to accept that conclusion.)