Tuesday, January 10, 2006

Alito Hearings

I have been trying to listen to the hearings for judge Alito. They could be the subject of endless commentary. I will resist and comment on only a few matters.

First, the Senators show a lay persons view of the law too often. A Senator will describe some horrible set of events - innocent people at gun point or strip searched children - and then essentially say of the judge "why did you not make sure the victims of this situation won their lawsuit." But the purpose of courts is not to just give money to people who have been discomforted. Not all wrongs on this earth have or should have a legal remedy. And often, court of appeal cases are about particular legal issues - not about the whole set of events that befell the parties. The strip search of the ten year old was a good example. The case before the judge was on the proper understanding of the search warrant - not on whether innocent ten year olds should be strip searched.

Second, it is surprising that the left - the very people who normally have little or no respect for precedent - keep asking judge Alito to follow precedent. They want him to respect the decisions of the court like ROE and CASEY that arguably have no basis in the constitution, simply because of precedent.


Lynn Green said...

Once again, you are creating a straw man when you say the left has no respect for precedents. We very much respect the past when that past has been just, the same as anyone else.

There are times when precedent should be followed such as when the sphere of liberty has been enlarged as was done with Mapp V. Ohio and Griswold v. Connecticut. However, where an obvious injustice has been done such as in Plessy v. Ferguson or (in my opinion) Harris-Simmons vs. Zelman, that precedent should not be allowed to stand.

You and I probably feel differently about Roe v. Wade. Where I see a defense of women to make their own decisions concerning reproduction, you see legalization of murder.

The majority of Americans agree that Roe should stand; however, that does not make it right in and of itself.

I believe that Roe addressed the imbalance that men and women have in regards to privacy and reproductive rights. But nothing I can say will sway those dedicated to the opposite opinion.

In the end, your statement of leftists disregarding precedent, does not hold water in the face of evidence.

Oberon said...
This comment has been removed by a blog administrator.
Dean McConnell said...

Dear Lynn,

As for prescient, I think you make my point in your handling of it. It seems to me that men and women of the left like precedent when it supports the outcomes they agree with, and reject it when it does not, but have few principled ways of determining the difference.

I believe precedent is binding when it genuinely reflects sound law. But not binding when it is contrary to law. But my view entails a complex set of ideas on what the law really is. Segregation and slavery could not ever have really been the law in my understanding, because they violated the laws of God, the Constitution as properly understood, and the fundamental organic law of the United States.
So Dred Scott and Plessy could not be binding. Roe and Casey are not binding for the same reasons. While it is perhaps personally desirable for women to have the legal private choice to kill certain other human beings, it is not lawful or right for the courts to mandate such a licence in the case of unborn children of the women in question. Also, it is not really true a majority want Roe to stand. If you ask people if they believe that a woman should have the unregulated and unlimited right to an abortion for any reason (e.g. sex selection or spite) or no reason at all, the real holding of Roe, most people say no. In fact most people believe in regulating abortion rather severely. They understand it is needed in tubal pregnancies etc. and they are soft hearted in the areas of poverty, rape and incest. But they do not want people killing children for most reasons.

As for the expansion of liberty, the problem is that nearly all cases are double edged in some way. It is rarely a question of merely expanding liberty or not. And defining liberty is sometimes controversial.

One example of a double edged problem is homosexual conduct. In ruling that states cannot penalize homosexual conduct a majority of the Supreme court would say they have expanded liberty because people are now free to engage in homosexual acts without fear. But at the same time the court is also limiting liberty. As a practical matter, they are limi9ting the ability of religious people to teach their children and others that homosexual acts are wrong. If the homosexual lifestyle is protected by the constitution, then criticism of that lifestyle must be against social policy. Schools must teach that homosexual acts are appropriate. Employers must not appear homophobic. All of this encroaches on the freedom of people who understand homosexuality to be immoral (e.g. orthodox Christians, orthodox Jews, orthodox Muslims, and some Buddhists). So not everyone's liberty is increased. The real question is if a classification of behaviour as wrong is accurate or not.

The other issue is the definition of Liberty. True liberty is the freedom to choose between goods without external restraint or internal vice. But all too often, modern judges see liberty as the freedom to choose immoral acts without social censure or risk. But addiction, vice, crime, and degradation are not states of liberty. Those enslaved to such things are not more free.

Dean McConnell said...

Dear Oberon,

Actually evil is everywhere. Alexander Solzhenitsyn was right when he said that the line between good and evil runs through every human heart. We all struggle against evil within and we should also resist evil without - in societies, institutions, and nations. We should always be reforming.

As for John Birch, I have always been suspicious of it for several reasons. First, it is too willing to use evil means against wrong doers. The JB's are not above deception. Second, too often the JB's have the same world view as those they criticise. I do not. Third, the JB's are too open to conspiracy theories. Most of the evil in our own society is not the result of any human conspiracy, or even and conscious will for evil. It is simply the result of good, well meaning people choosing bad ideas in good faith. People who decide to live by wishful thinking or ignorance instead of the truth, not so much because they mean to, but because truth is painful at times.

Dean McConnell said...

We had a comment from Oberon to the effect that evil is everywhere and asking what I though of the John Birch Society. I removed the link because his web site contained objectionable pictorial content that I do not want to link to. Sorry.

Lynn Green said...

Dear Dean,

You state "Segregation and slavery could not ever have really been the law in my understanding, because they violated the laws of God, the Constitution as properly understood, and the fundamental organic law of the United States." This was not the view of the southern churches prior to, during, and quite probably after the Civil War. In fact, as I am sure you know, this question, whether the Bible sanctioned slavery, was the impetus for forming the Southern Baptist Convention apart from the northern Baptist churches.

This is the problem. Even among sincere Christians, there are often broad disagreements as to what the "laws of God" are. Homosexuality is a good case in point. As you also probably know, my denomination, the UCC, admits gay congregants and ordains gay ministers. We believe that this is the will, you would say law, of God.

As for parents being unable to teach their children that homosexuality is wrong. Well, that assertion is just plain silly. You are free to teach whatever moral you believe appropriate. We don't arrest bigots for teaching their children that certain races or religions are inferior. No one has knocked on your door for posted publicly that homosexuality is immoral. In schools, we teach that though we may not agree with how someone lives, we do not have the right to attack that person for his or her lifestyle. I have students who are bigoted as to race. I cannot change their belief, but I have every right to tell them that they have no right to make a student of another race to feel uncomfortable because they are of a different race or of a different sexual orientation.

I don't ask for conformity of belief, something you seem to want. What I ask for is that we respect one another's dignity since we are all a part of our increasingly diverse culture.

(The recognition of our diversity, along with a distrust of science and technology to provide us with all the answers is what I understand about post modernism.)

Dean McConnell said...

Dear Lynn,

I demand conformity of belief. I try to persuade people to believe in what I believe they actually know to be the facts, and what I think will work best. You seem to me insist on conformity to your belief that there are few or no right answers to moral questions.

I think there are right answers to moral matters and that people have a good idea what they are - they just do not want to acknowledge or live by what they know.

The churches in the south knew slavery was wrong. Prior to 1837 the south was full of anti-slavery societies and southern leaders, especially in Virginia, commonly recognized that southern style slavery was an evil and a sin. Around 1837 there was a social consensus in the south to stand in unity against abolition. Only then did a large number of willful deceivers come forward to claim slavery was a positive good. But willful moral blindness was not limited to the south. Northerners engaged in the slave trade till it was banned under president Jefferson. Abolitionists in the north often suffered violent ends because of pro-slavery mobs. But disagreement does not mean there is no right answer - especially on moral questions.

I disagree with the Christian churches embracing acts and life styles forbidden by scripture and the moral law such as homosexuality or the playboy lifestyle, or the occult or polyamory just as I know some were wrong in endorsing southern style slavery.

I strongly disagree with your equating of criticism of the homosexual lifestyle with racism. Race and embrace of homosexual acts are completely different. Do you also support support and respect for the activities of con-artists, professional thieves, chronic adulterers, paedophiles, false advertisers, and oppressors of the poor? I am sure you do not. These life styles are immoral. Even when society does not make all their acts illegal it should not teach children or preach from the pulpit that such lifestyles are valid and desirable choices. I hope instead that people tempted to live in such ways would be helped to resist by their fellow sinful humans rather than winked at and cheered on.

Why do you believe homosexuality is protected by God rather than an immoral lifestyle? Perhaps you will say people are born that way. I do not think they are. But supposing you are right, some people are also born kleptomaniacs or pathological liars or addicts to self-destructive substances or activities. That tendency does not make their afflictions normative.

The attitude of the law to homosexual conduct causes homosexuality to be advocated by the public schools and by major employers. When children are taught their parents are bigots because they believe in moral truth, and when employers are afraid to hire orthodox Christians for fear of creating a "hostile work environment" that interferes with the liberty of those parents and job seekers. In Sweden, a pastor was prosecuted for preaching what the bible says about homosexuality. While the Swedish Supreme Court set the pastor free, they could easily have sided with the state instead. I do not want American courts to begin prosecuting pastors or parents for "hate speech" simply because they say that homosexual acts or adultery or terrorism are immoral. It is happening in Canada and Sweden, it could happen here apart from the advocates for freedom of speech on moral issues.

As for respect, I respect the dignity of all human beings as made in the image of God and having inherent worth - even human beings with bad ideas or bad life styles. But respecting people and and allowing public policy to rest on falsehoods are two different things. I respect your opinions and want you to have the freedom to express them to others. But I will not yield because of that respect.

Lynn Green said...

Since asked the question, "Do you also support support and respect for the activities of con-artists, professional thieves, chronic adulterers, paedophiles, false advertisers, and oppressors of the poor?" No. On the basis that they exploit others, deny human dignity, and violate justice. But I deny your attempt to equate homosexuals with this group. Two adults in a consenting relationship cannot be termed exploiters. You false analogy falls on its face.

You also engage in the slippery slope argument by raising the spectre of a Swedish court. I am not familiar with the case, but I believe that the right to free speech where it does not endanger public safety must be protected. I am suspicious of those who claim that their rights are violated if they hear speech they dislike. The cure for this is to guard our right to voice our opinion, not to deny rights of others to a dignity life and a pursuit of happiness that does not involved exploitation.

I too would like for to be "conformity of belief", as long as it's my belief. It would make my life a lot simpler. (But more prone to error!)

Dean McConnell said...

Actually the participants in a homosexual relationship hurt each other, themselves, and their community. Some sins are too common to outlaw with human law. But all sins have victims. Even sins committed in secret. Consent of the victim is no defense either. The con-artists victim consents for a time due to their own avarice. But that does not make fraud less of a crime. The child may think it consents to statutory rape - but that does not mitigate the crime in any way. It only makes it worse because a willing victim has has his or her own will corrupted as well as suffering the harm of what is done to them. So I do not agree about the old "consenting adults" saw.

Lynn Green said...

I contend that the fact that a child is unable to consent renders your objection moot. A child, lacking the perspective of experience is unable to distinquish between an action that is helpful or harmful to him in the same manner as an adult.

To deny the ability of adults to consent to an activity mutually agreed upon puts us under the tyranny of those who claim that they have "only our own good in mind." Therefore, we must be willing allow another's bad behavior if that behavior does not impact our sphere of liberty. I agree with what J. S. Mill says, "No person ought to be punished simply for being drunk; but a soldier or a policeman should be punished for being drunk on duty. Whenever, in short, there is a definite damage, or a definite risk of damage, either to an individual or to the public, the case is taken out of the province of liberty, and placed in that of morality or law. But with regard to the merely contingent, or, as it may be called, constructive injury which a person causes to society, by conduct which neither violates any specific duty to the public, nor occasions perceptible hurt to any assignable individual except himself; the inconvenience is one which society can afford to bear, for the sake of the greater good of human freedom."

You, I assume, would disagree with Mill and place individuals under the guidance of some theocratic system that would "protect us from ourselves." I see such as a dangerous denial of human liberty and therefore, an attack on justice.

Dean McConnell said...

Dear Lynn,

I do disagree with Mill. But I do not agree with a custodial state either. Humans are largely responsible for their own self government. The state cannot and should not outlaw acts the majority of people, or significant minorities, cannot or will not refrain from doing unless the damage those acts cause is immediate and severe. But just because sins are not illegal does not mean society must shelter or advocate them. Bad acts should be publicly understood to be bad. So for a private person to be drunk at home should be legal. But the state can should still tell school children that abusing alcohol is bad for them and for society.

Nor should the state choose for us among goods. You should be able to decide if you want your home painted blue or yellow or black and white stripes.

The key question is if something is good or bad, and if bad, how damaging and how restrainable by law. The object of ordered liberty is the freedom to choose among diverse goods - not to be free from embarrassment for doing things that are bad. And yes, I still believe knowing the difference between right and wrong is usually easy. I agree with Harry Truman's remark that "It is not difficult to know the right thing to do. The difficult thing is doing it."

Lynn Green said...

Actually, as I advance through this life, I find that most of my choices are not between good and evil. The choices I have to make is between competing goods. For example, a teacher asked me last semester to help with an academic competition. He did not know the date of the competition which is set by a state organization. I said I would. At a different time, I signed up for an Advanced Placement teachers' conference. I really wanted to attend the conference to become a more effective teacher. Guess what I found out when my fellow teacher finally found out when the competition was being held. You guessed it, on the same day. I had to decide which good I was going to follow. Since leaving my colleague in the lurch seemed to do more harm, I chose to cancel my conference even though I missed out on a chance to be a better teacher for my students.

Yes, this is a minor example, but life if full of such more choices. I wish that our lives were more like the movies where the good guys wear white and the bad guys wear black, and usually a three day beard growth.

But the way, you illustration of homosexual activity being a limit on a rightwingers bitching rights is totally fallacious. If that were a consideration in my exercise of liberty, then there would be very little I could do for fear of "limiting someone's liberty."

Your ability to evangelize limits my ability to free of your sermons. But I would defend to the death your right to attempt to make converts (which, by the way, is a right enjoyed by any school child as long as such activity does not interfer with the normal education process--i.e. you can't try to witness just prior to the vocabulary test.)

Dean McConnell said...

Dear Lynn,
I agree that the vast majority of actions we take, public policy choices, and choices in law are choices between goods. In a proper free country, human beings have tremendous freedom to all sorts of different things and to try out all sorts of laws and political schemes. Some work better than others, different laws or schemes maximize different goals. But most of the choices we have in these areas are not between good and evil.

For example, I do not think God cares if we have a no fault scheme or normal common law negligence as a way of dealing with auto accidents. Each system will work better in some cases and create a risk of injustice in different cases. But both also serve different goods, provided they are administered with an eye to real justice and equity.

But, when society decides to not only legalize and evil, but to publicly advocate it and discourage oposition to it, that does impact liberty. It really is quite rare. But when it happens it is a big problem. The whole purpose of government is to generally restrain evil and reward good. It cannot restrain all evil or reward all good, so the choice of which goods to encourage and which evils to punish or deter is important, but still a choice among competing goods. The problem is those rare cases where a those in apparent authority try to punish good or reward evil. When that line is crossed it undermines the legitimacy of the regime and corrodes society and culture. Slavery, discrimination by race, abortion on demand, and promoting homosexuality are all institutions of the rare and dangerous type that reward evil and discourage good with the power of the state.

I am not the only person who has remarked on these problems. Philosopher Hadley Arkes of Amhesrt would be a more prominent commentator who shares some of the same concerns.

Lynn Green said...

The trouble you get into is that we have competing ideas of what is evil. So we must ask the question who is harmed if such an act is permitted. Liberty, is after all, not an unlimited good. Slavery cannot be permitted, even if St. Paul did so, because it harms another's liberty. This makes slavery unjust. Banning it is the business of government.

A homosexual does not harm a heterosexual's right to be a heterosexual. Therefore, the homosexual's act cannot be called unjust. So homosexual behavior is not the business of government.

Dean McConnell said...

Dear Lynn,

We have been here already.

There are not competing ideas of evil. Everyone has a similar notion of basic moral principles. We sometimes argue about related facts, or their application, and we sometimes argue to justify our favorite indiscretions. But we all have about the same idea of what is right and wrong.

Homosexuals know homosexuality is not really moral. Their own consciences bother them. That is why they work so hard for institutional and state approval - to counteract natural feelings.

Homosexual acts are bad for the homosexual actor and his partner, and society. But we do not need to hone in on homosexuality. Adultery, gossip, greed, fraud, oppression, use of illegal drugs, abuse of alcohol, these are also immoral and sometimes illegal.

And, Paul did not endorse slavery. Especially not American southern style slavery. Paul lived in the Roman world. A world in which nothing could be done about slavery other than encouraging believers to recognize their slavers were brothers in Christ - not chattels. That is what Paul did. Christianity eliminated Roman style slavery in medieval Europe. It eventually eliminated serfdom as well. Tragically, it had a much more difficult time getting rid of slavery in America and ending colonial oppression.