Disposing of a Few Idiocies

Late Friday afternoon, fresh from a nap after a delightful lunch at a lakeside restaurant. I can muster only a few quick comments.

Dale Carpenter, writing at The Volokh Conspiracy, asks “Why So Few Gay Marriages?” He fails to suggest the main reason: “Gayness” is mostly about sex, not about lifetime bonding centered mainly around children.

Publius (with a little “p”), of legal fiction, chastises Americans for their obliviousness to history. His aim — which he disavows, of course — is to suggest that Americans are somehow responsible for Islamic terrorism because of their ignorance of the “villainy” of (some of) their European ancestors during the Crusades. According to publius, Americans’ obliviousness to history also blinds them to the fact that America’s efforts to “export democracy” have been failures, though he somehow fails to mention Germany and Japan. Nor does he acknowledge that our real aim in the Middle East isn’t so much to export democracy as it is to establish friendly regimes that are (at least) not oppressive.

Publius goes on to say that “Americans just haven’t had to internalize defeat, loss, and humiliation in the same way that other people have.” But in the next paragraph he contradicts himself by acknowledging “two [sizeable] groups of people in America that do have a collective consciousness of resentment . . . white Southerners and blacks. Say what you will about both groups, they don’t forget.” I’m not sure whether little “p” objects to the defeat of the Confederacy or to the failure of the effort to remove all freed slaves to Liberia.

Today’s Recommended Web Reading

At LegalAffairs Debate Club, John Robertson and Barbara Katz Rodman debate “Choosing Your Child’s Sex?” The question for debate: Should it be unlawful for parents to select an infant’s sex through abortion or in vitro techniques and, if so, under what circumstances should it be legal? Robertson offers the usual liberal cant (“we prize individual autonomy and reproductive choice”) and tries to cajole fellow liberal Katz Rodman into going along with him. She won’t:

In this “more choice is better” argument, the children that are never created (whether as fetuses aborted or embryos unselected or sperm washed away) can hardly be said to be harmed by the fact of their non-being. So then there are the children who are “chosen,” the selected ones, chosen for their sex. I think there really is the potential for harm there—any time we give parents reason to think they can control the kind of people their children are, I think we are doing damage to the child, the parent, the relationship. . . .

A woman with one or two daughters will face more, not less pressure to produce a son if sex selection becomes part of ordinary practice. The new “choice” will probably pretty quickly become an obligation.

And as to whether “family balance” will inevitably lead to sex selection in the first place: you know the “slippery slope” argument? Think greased chute.

Russell Roberts at Cafe Hayek explains once more (this time in “Mental Experiment“) why international trade isn’t a zero-sum game or a threat to the well-being of Americans:

A lot of people are worried about China as an economic threat to the United States. I’m not. China’s economic success is good for Americans. When Americans buy toys and clothes and iPods made in China it means that we have more people and capital available to make other things.

A variation on the Chinese threat is that someday, if they keep growing, they’ll pass us. This is the view that economics is like the Olympics. If you don’t finish first, you’re stuck with the bronze or silver medal or worse, you don’t even get to the medal stand. But economic success is not like the Olympics. It’s not a zero sum game. . . .

What if you woke up one more morning and discovered . . . . [that the] Chinese had mismeasured their national income information and it turned out that the Chinese, in fact, had a per capita income many times that of the United States. . . . . How would it change your well-being? Would it make any difference whatsoever?

Maxwell Goss at Right Reason points to a story about

Dutch MP Sharon Dijksma [who] proposes fining women with college degrees who choose to stay at home instead of entering the paid workforce. Dijksma explains: “A highly-educated woman who chooses to stay at home and not to work — that is destruction of capital. If you receive the benefit of an expensive education at the cost of society, you should not be allowed to throw away that knowledge unpunished.”

The first mistake, of course, is the subsidization of education, which encourages persons who will not use it (or use it well) to partake of it at taxpayers’ expense. The second mistake is to assume that it is a “waste” to educate women who choose not work outside the home. Mothers are the main civilizing influence in society — or they were before they went “to work” in droves. It makes a lot more sense to have college-educated mothers than it does to have college-educated pharmaceutical salesmen (to take but one of many examples of “wasted” education).

The Federal Election Commission has decided — more or less — to go along with the First Amendment. Tongue Tied reports:

The very idea of rules for the internet is anathema to me but America’s FEC does not seem to think so. The rules they have just handed down have no terrors for bloggers at the moment but as sure as night follows day, more and more regulations will follow.

The Tongue Tied post then links to a story that includes a recap of some of the main points of interest to bloggers:

Feds’ Internet rules

The FEC’s final Internet regulations adopted on Monday are less onerous than an earlier version. Here’s what they say:

• Paid political advertising appearing on someone else’s Web site would have to be reported, regardless of how little or how much it costs. But that responsibility would lie with the candidate, political party or committee backing the ad–not a Web site accepting the ads.

• All ads that expressly advocate the election or defeat of a candidate or solicit donations would have to carry disclaimers.

• Bloggers and other individual commentators wouldn’t have to disclose payments received from candidates, political parties or campaign committees–but those groups would have to report payments to bloggers.

• No one except registered political committees would be required to put disclaimers on political e-mailings or Web sites. The e-mail requirement would kick in only if the committee sent out more than 500 substantially similar unsolicited messages at a time.

• The media exemption enjoyed by traditional news outlets would be extended to “any Internet or electronic publication,” which could include everything from online presences of major media companies to individual bloggers.

Thanks to the FEC — for nothing.

Euthanasia in Asia

Reuters reports:

North Korea has no people with physical disabilities because they are killed almost as soon as they are born, a physician who defected from the communist state said on Wednesday.

Ri Kwang-chol, who fled to the South last year, told a forum of rights activists that the practice of killing newborns was widespread but denied he himself took part in it.

“There are no people with physical defects in North Korea,” Ri told members of the New Right Union, which groups local activists and North Korean refugees.

He said babies born with physical disabilities were killed in infancy in hospitals or in homes and were quickly buried.

Here, we call it partial-birth abortion.

The Slippery Slope in England

All I have to do is repeat “The Slippery Slope in Holland,” but change one link:

I once ended a post with this comment: “The slippery slope of eugenics is here and we are sliding down it.”

Indeed we are: ~~Holland to Allow Infant Euthanasia.~~

The parents of a terminally-ill little boy at the heart of a unique court case have expressed their delight after a judge decided their son should be kept alive.

Why should a judge be involved in that decision?

The End of Women’s "Liberation" and the Return of Patriarchy?

UPDATE: See also this excellent post at Eternity Road.

Amanda Platell, a British “[e]ditor, TV pundit, political guru, . . . has been a high-flying career woman. But no, she says, she (and countless others like her) haven’t had it all. And it’s taboo to ask why.” Platell continues, in “The Silent Conspiracy“:

My mother’s generation – the ones we pitied for a life of domestic and marital servitude – must look at us and wonder whether all they have missed out on is the right to make themselves miserable. Theirs was a world where men earned the crust and women made the sandwiches. It was a world that had to change. And it did. . . .

So why do I find myself now as among a growing band of one-time feminists looking back on our own lives and wondering whether the world we helped create is the one we want to bequeath to the next generation?

On the surface, I’ve had a glamorous life, I’ve edited a national newspaper, been spin doctor to the leader of the Tory Opposition, and co-presented a primetime political TV show. I’ve earned big money and travelled the world – all from pretty humble beginnings. But have I really had it all, as we promised ourselves we would? . . .

It’s only now , as we start to look back, that we can see just how much we’ve scorched the social landscape around us. In our rush to embrace the new, we have systematically rejected much that, for centuries past, had brought women stability and happiness. Is it any wonder that the younger generation aren’t sure what to think, and instead allow the thrill of youthful hedonism to drown out the conflicting signals around them. . . .

Far too often, it seems to me, the unwitting price of female emancipation has been heartache, stress and a life spent chasing false promises. But if we women are ever to feel truly happy with our lot, I believe we have to stop whingeing, stop blaming men and society, stop playing the victim and stand up and ask the unthinkable; are we ruining for ourselves? Could it be that the freedom we now enjoy is part of the problem? . . .

Even those who led the feminist crusade were ready to admit that their idealism had laid waste to much that had made women happy in previous generations. For as long as I can remember Fay Weldon has been a feminist icon of mine. She reached me through literature in a way that other feminists never did through lecturing. If anyone could explain feminism’s legacy, it would be her. But when I went to meet her, at the start of my research, what I got instead was an apology.

“Women like you should be cursing women of my generation”, she told me. “All we did was make you go out to work and earn money and have children and completely exhaust yourselves. I’m sorry”. She called women like me ‘the lost generation’ – the ones who had inherited a barren landscape after the revolution had marched through.

“If you want to be like a man, then feminism hasn’t gone far enough”, she said, “if you want to be like a woman, it has gone too far.

And there, straight away, was the kernel of the matter: feminism was supposed to about equality, not sameness. We wanted to better our sex, not obliterate it. But that is what has happened. In striving to be the same as men, the only things we were guaranteed were the exhaustion and stress and guilt that came with the effort of labouring to become something we never were and never could be. . . .

This . . . has led to another unintended consequence – this time biological. The principled and often pathological belief that men and women have to be treated the same has led women to believe they can have kids whenever they want and with whomever they want – or even by themselves if they choose. The principle legacy of that belief is not more contented mothers, but more women putting money in the pockets of a booming fertility industry as they discover the hard way that nature doesn’t perform to order and pays no regard to social idealism.

Yet when two highly esteemed doctors had the temerity to point out this simple truth, they were pilloried. To howls of derision from the feminist lobby, Susan Bewley and Melanie Davies – consultants in obstetrics and gynaecology – wrote an article for the British Medical Journal stating that the “the most secure age of childbearing remains 20-35”. . . .

Women, even when they work full-time, are still the primary carers of children and elderly relatives, still do most of the housework, cooking and shopping. Only a fraction of men have taken up paternity leave. . . .

Yet unequal though the share of domestic duties may be, marriage is still the most successful way to raise a family. So why, then, has the Labour Government done so much to remove any recognition of, or incentive for, marriage? Perhaps in part because we women haven’t taken it seriously enough ourselves. I certainly didn’t when I got married 22 years ago. I spent more time thinking about the frock than the future I was embarking on. The result? The dress was great; the marriage a disaster.

And there are plenty of other women like me still making that same mistake today. Indeed, the law makes it easier to get married than to buy a used car. But it’s not just the ease of marriage that has brought the institution down; it’s the ease of divorce and the way women increasingly see men as meal tickets for life. . . .

[B]y supporting and perpetuating an increasingly unfair divorce system, we are in effect putting men off marriage – the institution most women still believe makes them happier and more secure than any other. How sad. . . .

And so my journey had brought me full circle, from the past generation to the future one, and the thread running through it all was a startling realisation that women are covertly contributing to our own unhappiness. So why had we put up with it for so long? Because to tell the truth felt like a betrayal of the core promise of feminism, an admission of failure.

But women haven’t failed: it’s just that our expectations were unrealistic. We set the bar too high and so have spent our lives crashing into it. The simple truth is that we can’t have it all. We can’t have everything we want, when we want.

For decades it has been a crime against our sex even to say these things. Perhaps now we can start to admit that the real crime has been the conspiracy of silence.

Meanwhile, over at Foreign Policy, Philip Langman sees “The Return of Patriarchy“:

Across the globe, people are choosing to have fewer children or none at all. . . . Are some societies destined to become extinct? Hardly. It’s more likely that conservatives will inherit the Earth. Like it or not, a growing proportion of the next generation will be born into families who believe that father knows best. . . .

Patriarchy does not simply mean that men rule. Indeed, it is a particular value system that not only requires men to marry but to marry a woman of proper station. It competes with many other male visions of the good life, and for that reason alone is prone to come in cycles. Yet before it degenerates, it is a cultural regime that serves to keep birthrates high among the affluent, while also maximizing parents’ investments in their children. No advanced civilization has yet learned how to endure without it.

Through a process of cultural evolution, societies that adopted this particular social system—which involves far more than simple male domination—maximized their population and therefore their power, whereas those that didn’t were either overrun or absorbed. This cycle in human history may be obnoxious to the enlightened, but it is set to make a comeback. . . .

Under patriarchy, maternal investment in children also increases. As feminist economist Nancy Folbre has observed, “Patriarchal control over women tends to increase their specialization in reproductive labor, with important consequences for both the quantity and the quality of their investments in the next generation.” Those consequences arguably include: more children receiving more attention from their mothers, who, having few other ways of finding meaning in their lives, become more skilled at keeping their children safe and healthy. . . .

[D]uring the post-World War II era, nearly all segments of modern societies married and had children. Some had more than others, but the disparity in family size between the religious and the secular was not so large, and childlessness was rare. Today, by contrast, childlessness is common, and even couples who have children typically have just one. Tomorrow’s children, therefore, unlike members of the postwar baby boom generation, will be for the most part descendants of a comparatively narrow and culturally conservative segment of society. To be sure, some members of the rising generation may reject their parents’ values, as always happens. But when they look around for fellow secularists and counterculturalists with whom to make common cause, they will find that most of their would-be fellow travelers were quite literally never born.

Advanced societies are growing more patriarchal, whether they like it or not. In addition to the greater fertility of conservative segments of society, the rollback of the welfare state forced by population aging and decline will give these elements an additional survival advantage, and therefore spur even higher fertility. As governments hand back functions they once appropriated from the family, notably support in old age, people will find that they need more children to insure their golden years, and they will seek to bind their children to them through inculcating traditional religious values akin to the Bible’s injunction to honor thy mother and father.

(Thanks to my daughter-in-law for the link to “The Return of Patriarchy.”)

The Slippery Slope in Holland

I once ended a post with this comment: “The slippery slope of eugenics is here and we are sliding down it.”

Indeed we are: Holland to Allow Infant Euthanasia.

Peter Singer’s Agenda

Peter Singer, euthanasia enthusiast, is piggy-backing on the Schiavo fiasco. This is from WorldNetDaily:

During the next 35 years, the traditional view of the sanctity of human life will collapse under pressure from scientific, technological, and demographic developments, says controversial bio-ethics professor Peter Singer.

Princeton’s Peter Singer (Photo: The Age)

“By 2040, it may be that only a rump of hard-core, know-nothing religious fundamentalists will defend the view that every human life, from conception to death, is sacrosanct,” says Princeton University’s defender of infanticide. “In retrospect, 2005 may be seen as the year in which that position (of the sanctity of life) became untenable,” he writes in the fall issue of Foreign Policy.

Singer sees 2005’s battle over the life of Terri Schiavo as a key to this changing ethic.

The year 2005 is also significant, at least in the United States, for ratcheting up the debate about the care of patients in a persistent vegetative state,” says Singer. “The long legal battle over the removal of Terri Schiavo’s feeding tube led President George W. Bush and the U.S. Congress to intervene, both seeking to keep her alive. Yet the American public surprised many pundits by refusing to support this intervention, and the case produced a surge in the number of people declaring they did not wish to be kept alive in a situation such as Schiavo’s.”

He writes that by 2040, the Netherlands and Belgium will have had decades of experience with legalized euthanasia, and other jurisdictions will also have permitted either voluntary euthanasia or physician-assisted suicide for varying lengths of time.

“This experience will puncture exaggerated fears that the legalization of these practices would be a first step toward a new holocaust,” he explains. “By then, an increasing proportion of the population in developed countries will be more than 75 years old and thinking about how their lives will end. The political pressure for allowing terminally or chronically ill patients to choose when to die will be irresistible.”

The professor, who advocates killing the disabled up to 28 days after birth, was the subject of protests when he was hired in 1999 by Princeton, a school founded by the Presbyterian denomination. A group calling itself Princeton Students Against Infanticide issued a petition charging the Australian professor “denies the intrinsic moral worth of an entire class of human beings – newborn children.”

Singer also is known for launching the modern animal rights movement with his 1975 book “Animal Liberation,” which argues against “speciesism.” He insists animals should be accorded the same value as humans and should not be discriminated against because they belong to a non-human species.

Yes, people say that they don’t want to share Terri Schiavo’s fate. What many of them mean, of course, is that they don’t want their fate decided by a judge who is willing to take the word of a relative for whom one’s accelerated death would be convenient. Singer dishonestly seizes on reactions to the Schiavo fiasco as evidence that euthanasia will become acceptable in the United States.

Certainly, there are many persons who would prefer voluntary euthanasia to a fate like Terri Sciavo’s. But the line between voluntary and involuntary euthasia is too easily crossed, especially by persons who, like Singer, wish to play God. If there is a case to be made for voluntary euthanasia, Peter Singer is not the person to make it.

Singer gives away his Hitlerian game plan when he advocates killing the disabled up to 28 days after birth. Why not 28 years? Why not 98 years? Who decides — Peter Singer or an acolyte of Peter Singer? Would you trust your fate to the “moral” dictates of a person who thinks animals are as valuable as babies?

Would you trust your fate to the dictates of a person who so blithely dismisses religious morality? One does not have to be a believer to understand the intimate connection between religion and liberty, about which I have written here and here. Strident atheists of Singer’s ilk like to blame religion for the world’s woes. But the worst abuses of humanity in the 20th century arose from the irreligious and anti-religious regimes of Hitler, Stalin, and Mao.

(Thanks to my daughter-in-law for the link to the WorldNetDaily article.)

More related posts:

Peter Singer’s Fallacy (11/26/04)
Science, Pseudo-Science . . . , a collection of links to other related posts
Self-Ownership, a collection of links to yet other related posts

The Cynics Debate While Babies Die

UPDATED BELOW

Sanford Levinson and Jack Balkin smugly “debate” Roe v. Wade as the TimesOnline reports on babies who survive abortion attempts (emphasis added by me):

A GOVERNMENT agency is launching an inquiry into doctors’ reports that up to 50 babies a year are born alive [in the UK] after botched National Health Service abortions. . . .

The Royal College of Obstetricians and Gynaecologists, which regulates methods of abortion, has also mounted its own investigation.

Its guidelines say that babies aborted after more than 21 weeks and six days of gestation should have their hearts stopped by an injection of potassium chloride before being delivered. In practice, few doctors are willing or able to perform the delicate procedure.

For the abortion of younger foetuses, labour is induced by drugs in the expectation that the infant will not survive the birth process. Guidelines say that doctors should ensure that the drugs they use prevent such babies being alive at birth.

In practice, according to Stuart Campbell, former professor of obstetrics and gynaecology at St George’s hospital, London, a number do survive.

“They can be born breathing and crying at 19 weeks’ gestation,” he said. “I am not anti-abortion, but as far as I am concerned this is sub-standard medicine.” [Sub-standard because the abortions are botched, that is: ED.]

The number of terminations carried out in the 18th week of pregnancy or later has risen from 5,166 in 1994 to 7,432 last year. Prenatal diagnosis for conditions such as Down’s syndrome is increasing and foetuses with the condition are routinely aborted, even though many might be capable of leading fulfilling lives. . . .

“If a baby is born alive following a failed abortion and then dies (because of lack of care), you could potentially be charged with murder,” said Shantala Vadeyar, a consultant obstetrician at South Manchester University Hospitals NHS Trust, who led the study. [And in a civilized society you would be charged with murder for carrying out an abortion: ED.] . . . .

The issue will be highlighted by Gianna Jessen, 28, who survived an attempt to abort her. She is to speak at a parliamentary meeting on December 6 organised by the Alive and Kicking campaign, which is lobbying for a reduction of the abortion limit to 18 weeks.

Jessen, a musician from Nashville, Tennessee, was left with cerebral palsy but is to run in the London marathon next April to raise funds for fellow sufferers.

“If abortion is about women’s rights, then what were my rights?” she asked.

“If people are going to talk about abortion, then it’s important for them to know that these are babies that can be born alive and survive.”

Lizards like Levinson and Balkin don’t seem to care about the gruesomeness of abortion or the lives it takes. Their only concern is with how to use the abortion issue to put more Democrats in office. Thus Levinson opens the so-called debate by condescending to working-class Republicans, whom he cannot imagine as proponents of economic liberty and opponents of the welfare state, and impugning the motives of anti-abortion Republican politicians:

. . . I have often referred to Roe as “the gift that keeps on giving” inasmuch as it has served to send many good, decent, committed largely (though certainly not exclusively) working-class voters into the arms of a party that works systematically against their material interests but is willing to pander to their serious value commitment to a “right to life.”

Why do I say “pander”? The reason is simple: Most (though certainly not all) Republicans, including, quite possibly, both Presidents Bush, are absolutely cynical in their professed regard for the “right to life.” The expression of such a regard is a good vote-getter, but professional politicians are well aware that most of the country in fact supports the clumsy compromises stumbled into over the past 30 years, largely through the aegis of Sandra Day O’Connor. I am convinced that the last thing that Karl Rove desires is the return of abortion to the unfettered world of politics, where the Republican Party would actually have to take responsibility for defining policies regarding reproductive choice instead of being able to posture in the knowledge that the Supreme Court will invalidate many, perhaps most, egregious limits on choice. (Why do you think, for example, that President Bush, who is eager to embrace the pernicious proposal to constitutionalize a view of marriage as uniquely heterosexual, has totally failed to support any proposal to overturn Roe by amendment?)

And Balkin agrees. The Levinson-Balkin “debate” has nothing to do with the wrongness of Roe v. Wade or abortion (both of them support it) and everything to do with how Democrats might gain if Roe v. Wade were overturned.

As for Levinson’s “evidence” that Bush & Co. use the abortion issue cynically, Bush knows two things about Roe: (1) It can be vitiated, if not overturned, by a Supreme Court that’s in the right hands (which is where it seems to be headed). (2) Abortion is “popular” — relative to homosexual marriage — so a proposed anti-abortion amendment is unlikely to go very far and, therefore, is likely to be unnecessarily divisive. Levinson is surely bright enough to have grasped both points, but not honest enough to acknowledge them. Moreover, Levinson surely knows that Bush’s anti-abortion stance is based on strongly held religious views — views about which Levinson probably scoffs privately. The cynic is Levinson, not Bush.

(Thanks to my daughter-in-law for the link to the TimesOnline story.)

UPDATE: A post by Leon H at RedState.org recounts the many gruesome and painful ways in which abortions are accomplished:

Today, Virginia Governor Mark Warner (D) granted clemency to Robin Leavitt, thus saving him from the death penalty. This is front-page news because Levitt would have been the 1,000th person legally executed in the United States since the death penalty was reinstated in 1976, a period of almost 30 years….

Today, this very day, approximately 3,013 unborn children were killed. Since 1976, approximately 38 million unborn children have been killed. Nearly all of them have had their own heartbeats. Most have had fully formed (if undeveloped) organ systems. Many of them have felt pain, and some of them have surely been conscious. By “some,” I mean a number several orders of magnitude larger than 999.

None of them had an opportunity to make a defense to a jury of their peers. None of them were provided a lawyer if they could not afford one – which is irrelevant, because there were no trials. No appellate review for the decision to end their life was available. Even those that were conscious were given no effective warning of their death sentence at all.

They were put to death by methods that would shock the conscience of the most calloused observer – Potassium Chloride shots to the heart, suction devices designed to pulverize the fetus into pieces, cut into pieces with knives and sucked out of the womb (D & C), dismemberment by forceps, saline poisoning (usually taking more than an hour), or scissors through the back of the skull.

More on Abortion and Crime

In Freakonomics economist Steven Levitt, drawing on a 2001 paper co-authored with John Donohue, argued that access to abortion (through legalization) is the main cause of the decline in the rate of violent crime. Here’s how The Washington Post reported it:

Freakonomics is packed with fascinating ideas. Consider Levitt’s notion of a relationship between abortion access and the crime drop. First, Freakonomics shows that although commonly cited factors such as improved policing tactics, more felons kept in prison and the declining popularity of crack account for some of the national reduction in crime that began in about the year 1990, none of these completes the explanation. (New York City and San Diego have enjoyed about the same percentage decrease in crime, for instance, though the former adopted new policing tactics and the latter did not.) What was the significance of the year 1990, Levitt asks? That was about 16 years after Roe v. Wade . Studies consistently show that a disproportionate number of crimes are committed by those raised in broken homes or who were unwanted as children. When abortion became legal nationally, Levitt theorizes, births of unwanted children declined; 16 years later crime began to decline, as around age 16 is the point at which many once-innocent boys start their descent into the criminal life. Leavitt’s [sic] clincher point is that the crime drop commenced approximately five years sooner in Alaska, California, Hawaii, New York and Washington state than it did in the nation as a whole. What do these states have in common? All legalized abortion about five years before Roe .

Steve Sailer offered statistical evidence that led me to reject on Levitt’s argument in a post on May 15, 2005, saying this:

If the legalization of abortion did result in less crime it’s only because abortion became more prevalent among that segment of society that is most prone to commit crime. (I dare not speak its name.) What policy does Levitt want us to infer from that bit of causality? Would he favor a program of euthanasia for the most crime-prone segment of society? Now there’s a fine kettle of fish for Leftists, who favor abortion and oppose “oppression” of the the segment of society that is the most crime-prone.

I stand by my original assertion [here] that ” incarceration and spending on the criminal justice system…are the public-policy weapons of choice” in dealing with crime. Whatever abortion is, it isn’t a crime-footing tool.

It now seems that Levitt’s findings are built on statistical quicksand. From the abstract of a paper by Christopher L. Foote and Christopher F. Goetz of the Boston Fed:

[A] fascinating paper by Donohue and Levitt (2001, henceforth DL) . . . purports to show that hypothetical individuals resulting from aborted fetuses, had they been born and developed into youths, would have been more likely to commit crimes than youths resulting from fetuses carried to term. We revisit that paper, showing that the actual implementation of DL’s statistical test in their paper differed from what was described. . . .We show that when DL’s key test is run as described and augmented with state‐level population data, evidence for higher per capita criminal propensities among the youths who would have developed, had they not been aborted as fetuses, vanishes.

Whatever abortion is — and I have a lot to say about that in these links — it most certainly is not a crime fighting tool.

Abortion and the Slippery Slope

I differ with many of my fellow libertarians on several issues, most notably the origin of rights, abortion, same-sex marriage, and preemptive war. (Go here for my views on the origin of rights; go here and follow the links for my views on abortion and same-sex marriage; go here and follow the links for my views about war.) In spite of my unorthodox stance on those issues, my perspective is libertarian and I take my positions in the defense of liberty.

With that introduction, I quote from a comment I left recently at Catallarchy on the subject of “Abortion and Federalism”:

On the pro-abortion side there are (mostly) big-government “liberals” and “centrists” who hypocritically think that in the case of abortion (as well as a few other matters of personal interest to them) government should keep its hands off something. They are joined by many if not most libertarians, whose support for abortion seems to hinge on the notion that (a) a fetus doesn’t become a person with rights until it reaches a certain stage of development (as if there were not continuous development from conception to birth) or (b) a fetus (until some arbitrary stage of development) is its mother’s property to do with as she pleases (which, by extension, would vindicate Andrea Yates, who simply chose to murder her five sons at an arbitrary post-natal stage of development).

What few libertarians (unlike conservatives) seem to give any thought to is the possibility that abortion is of a piece with selective breeding and involuntary euthanasia, wherein the state fosters eugenic practices that aren’t far removed from those of the Third Reich. And when those practices become the norm, what and who will be next? Libertarians, of all people, should be alert to such possibilities. Instead of reflexively embracing “choice” they should be asking whether “choice” will end with fetuses.

And that leads me to an article in The New York Times, “The Problem With an Almost-Perfect Genetic World” (free registration required). I quote:

Heralded in the Nov. 10 issue of The New England Journal of Medicine, the new prenatal test [for Down syndrome] provides earlier, more reliable results for all women than the current test, which is routinely offered to only older women who are at higher risk. But for people with Down syndrome and the cluster of other conditions subject to prenatal screening, the new test comes with a certain chill. . . .

“We’re trying to make a place for ourselves in society at a time when science is trying to remove at least some of us,” said Andrew Imparato, president of the American Association of People With Disabilities, who suffers from bipolar disorder. “For me, it’s very scary.” . . .

Lisa Hedley, whose 10-year-old daughter has dwarfism, said the condition is usually not detected prenatally. It is so rare that it has traditionally not been considered worth the expense of the genetic test. Soon, though, pregnant women may be offered a gene-chip technology that can perform hundreds of tests at once for a few hundred dollars. . . .

Supporters of abortion are especially wary of wading into a discussion over the ethics of prenatal testing, lest they be seen as playing into the opposing side in the fraught national debate over abortion rights. But advocates for people with disabilities are troubled by how much faster the science of prenatal testing is advancing than the public discussion of how it ought to be used.

If no child is ever born again with the fatal childhood disease Tay-Sachs, many might see that as a medical triumph. But what about other conditions, including deafness, which some do not consider to be a disability, and Huntington’s Disease, an adult-onset neurological disorder?

Among the difficult choices facing prospective parents in coming years, genetics researchers say, will be the ability to predict the degree of severity in chromosomal abnormalities like Down syndrome, which can cause mild to moderate retardation.

“Where do you draw the line?” said Mark A. Rothstein, director of the Bioethics Institute at the University of Louisville School of Medicine. “On the one hand we have to view this as a positive in terms of preventing disability and illness. But at what point are we engaging in eugenics and not accepting the normal diversity within a population?” . . .

Of course, as more conditions are diagnosed in utero, many parents may simply decline testing, or use the information to prepare themselves. But studies have shown that women are considerably more likely to terminate their pregnancies if they know of fetal anomalies.

The slippery slope of eugenics is here and we are sliding down it.

Oh, That Slippery Slope

Toward the end of “Law, Liberty, and Abortion” I warned about the slippery slope that leads from abortion to involuntary euthanasia and other crimes against liberty. I was reminded of that by Dave Kopel’s NRO Online column of August 28, 2001, where he said:

In many countries — including Great Britain, Canada, Italy, and Australia — infanticide laws allow women to kill their child in the first year of his or her life. Some allow the mother to kill all her children, providing that one child hasn’t yet celebrated a first birthday. The killer need then only show that the “balance of her mind was disturbed” by childbirth and having a baby in the house — and what mother or father couldn’t prove that? Then, the woman can only be convicted of manslaughter, rather than murder. The practical result is the child-killer ends up with probation and counseling, rather than prison.

Could it happen here? Of course it could. The same mentality that allows it to happen in Britain, Canada, Italy, and Australia flourishes among America’s ironically named — and all-too influential — “liberal” and “progresssive” circles.

Kopel clearly feels the same threat, which is why he points to his 2001 article in a current Volokh Conspiracy post, where he discusses the pending retrial of Andrea Yates:

In the retrial, I hope that Yates does not enjoy another outpouring of sympathy from misguided feminists, such as the Texas chapter of the National Organization for Women, which organized a candlelight vigil on her behalf. . . . I strongly hope that Americans resist the claims of people who want to give a free pass to murdering mothers under the theory that the stresses of parenthood are an excuse of premeditated multiple homicide.

After condoning murder in the name of parental stress, we can then begin to condone murder in the name of parental disappointment, unrequited love, unsatisfying employment, and general malaise.

Marriage and Children

Apropos the preceding post, I offer the following charts:

Source: The Future of Children, a Princeton-Brookings project; journal, Marriage and Child Wellbeing; article, “American Marriage in the Early Twenty-First Century,” figures 1 and 2.

Equal Time: The Sequel

REVISED, 11/05 @ 5:07 PM (CT)

I recently linked to a series of posts at The Volokh Conspiracy in which guest blogger Dale Carpenter lays out his case for same-sex marriage (SSM). I said that when Carpenter had finished posting I would try to summarize his conclusion and compare it with that of Maggie Gallagher, who had earlier guest-blogged at Volokh about her case against same-sex marriage.

Carpenter has made my job easy. In his final post, he wrote this:

Analogies can obfuscate, but in their own way they can distill a matter to its essence. In her last post two weeks ago, Maggie described the issue of gay marriage by use of a vivid analogy that I will never get out of my mind:

Imagine you stand in the middle of vast, hostile desert. A camel is your only means of transversing it, your lifeline to the future. The camel is burdened– stumbling, loaded down, tired; enfeebled– the conditions of the modern life are clearly not favorable to it. But still it’s your only hope, because to get across that desert you need a camel.

Now, chop off its legs and order it to carry you to safety.

That’s what SSM looks like, to me.

That’s one way to see it. Here’s another:

Imagine you stand with your loved one and child in the middle of a vast, hostile desert. You are burdened – stumbling, loaded down, tired. These are the conditions of modern life for you and they are not favorable, but you’ve been trying to make it. To get across that desert you need a camel.

Along comes a caravan with a hundred camels, three of them with no riders, more than enough for you and your family. You plead to use them, agreeing to pay your way and live by their rules for the journey.

But they say, “No, it might disturb the camels we’re riding on.”

That’s what the denial of marriage to gay families looks like, to me.

Both analogies fail, though Gallagher’s comes closest to the mark. Here’s the right way to look at SSM vs. traditional, heterosexual marriage:

Imagine a society that depends on the camel (the family, in this analogy) for transportation across a dangerous desert and into an oasis of civility. A camel that is operated by a man and a woman — joined contractually to do their best to steer the camel from danger — is most likely to arrive at its destination safely because the man and woman have complementary skills, and because they (and their offspring, to break the analogy for a moment) are bonded in an irreplicable biological symbiosis. A camel that is operated by either a man or a woman alone is next most likely to arrive at its destination safely because a sole operator, knowing that he or she lacks certain skills, is at least likely to try to compensate for that lack. A camel that is operated by two persons of the same sex is least likely to arrive at its destination safely because: (1) the operators’ bonding can never be as complete as that of a man-woman team and (2) the operators deliberately choose to omit half the skills required for the job.

Those differences might have only a marginal effect on the overall success of camel-driving operations if the state were not involved in licensing and supporting camel drivers. But the state is involved in licensing and supporting camel drivers, and it has done poorly by the camel in the process. The state began many years ago to encourage solo camel driving by enabling man-woman teams to break their contracts at will instead of trying to work out their differences. (The lesson: When the state sends signals about private arrangements, private arrangements tend to align themselves with the signals being sent by the state.) The state later began to encourage yet more solo camel driving by subsidizing women for driving solo (for raising children out of wedlock, that is) and fostering the dereliction of camel-driving duty in the name of “equality” (as if camel driving were a lesser occupation than, say, camel trading). Now the state is beginning to encourage the formation of man-man and woman-woman camel-driving teams. Given the state’s record in such matters, the predictable outcomes of that development are these:

An increasing proportion of camels will be driven by same-sex teams, thus decreasing the likelihood that camels will arrive safely at the oasis of civility.

A decreasing proportion of men and women will feel the need to form opposite-sex camel-driving teams, as they see that the state (having usurped society’s role in legitimating and supporting camel driving teams) values such teams less and less, thus even further decreasing the likelihood that camels will arrive safely at the oasis of civility.

The problem isn’t the number of marriages, as Dale Carpenter would have it, it’s how many marriages are traditional, heterosexual unions. Given the signals being sent by the state, the rate of formation of traditional, heterosexual marriages will continue to decline. (According to the Census Bureau, the percentage of adult males who are married dropped steadily from 71.1 percent in the 1960 census to 58.6 percent in the 2000 census; for females, the percentage dropped from 67.4 to 54.6. About half of each drop is explained by a rise in the percentage of adults who never marry, the other half by a rise in the percentage of divorced adults. Those statistics are what one should expect when the state signals — as it began to do increasingly after 1960 — that traditional marriage is no special thing by making it easier for couples to divorce, by subsidizing single mothers, and by encouraging women to work outside the home.)

All types of marriage are not created equal. Although it’s true that traditional, heterosexual unions have their problems, those problems have been made worse than ever by the intercession of the state. Nevertheless, the state — in its usual perverse wisdom — seems about to create new problems for society by legitimating same-sex marriage. And that will harm traditional, heterosexual marriage by signaling anew its diminishing importance in the scheme of things. Society will suffer. Mark my words.

A Century of Progress? (01/30/05)
The Marriage Contract (02/16/05)
Feminist Balderdash (02/19/05)
Libertarianism, Marriage, and the True Meaning of Family Values (04/06/05)
Consider the Children (10/07/05)
Same-Sex Marriage (10/20/05)
“Equal Protection” and Homosexual Marriage (10/30/05)

Not a Good Proponent of Same-Sex Marriage

Texans will vote next Tuesday on an proposed amendment to the State’s constitution that would define marriage as the union of one man and one woman. Texas State Representative Warren Chisum, writing in today’s Austin American-Statesman, argues (among other things) that

[i]n marriage, the complementary differences between man and woman are fulfilled. This unique union produces our children and provides the best conditions for a family to flourish.

Same-sex “marriage” is a social experiment — the results of which will not be known after only a year or two. It will take at least one generation to see the effect on society. We don’t have any assurance of a beneficial outcome because there has never been a civilization that openly embraced same-sex unions as a valid lifestyle and lasted long enough to report on the societal impact of the next generation.

There are, however, some negative effects of which we are already aware. Holland, the first country to legalize same-sex marriage, just validated the first three-person civil union. The “groom” said, “We consider this to be just an ordinary marriage.” How long will it be before group marriage becomes acceptable?

Mr. Chisum’s entire op-ed piece is similarly restrained and civil. It is anything but hateful or disrespectful toward homosexuals or, for that matter, opponents of the proposed amendment. It is thus unfortunate that the Statesman chose to run a companion piece by one Turk Pipkin, a piece that fails to address Chisum’s arguments and opts for ad hominem conservative-bashing; for example:

So let’s be straightforward — but not straight — I’m a white guy, the only kind of person your legislation has historically supported. Love you? Why, you’re my hero, for you have the courage to stand up and express your deepest thoughts, even when your words go against everything our beautiful country stands for. . . .

Yes, Warren, I’m confessing that I love you and your courage to do the wrong thing. Let’s face it, it takes guts to hire two men under indictment for money laundering and unlawful acceptance of corporate contributions — my other man-crushes, John Colyandro and Jim Ellis — as consultants for your support group, the Texas Marriage Alliance. . . .

I mean, who cares about indictments, trials and the possibilities of long sentences in the slammer when we have marital institutions to bash.

That’s the level of discourse on the Left these days. Come to think of it, hasn’t it always been thus?

Equal Time

LINKS ADDED, AS NOTED BELOW — SERIES COMPLETE, MY COMMENTARY TO FOLLOW

Last week I reported about a series of posts by Maggie Gallagher, guest-blogging at The Volokh Conspiracy, in which Gallagher laid out a case against legalizing same-sex marriage. Volokh is now hosting Dale Carpenter, who will make a “traditionalist” case for legalizing same-sex marriage. I’ll add links to Carpenter’s posts as they appear. When he’s done I’ll try to summarize his conclusion, and compare it with Gallagher’s.

Posts to date:

Law, Liberty, and Abortion

This an abridgement of a post at Liberty Corner II. It is complete but for long quotations from Supreme Court opinions.

There are compelling legal and libertarian arguments against abortion. The essence of the legal argument is this: Roe v. Wade was decided wrongly. But that argument will not convince reflexive libertarian defenders of abortion. For them, I have a separate, four-fold argument against abortion: Life cannot be treated as property; the appeal to “viability is circular; privacy cannot be an absolute right; and the appeal to “safety” opens the door to the legalization of any form of murder. I conclude by explaining how the legalization of abortion plays into the hands of the state by creating a precedent for the taking of innocent life wherever the state finds it convenient to do so.

The Wrongness of Roe v. Wade

Abortion was considered murder long before States began to legislate against it in the 19th century. The long-standing condemnation of abortion — even before quickening — is treated thoroughly in Marvin Olasky’s Abortion Rites: A Social History of Abortion in America. Olasky corrects the slanted version of American history upon which the U.S. Supreme Court relied in Roe v. Wade.

Because abortion was not a right at the time of the adoption of the Ninth Amendment, there is no unenumerated right to abortion in the Constitution. The majority in Roe v. Wade (1973) instead seized upon and broadened a previously manufactured “privacy right” in order to legalize abortion. . . .

[excerpts of the majority opinion in Roe v. Wade]

In effect, the Roe v. Wade majority acknowledged that abortion is not even an unenumerated right. It then manufactured from specified procedural rights enumerated in the Bill of Rights — rights which are totally unrelated to abortion — and from strained precedents involving “penumbras” and “emanations,” a general right to privacy in order to find a “privacy” right to abortion. I have dissected a key precedent, Griswold v. Connecticut (1965), in the “Liberty” section of this post. It bears repeating that in drafting the Ninth Amendment Madison had in mind no particular unenumerated rights:

It is clear from its text and from Madison’s statement [upon presenting the Bill of Rights to the House of Representatives] that the [Ninth] Amendment states but a rule of construction, making clear that a Bill of Rights might not by implication be taken to increase the powers of the national government in areas not enumerated, and that it does not contain within itself any guarantee of a right or a proscription of an infringement.

It is therefore unsurprising that the majority in Roe v. Wade could not decide whether the general privacy right is located in the Ninth Amendment or the Fourteenth Amendment. Neither amendment, of course, is the locus of a general privacy right because none is conferred by the Constitution, nor could the Constitution ever confer such a right, for it would interfere with such truly compelling state interests as the pursuit of justice. The majority simply chose to ignore that unspeakable consequence by conjuring a general right to privacy for the limited purpose of ratifying abortion.

The spuriousness of the majority’s conclusion is evident in its flinching from the logical end of its reasoning: abortion anywhere at anytime. Instead, the majority delivered this:

The privacy right involved, therefore, cannot be said to be absolute. . . . We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.

That is, the majority simply drew an arbitrary line between life and death — but in the wrong place. It is as if the majority understood, but wished not to acknowledged, the full implications of a general right to privacy. Such a general right could be deployed by unprincipled judges to decriminalize a variety of heinous acts.

Underlying the majority’s sophistry was its typically “liberal” reluctance to place responsibility where it belongs, in the hands of those persons who (in almost all cases) conceive through engaging voluntarily in an act, the potential consequences of which are well known. Thus we read:

Maternity, or additional offspring, may force upon the woman a distressful life and future. . . . All these are factors the woman and her responsible physician necessarily will consider in consultation.

All these are factors which “the woman,” barring rape, would have known before conception. . . .

[Justice White’s dissent, followed by excerpts of Justice Rehnquist’s concurring dissent]

Roe v. Wade is nothing more than an illogical, ill-founded, politically expedient position staked out by seven justices who were caught in the tide of “personal liberation.” That tide, which rose in the 1960s and has yet to fully recede, is powered by the perverse belief that liberty is to be found in license.

The Supreme Court’s subsequent decision in Casey (1992) is a step in the right direction. As blogger Patterico explains, Casey

1) upheld the central holding of Roe on stare decisis grounds; 2) stripped the abortion right of its status as a “fundamental right” under the Constitution; and 3) replaced Roe‘s trimester framework with a rule tied to viability.

The next step, or steps, should be to undo Roe v. Wade completely and then turn it around. The States have no basis for allowing abortion (except where a mother’s physical health or life are endangered) because to do so deprives the fetus (a person) of due process of law and equal protection under the law, in violation of the Fifth and Fourteenth Amendments.

Abortion is Anti-Libertarian

The demonstrable fact of Roe v. Wade‘s wrongness will not dissuade those libertarians who defend abortion as a extra-legal right. Unsophisticated, self-styled libertarian defenders of abortion hold an “anything goes” view of liberty that is in fact antithetical to liberty. They may call themselves libertarians, but they might as well be anti-war protesters who block traffic or “greens” who burn down ski lodges.

Liberty requires each of us to pursue happiness without causing harm to others, except in self-defense. Those libertarian defenders of abortion who bother to give the issue a bit of thought try to build a case for abortion around self-defense, arguing that a woman who aborts is defending herself, and that no one should question her act of self-defense.

The self-defense argument — which is sometimes billed as a property rights argument for — goes like this: A fetus is an “uninvited guest” in or “invader” of its mother’s body, which is the mother’s property. The mother may therefore do with the fetus as she will.

But a fetus is neither an uninvited guest nor an invader. Rather, it is a life, and that life — by biological necessity — is its mother’s responsibility:

Conception, in almost all cases, is the result of a consensual act of sexual intercourse. (Rape, which accounts for a relatively small number of applications for abortion, is an exception. But it’s an exception that shouldn’t dictate what happens in the majority of pregnancies. If the state insists that rape victims give birth (as it ought to because of the state’s obligation to protect life), the state then takes responsibility for the adoption of those babies who may be unwanted by their mothers.)

Conception is a known consequence of the act of sexual intercourse. And it has been shown that when abortion becomes less readily available (e.g., more expensive),

[t]his induces teenage girls to avoid risky sex, which will likely have the effect of lowering pregnancy rates, abortion rates, and birth rates among this group of individuals. . . . Behavior is not static, and claims based on the assumption of static behavior are flawed. [That is, “they” will not “just get pregnant, anyway”: ED]
It has been shown, as well, that

[l]aws requiring minors to seek parental consent or to notify a parent prior to obtaining an abortion raise the cost of risky sex for teenagers. . . . [O]ur results indicate that the enactment of parental involvement laws significantly reduces risky sexual activity among teenage girls. [So much for “back alley abortions”: ED]

Life indisputably begins at conception:

Surely the child is alive then [at the tying of the umbilical cord]. It cannot be the mere act of tying the cord that produced life. Then when did life begin? With respiration? That is only one added function. There was circulation previously, and the power of nervous action and motion. Why is not a fetus alive when it is diving and plunging in its mother’s womb? Simply because its lungs are not inflated? Out on such nonsense! One might as well say that a child born blind was not alive because it did not use its eyes. It is on the record, I believe that children have been born by the Caesarean section, after the death of the mother. If there was no vitality in the fetus previous to respiration, then why was it not dead, like the mother? There can be no doubt of it, there was vitality or life. Then if we acknowledge that the fetus had life, how can we say at what period of gestation that life commences? The period of quickening varies, and I do not see why a fetus is not quite as much alive just before it moves as just after. . . . [From O.C. Turner, “Criminal Abortion,” Boston Medical and Surgical Journal, Vol. 5 (April 21, 1870), pp. 299-300. Quoted by Marvin N. Olasky in Abortion Rites: A Social History of Abortion in America, Regnery Publishing, Inc., Washington, D.C. (1995), pp. 121-122.]

A person who conceives therefore has incurred an implicit obligation to care for the life that flows from her consensual act.

Given that the existence of a fetus cannot cause harm to anyone but its mother, the only valid route for terminating the life of a fetus would be a legal proceeding that culminates in a judicial determination that the continuation of the life of the fetus would cause grave physical harm or death to the mother.

A fetus, in sum, cannot be treated as “property,” to be disposed of willy-nilly. A libertarian who argues otherwise can do so only by regarding the fetus a sub-human implantation for with the mother bears no responsibility. Such a libertarian might as well argue for a right to keep slaves or a right to dispose of dependent children and parents through involuntary euthanasia.

When that realization strikes home, the next step may be an appeal to the viability of the fetus. The argument that a fetus is “inviable” — and therefore somehow undeserving of life — until it reaches a certain stage of development is a circular argument designed to favor abortion. A fetus (except in the case of a natural miscarriage) is viable from the moment of conception until birth as long as it is not aborted. It is abortion that makes a fetus inviable. Abortion therefore cannot be excused on the basis of presumed inviability.

Drawing an arbitrary line, say, three months after conception does not change the fact that a life is a life. And if that arbitrary line can be drawn, why not draw it at birth or just after birth or at any time during a child’s life? Remember, we are arguing here about libertarian principles, not legal niceties. If a child is a mother’s “property” — or if a mother always has a right to “defend” herself from an “unwanted guest” (in her womb or in her home) — why stop at abortion in the first trimester? (Actually, the law hasn’t stopped it there, which is a point that I’ll come to when I discuss the slippery slope down which we’re headed.)

Where, then, lies a valid libertarian defense of abortion? In privacy? Not at all. Privacy, to the extent that it exists as right, cannot be a general right, as I have argued above. If privacy were a general right, a murderer could claim immunity from prosecution as long as he commits murder in his own home, or better yet (for the murderer), as long as he murders his own children in his own home.

A “practical” libertarian might argue that legalizing abortion makes it “safer” (less dangerous to the mother), presumably because legalization ensures a greater supply of abortionists who can do the job without endangering the mother’s life, and at a lower price than a safe abortion would command without legalization. I’m willing to grant all of that, but I must observe that the same case can be made for legalizing murder. That is, a person with murderous intent could more readily afford to hire a professional who to do the job successfully and, at the same time, avoid putting himself at risk by trying to do the job himself. “Safety” is a rationalization for abortion that blinks at the nature of the act.

I am unable to avoid the conclusion that abortion is an anti-libertarian act of unjustified aggression against an innocent human being, an act that is undertaken for convenience and almost never for the sake of defending a mother’s life. Murder, too, is an act of convenience that is seldom justified by self-defense. Abortion, therefore, cannot be validated by mistaken appeals to self-defense, privacy, viability, and safety. Nor can abortion be validated (except legalistically) by a series of wrongly decided Supreme Court cases.

The Slippery Slope

If libertarians are to be faithful to libertarian principles, they must oppose the law even when — especially when — it puts convenience above principle. As I wrote here (modified language in brackets):

You may like the outcomes in Griswold v. Connecticut, Roe v. Wade, and Lawrence v. Texas because [you just like them or because they comport with your half-baked notion of liberty]. But it should bother you that the Supreme Court can so blithely turn the law on its head to enact its own beliefs, on the pretext of finding rights in “penumbras, formed by emanations” of the Constitution. A Court that can do such things is a Court that can just as easily interpret the law so as to restrict liberty, all in the name of meeting a pressing social need — as it has in done in many instances. . . .

It all reminds me of this exchange from Act I, Scene 6, of Robert Bolt’s play about Sir Thomas More, A Man for All Seasons:

Roper: So now you’d give the Devil benefit of law.

More: Yes. What would you do? Cut a great road through the law to get after the Devil?

Roper: I’d cut down every law in England to do that.

More: Oh? And when the last law was down–and the Devil turned round on you–where would you hide? Yes, I’d give the Devil benefit of law, for my own safety’s sake.

Libertarians who applaud the outcomes of such cases as Griswold v. Connecticut and Roe v. Wade because those outcomes seem to advance personal liberty are consorting with the Devil of statism. Every time the state fails to defend innocent life it acquire a new precedent for the taking of innocent life.

Thus we come to the slippery slope. As I wrote here:

[T]hink about the “progressive” impulses that underlie abortion (especially selective abortion), involuntary euthanasia, and forced mental screening — all of them steps down a slippery slope toward state control of human destiny.

In a later post I said that “the state is condoning and encouraging a resurgence of Hitlerian eugenics.” If you think I exaggerate, consider this:

In an article titled, “The Abortion Debate No One Wants to Have,” a former Washington Post reporter speaks of her Down Syndrome daughter and the conflicts such children provoke among enlightened pro-abortion professionals. She concludes:

And here’s one more piece of un-discussable baggage: This question is a small but nonetheless significant part of what’s driving the abortion discussion in this country. I have to think that there are many pro-choicers who, while paying obeisance to the rights of people with disabilities, want at the same time to preserve their right to ensure that no one with disabilities will be born into their own families. The abortion debate is not just about a woman’s right to choose whether to have a baby; it’s also about a woman’s right to choose which baby she wants to have.

Amy Welborn makes this apposite comment:

. . . This is not about “having” or “not having” babies with disabilities – the common way of discussing such things, when they are discussed at all. It is about “killing” or “not killing” babies with disabilities. Period.

And Wilfred McClay at Mere Comments provides us with a perspective rarely included in the debate.

I myself recall having a conversation with a Down’s syndrome adult who noted the disparity between Senator Edward M. Kennedy’s well-publicized support for the Special Olympics, and his equally well-known insistence that no woman should have to bear the indignity of a “defective” or unwanted child. “I may be slow,” this man observed, “but I am not stupid. Does he think that people like me can’t understand what he really thinks of us? That we are not really wanted? That it would be a better world if we didn’t exist?”

. . . This from a speech by the late Malcolm Muggeridge, given at the University of San Francisco in 1978:

. . . I know, that as sure as I can possibly persuade you to believe: governments will find it impossible to resist the temptation . . . to deliver themselves from this burden of looking after the sick and the handicapped by the simple expedient of killing them off. Now this, in fact, is what the Nazis did . . . not always through slaughter camps, but by a perfectly coherent decree with perfectly clear conditions. In fact, delay in creating public pressure for euthanasia has been due to the fact that it was one of the war crimes cited at Nuremberg. So for the Guinness Book of Records you can submit this: That it takes just about 30 years in our humane society to transform a war crime into an act of compassion. That is exactly what happened.

Not only can it happen in America, it is happening in America. Thus convenience does make killers of us all — or all of us who condone abortion and therefore encourage its accompanying eugenic evils.

CLICK HERE FOR THE FULL POST, WHICH INCLUDES RELEVANT PORTIONS OF SUPREME COURT OPINIONS.

Law, Liberty, and Abortion

There are compelling legal and libertarian arguments against abortion. The essence of the legal argument is this: Roe v. Wade was decided wrongly. But that argument will not convince reflexive libertarian defenders of abortion. For them, I have a separate, four-fold argument against abortion: Life cannot be treated as property; the appeal to “viability” is circular; privacy cannot be an absolute right; and the appeal to “safety” opens the door to the legalization of any form of murder. I conclude by explaining how the legalization of abortion plays into the hands of the state by creating a precedent for the taking of innocent life wherever the state finds it convenient to do so.

The Wrongness of Roe v. Wade

VIII

The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v. Georgia, 394 U.S. 557, 564 (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 8 -9 (1968), Katz v. United States, 389 U.S. 347, 350 (1967), Boyd v. United States, 116 U.S. 616 (1886), see Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v. Connecticut, 381 U.S., at 484 -485; in the Ninth Amendment, id., at 486 (Goldberg, J., concurring); or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U.S. 390, 399 (1923). These decisions make it clear that only personal rights that can be deemed “fundamental” or “implicit in the concept of ordered liberty,” Palko v. Connecticut, 302 U.S. 319, 325 (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12 (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541 -542 (1942); contraception, Eisenstadt v. Baird, 405 U.S., at 453 -454; id., at 460, 463-465 [410 U.S. 113, 153] (WHITE, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166 (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925), Meyer v. Nebraska, supra.

This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.

On the basis of elements such as these, appellant and some amici argue that the woman’s right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. Appellant’s arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman’s sole determination, are unpersuasive. The [410 U.S. 113, 154] Court’s decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one’s body as one pleases bears a close relationship to the right of privacy previously articulated in the Court’s decisions. The Court has refused to recognize an unlimited right of this kind in the past. Jacobson v. Massachusetts, 197 U.S. 11 (1905) (vaccination); Buck v. Bell, 274 U.S. 200 (1927) (sterilization).

We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.

It is clear from its text and from Madison’s statement [upon presenting the Bill of Rights to the House of Representatives] that the [Ninth] Amendment states but a rule of construction, making clear that a Bill of Rights might not by implication be taken to increase the powers of the national government in areas not enumerated, and that it does not contain within itself any guarantee of a right or a proscription of an infringement.

The spuriousness of the majority’s conclusion is evident in its flinching from the logical end of its reasoning: abortion anywhere at anytime. Instead, the majority delivered this:

The privacy right involved, therefore, cannot be said to be absolute. . . . We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.

Maternity, or additional offspring, may force upon the woman a distressful life and future. . . . All these are factors the woman and her responsible physician necessarily will consider in consultation.

All these are factors which “the woman,” barring rape, would have known before conception.

Justice White’s dissent says it all:

At the heart of the controversy in these cases are those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are, nevertheless, unwanted for any one or more of a variety of reasons — convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc. The common claim before us is that, for any one of such reasons, or for no reason at all, and without asserting or claiming any threat to life or health, any woman is entitled to an abortion at her request if she is able to find a medical advisor willing to undertake the procedure.

The Court, for the most part, sustains this position: during the period prior to the time the fetus becomes viable, the Constitution of the United States values the convenience, whim, or caprice of the putative mother more than the life or potential life of the fetus; the Constitution, therefore, guarantees the right to an abortion as against any state law or policy seeking to protect the fetus from an abortion not prompted by more compelling reasons of the mother.

With all due respect, I dissent. I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers [410 U.S. 222] and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally dissentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.

The Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries. Whether or not I might agree with that marshaling of values, I can in no event join the Court’s judgment because I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States. In a sensitive area such as this, involving as it does issues over which reasonable men may easily and heatedly differ, I cannot accept the Court’s exercise of its clear power of choice by interposing a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it. This issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affairs.

It is my view, therefore, that the Texas statute is not constitutionally infirm because it denies abortions to those who seek to serve only their convenience, rather than to protect their life or health. Nor is this plaintiff, who claims no threat to her mental or physical health, entitled to assert the possible rights of those women [410 U.S. 223] whose pregnancy assertedly implicates their health. This, together with United States v. Vuitch, 402 U.S. 62 (1971), dictates reversal of the judgment of the District Court.

Likewise, because Georgia may constitutionally forbid abortions to putative mothers who, like the plaintiff in this case, do not fall within the reach of Â§ 26-1202(a) of its criminal code, I have no occasion, and the District Court had none, to consider the constitutionality of the procedural requirements of the Georgia statute as applied to those pregnancies posing substantial hazards to either life or health. I would reverse the judgment of the District Court in the Georgia case.

And here is a portion of Justice Rehnquist’s concurring dissent, in which he focuses on “privacy” and the applicability of the Fourteenth Amendment:

I have difficulty in concluding, as the Court does, that the right of “privacy” is involved in this case. Texas, by the statute here challenged, bars the performance of a medical abortion by a licensed physician on a plaintiff such as Roe. A transaction resulting in an operation such as this is not “private” in the ordinary usage of that word. Nor is the “privacy” that the Court finds here even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment to the Constitution, which the Court has referred to as embodying a right to privacy. Katz v. United States, 389 U.S. 347 (1967). . . .. . . The decision here to break pregnancy into three distinct terms and to outline the permissible restrictions the State may impose in each one, for example, partakes more of judicial legislation than it does of a determination of the intent of the drafters of the Fourteenth Amendment.

The fact that a majority of the States reflecting, after all, the majority sentiment in those States, have had restrictions on abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not “so rooted in the traditions and conscience of our people as to be ranked as fundamental,” Snyder v. Massachusetts, 291 U.S. 97, 105 (1934). Even today, when society’s views on abortion are changing, the very existence of the debate is evidence that the “right” to an abortion is not so universally accepted as the appellant would have us believe.

To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. . . .

There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.

The Supreme Court’s subsequent decision in Casey (1992) is a step in the right direction. As blogger Patterico explains, Casey

1) upheld the central holding of Roe on stare decisis grounds; 2) stripped the abortion right of its status as a “fundamental right” under the Constitution; and 3) replaced Roe‘s trimester framework with a rule tied to viability.

Abortion is Anti-Libertarian

But a fetus is neither an uninvited guest nor an invader. Rather, it is a life, and that life — by biological necessity — is its mother’s responsibility:

Conception, in almost all cases, is the result of a consensual act of sexual intercourse. (Rape, which accounts for a relatively small number of applications for abortion, is an exception. But it’s an exception that shouldn’t dictate what happens in the majority of pregnancies. If the state insists that rape victims give birth (as it ought to because of the state’s obligation to protect life), the state then takes responsibility for the adoption of those babies who may be unwanted by their mothers.)

Conception is a known consequence of the act of sexual intercourse. And it has been shown that when abortion becomes less readily available (e.g., more expensive),

[t]his induces teenage girls to avoid risky sex, which will likely have the effect of lowering pregnancy rates, abortion rates, and birth rates among this group of individuals. . . . Behavior is not static, and claims based on the assumption of static behavior are flawed. [That is, “they” will not “just get pregnant, anyway”: ED]

It has been shown, as well, that

[l]aws requiring minors to seek parental consent or to notify a parent prior to obtaining an abortion raise the cost of risky sex for teenagers. . . . [O]ur results indicate that the enactment of parental involvement laws significantly reduces risky sexual activity among teenage girls. [So much for “back alley abortions”: ED]

Life indisputably begins at conception:

Surely the child is alive then [at the tying of the umbilical cord]. It cannot be the mere act of tying the cord that produced life. Then when did life begin? With respiration? That is only one added function. There was circulation previously, and the power of nervous action and motion. Why is not a fetus alive when it is diving and plunging in its mother’s womb? Simply because its lungs are not inflated? Out on such nonsense! One might as well say that a child born blind was not alive because it did not use its eyes. It is on the record, I believe that children have been born by the Caesarean section, after the death of the mother. If there was no vitality in the fetus previous to respiration, then why was it not dead, like the mother? There can be no doubt of it, there was vitality or life. Then if we acknowledge that the fetus had life, how can we say at what period of gestation that life commences? The period of quickening varies, and I do not see why a fetus is not quite as much alive just before it moves as just after. . . . [From O.C. Turner, “Criminal Abortion,” Boston Medical and Surgical Journal, Vol. 5 (April 21, 1870), pp. 299-300. Quoted by Marvin N. Olasky in Abortion Rites: A Social History of Abortion in America, Regnery Publishing, Inc., Washington, D.C. (1995), pp. 121-122.]

A person who conceives therefore has incurred an implicit obligation to care for the life that flows from her consensual act.

Given that the existence of a fetus cannot cause harm to anyone but its mother, the only valid route for terminating the life of a fetus would be a legal proceeding that culminates in a judicial determination that the continuation of the life of the fetus would cause grave physical harm or death to the mother.

The Slippery Slope

You may like the outcomes in Griswold v. Connecticut, Roe v. Wade, and Lawrence v. Texas because [you just like them or because they comport with your half-baked notion of liberty]. But it should bother you that the Supreme Court can so blithely turn the law on its head to enact its own beliefs, on the pretext of finding rights in “penumbras, formed by emanations” of the Constitution. A Court that can do such things is a Court that can just as easily interpret the law so as to restrict liberty, all in the name of meeting a pressing social need — as it has in done in many instances. . . .

It all reminds me of this exchange from Act I, Scene 6, of Robert Bolt’s play about Sir Thomas More, A Man for All Seasons:

Roper: So now you’d give the Devil benefit of law.

More: Yes. What would you do? Cut a great road through the law to get after the Devil?

Roper: I’d cut down every law in England to do that.

More: Oh? And when the last law was down–and the Devil turned round on you–where would you hide? Yes, I’d give the Devil benefit of law, for my own safety’s sake.

Thus we come to the slippery slope. As I wrote here:

[T]hink about the “progressive” impulses that underlie abortion (especially selective abortion), involuntary euthanasia, and forced mental screening — all of them steps down a slippery slope toward state control of human destiny.

In a later post I said that “the state is condoning and encouraging a resurgence of Hitlerian eugenics.” If you think I exaggerate, consider this:

In an article titled, “The Abortion Debate No One Wants to Have,” a former Washington Post reporter speaks of her Down Syndrome daughter and the conflicts such children provoke among enlightened pro-abortion professionals. She concludes:

And here’s one more piece of un-discussable baggage: This question is a small but nonetheless significant part of what’s driving the abortion discussion in this country. I have to think that there are many pro-choicers who, while paying obeisance to the rights of people with disabilities, want at the same time to preserve their right to ensure that no one with disabilities will be born into their own families. The abortion debate is not just about a woman’s right to choose whether to have a baby; it’s also about a woman’s right to choose which baby she wants to have.

Amy Welborn makes this apposite comment:

. . . This is not about “having” or “not having” babies with disabilities – the common way of discussing such things, when they are discussed at all. It is about “killing” or “not killing” babies with disabilities. Period.

And Wilfred McClay at Mere Comments provides us with a perspective rarely included in the debate.

I myself recall having a conversation with a Down’s syndrome adult who noted the disparity between Senator Edward M. Kennedy’s well-publicized support for the Special Olympics, and his equally well-known insistence that no woman should have to bear the indignity of a “defective” or unwanted child. “I may be slow,” this man observed, “but I am not stupid. Does he think that people like me can’t understand what he really thinks of us? That we are not really wanted? That it would be a better world if we didn’t exist?”

. . . This from a speech by the late Malcolm Muggeridge, given at the University of San Francisco in 1978:

. . . I know, that as sure as I can possibly persuade you to believe: governments will find it impossible to resist the temptation . . . to deliver themselves from this burden of looking after the sick and the handicapped by the simple expedient of killing them off. Now this, in fact, is what the Nazis did . . . not always through slaughter camps, but by a perfectly coherent decree with perfectly clear conditions. In fact, delay in creating public pressure for euthanasia has been due to the fact that it was one of the war crimes cited at Nuremberg. So for the Guinness Book of Records you can submit this: That it takes just about 30 years in our humane society to transform a war crime into an act of compassion. That is exactly what happened.

"Equal Protection" and Homosexual Marriage

REVISED AT 2: 49 PM (CT) 10/30/05

The “equal protection” clause of the Fourteenth Amendment is getting quite a workout these days. In some jurisdictions, “equal protection” gives a homosexual person the same access to his or her “partner’s” company’s health-insurance plan as a spouse in a traditional marriage. In other jurisdictions, “equal protection” leads to the recognition of homosexual “marriage” on the same basis as traditional marriage. And on and on.

None of this would be happening if the “equal protection” clause hadn’t long ago been turned upside down by loose constructionists. What “equal protection” really means is this:

Any law that is otherwise constitutional is a valid law, which must be applied equally to all persons.

As long as that law is applied equally to all persons, it is irrelevant if the application of the law happens to lead to unequal outcomes for various identifiable groups of persons. Instead, “equal protection” now means that everyone is entitled to the same outcome — the law be damned.

Consider, for example, an employer who is foolish enough to screen job applicants by administering tests that might, even by inference, measure intelligence. Why? Because such tests would expose the employer to a charge of racial discrimination, under the Civil Rights Act of 1964, under which it has become illegal for employers to make hiring decisions if the effect of those decisions (not the intent, but the effect) seems discriminatory.

The perverse logic of the current interpretation of the “equal protection” clause may be further illustrated by a (not so far-fetched) hypothetical. Many crimes carry a stiffer penalty if a perpetrator possesses a firearm in the commission of a crime. The current, perverted interpretation of the “equal protection” clause would eliminate the additional penalty for carrying a firearm on the ground that all criminals ought to be treated the same. Taken to the extreme, the current, perverted interpretation of the “equal protection” clause would de-criminalize crime on the ground that criminal statutes do not afford criminals “equal protection” of the law; that is, criminals go to jail while others go free. The logic of the current, perverted interpretation of the “equal protection” clause boils down to this: Legislatures may not attempt to legislate for the preservation and protection of a civil society (e.g., heterosexual marriage is good for society, potentially violent criminals are bad for society) if legislation somehow fails to treat all persons equally, even persons who are not the intended beneficiaries or targets of legislation.

Marriage, as an institution that comes under the jurisdiction of the States, should be governed by the laws of the States. A State court that decrees, without benefit of legislation, that marriage is available to homosexuals has made new law by applying the perverted meaning of the “equal protection” clause. A proper application of the “equal protection” clause by a State court would go something like this:

The legislature of this State, acting in accordance with the constitution of this State, has determined that marriage consists of a legal, binding, union between a man and a woman. Therefore, this court cannot institute homosexual marriage because to do so would dilute the benefits pertaining to marriage under the laws of this State, by requiring the State to transfer scarce resources to the support of homosexual unions, in violation of “due process” and “equal protection” clauses of the Fourteenth Amendment to the Constitution of the United States. All who come under the purview of a constitutional law are entitled to the protection of that law. All who do not may petition the legislature for a more encompassing law.

And so, even though marriage is a State-controlled institution, it would be within the purview of the U.S. Supreme Court to overrule a State supreme court’s creation of a right to homosexual marriage without legislative authority. Why? Because the issue involved — “equal protection” — arises from an application of the U.S. Constitution.

A Useful Precedent

UPDATED BELOW AT 1:40 PM (CT) 10/23/05

Orin Kerr of The Volokh Conspiracy comments on a decision by the Kansas Supreme Court:

The Kansas Supreme Court issued its decision in Kansas v. Limon [yesterday], invalidating a Kansas statutory scheme that imposed higher punishments for same-sex sexual misconduct than opposite-sex sexual misconduct. . . .

Limon argued that Kansas law violated the equal protection clause of the Fourteenth Amendment because if the act had taken place between opposite sex participants, Limon would have received a much lower punishment . . . than he did. . . . The Kansas Supreme Court agreed, finding that the different treatment did not survive rational basis scrutiny and was therefore unconstitutional under the Equal Protection clause. . . .

It seems to me that (1) the Kansas Supreme Court’s reasoning is correct and (2) the same reasoning can be applied to so-called hate-crime statutes, in which the penalty for a crime is based on its supposed motivation rather than its actual severity.

UPDATE: I knew that I should have addressed the distinction between motivation and intention. Because I didn’t do so, a reader took issue with what I wrote above by suggesting (wrongly, I believe) that “the criminal law system is largely built on the fundamental premise of punishing crimes based on motivation rather than outcome.” He pointed me to the Wikipedia article about manslaughter. I found the article about murder to be more helfpful in drawing the distinction between motivation and intention:

In law, murder is the crime of a human being causing the death of another human being, without lawful excuse, and with intent to kill or with an intent to cause grievous bodily harm. . . .

Unintentionally caused deaths due to recklessness or negligence are treated in most countries as the lesser crime of involuntary manslaughter or criminally negligent homicide

Intentional killings without premeditation are sometimes charged as voluntary manslaughter rather than murder.

The distinction between murder and voluntary manslaughter rests on the timing of intention — whether or not the killer intended to kill the victim before the encounter that led to the victim’s death. The distinction between voluntary and involuntary manslaughter rests on whether or not the killer intended to kill the victim. Proving motivation (or lack thereof) may be crucial to proving intention, and the timing of intention. But the distinctions between murder, voluntary manslaughter, and involuntary manslaughter revolve around intention and its timing with respect to the act of killing.

A hate crime, on the other hand is defined by motivation:

A hate crime is a crime (not necessarily a violent crime, though sometimes so) that is motivated by prejudice against a social group. . . .

In the last decade of the 20th century, legislation in many U.S. states has established harsher penalties for a number of crimes when they are also considered hate crimes. . . .

[H]ate crime prosecutions seek to punish an individual for motive rather than intent. For example, the difference between first or second degree murder is intent, not motive. . . .

In sum, the logic of hate-crime legislation plays out like this:

A (a man) murders B (a woman), with premeditation, after learning that B has embezzled funds from A. A’s sentence is, say, 20 years to life, with the possibility of parole.

A murders B, with premeditation, after learning that B has been involved in a lesbian affair with A’s wife. A is shown to have expressed his distaste for lesbianism. A’s sentence is, say, life without parole.

In both cases A murders B with premeditated intent. But in the second instance A receives a harsher sentence because his motivation was animus toward lesbianism. I don’t get it. Why is the crime worse because B is a lesbian rather than an embezzler? Murder is murder and ought to be treated as such by the law.

There’s already more than enough mind-reading involved in drawing lines between various degrees of murder and manslaughter, not to mention other types of crime in which similarly fine distinctions arise. Hate-crime legislation compounds the already difficult task of mind-reading and widens the gap between the act (e.g., killing) and the punishment for that act.

The result is to give preference to certain identifiable groups (e.g., homosexuals) while, by implication, denigrating others (e.g., embezzlers). Or, to turn it around, the result is to treat the murderers of embezzlers more leniently than the murderers of homosexuals. Either way you look at it, hate-crime legislation seems to run afoul of the Fourteenth Amendment’s guarantee of “equal protection of the laws.”

I’ll Never Understand the Insanity Defense (03/31/04)
A Crime Is a Crime (11/26/04)

Same-Sex Marriage

UPDATED BELOW AT 5:12 PM (CT) 10/20/05
FINAL LINK AND EXCERPT ADDED AT 1:50 PM (CT) 10/21/05

Maggie Gallagher is guest-blogging at The Volokh Conspiracy on the topic of same-sex marriage (SSM). As a service to myself and others, below I list chronologically the titles of and links to the posts in the series. I include related posts by other Volokh bloggers (denoted by naming the blogger parenthetically).

Maggie Gallagher Guest-Blogging About Same-Sex Marriage (Eugene Volokh)
The Marriage Debate (1)
The Marriage Debate (2)
The Marriage Debate (3)
The Marriage Debate, Round 3 (or 4, but who’s counting?)
Marriage Debate Digression
Question for Maggie About Marriage (Todd Zywicki)
The Legal Marriage Debate
Answer from Maggie About Marriage
Maggie Answer on Marriage, P.S.
Two Reactions to the Gay Marriage Discussion (Eugene Volokh)
The Marriage Debate and ReproTech
Marriage Debate DataDump
The Marriage Debates: What’s the Harm?
Question on the Marriage Debates (Orin Kerr)
The Marriage Debate, What’s the Harm? (cont.)
Marriage Debate and Motives
Understanding the Argument (Orin Kerr)
Gay Marriage for Some, or Unisex Marriage for All?
Is Marriage Innate? More Reply to Orin
A Frank Concession
Brief Rebuttals
The Marriage Debate, a few last thoughts

UPDATE:

A few key points thus far:

[M]arriage serves many private and individual purposes. But its great public purpose, the thing that justifies its . . . unique legal status, is protecting children and society by creating sexual unions in which children are (practically) guaranteed the love and care of their own mother and father.

The vast majority of children born to married couples begin life with their own mother and fathers committed to jointly caring for them. Only a minority of children in other sexual unions (and none in same-sex unions) get this benefit.

Sex makes babies. Society needs babies. Babies need fathers as well as mothers. That’s the heart of marriage as a universal human institution.

[Different post]

[F]undamentally marriage is sustained by culture, not biology. Why then is it universal? Because it is the answer to an urgent problem that is biological and innate: sex makes babies. Nature alone won’t connect fathers to children. Children need a society in which both men and women are committed to their care.

And thus to the socialization of those children and their fathers, without which a civil, self-regulating society in which we enjoy the fruits of liberty would be even more difficult if not impossible to realize. But that is all threatened if heterosexual marriage’s status is threatened:

[T]he most important remaining way the legal institution of marriage supports the social institution of marriage is in fact definitional.

Marriage’s unique status at law helps draw clear public boundaries that distinguish between those who are married and who is not, allowing the more important actors who support the social institution to do their work.

Redrawing the definitional boundaries of marriage, is thus fiddling with the law’s core remaining support for marriage (and we’ve withdrawn quite a few legal supports in recent years).

I really do think, btw, that this is what bothers most ordinary people: an instinct that their government, against their will, is telling them (and will re-educate their children) that everything they know about marriage (like the first ingredient is a husband and a wife, duh) is wrong and must now change. Upon penalty of being officially labelled bigots by their government. And everyone knows its open season on bigots in our society. . . .

If the principle behind SSM is institutionalized in law, and the law is able (as it is really pretty good at) to impose its values on the American people, then people like me who think marriage is the union of husband and wife importantly related to the idea that children need moms and dads will be treated in society and at law like bigots

And you are asking me why I think that might affect marriage?

I’ve sat in rooms where some of the most famous architects of gay marriage have made this analogy (the Christians who oppose gay marriage are just like those poor southern folks who favored segregation. We’ll be re-educating them soon, and they will cave.)

The conjugal vision of marriage itself is being stamped as discriminatory and bigoted. Well, under these circumstnaces, I’m pretty sure fewer people will hold it, speak for it, try to transmit it to the kids (over the interference of government schools, who will teach the next generation that SSM was a great civil rights victory over bigots like your parents). Perhaps, under these circumstances, very few people indeed will speak up for this conjugal view.

In sum, the recognition of SSM will legitimate the attacks on traditional marriage, weaken its allure, and thus weaken (further) its indispensible socializing role, which already has been weakened by another liberal desideratum: pushing mothers out of the home.

UPDATE 2: From the final post in the series:

[I]f you are advocating for SSM, you really do know that social meanings matter. You’ve made passionately clear that an identical institution called “civil unions” that delivered all the legal incidents of marriage just wouldn’t be good enough, because it doesn’t mean the same thing. You seek to use the power of government to take all those accumulated meanings of marriage (which were not created by the government) and re-direct them to same-sex relations, and many of you clearly also want to discipline those who don’t accept your moral view. . . . And so many want to do this in the name of liberty, without even acknowledging what SSM is: the use [of] government power to impose a new morality on a reluctant people.

After SSM, the law will be committed to reclassfying the once-privileged conjugal vision of marriage—with its deep roots in the reality that humanity comes in two halves, male and female, who are called to join together in love, not only as a private satisfaction, but in order to make the future actually happen—as at best a private understanding and most likely a discouraged, discriminatory understanding of marriage.

If two men are married, then marriage as a public act is clearly no longer related at all to generativity, and the government declares as well it has no further interest in whether children are connected to their own mom and dad. So long as they have love, money and stability, fathers (or mothers) are equally dispensable. That’s what “no difference” means. The institutions of government, including public schools, will begin to enforce this new concept of marriage. This is not a conservative case for marriage; it is the final triumph of the family diversity argument.

Related posts:

A Century of Progress? (01/30/05)
Libertarianism, Marriage, and the True Meaning of Family Values (04/06/05)

Share this:

Share this:

Share this:

Share this:

Share this:

Share this:

Share this:

Share this:

Share this:

Share this:

Share this:

Share this:

Share this:

Share this:

Share this:

Share this:

Share this:

Share this:

Share this:

Share this: