Friday, February 17, 2012

Your Constitutional Right to Make Up Shit About the Constitution

Continuing with yesterday's line of thought, Arkes agrees that behind "ordinary laws" are "basic laws," that is, "the laws that [tell] us, in effect, just what constitutes a 'law.'"

As such, "the fundamental law of a constitution bears then a logical precedence over the statute or the ordinary law." The Constitution is therefore not just chronologically prior to any basic or positive law, but ontologically prior.

Taking the analysis one step further, it is clear that the law-making body -- the legislature -- cannot claim to be the source of the fundamental law (heretofore Law), but is "itself the artifact or creation of a constitution."

Arkes quotes Locke on the matter, who wrote that a constitution is "antecedent to all positive laws." For the Framers, it was axiomatic that the Constitution "cannot spring then from the positive law," but must be grounded in something deeper, something above, beyond, or prior to the positive law.

Note that none of this touches directly on matters of religion or revelation, or on any legal theory per se. To the contrary, it is simply a reflection of "the canons of propositional logic" (Arkes), or derived "from the nature and reason of the thing" (Hamilton, quoted in Arkes). It is true of necessity, not opinion, consensus, experience, etc., as is the case in any axiom of formal logic.

As we have discussed before, logic alone cannot prove anything with finality, because it has no power to furnish its own premises. This latter requires an unavoidable act of judgment, and there is no mechanism for reducing judgment to logic -- which is why, for example, women are so confusing to the pathetic man who would attempt to fit them into his cramped little logic box.

Women are nonlinear, for starters, and we wouldn't have it any other way. To say that they are intuitional is not to say that they are illogical, but that they possess -- or are possessed by, depending on the time of the month -- a different order of logic, one that can, for example, "see around corners" in a way that bypasses local constraints. Nor does it imply that they lack the other kind of logic, unless they are full blown feminists who have given themselves over to girlish hysteria, like our William.

James Wilson, one of the more brilliant founders and a member of the first Supreme Court, made some interesting remarks in the very first case that came before them. Think of it: there existed "no cases to draw upon as precedents" (Arkes). Therefore, before saying anything, "he found it necessary to speak... about 'the principles of general jurisprudence'" in general, and a philosophy of mind in particular. In so doing, he rejected the "skeptical and illiberal philosophy" that "prevailed in many parts of Europe," regarding it, in the words of Arkes, as "the fount of all forms of relativism in morality and law."

Let us now fast-forward to our post-enlightened, progressive age. In order to impose its statist utopia on the rest of us, the left must not only twist the Constitution to its own ends, but distort the reality upholding it, and without which it is truly just a "piece of paper."

Mainly, it must transform absolute to relative and abolish logic altogether, replacing it with expedience, or just plain will. For the left, where there is a politicized will, there is always a legalistic way to see what it wants to see in the Constitution.

Arkes provides a quintessential example of the latter type of "thinking," courtesy of Justices O'Connor, Kennedy, and Souter in the case of Planned Parenthood v. Casey. It is especially sad to contrast the brilliance of a Hamilton or Madison with these clowns, who reduce the Law to a vulgar exercise in deepaking the chopra, right down to the nub. In defending the constitutional right to a dead baby, they mused on the level of an eighth grade graduation speech that

"At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."

To which the only appropriate response is: could I buy some pot from you?

A nice, if bland, sentiment, to be sure, but what does it have to do with the Constitution? More to the point, does the baby in question get to define his own concept of the mystery of human life? Or is he somehow excluded from the pot party?

We all know how assouls such as Deepak write with such sugary but vacuous rhetorical flourishes in order to conceal what is otherwise empty to the core. We expect this of a sleazy used karma salesman. But of a Supreme Court justice?

The whole passage is beyond irony, and doesn't bear the slightest scrutiny. For example, let us stipulate that a person has the right to define his own existence. Why? What's so special about a person? I mean, dogs don't get to define dogginess. Why do humans have the right to make up shit about themselves?

Easy. Because if we don't have this right, then leftists have no right to make up shit about the Constitution.

Well, that's fine for the justices, but the problem is that in their case, they have the power to impose their shit on the rest of us. Look at me. Every morning I ramble on about the mystery of life. But I would never presume to impose this on anyone else. I just throw it out there. And no, you can't buy any pot from me.

Arkes writes of how these pettifogging mediocrities, "products of the best law schools in the land, affirm the right of a person to make up his own version of the universe." Bueno. "But what of that person himself, the one who was conceded now the right to define his own relation to the universe? Was there any reality or truth attaching to him? And what was there about him that commanded the rest of us to respect these decisions he reached about himself and the universe?"

Indeed, "Why were the rest of us not entitled, in turn, to make him up, or to conceive him in a different way, far more diminished as a bearer of rights?"

Well, we are. We just call him a "fetus" instead of a "baby," and now he has no right to define his own existence. To save him the trouble of linking to it again, I will tell you that reader William has his knickers in a twist over the Virginia legislature's proposed law that will require an ultrasound prior to abortion.

Now, an ultrasound is a routine part of any pregnancy, and I would be willing to bet that Obamacare mandates them for all pregnant women. Indeed, it would be an insult to women, not to mention a danger to the baby, if this service were denied.

Unless the right to decide who is a human being trumps the Law.


JP said...

In the exciting world of abortion debate, no one ever seems to want to discuss the issues of the soul, pre-existence of the soul, ensoulment, etc.

It just never seems to come up, yet seems to have more than a little bearing on the issue.

julie said...

It simply isn't a worthwhile argument, given that it is literally impossible to know when exactly a soul comes to inhabit a body. And further, given that there are plenty who would argue against the existence of a soul, period.

The very fact that we cannot know indicates that, for any who love life, the wisest course of action is to assume it's there from the start, and act accordingly.

swiftone said...

It all comes to the same search for that which is the source of truth, the font of justice and beauty througout, doesn't it? Law, like logic has no self contained "primitives." Logic cannot reach all truth, (consistent or complete, choose one!) Law has the same issue. For primitives, and consistent completeness, we have to accept that we humans just aren't "all that!" Some call it mystery, others call it God.

JP said...

"It simply isn't a worthwhile argument, given that it is literally impossible to know when exactly a soul comes to inhabit a body."

I don't think it's impossible. I think we should be dedicating more effort to figuring this out so that we can put this abortion issue to rest once and for all.

It's also an issue with respect to transsexuality.

If the person chose a particular body to inhabit, then they should accept their choice and just shut up about the fact that they want to be a different sex.

Van said...

"Your Constitutional Right to Make Up Shit About the Constitution"

You had me at the title.

mushroom said...

Note that none of this touches directly on matters of religion or revelation, or on any legal theory per se.

Some people have the same problem with geometry. Do they even geometry anymore? I mean, other than this-is-a-circle kind of stuff. Do they have students do proofs?

I agree with Julie. Not only do the secular reject the concept of soul, the pre-existence of souls can be controversial among Christians. I think the Church generally likes to think that each new conception creates a new soul at the time -- or even that each new soul creates a conception simultaneously. This avoids confusion about the uniqueness of the eternal pre-existence of the Son.

Not long ago, maybe back around Christmas, Vanderleun threw a rock at a hornet's nest on AD by posting a cute cartoon that suggested the possibility of souls existing prior to their mortal round. Some folks are wound a little tight.

I am pretty easy-going in this regard myself.

For you formed my inward parts;
you knitted me together in my mother's womb.

I praise you, for I am fearfully and wonderfully made.

Wonderful are your works;
my soul knows it very well.

My frame was not hidden from you,
when I was being made in secret,
intricately woven in the depths of the earth.

Your eyes saw my unformed substance; in your book were written, every one of them,
the days that were formed for me,
when as yet there were none of them.
(Psalm 139:13-16)

mushroom said...

sheesh, I meant to say "bother with geometry"

swiftone said...

Re geometry and proof... when I left the high school lo these 20 years ago (wow time flies) all my geometry students attempted the simplest triangle congruence proofs (but we had to teach geometry to everyone... and some just don't get it, ever.) The honors classes still did fairly long proofs and saw proofs by induction, as well as the proof that sqrt(2) is irrational (by contradiction) and some simple logic.

Re pre existence of the soul, Tomberg (aka Unknown Friend) in "Lazarus, Come Forth" states that a Christian believing in reincarnation would not be a complete outlier. Within the church you are to keep quiet on these things. And to what purpose a debate? But such an assumption or convicted belief has interesting ramifications re abortion , still births, birth accidents, genetic code errors and more, I suspect.

Anyway, thanks Mushroom for the quote of Psalms 139. An awe awakening passage, and wonderful to recall.

Rick said...

Bob, the insult to eighth graders was uncalled for.

JP, RE the soul debate, I think you are just asking for a more difficult time than if you just said "human consciousness". And I would use just "consciousness" to start since if the other person wants to get into "what type of conscientiousness are we talking about", then, less power to them.

I was discussing this once with a pro-chooser and I stated that it is not possible to exchange consciousness with someone. You may be able to wear an other's body but never exchange the "you" by definition.

Rick said...

I love the new word veri. Only took me 20 tries.

Verdiales said...

James Wilson -- damn, what an interesting subject he makes.

The wiki (yeah) quotes a lecture of his in which he asked the defining question of his age, which is how should revolutionaries teach their succeeding generation to build, instead of wreck, something. The condition of revolution is conflict, which might lead the young to think relativistically, cynically. How should they be brought up to embrace foundational principles instead?

Dandy question. On balance, and on the whole, I'd say America is not only failing to answer it, but failing even to ask it.

Every civilization in its struggles faces this question with every new birth -- unless William and his "the world must not be peopled!" circle jerk crowd rule the day.

mushroom said...

Is Word Veri checking to see if we're robots? Or is it something else?

"Open the pod bay doors, HAL"

"I'm sorry, Dave, I can't do that."

JP said...

wv no longer wves us.

This started about Valentine's day.

Van said...

James Wilson, one of the more brilliant founders and a member of the first Supreme Court, made some interesting remarks in the very first case that came before them. Think of it: there existed "no cases to draw upon as precedents" (Arkes). Therefore, before saying anything, "he found it necessary to speak... about 'the principles of general jurisprudence'" in general, and a philosophy of mind in particular. In so doing, he rejected the "skeptical and illiberal philosophy" that "prevailed in many parts of Europe," regarding it, in the words of Arkes, as "the fount of all forms of relativism in morality and law."

There are parts to be quibbled with, but Wilson's "Lectures on Law" is on the whole, excellent. And of course since it was written before the 'German Method' over took academe, it is first and foremost readable.

mushroom said...

"We Are Stronger" Atheists to hold Mass -- oh, wait, -- Massive Rally: We need people to ask the tough questions, and they’re not. What’s more important: the Bible or the Constitution?

Yep, it's either the Bible or the Constitution. You have to choose atheism or a theocracy run by the Pope and Franklin Graham. Quick, quick, pick one before you have a chance to think how stupid this is.

Maybe they would do better if they changed their name to Seinfeldism and held a Rally About Nothing.

Carla said...

Actually, science proves -- as if we need extrinsic proof of an undeniable truth -- that what the pre-scienfic mind calls a "an undeveloped group of cells" is quite obviously a human being at a particular stage of development. From a Darwinian perspective, there can be no gaps, no ontological leaps, in nature. To pretend otherwise is just sophistry and word magic, analogous to Zeno's paradox applied to human maturation.

And human rights are not conferred by any "majority," much less by the state. Rather -- at least for Americans -- we possess them by virtue of existing. Nowhere does religion enter into this equation, unless one argues that anything transcending matter equates to religion. In that case, materialism itself is a religion. But we knew that already.

julie said...

Carla - exactly.

William, it's a shame you seem incapable of reading the posts, which have not been arguing from religion, nor have they had anything whatsoever to do with ensoulment.

You could try, for a change, discussing the issue from a standpoint of reason. That at least might prove fruitful. But of course, you aren't here for discussion, just to vomit up polls and talking points so you can claim to be "winning," and when your talking points prove to be flawed at best, you can always just change the subject and pretend you were making a completely unrelated point.

Rick said...

Honestly, you really have to believe in magic.

Gagdad Bob said...

In the past, William has made the argument -- apparently without irony -- that personhood is a function of brain waves, which is truly putting the cart before the horse. If he is correct, then who gets to live or die is determined by EEG technicians.

Gagdad Bob said...

He also uncritically throws out words like "person," as if there is any scientific evidence of such a ghostly entity.

Gagdad Bob said...

And he wants us to know that an acorn is not a tree, which means that it is now legal to destroy the eggs of endangered species, since the one has nothing to do with the other.

julie said...

Awesome - I am totally hungry enough to eat a condor egg, and since it's not a bird, it's not a problem.

Gagdad Bob said...

William has several blogs of his own. One wonders why he prefers to air his platitudes here, while reserving his own blogs for daily updates on his pubalgia, paeans to his homely girlfriend, and links to people who ascribe political disagreement to mental illness.

julie said...

And yes, I do often wonder why he wastes so much space here. Since his life is, according to him, so terribly awesome, you'd think he'd have roughly a million better things to be doing.

Gagdad Bob said...

I certainly can't blame him for finding things more interesting and provocative over here. The most comfortable life is hollow at the core with his spiritual barrenness, so conflict is sought out as a kind of excitement.

julie said...

Makes sense. It's just a shame the excitement he seeks is agitation, not elucidation.

Gagdad Bob said...

That's all there is in a horizontal world, a condition I well remember.

Gagdad Bob said...

I'm suppose it's why he's reverted to schoolboy foot-races against fellow geezers to try to spice things up. Sad, like Whitney Houston. Which is to say, not very.

julie said...

Heh - I'm reminded of this over at Gerard's.

Rick said...

William is a fetus.
I said so.
Off with his tenure!

Gagdad Bob said...

Update: William is throwing a tantrum because of my fascistic moderation of the comments on my own blog. Little does he know that I also forbid him to publish his comments on his blogs.

julie said...

Awesome - nice to know he can handle rejection in a mature fashion...

Gagdad Bob said...

It's odd that he is hypersensitive enough to believe he is entitled to air his inane musings on someone else's blog, but not sensitive enough to empathize with a developing baby. One sees variants of this in narcissists, for whom there is only room for one baby. And the narcissist is not about to abdicate.

Gagdad Bob said...

I'll bet most readers have a relative who always gets to be the Big Baby, and to whom everyone else must adapt.

Gagdad Bob said...

I just asked the wife to dig out Tristan's old ultrasound at 10 weeks. You can actually recognize his face, so I'm quite sure it's him and not something else.

julie said...

Oh, lord, yes...

Speaking of empathy for the unborn, it occurred to me the other day when he trotted out his indignation about the ultrasounds that the only possible reason to be opposed to that procedure is to prevent the mother from feeling even the slightest bit of empathy for the child she is planning on killing. In fact, as I understand it, during an abortion the ultrasound is already being used, to enable the doctor to see what he's doing - it's just that the mother isn't allowed to see. The only procedural change here would be for the doctor to have to flip the screen around.

But Science forbid she should see anything like this and have a change of heart...

Gagdad Bob said...

It's interesting that one of the principle pretexts for insisting upon abortion at any point in the pregnancy is "the mother's health," which usually comes down to "mental health," which is sufficiently elastic to justify anything. Given the adverse psychological consequences of having an abortion, I wonder if the left would argue that this or that woman must have her baby on grounds of mental health?

julie said...

I can't imagine there would be. Another link William sent along the other day after I shot down his ultrasound argument claimed that giving birth caused more mental health problems than having an abortion.

Along those lines, too, there was this appalling court case last month. As I understand it, her mental condition was initially exacerbated by having an abortion in the first place.

Rick said...

Williams's not a narcissist.
Because he said so.

JP said...

William says:

"But what is clear is that 99% of the anti-abortion argument rests on the absolute conclusion that an undeveloped group of cells, a zygote, blastula, etc... is a human being with rights because it 'has a soul.' Hence, this becomes an argument not from science but from religion."

I'm the one talking about ensoulment. And I'm the one who wants to use scientific experimentation to address the soul issue.

I was discussing this with an atheist (before he went off and died on me) with respect to the issue of consciousness.

He was arguing that it was some form of B-E condensate, which I was fine with. The question, of course, would then become it's durability (which I assert is permanent) and it's transferability (which I assert).

I'm the one who wants to move forward with scientific experimentation.

JP said...

I'm not in favor of squishing baby brains, whether the baby is inside or outside of the mother, in case anyone here was wondering about my position here.

And by "scientific experimentation", I'm not talking about squishing or damaging people, either.

Rick said...

I don't understand. You want to prove what?

Van said...

Carla, well put, well said.

Magnus Itland said...

Well, I can certainly sympathize with people who have blogs all over the place and come here anyway. That's what I do, after all. It is always interesting to throw out ideas to people who are more discerning than myself, regardless of whether I agree with them I can always learn something.

julie said...

Magnus - good point. I guess the difference between you and someone like William is that you are there to learn something, and in so doing you enrich the places you visit. He is there to school someone, and in so doing he brings down the level of discourse at the places he visits.

Off topic, On Slack. (Thanks, Mizze)

JP said...

I'm not sure what I want to prove, since I first need a testable hypothesis. And some people. And some electricity. And some really small wires.

I'm just playing metaphysical scientific wordball right now.

wv: Engitr %1:16

Really? We're wv's using symbols now?

julie said...

Reading Spengler just now got me thinking a bit more about the problem of opposing abortion by reason of ensoulment.


"The issue is: Who has the right to draw the lines where life and death are concerned? Morning-after pills may not seem too horrible to most of us. It’s not the same as sucking out the brains of a fully-developed fetus in a so-called 'partial birth abortion,' or dismembering a 3-month-old fetus that responds to stimuli and can feel pain, is it? The Australian comic Jim Jeffries has made a career out of a routine that claims heaven must be boring; if you think of eternal bliss as a simple extension of ordinary time, you’d get used to it eventually. That sort of paradox of time has been in the literature since St. Augustine. But the paradox cuts both ways. If you don’t like sucking the brains out of a fully-developed fetus at eight months, how about 7 months? Or six months? Or five months? Three months? How about three months less one minute? Or less one second? Where do you draw the line? Nothing in our science can tell us where life begins. If you can overrule the Catholic assertion that life begins at conception on putative scientific grounds and require Catholic institutions to pay for morning-after pills, you have given 'science' carte blanche to determine where life begins–and ends."

To expand on that a little, what if we could scientifically determine when exactly a body obtains a soul? If it turned out that the moment happens when sperm and egg conjoin, would it have any genuine effect on the abortion debate, or would people continue to make the same arguments based on consciousness, heartbeat, recognizable humanity or live birth?

Alternatively, what if it was determined that people are ensouled at some later point in their development? How would that knowledge be used? I suspect it would give many people a sort of vindication that abortion for any reason prior to ensoulment is perfectly acceptable. However, what to do if that point is different for everyone? What if it happens quite early for one person, but much later - even, say, after birth - for another? Would we trust science to measure that point reliably? Would it then be acceptable to kill an unsouled infant, months after birth?

Frankly, if science could prove such a thing (and I don't believe it ever will), it seems it would either have no positive effect on the current debate, or it would make things much, much worse.

There is a reason some things are - and must remain - a mystery.

Gagdad Bob said...

Science proves beyond any doubt whatsoever that human life is on a continuum, from conception to death, so it is arbitrary to abstract one time slice -- which is never found in nature -- and presume to call it "human." One is free to do it, but don't pretend to call it scientific. You can also scientifically treat the heart as a machine, but that doesn't mean it is one; or the brain as a computer; or a black person as a beast; none of the word magic makes these things so.

How could anyone in this day and age be so unsophisticated as to imagine that by changing the word, one changes the reality? But this is one of the most important tools of the left. It is how political correctness tries to stay one step ahead of reality.

And as far as we are concerned, the soul is the form of the body, so one can't talk about a body without simultaneously talking about a soul.

JP said...

I' currently hypothesize that I'm connected to my body through an electrical-magnetic interface. And as long as my body's alive, I'm stuck here.

So, no one wants to help me work on body-switching technology?

That would be fun.

Actually, I first want to work on disabling only portions of the connective interface. I have some ideas there.

Gagdad Bob said...

Sounds like you're about to discover beer.

JP said...

Mmmmmm. Beer.

Gagdad Bob said...

Common sense

"Pro-choice advocates say they’re not in favor of abortion, they’re in favor of giving women the option to have it. If that’s the case, they should support arming women with more information about a procedure that, at least under the law, is their right to have."


Indeed, informed consent is part of any medical procedure. On what grounds should abortion be excluded?

julie said...

Yes, I was thinking the same about the ultrasound. Getting an abortion is a serious medical procedure, and its effects are in no way trivial. And yet advocates insist that the people undergoing this procedure should be as ignorant about it as possible.

As to the nature of the vaginal ultrasound, it is far less intrusive and uncomfortable than getting an annual pelvic exam (which is required for the pill or any other medically prescribed contraceptive/ abortifacient), but I don't see anyone screaming about those.

As to the grounds upon which abortion should be excluded, it seems the only people capable of answering that are those who respect the dignity of human life.

JP said...

Informed consent from the baby?

Works for me.

Van said...

(You sleep too late)