A Judicial Ruling on Illegal Spying?

Is it too much to hope that a Court will actually get to rule on the legality (or rather, the blatant illegality) of former President Bush's warrantless wiretapping program?

I don't want to get my hopes up, but this is a good sign.

I'm also wondering if the Obama administration refused to back away from Bush's eggregious misuse of the "state secrets" privelege, not to cover for Bush, but to force the courts to rule on the scope of the privilege. It seems unthinkable that a federal appellate court would uphold the right of the executive to assert the state secrets privilege to stop entire lawsuits - and thereby preclude any and all judicial review of alleged executive misconduct. Perhaps Obama realized that if he simply withdrew the assertion of the priviledge, a subsequent President could simply reassert it. Perhaps he wanted a judicial ruling on the privilege's scope? I would have wanted such a ruling and am now thrilled that we've got one.

Am I looking for reasons to give Obama a break? Perhaps. I guess we all have a little bit of Polyanna like innocence floating around in our hearts.

Joe H.

Rogue Nation

Glen Greenwald posted this piece last week, but I wanted to bring it to everyone’s attention. It is a truly stunning indictment of American society that we can learn about these horrific and unlawful actions taken by our government and not demand justice, or even seem to care. Like it or not, we’re a rogue nation. And the more Obama resists calls for investigation and prosecution, the more complicit he becomes.

Joe H.

The Right to Life Argument - Critque Follow Up

In the comments section of my last post, Phil from Plumb Bob’s Blog offered a thoughtful response to my critique of the right to life argument. Below is my response.

* * * *

Thanks for your comments Phil. Sorry for the delay in responding. The practice of law is demanding at times.

You first argue that an account of where rights come from is critical to any analysis of a right's importance. However, the claim that our rights come from God contributes little, if anything, to our understanding of what a right is or how important it is. Everything, after all, comes from God, but that fact doesn’t help us understand a thing’s nature or power. God sends the rain to the just and the unjust, but this fact does not help us understand rain.

You correctly state that American political theory (and our basic constitutional structure) was historically predicated on a theory of natural rights - via John Locke. Locke understood “natural” rights to be rights that individuals possess prior to forming or entering into a society. Locke believed that certain rights, e.g., the right to accumulate property, the right to self defense, the right to adjudicate one’s own disputes, etc., inhered in individuals independent of any social order, and their inherence was self evident. According to Locke, one needed only to understand the nature of these rights to see that individuals possessed them. For this reason, Locke’s contribution to rights theory was limited to positing natural rights. (Of course, most of the ideas informing our constitutional order were his, so I don’t mean to denigrate Locke in the least).

My own view is that rights are a function of status and contextual value. However, because it would take lots of space to describe my theory of rights, and even more space to defend it, I’ll leave that for another post. Suffice it to say that I concede the supreme moral significance of the right to life, and further concede that this right is possessed by all human “someones.” That should keep us from hurling competing sound bites at each other.

You also argue that my “no mental life/no someone/no rights bearer” argument could be used to deny people the status of “someonehood” based on the lack of some particular mental processing or ability. This misunderstands my argument. I’m not arguing that individuals that possess mental processes must possess particular mental capacities to qualify as rights bearers (as the historical mass murders argued). I’m arguing that an entity possessing no mental processes whatsoever cannot be a rights bearer.

In a nutshell, I’m arguing that the minimum requirement for being a rights bearer is being a “subject.” Being a subject is the opposite of being an object. We call a subject a “someone,” and call an object a “something.” The difference between a subject and an object is the presence of mental life - or consciousness.

Ordinary (living) human beings are both subjects and objects - minds and bodies. Corpses are objects. Ghosts and angels are pure subjects. You get the idea.

Grass and trees are alive. But grass and trees are clearly objects because they lack mental life - they lack consciousness. This is why grass and trees cannot possess rights. Nor can rocks or buildings or canyons. Similarly, individual human beings in which there are no mental processes (such as embryos stored in a freezer) are objects, not subjects. They may be sacred objects, but they are objects nonetheless. They possess no mental activity at all. And because they are objects, they are not rights bearers and the right to life argument does not protect them.

That is the argument I am making.

I understand the desire to equate “someonehood” with “human life.” And I freely admit that in most cases of ordinary experience, the two categories are co-extensive. In most instances of human life, a “someone” is present.

I also concede that being alive is a necessary condition of being a someone (ghosts and zombies excluded).

However, being alive is not a sufficient condition for being a someone (see grass and trees). More importantly, the concepts “subject” and “someone” are logically unrelated to the concept of “human” The concepts are experintially related because most living human beings are someones. But being “human,” or even a “living human,” is neither a necessary nor sufficient condition for being a subject. Higher order animals have consciousness and are, thus, subjects. Embryos are living human beings, but they are not subjects.

And again, because being a subject - a someone - is a minimal qualification for being a rights bearer, an entity must be more than a “human life” to be a rights bearer.

If this is wrong, someone should let me know why?

You argued that using “thought” as a criterion for acknowledging the existence of a “someone” is problematic, because “there is no point in the development of 'someonehood' that is not completely arbitrary." I understand “arbitrary” to mean “a determination that is not based on reason, evidence, or any applicable criteria.”

On this understanding of “arbitrary,” there is nothing philosophically arbitrary about positing the presence of thought or consciousness as the point at which a “someone” appears. This follows from the arguments I have just made.

Nor is positing the presence of thought or consciousness as the point at which a “someone” appears scientifically arbitrary. The existence of brain function is measurable. The fact that there remains disagreement about precisely when consciousness emerges in fetal development does not render the criterion arbitrary. It merely makes it difficult to apply. But that yields, at best, an argument for our being generous in extending right to life based legal protections.

Best wishes,

Joe H.

UPDATE:

It occured to me some of you might think my argument implies that all subjects (including dogs, cows, and the like) have rights. This is wrong. The key premise of my critique of the right to life argument is not "all subjects have rights." It is that "all rights bearers are subjects." That premise is logically equivalent to "if you're not a subject, you're not a rights bearer."

The Right to Life Argument - Critiqued

In my last post, I explained that "right to life" anti-abortion arguments are fundamentally different from "sanctity of life" anti-abortion arguments. I also indicated that I think right to life arguments fail when applied to the early stages of fetal development. This post will defend that view (and only that view). Let me say this again for clarity - the only view the argument below seeks to defend is the view that right to life arguments fail, when they are applied to the early stages of fetal development. Other arguments may or may not justify the pro-life position regarding early stage fetal entities. I'm only commenting on the right to life argument.

So here goes.

The right to life argument rests on two premises. The first is the claim that human fetuses are rights bearing entities and, in particular, bearers of the right to life. The second is the claim that abortion violates a fetus' right to life by killing it without justification. The conclusion of this argument, derived from the first two premises, is that abortion should be illegal, because the right to life is morally fundamental and, in all but the most extreme circumstances, inviolable.

The argument seems pretty straight forward, but it involves largely unnoticed complexities. For one thing, it will be difficult to evaluate this argument unless we understand what it means for an entity to have a "right." Having at least a rudimentary understanding of "rights" will help clarify what the right to life requires of would be rights regarders.

A right, roughly speaking, is a claim that a rights bearer has against another entity, the rights regarder, that it act in a certain way towards the rights bearer.

For example, the right to free speech is a "negative" right. It is a claim that residents of our country (the rights bearers) have against our government (the rights regarder) that it not resort to force or threats of force to prevent us from expressing our opinions. It is called a "negative right" because it does not entitle us to be supplied with anything substantive - it only entitles us to be left alone and allowed to express our opinions freely.

The right to "remain silent," to the contrary, is a different kind of claim. It is what we call an immunity. The right to remain silent is a claim against our government (the rights regarder) that it not use its power to compel testimony from persons that it has accused of criminal conduct (the rights bearers).

The "right to an attorney" is, once again, a different kind of claim. It is a "substantive" claim - a claim against our government (the rights regarder) that it provide persons accused of crimes (the rights bearers) with legal counsel if they cannot afford to retain their own.

This is, of course, a very preliminary account of a right, but I think it is adequate for our purposes. A right, simply put, is a claim that one entity has against another to act in a certain way with respect to it.

However, not all legitimate claims can be considered rights. For a claim to rise to the level of a right, it must also be important enough to warrant social and/or legal enforcement. The claims protecting free speech, non-incrimination, and access to legal counsel have been deemed so important by our nation that our law imposes sanctions when our government fails and/or refuses to meet its obligations on these matters. That's what makes the claims rights.

Finally, rights are generally considered moral and/or legal "trumps." By that I mean rights, when invoked, are thought to trump consequential considerations in the way that any heart card trumps all other non-heart cards in the game of Hearts. The government may have a strong consequential interest in preventing the propagation of certain opinions, but once a speaker has invoked his right to speak freely, the right prevails.

Again, none of this is absolute. The law clearly restricts the exercise of recognized rights, including the right to speak freely, in various ways. I'm merely trying to explain the basic nature of a right and how rights work, while avoiding complexities that are irrelevant to the analysis of the right to life.

Now, based on this analysis of a right, it is clear (to me anyway) that the right to life is, at minimum, a morally defensible "negative" right. That is, the right to life is a morally defensible claim that everyone has against everyone else that they not kill you without justification. The right to life may also be a substantive right, e.g., a claim that you have against other entities that they provide you with what you need to stay alive. But that view is more controversial and not particularly relevant to the main issues regarding abortion.

The premise that we have a moral obligation to respect other peoples' rights to life is uncontroversial. It is equally uncontroversial that the law should enforce each person's right to life by enacting and enforcing criminal sanctions against those who would violate that right. Almost no one disputes either of these premises.

The controversy arises, as I indicated in a previous post, over the issue of when a fetus comes to possess the right to life. This is the crucial issue regarding the moral implications of the right to life argument.

If a fetus becomes a bearer of the right to life at conception (which, I have been told, is not actually a "moment," but a process taking up to 48 hours), the right to life argument justifies a blanket legal prohibition on abortion at all stages of fetal life. It would justify a prohibition in nearly all cases of pregnancy, including those originating from rape or incest. This is because the unfortunate circumstance of being a victim of rape and/or incest would not justify an exception to the prohibition, because rights are trumps, and the conceived embryo has a right to life, e.g., the right not to be killed without justification. The only legitimate exception to the prohibition would be the life and/or health of the mother. The life or health of the mother exception is akin to the self-defense justification, which is a recognized exception to homicide culpability.

On the other hand, if fetal entities do not come to posses a right to life until some later stage in their development, then the right to life argument does not justify legal prohibition of abortion prior to that point. Other arguments might justify a prohibition prior to that point, but the right to life argument will not. It cannot, because there is, by definition,no right that others must regard.

So, the key question is, when does the right to life arise?

My view, mirroring Dworkins' view, is that a necessary condition of being a rights bearer is being a "someone." It is not enough that a entity be alive - trees and grass are alive but lack rights. Nor is it sufficient that an entity be a "potential" someone. Potential students are not students and do not possess student rights. Potential voters are not voters and do not possess voter rights. Likewise, potential someones are not someones and, therefore, do not posses the rights that someones possess.

The "someone" standard also comports with our conviction that in order for a murder to occur, someone has to be killed. A murder requires a victim, e.g. a someone who loses their life. Without a victim, there can be no murder.

All of this means that the reach of the right to life argument depends on the reasonableness of calling a fetal entity a someone. Therefore, we need to figure out what we mean by "someone" and figure out when it is reasonable to think of fetal life as a someone.

I believe that to be a someone, an entity must possess, at minimum, some degree of mental life. I'm not saying that mental life is the entire definition of a someone. But I am saying that mental life is a necessary condition for being a someone. Grass, trees, individual cells, and worms are all living entities. But they are not, and never will be, someones. They do not possess mental lives. Conversely, as we ascend up the sentience scale within the animal kingdom, the claim that certain animals possess mental lives and self awareness, and thus rights, becomes increasingly plausible.

Mental life is foundational to what we mean by a "someone." A ghost with a mental life would be a someone. A corpse, to the contrary, is not a someone precisely because a dead body no longer contains mental life. When we refer to people who have died as "departed loved ones," we are referring back to the person we knew when they possessed their mental faculties. These illustrations convince me that the following proposition is correct: No mental life - no someone.

Human fetal entities develop mental lives at some stage during their gestation and long before a normal month nine delivery takes place. Some people claim that mental life appears as early as eight weeks. Others say it doesn't appear until much later, (up to the 23rd week on some accounts). To be honest, I really don't know exactly when mental life appears. I am confident, however, that no mental life is present at conception, and for a significant period of time thereafter. The no brain - no mental life premise is unassailable as far as I can tell. And this "no brain" circumstance of fetal life lasts for quite awhile after conception.

Therefore, from the foregoing analysis, I conclude as follows. The right to life argument is a decisive argument in favor of abortion prohibitions as soon as it is reasonable to think that mental life of some form is present in fetal entities. Its decisive in favor of prohibition despite the fact that I've only argued that mental life is a necessary condition of being a someone, because there's a good chance that mental life also a sufficient condition of being a someone, and this fact justifies prohibiting abortions). At that point they are (probably) someones and, therefore, entitled to the law's protection.

However, the right to life argument decisively fails to justify abortion prohibitions prior to the existence of mental life, for the reasons already given.

I leave it to the neurologists to tell us when mental life appears.

Joe H.

P.S. By the way, Dworkin makes many of these arguments in his book "Life's Dominion." Its a great work of moral philosophy and a relatively easy read.

Right to Life vs. Sanctity of Life?

Whenever I suggest that it is possible to believe that abortion is morally wrong but should not be illegal, pro-lifers generally assume that I'm nuts. However, the reason they think I'm nuts is that they've missed a critically important distinction between two different strands of anti-abortion argument.

In his book "Life's Dominion," Ronald Dworkin explained that the "right to life" argument and the "sanctity of life" argument are very different. The former argument relies on the premise that fetal life has "rights." The latter argument relies on the premise that fetal life is "sacred."

Dworkin conceded that the right to life argument justifies criminal prohibition of abortion, but only if (or when) its underlying premise is true. However, he also argued that a "rights bearing entity" had to be a "someone" and further argued that the premise that early-stage fetal entities constitute "someones" is very problematic.

Dworkin then argued that the "sanctity of life argument" is a more plausible basis for objecting to abortion at all stages of a pregnancy. He explained what it means for a thing to be sacred, and how and why things come to be considered sacred. Dworkin also conceded the reasonableness of holding human life, at all stages, to be sacred, and further conceeded that desecrating sacred things (without sufficient justification) might well be immoral. (The professional photographer who built a fire below the famous Delicate Arch in Utah, scorching the surrounding red-rock in the process, is a perfect example of profit driven profanity rising to the level of immorality).

However, Dworkin also explained that views about what is sacred, or what the status of something's being sacred requires of moral agents, are reasonably diverse and inherently religeous, making them poor foundations for imposing legal prohibitions.

In coming posts, I'm going to evaluate the right to life argument, beginning with an explanation of the concept "right." I'll be upfront in saying that I think the right to life argument fails with regards to the earliest stages of fetal life. In a subsequent post, I will evaluate the sanctity of life argument, which I think establishes the imorality of many abortions, but which fails as a justification for legal prohibitions.

I'll try to post more regularly as well. I've been way too lazy this week.

Joe H.

The Obamas Make Marriage Sexy

So the Obamas are making marriage sexy. Just remember that I predicted this here.

Joe H.

Charitable Assumptions and the Nature of the Disagreement

Once, during an ethics class that I was teaching, I asked a woman with very strong pro-choice views to explain what she thought the abortion disagreement was about? She responded that the disagreement was about who should get to make a woman's reproductive decisions - the individual woman or someone else. She added that the ultimate disagreement was about whether individual women, or someone else, should have control over their bodies.

What struck me about her response was that she was completely sincere. She simply could not imagine that most pro-lifers had no desire to control anyone's reproductive decisions prior to the point where they perceived another human being was involved. Nor could she imagine that pro-lifers did not consider fetal life to be a part of a woman's body in the way that plumbing is a part of a house (her analogy), but instead viewed fetal life as a very vulnerable (and in most cases invited) guest of the woman - someone to whom the woman owed a duty of care.

Even more alarming, the woman did not believe me when I told her these things. She persisted, despite my pressing her hard on her obviously flawed "fetal life is to a woman's body as plumbing is to a house" analogy. Nothing fazed her conviction that pro-lifer's wanted to control women (and get them back into the home).


However, I have also put this question to strongly pro-life students (there were an abundance of these at the University of Utah). I have been told repeatedly, with equal force of conviction, that the abortion disagreement concerns whether or not it is okay to kill a baby (or a developing "human person"). When I pointed out the absurdity of suggesting that the 60-65% of Americans who favor legal abortion do so because they think its okay to "kill babies," a significant portion of those students looked back at me with glazed eyes, completely at a loss as to how to proceed.

Both cases illustrate a very important point. Pro-lifers and pro-choicers disagree about what the law should be. But they disagree about the law because they perceive that they disagree about some fundamental moral issue - be it the rights of women to control their bodies, the rights of fetal persons not to be killed, or some other moral issue.

This view of the disagreement is FUNDAMENTALLY WRONG. The two examples I cited above illustrate that pro-lifers and pro-choicers mainly disagree about when fetal life becomes an independent "someone." They agree that when a fetal entity becomes a someone, it is entitled to the law's protection - subject to certain exceptions like "life of the mother" - which is akin to a self-defense exception. Both sides also accept the moral proposition that it is wrong, other things being equal, to kill human persons, and that doing so should be illegal. What they disagree about (fundamentally) is the stage of fetal development at which it is reasonable to think of fetal life as a "someone." That is, they disagree about the status of fetal life at its various stages of development.

However, the question as to when a "someone" is present in a fetal entity is a metaphysical and/or scientific question, not a moral question. It is metaphysical because it requires us to define what we mean by "someone." It is scientific because it requires investigation into what occurs at various stages of fetal development.

Recognizing that the disagreement about abortion is not a moral disagreement, but a metaphysical/scientific disagreement, is critical to our having a civil discussion about the issue. Failing to recognize that our abortion disagreement is metaphysical leads us to assign completely untenable moral views to the opposing side, as the two examples illustrate.

More later.

Joe H.

Pro-Choice Christian

My wife was doing some research recently when she stumbled upon a blog entry arguing that there was nothing contradictory about being a pro-life Democrat. Reading the entry, I realized that the blogger's argument required courage - given that he was writing to people who probably disagreed with him. That made me admire him.

One thing I've learned in my life is that whenever we find ourselves admiring someone, its a good idea to look inward and ask if we should emulate them. In my case, the answer was both obvious and topically related - I am a pro-choice Christian. Some of you knew this. Some of you didn't. Some (most?) of you find this incomprehensible. Some of you understand. But regardless of what anyone else thinks, its true.

So, I've decided to dedicate several upcoming posts to a defense of my position - and perhaps stimulate some debate.

But first things first. In any discussion of abortion and/or abortion rights, it is crucial to draw distinctions regarding what is being discussed and what is not. There are, after all, constitutional, legal, and moral questions that tend to become intractably conflated in such discussions. Additionally, the terms used in abortion discussions are often vaguely defined, if they are defined at all.

So, let me begin with my first two definitions:

Pro-choice: The view that abortion should be legal;

Pro-life: The view that abortion should be illegal/criminal.

Many people in the pro-life community will complain that these definitions are too narrow. They'll complain that "pro-life" represents a moral/spiritual outlook as well as an opinion about what the law should be. I'm sure this is right - that pro-lifers are arguing from a moral/spiritual perspective (as are pro-choicers, by the way). However, for purposes of clarity, its critically important to use terms precisely - and there is a significant difference between being morally opposed to abortion (which I call being "anti-abortion") and wanting it to be illegal. This is because there are a variety of moral arguments offered against the morality of abortion, and it is possible to accept (and be persuaded by) some of those arguments but not others. It is also possible to conclude that the persuasive arguments do not justify a legal prohibition on abortion. (Trust me on this for now if that claim seems incomprehensible to you - I'll demonstrate what I have in mind shortly).

These two definitions get right to the heart of the legal issue without inviting confusion about the variety of related moral arguments. If someone thinks abortion should be a legally available option, irrespective of (or even contrary to) their moral sentiments, they are pro-choice. And if "pro-life" is to identify the opposite view, it has to identify one's opinion about what the law should be.

Moral arguments are critically important elements of this discussiion, and I intend to cover them. However, if we're confused about what the central terms of the debate mean, discussion won't get very far.

So, in all future uses by me, "pro-life" and "pro-lifer" will mean opposition to (or an opponent of) legal abortion. "Pro-choice" will mean support for legal abortions. Nothing more or less.

More later.

Joe H.