<p>Pangloss,</p>
<p>Thanks for your comments in reply to the argument that I presented. Rather than fisking through each of your replies, let me try to put some issues aside quickly and then move on to the main point of the debate.</p>
<p>First, concerning (1): (1) is a premise, not a step inferred in the course of the argument. One lemma that you could offer in support of (1) is the one that you give here, based on the 13th amendment. That has the positive feature that it’s obviously encoded in American positive law; it has the negative feature that it’s limited to American positive law by the nature of the argument. (As it happens, I think that is a wrong step: *no* government could *possibly* have the authority to legalize slavery, because slavery is a violation of the inalienable human rights that governments are instituted to protect, and no matter how hard they try to step outside of those boundaries they can never have the legitimate authority–which is something quite different from having the brute power–to do so. But that argument is a sideshow for the purposes of this argument; I take it that we agree on the premise, whether or not we agree on the reasons to give for it if challenged, so let’s move along.</p>
<p>There seems to be a confusion throughout your replies concerning what it means to make something law. Obviously it is <em>not</em> enough that you write some things down on a piece of paper with “THIS IS A LAW” at the top; <em>I</em> can do that, but doing so would have no effect whatever in the world beyond the paper I was writing on. The reason for that is that laws can only be <em>made</em> by legitimate legislative authorities. But what counts as a legitimate legislative authority, and what is it for one to count as having <em>made a law</em>?</p>
<p>Well, one requirement is that whatever body does the legislative work (the two houses of Congress, in the United States) has to have some sort of internal procedure for determining when the bill will be put forward (supermajority vote, consensus, arbitrary fiat, or–as is the case for most bills in the U.S.–a committee recommendation process followed by a majority vote of members). But <em>that</em> is not the only requirement; there is a <em>prior</em> requirement: in order for them to <em>make a law</em> the law has to be within the scope of their legitimate authority. (Suppose that the United States Congress voted through a bill to change the speed limit in Honduras, and the President, for whatever reason, signed it. Would they have made a law changing the speed limit in Honduras? No, of course not–they have no authority to legislate the speed limit in Honduras. All they have done is waste a lot of paper voting on, and promulgating, a dead letter.)</p>
<p>Thus we get premise (2), a premise that you seem to have endorsed above: legislatures can only make laws within their proper sphere of authority. Combined with (1), which states that legalizing slavery is (ipso facto) beyond the rightful authority of the legislature, this gives us the upshot that the legislature <em>cannot make a law</em> (no matter how hard they try) that legalizes slavery. They can write “slavery is legalized” on a piece of paper, and vote to put “THIS IS A LAW” on the top of the piece of paper, but <em>that</em> confers no legal authority on its own.</p>
<p>So far, so good; in any case you seem to have agreed with the premises. Your first cavil arises with premise (3) – that courts can only enforce the laws that have been made. (Yes, “enforce": if a judge is not trying to <em>enforce</em> laws when she orders you to pay a fine or not to pay a fine, orders the Department of Corrections to put you in prison or to release you, &c., then what in the world <em>is</em> she doing? If there’s a word that will better convey the meaning–"Ruling on” the laws? “Adjudicating based on the laws"? “Recognizing” the laws?–I’ll be glad to use it.) This should, in any case, be a premise that you readily consent to, given what you’ve said so far: judges have no power to <em>legislate</em>; they only have the power to make rulings based on the laws that have been made by the legislature (there is a minor exception to this in the field of the common law, but it isn’t immediately relevant to this argument; in any case, it’s not a counterexample to (3) since the legitimate precedents of common law are also laws that have been made, just by different people). The point here is that judges cannot invent new laws, and so if the legislature (for example) never passed a law lowering the speed limit to 45 miles per hour, a court has no authority to impose a limit on its own and fine someone for exceeding it.</p>
<p>But remember what was just said: the conjunction of premises (1) and (2) (to which you agreed) results in the conclusion that the legislature cannot ever make a law–even if they <em>try</em> to, and <em>pass a bill</em> to do so–that legalizes slavery. If that’s so, then <em>even if the legislature has passed a bill</em> legalizing slavery there is no <em>law</em> in the United States legalizing slavery. And if courts can’t rule based on laws that haven’t been made, then any court which enforced a slavers’ claim to own other people would be acting outside of its proper sphere of authority.</p>
<p>This is why “bills” was used consistently rather than “laws": if you endorse premises (1) and (2) then there can be no such thing as a law that legalizes slavery. There can, at the very most, be bills that a majority of Congress and the President <em>tried</em> to make laws, but failed.</p>
<p>That leaves us at premise (4), which is (I think) the real meat of the debate: the premise that forcing a woman to carry a pregnancy to term against her will is a form of slavery. Now, I haven’t (yet) introduced arguments in favor of this premise; and you evidently don’t agree with it. Very well; it’s a good argument to have, and one that I’ll be glad to join–at least, after I’ve gotten back from spending the weekend in DC marching in support of my answer to the question.</p>
<p>But first, I want to clear the ground of irrelevancies. <strong>Given what I have said about premises (1), (2), and (3), do you accept all three of these premises?</strong> Further, do you agree, based on the argument I’ve given, that if one accepts (as <em>I</em> do, and as many other pro-choicers do) (1)-(3) <em>and premise (4)</em> together, it entails the conclusion, (7)? If so, then that should be sufficient to show you why pro-choicers <em>think</em> that Roe-style court decisions are a perfectly legitimate means for defending abortion rights. Of course, showing why we <em>think</em> something is true is not necessarily the same thing as showing it <em>is</em> true; if premise (4) is <em>false</em>, then it ain’t good grounds for drawing any conclusions. But it <em>should</em> show you that the real meat of the issue is whether or not abortion <em>is</em> the sort of fundamental human right (a right to control over your own body) that I, and other pro-choicers claim it is. If you accept premises (1), (2), and (3), then appeals to “judicial activism” (or “judicial tyranny") and complaints about separation of powers simply glance past the pro-choice argument: Roe-style decisions could exceed the courts authority <em>only if</em> no argument of the sort I gave above applies, and so the debate over (4) is where the <em>real</em> action is.</p>
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