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Can Oregon Compel Its Citizens to Pay for Killing Others?

Oregon House of Representatives

Oregon House of Representatives

Oregon’s Governor has said she will sign legislation that will require insurance companies (with one exception) to provide their beneficiaries, at no cost, and for any reason, abortions and contraceptive drugs that can be abortifacients. California has a similar law. Unlike California’s law, churches and religious organizations that object to abortion and/or contraception are exempt, but there is no protection for business owners who desire to use any insurance company other than Providence Health Plans (the one faith-based insurance company that was exempted). The Oregon legislation also expands state funding to pay for abortions for citizens and non-citizens who do not have private insurance.

Regardless of one’s views about the morality of abortion, literally tens of millions of Americans think it is murder. Hopefully we can all agree that these citizens should not be forced to commit what they consider to be murder, or be required to pay for someone else to do so.

If this were a federal law, private business owners with religious convictions against abortion would be protected by the federal Religious Freedom Restoration Act, just as the owners of the Hobby Lobby stores were a few years ago. Yet the Supreme Court struck down the RFRA as it applied to the states. And since Employment Division, Department of Human Resources of Oregon v. Smith (1990), there is little chance that these business owners or taxpayers will be protected by the Constitution’s Free Exercise Clause.

But there is another way to protect the rights of religious Oregonians and Californians who are conscientiously opposed to paying for abortions—and the rights of non-religious citizens who may also be opposed, for that matter. It is the United States Supreme Court’s substantive due process jurisprudence. Justices have recognized that there are rights “implicit in the concept of ordered liberty” that are not explicitly enumerated in the Constitution or Bill of Rights. These rights may be protected by the Due Process Clauses of the Fifth and Fourteenth Amendments.

So, for instance, in Pierce v. Society of Sisters (1925), the Court utilized substantive due process to void an Oregon law that would have banned private schools. Oregon, it turns out, has an amazing capacity to pass bad laws. The Court has also used it to void an ordinance that intruded on a family’s choice of living arrangements.

But how does the Court know what to protect? In the 1997 case of Washington v. Glucksberg, Chief Justice William Rehnquist explained:

Our established method of substantive due process analysis has two primary features: First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, “deeply rooted in this Nation’s history and tradition,”. . . Second, we have required in substantive due process cases a “careful description” of the asserted fundamental liberty interest.

The majority found in this case that there was no substantive due process right to physician-assisted suicide. Far from being a right “deeply rooted” in American history, helping someone to commit suicide was and still is illegal in most states.

One could argue, moreover, that a law compelling someone to assist in suicide would “shock the conscience”—a standard identified by the Court in Rochin v. California (1952) to determine when the due process of law has been violated. This may be why the lawmakers in Oregon, one of five states that, after Glucksberg, legalized physician-assisted suicide through the democratic process, opted to protect healthcare providers who refuse to help patients kill themselves.

There is in point of fact a long and venerable tradition in America of not compelling people to kill other people. Even in the early colonial period, militia statutes routinely permitted pacifists to hire a substitute or pay a commutation fee. In the First Federal Congress, James Madison, representing Virginia, proposed a version of what became the Second Amendment that stipulated that “no person religiously scrupulous, shall be compelled to bear arms.” Georgia Representative James Jackson insisted that if such an accommodation were made, then those accommodated should be required to hire a substitute.

Representative Roger Sherman of Connecticut objected to Jackson’s proposal, noting that it “is well-known that those who are religiously scrupulous of bearing arms, are equally scrupulous of getting substitutes or paying an equivalent; many of them would rather die than do either one or the other.” Sherman was exactly right; throughout American history Quakers, Brethren, Moravians, and other pacifists complained that their consciences did not permit them to fight, or to pay for others to fight on their behalf.

Madison’s draft amendment was unsuccessful, and being able to hire a substitute or to pay a fee remained, well into the 20th century, the primary ways that pacifists’ freedom of conscience was protected when it came to military service. Fortunately, this sort of requirement has now been abandoned. Instead, the Selective Service Act of 1917 and subsequent legislation has permitted pacifists to perform noncombat duties or civilian service. The latter alternative was important for those pacifists who believed that noncombat service still made them complicit in warfare.

More directly on point, shortly after Roe v. Wade was decided in 1973, Congress passed an amendment written by Idaho’s Democratic Senator Frank Church to protect healthcare providers’ right of conscience. This legislation prohibits any court or public official from using the receipt of federal aid to require a person or institution to perform an abortion or sterilization contrary to that person’s or that institution’s “religious beliefs or moral convictions.” It also makes it illegal for healthcare organizations to discriminate against individuals who refuse to perform these procedures. Subsequent Congresses expanded the Church Amendment protections.

Finally, with regard to capital punishment, federal law has since 1994 protected federal and state employees from being forced to participate in an execution “if such participation is contrary to the moral or religious convictions of the employee.” As with abortion, Americans are profoundly split on the morality of the death penalty. But we should all be able to agree that no one should be compelled to participate in imposing it against his or her will.

Substantive due process has been abused in order to expand the reach of the judiciary. I am sympathetic to calls for judges to abandon it altogether. But if it is going to be used to protect even a few unenumerated rights, Chief Justice Rehnquist’s test for identifying them seems right to me. Using this test, it reasonable to say that the right not to be compelled to kill another person, or to be forced to pay someone to kill another person, is “deeply rooted in this Nation’s history and tradition” and is capable of being carefully described and appropriately enforced. This right should protect business owners and taxpayers from being compelled by a state government to fund abortions or contraceptive drugs that may be used as abortifacients.

[1]  I provide a more extensive treatment of conscription and medical treatment in “Religious Accommodations and the Common Good,” available at: http://www.heritage.org/civil-society/report/religious-accommodations-and-the-common-good. See also Mark L. Rienzi, “The Constitutional Right Not to Kill,” Emory Law Journal 62 (2012), 121-78.

Reader Discussion

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on July 14, 2017 at 09:28:06 am

well, it seems as if the *exemption* in the Oregon statute is so restrictive that most Catholic Schools would be required to participate.

Some clever lawyer should look into it.

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gabe
on July 14, 2017 at 10:45:00 am

Oops, and just a thought:

How is it that we have come to a point where we now compel others to slaughter the innocent while demanding the right to life for those duly convicted of the most horrendous of offenses against the citizenry?

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gabe
on July 14, 2017 at 11:46:26 am

Excellent analysis!

Members of the Legal Profession who feel strongly against these types of State mandated coercions really must seek out an Institute that can provide them solid educational opportunities to become adept in the jurisprudence of natural law/natural rights/First Principles and substantive due process! These are legitimate concerns and methods of legal reasoning.

I understand Law Schools in the past 50-100 years simply do not provide much or any comprehensive legal preparation in these areas, except mostly to discount them as archaic and improper approaches to jurisprudence.

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Paul Binotto
on July 14, 2017 at 12:25:52 pm

"Regardless of one’s views about the morality of abortion, literally tens of millions of Americans think it is murder. Hopefully we can all agree that these citizens should not be forced to commit what they consider to be murder, or be required to pay for someone else to do so."

After reading your oops thought gabe, you can bet there are many others who ask the same question.
It has weighed heavily in my own thoughts for quite a while.

Excellent commentary that needs to be brought to light! Thank you Mr. Hall.
Hope you don't mind if I pass this on.

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SJ
on July 14, 2017 at 14:37:31 pm

Once again in dissent....

Regardless of one’s views about the morality of abortion, literally tens of millions of Americans think it is murder. Hopefully we can all agree that these citizens should not be forced to commit what they consider to be murder, or be required to pay for someone else to do so.

* * *

Chief Justice Rehnquist’s test for identifying [substantive due process claims] seems right to me. Using this test, it reasonable to say that the right not to be compelled to kill another person, or to be forced to pay someone to kill another person, is “deeply rooted in this Nation’s history and tradition” and is capable of being carefully described and appropriately enforced. This right should protect business owners and taxpayers from being compelled by a state government to fund abortions or contraceptive drugs that may be used as abortifacients.

Literally tens of millions of Americans thought the invasion of Iraq would result in the pointless deaths of untold numbers of innocents—and we were left without any legal recourse for withholding this misuse of our tax dollars. So please spare us your sanctimony.

Let’s break it down:

1. Compelling payment for killing to be done by others. The US has long hired people to do killing (soldiers, prison executioners, perhaps the occasional covert assassin). And federal employee benefits packages offer coverage for all kinds of things, including birth control. Finally, I understand that the military performs abortions, at least under some circumstances. Taxes provide the revenues for all these services. If this fact shocks your conscience, you must live in a perpetual state of shock—or a perpetual state of ignorance.

As Hall observes, some people—Thoreau among them—have refused to pay taxes due to their moral qualms about the uses to which the tax dollars would be put. And they went to jail until the taxes were paid. So people are free to object, and to act as civil disobedients, and free to reap the rewards of civil disobedience. Earnestness is not a “Get Out of Jail Free” card; quite the opposite.

The sole exception of my acquaintance was Hobby Lobby. The Court found that Congress appropriately adopted the ACA (Obamacare) as an exercise of its taxing power. Individuals and firms could pay the tax (that is, pay a prescribed amount to government), or take the prescribed measures to earn a tax exemption—such as buying insurance that met certain minimum requirements. Hobby Lobby refused to do the things that would qualify it for the tax exemption. And Hobby Lobby also refused to pay the amount prescribed. And for the first time to my knowledge, the Court upheld the rights of a tax protestor.

What explains this extraordinary outcome? The Court split 4-4, with the deciding vote cast by the concurring Justice Kennedy, who decided as follows: Government succeeded in demonstrating that it had a compelling interest in adopting the birth control mandate, but failed to demonstrate that the contraceptive mandate was the least restrictive means to achieve that interest. Why not?

[I]n other instances the Government has allowed the same contraception coverage in issue here to be provided to employees of nonprofit religious organizations, as an accommodation to the religious objections of those entities…. The accommodation works by requiring insurance companies to cover, without cost sharing, contraception coverage for female employees who wish it….

[I]t is the Court’s understanding that an accommodation may be made to the employers without imposition of a whole new program or burden on the Government. As the Court makes clear, this is not a case where it can be established that it is difficult to accommodate the government’s interest, and in fact the mechanism for doing so is already in place.

In short, if some other entity is willing and able to fulfill a statutory requirement for free, then it doesn’t make sense for government to compel an objector to fulfill the requirement.

Now, is it true that some other entity is willing and able to provide contraceptives at no incremental cost? Perhaps—due to of the curious nature of the insurance market. In short, Suzy’s insurer is already on the hook to provide Suzy with prenatal and delivery services, if needed—and those are EXPENSIVE. Compared to that, birth control is CHEAP. So the insurer may well be willing to offer birth control as an inexpensive substitute for the cost of unwanted pregnancies.

Then again, the insurer may not. Kennedy repeatedly qualifies his remarks with provisos such as “It is the Court’s understanding….” If in a future case an insurer demonstrated that the cost of providing contraceptives would exceed the insurer’s cost of simply dealing with some additional unplanned pregnancies, then Kennedy’s dissent would evaporate and the government would prevail.

In conclusion, Hobby Lobby appears to be a uniquely narrow holding that may not apply to the circumstances of any other case—or even to the actual circumstances of the Hobby Lobby case, if the record had been developed differently.

2. Compelling killing—or the provision of some substitute in lieu of personal services.
Can government compel people to kill? Clearly, this depends on what we mean by “compel.” In short, what limits are there on government sanctions for contentious objectors? I really don’t know of any, other than the prohibitions on “cruel and unusual punishment.” This is a big omission in my understanding—or perhaps in the law.

But clearly, the idea that people with contentious objections are entitled to shirk all their social obligations and dump the burdens onto their neighbors is false. As Hall observes, historically people refusing military conscription had to pay others to take their place, or perform some other service. Note that this is completely UNLIKE the Hobby Lobby decision, where the contentious objector got to shift the burden of providing certain kinds of contraceptive onto others, without bearing any substitute burden.

In … Washington v. Glucksberg … [t]he majority found … that there was no substantive due process right to physician-assisted suicide.

* * *

[F]ederal law has since 1994 protected federal and state employees from being forced to participate in an execution “if such participation is contrary to the moral or religious convictions of the employee.”

Great. But the Court didn’t say that if a state chooses to pay for physician-assisted suicide or capital punishment, tax payers can veto the policy or opt not to pay taxes. That’s what we’re discussing. It's worth noting that in Hobby Lobby, far from finding this tax burden objectionable, the plaintiffs specifically proposed that Hobby Lobby be relieved of the burden to provide certain forms of birth control directly with the understanding that government (and, presumably, tax dollars) would provide them instead. (Again, see Kennedy concurrence: "The parties who were the plaintiffs in the District Courts argue that the Government could pay for the methods that are found objectionable.")

in Pierce v. Society of Sisters (1925), the Court utilized substantive due process to void an Oregon law that would have banned private schools. Oregon, it turns out, has an amazing capacity to pass bad laws. The Court has also used it to void an ordinance that intruded on a family’s choice of living arrangements.

Great. But I strongly suspect that if the plaintiffs had argued that their religion entitled them to shirk all obligations to educate their children, or to provide adequate living arrangements for people in their charge, they would have lost. The court struck down one mandated arrangement under a presumption that some substitute arrangement was available that the court found acceptable.

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nobody.really
on July 14, 2017 at 14:43:13 pm

In the First Federal Congress, James Madison, representing Virginia, proposed a version of what became the Second Amendment that stipulated that “no person religiously scrupulous, shall be compelled to bear arms.” Georgia Representative James Jackson insisted that if such an accommodation were made, then those accommodated should be required to hire a substitute.

Representative Roger Sherman of Connecticut objected to Jackson’s proposal, noting that it “is well-known that those who are religiously scrupulous of bearing arms, are equally scrupulous of getting substitutes or paying an equivalent; many of them would rather die than do either one or the other.”

But why should anyone take note of what these rubes had to say? They obviously labored under the delusion that the language they were drafting was somehow focused on military service and conscription—whereas our contemporary Supreme Court divined that the amendment was actually focused on an individual’s discretion to bear arms.

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nobody.really
on July 15, 2017 at 08:15:05 am

"well known of those who are religiously scrupulous of bearing arms, equally scrupulous of getting substitutes ..."

Abstracting from the fact that you seem to approve of persons paying others to perform actions that they consider against all good morals and human decency:

The, it seems to me, obvious solution is to offer medical service of all types, at the front and in the hospitals as an alternative to armed combat. Many men and women served their country and countrymen honorably in this way through past conflicts.

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Linda Smith
on July 15, 2017 at 10:22:08 am

Re: ... " tens of millions thought the invasion of Iraq would result in the pointless deaths of untold numbers of innocents ...".

This argument seems to suffer from a comparison of unlike things. War declared by a sovereign nation against another, using the evidence available at the time, faulty though that evidence may be - and abortion of a helpless. and certainly innocent, conceived human being, especially when no question of the life of the mother is at stake, seem to me different in kind.

There is recourse, as you say, for citizens who object to a declaration of war. The cost of this recourse, the price that must be paid for acting on principle not in conformity to a majority, is high, as you note, very high.

Still many have decided to pay that price for many and diverse reasons. These cases test our resolve. They require us to "know ourselves"; no faking or posturing will suffice here. We "take a stand" and face the consequences.

All that said, again, your comparison seems to me "out of balance". International relations are tangled affairs. The truth seems elusive; even impossible to obtain. Great forces stand against one another; adults on each side; all the resources of each nation behind them. Evaluating the rightness and wrongness of one side or another is difficult. Some results (none of which obviously can justify the price paid) are positive; many negative. War is always tragic.

A conceived human being represents simplicity itself. He or she is alive through no fault. He or she is guilty of existing.

"Sanctimony" - "affected or hypocritical holiness":

This is, or seems to be, your expressed opinion of those who support human life from conception to natural death. This position would be justified if you could see into the minds of those who have carefully worked through the issue. But you cannot have such power.

Nor do those who question the depth of knowledge possessed by those opposed to, say, the Iraq war - those who wonder about the source of their ability to form and present a comprehensive analysis of the situation at the time war was declared, or after, - have power to read minds or any right to accuse such persons of "sanctimony".

I do not think that sarcasm, contemptuous accusations, in the service of one's own opinion has any useful purpose in civilized discussion.

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Linda Smith
on July 15, 2017 at 11:46:08 am

Linda:

"I do not think that sarcasm, contemptuous accusations, in the service of one’s own opinion has any useful purpose in civilized discussion."

Ahhh! But that is nobody's schtick, isn't it?

The comparison of *unlike things* blended in with "educated" humor.

It is, to my mind, a simple exercise in, and / or display of, *educated incapacity," i.e. the inability (unwillingness?) to OBSERVE openly as a result of an arduous (yet tedious) years-long effort to *construct* of world according to one's own choosing.

Tedious - yet, in all fairness, at times, entertaining.

Simple fact: My statement stands:

We prefer to slaughter the innocent than punish the guilty.

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gabe
on July 15, 2017 at 12:20:40 pm

Oops, forgot:

"Sanctimony" _ No, Linda, here you got this wrong.

The "sanctimony" most apparent it that of the nobody's of the world who in their "haughtiness" look down and askance at all who do not share their own peculiar *incapacity* to observe the world and, as you say, it's *simplicity.:

BTW: it is to be observed also in the decision(s) made from on high in Great Britain regarding the curious case of Charlie Gard, a young innocent male child, who has effectively been sentenced to die by the Black Robes of the English legal system. And what pray tell is little Charlie's crime? Afflicted with a rare birth disorder, the treatment of which is neither assured nor inexpensive, his parents have apparently offended the sensibilities of both the British Legal Establishment AND the SOCIALIZED medical system.

For this, he is to be punished AND his parents are to be relegated to the position of subjugant - or more appropriately -PENITENT.

This is the inevitable outcome of "expert" decision-making; nobody.REALLY believes in this particulkar form of *incapacitation. Easy to do, of course, when one looks down from the *educated* heights.

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gabe
on July 15, 2017 at 13:34:36 pm

And now more from the 'educated" and haughty heights:

http://www.nationalreview.com/article/449530/climate-change-study-population-reduction-childlessness-recommendation-preposterous-carbon-footprint

- wherein the bearing of children is an environmental scourge!

I suppose in the minds of the of the educationally incapacitated this may justify the slaughter of innocents.

OR is this more in line with the "thinking" of the Dwarf on SCOTUS, Ruth Bader Ginsburg that " as we all know, it was only CERTAIN classes of children we wanted to prevent" ( paraphrased).

Of course, the *educated* will be free to have children in this scenario; after all, they can afford to pay for "carbon offsets", no doubt from the savings accruing from the employment of underpaid illegal immigrants as domestic help.

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gabe
on July 15, 2017 at 16:04:23 pm

The writer asks "Can Oregon compel its citizens ...". My comments and yours seem to respond to another question, "Should Oregon compel its citizens to pay for killing others."

Pope Benedict XVI wrote: "When a majority oppresses a religious or a racial minority by means of unjust laws, can we still speak in this instance of justice, or, indeed of law? In other words, the majority principle always leaves open the question of the ethical foundations of the law. This is the question of whether there is something that can never become law but always remains injustice; or, to reverse this formulation, whether there is something that is of its very nature inalienably law, something that is antecedent to every majority decision and must be respected by all such decisions."

Certain approaches to law and indeed to life hold that no such "somethings" exist. If legal precedent allows for a certain outcome, that will be enough to prevail.

These two positions - that of a moral philosopher and theologian and that of a legal professions guided by utilitarianism and materialism - are irreconcilable. The conflict is intensifying.

A Hillsdale College English professor, writing about Homer's Odyssey - the preservation of marriage and family, and the concept of "xenia" - an ordered system of hospitality - teaches that "For Homer the presence of xenia in a culture also reveals whether it is civilized or not." ( Kelly Scott Franklin at www.thepublicdiscourse.com).

Can a culture claim to possess "xenia" while killing tens of millions of conceived, perfectly innocent, dependent human beings? And if we do not possess "xenix", are not hospitable to all citizens born and not yet born, be called "civilized"?

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Linda Smith
on July 15, 2017 at 17:02:16 pm

Linda:

Again, excellent comments!

It is perhaps no accident that the Legal profession requires and additional three years of schooling (more for the less *persuadable*). It truly does take additional "educational incapacitation" to come to the view that legal precedent is preeminent over moral law and as you rightly point out "xenia."

This lack of xenia may also explain why certain flight crews refuse to permit a young toddler to use the "first class" bathroom (see recent news headlines). A trivial matter - perhaps; yet, a clear indication that the "hospitality" that once was pervasive in our culture has long since been displaced by legalistic self-justification for all manner of selfish behavior - and all this under the guise of a "New Liberty."

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gabe
on July 15, 2017 at 17:29:46 pm

As you say, these "trivial matters" do provide "legalistic self-justification for all manner of selfish behavior." The tragedy is that many have been, again, as you say, educated into ignorance of the "hospitality" that did prevail in our culture.

That the culture was far from perfect, that it did stand in need of correction, is being used as a reason to destroy it. That some groups had been excluded from xenia, from hospitality, was known and regretted. Many were working to change this situation, to repair as much as was possible, and to make restitution, as much as was possible. Also working to go forward in a better way. But these efforts were not allowed to succeed.

A related article appears in the August/September issue of First Things magazine: "Church of Intersectionality" by Professor Elizabeth C. Corey of the Honors College or Baylor University.

Press on. And thank you.

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Linda Smith
on July 15, 2017 at 17:31:26 pm

I meant to write "these trivial matter, taken together, form a critical mass of data, providing evidence of increasing legalistic selfishness".

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Linda Smith
on July 15, 2017 at 17:34:21 pm

Great string of points, Mr. Gabe.

Charlie Gard's crime of course, is the crime of his parents - of not having his life terminated by abortion when his pre-natal physicians, the moment they discovered he may be afflicted with a life-threating illness, (no doubt) encouraged his mother to abort, (for the sake of the child, but most especially for the sake of socialized medicine - for its cost-effectiveness).

Of course, I do not know this occurred, and have no way of knowing, I only know past behavior predicts future actions.

It was not all that long ago, that a U.S. Federal Judge ruled (paraphrasing), the right to an abortion is the right to an effective abortion, or rather, a dead baby. So there is good international precedent, no? And, Progressive-Socialism always gets their man, (when he's still a baby boy, all the better), don't you know? Dead or Alive, preferably dead.

Can it be long, before a right to medical treatment means a duty to abort; its already becoming a duty to pay for it.

Of course it was necessary and justifiable for the state to wrench the parental rights out of the hands of little Charlie's parents. Did they not all ready prove themselves quite the irresponsible parents, but more importantly 'bad citizens' when they chose his life over the best interests of socialized medicine?! Really, they left the courts with no other choice after acting so selfishly, even treasonous.

So Charlie will pay for it with his life, and the parents sorrow, compounded exponentially by the anger they will feel at the state for "cutting their losses" sooner than later, will be the fitting price they have to pay for their pre-natal irresponsibility; There is after all, good international precedent for forcing the relatives of the condemned to pay for the bullet used in their execution.

I hope Charlie's parent's learn a lesson from this. More importantly, I hope the whole world learns the better lesson.

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Paul Binotto
on July 15, 2017 at 17:49:46 pm

Ms. Smith, you contribute so much to this discussion! If you are an attorney, a judge, I do hope you make it your mission to educate other attorneys in the matters you discuss here so eloquently.

A rich and relevant understanding and application of Natural Law, Natural Rights, and moral reasoning to Jurisprudence needs to be restored in the American Courts and Academy. Now, more than at any other time in our nations history.

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Paul Binotto
on July 15, 2017 at 19:17:59 pm

Would that I were. Thank you.

The truth is that, unlike the commentator "nobody really", I am really nobody. I am often quite uneasy when commenting in such distinguished company.

Today I considered myself a "fill-in" for the fine lawyers and distinguished scholars who are, I hope, at the beach.

I am a "thinker"; one who lives the most ordinary of lives. An American citizen; a serious Roman Catholic, who is grateful to have access to the discussions and book reviews that are published here each day. This site is great treasure; absolutely free and available to all.

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Linda Smith
on July 15, 2017 at 20:32:49 pm

Well, good Madam, as the saying goes, "that makes two of us".

Nobody.really, in my view, although perhaps a tad long-winded, (he or she tells me, is so with good reason), is a welcome and intelligent purveyor of opposing perspective on almost every topic. Ok, lets be honest, on every topic. But, this is as it should be in a free-society, where people of good will are free to express their opinions in the 'public square' honestly and often - I hope you will feel more free to express your own more freely and more often.

And, I hope you will teach those closest to you, children and young people especially, about Natural Law and Rights. You will be doing them (and our country) and extraordinary service.

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Paul Binotto
on July 16, 2017 at 11:08:28 am

Linda:

do not be hesitant:

"I am a “thinker”; one who lives the most ordinary of lives. "

There is far more to be learned from a "thinker" than from a "logician" (perhaps, a form of mental prestidigitation) AND there is far more to be learned, and greater value, in a life lived simply and ordinary.

recall the old admonition made to the logician: "Your problem, Sir, is that your are being *logical*, you are not thinking"

It takes many years and much effort to stop thinking and assume the "Voice of Educated REASON."

Let us be thankful for those, such as yourself, who have retained the capacity to think rather than assuming the mantle and voice of Legal Reason.

Take care

gabe

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gabe
on July 16, 2017 at 12:42:25 pm

Amen, Mr. Gabe, Amen!

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Paul Binotto
on July 17, 2017 at 01:45:58 am

Re: … ” tens of millions thought the invasion of Iraq would result in the pointless deaths of untold numbers of innocents …”.

This argument seems to suffer from a comparison of unlike things.

Sure. All things are alike. And all this are unlike. Every war is unlike every other war. Every solider is unlike every other solider. Every pull of the trigger is unlike every other pull. The trajectory of each bullet will differ from the trajectory of the next.

Likewise, the circumstances of every pregnant person is different.

Whether you choose to call things like or unlike is not a reflection of the thing being observed, but of the framework you choose to impose on it. In other words, it reflects your religion.

I do not ask you to share my conclusion about likeness or unlikeness. If you choose not to share my concerns about war, well, that’s your religious perspective. But I weary of the notion that other people’s religions somehow entitled to more deference than mine.

International relations are tangled affairs….

A conceived human being represents simplicity itself. He or she is alive through no fault. He or she is guilty of existing.

Yup. And I find it regrettable that so many conceived human beings will die for lack of a kidney. You can meet them any day in any dialysis clinic. Generally they experience kidney failure through no fault of their own. They are guilty merely of existing with defective kidneys.

Now, most people have two healthy kidneys. They could simply dedicate their body to promote another human being’s life.

But, for better and worse, we don’t compel people to dedicate their bodies for another human being. Rightly or wrongly, we have concluded that individual autonomy outweighs the consequences for other human beings—even when that consequence is death.

Perhaps we should change this legal principle, and start compelling people to dedicate the use of their bodies for other people’s welfare. It might be good public policy. But until we do, we don’t.

“Sanctimony” – “affected or hypocritical holiness”:

This is, or seems to be, your expressed opinion of those who support human life from conception to natural death.

Uh … no.

1. I support human life from conception to natural death.

2. I support human life from before conception and beyond natural death. For example, I support treatments for curing malaria and cancer. Yes, those are perfectly natural ways to die, but they’re pretty shitty ways to die. I favor the provision of medical services generally. To this end, I support ObamaCare, and I’d like to see it expanded. When I read about politicians who shed crocodile tears for the unborn, yet want to strip away health coverage for pre-natal care and childbirth, I want to puke.

3. Furthermore, I find no fault with people who oppose abortion; I believe in freedom of religion. The problem I have is with people who wish to impose their religion on others. And I find it especially galling when they seek to compel others to live up to their professed values, while declining to live up to their own professed values themselves.

For example, when I encounter people who argue that the law should compel people to use their bodies to save the life of an innocent conceived human being, but that person still opposes imposing a general duty to donate kidneys—or even to donate a kidney themselves—I call sanctimony.

I do not think that sarcasm, contemptuous accusations, in the service of one’s own opinion has any useful purpose in civilized discussion.

True, I spoke sarcastically about the Supreme Court’s conclusion that the Second Amendment pertained to an individual’s discretion to bear arms. But I don’t see where I used sarcasm otherwise. I’m quite earnest about my feelings about the Iraq War—and about the idea that other people expect me to genuflect before their values, while they have no intention of genuflecting before mine.

In any event, you are entitled to your opinion—and I to mine. Jesus, greeted in Jerusalem by cheering crowds, rode in on the back of a donkey—a satirical way of distinguishing himself from secular heroes, who had the habit of riding through cheering crowds on the back of a white stallion. And doubtless there were some in the crowd tsk-tsking about this contemptuous use of sarcasm. Tsk-tsking has a long tradition.

As does the use of sarcasm. If by using sarcasm, I’m to be relegated to the same category as Jesus—well, I guess that’s just something I’ll have to live with. I’ll try to be brave about it.

Yes, that was sarcasm.

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nobody.really
on July 17, 2017 at 07:59:25 am

Nobody,

You make some very good points. But, in my view, you just totally miss the mark on abortion.

"Perhaps we should change this legal principle, and start compelling people to dedicate the use of their bodies for other people’s welfare. It might be good public policy. But until we do, we don’t. " - A just society of just laws always expects people to accept the consequences of their own actions.

When a man and a woman consent to have sex, they are in fact, consenting to accepting the consequences of sex (whether contraception is involved or not, that A.C. is not 100% is widely known), beyond that of a momentary orgasm, conception of another human being is the greatest consequence. That pre-coital "yes" is a pre-natal "yes" to bearing the consequences : "dedicat[ing] the use of their bodies for [an]other pe[erson]’s welfare".

This, is the 'Mother of all Social Contracts'. In by far the vast majority of instances, probably well over 99%, the aborted child was conceived under consent. Likewise, probably a comparable percentage of abortions does not originate out of rape, incest, or to save the life of the mother.

To then turn around and argue Pro-Life people are seeking to force the mother to use her body against her will is absurd and disingenuous. The ship of consent has sailed with the pre-coital 'yes" To abort that child is not only breaking the Social Contract with society and that individual child, it is in fact, forcing the unborn (and completely innocent and voiceless) child to "dedicate" not only the use of its body, but the very life of its body, to another person's (it mother's) potential welfare. Government should give voice to the voiceless.

The Only way around this truth is to Dehumanize the unborn child. Dehumanizing another human being is a VERY slippery slope; I need not give you the most obvious of examples home and abroad over the prior two centuries.

You may say, "we simply can't know when life begins". And, this may be so. But the current state of embryology is in fact very capable in this regards, as capable and reliable as any other sciences of lessor consequence we accept, rely on, and make policy on every day. Embryology aside, does not, a wise and above all just, judiciary, when dealing with matters of life and death, when there is shadow of a doubt, justly give the benefit of the doubt to a course of action protective of life? What government worth keeping does not protect the very most vulnerable among us?

Or you may say, "the mother is an Actual person, the fetus is only a Potential person. The actual person of the mother deserves protection over the potential person in her womb. She is poor, she is young, she has her whole life ahead of her to achieve great things and this child will change all that, it will ruin her opportunities, it will keep her from emerging out of poverty, etc." - THESE predictions are the only REAL Potentialities. Nobody has a crystal ball to know these things will actually be the fate of the mother who does not abort her baby. And, if these things do occur, there is no definitive objective way to conclude the child's correlative relationship of the mother's bad fortune is in any way causal.

The only Actuality in abortion is a dead baby. The causal correlation is definitive and indisputable. In addition, it CAN be predicted 100% without dispute, that that so-called 'potential person" in the womb, will grow into anything other than a real human person, if only its growth is not permanently interrupted, permanently ceased by abortion.

You have a good mind, Nobody, and your obvious concern for the weaker members of society is ample evidence enough to me that you also have a good heart. I urge you not to stop considering your view on abortion. You may just come to recognize this is not a merely a Religious Belief issue, but a Human Rights Issue - the greatest our time will ever know.

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Paul Binotto
on July 17, 2017 at 11:52:38 am

A just society of just laws always expects people to accept the consequences of their own actions.

It’s an argument. No more lifeguards; if you go swimming, you knew the risks, so you bear the consequences. No police intervention outside the home; if you leave home, you accept the risks. No more SEC; if you want to invest in securities, that’s your call—it’s not government’s job to help you. No more Center for Disease Control; if you fail to take sufficient precautions from getting sick, that’s on you. Etc.

Not my cup of tea, but libertarians might go for it.

When a man and a woman consent to have sex, they are in fact consenting to accepting the consequences….

It’s an argument. Indeed, it’s supported by traditional tort law. Traditional tort law says we generally have no duty to aid others—by supplying our blood, our labor, or uterus, or our kidneys. But there are exceptions. For example, when someone assumes a role—say, as a parent—then a duty may arise. It’s not a big stretch to say that the act of consenting to sex is akin to accepting the duties of a parent.

But we also have plenty of examples where society steps in to aid people in distress, even distress of their own making.

Still, I get the argument: In choosing to allocate a burden between an active, consenting woman and the passive, innocent fetus, there are some merits in placing the burden on the active party.

[P]robably well over 99%, the aborted child was conceived under consent. Likewise, probably a comparable percentage of abortions does not originate out of rape, incest, or to save the life of the mother.

Yup. But this rather begs the question:

1. Do you approve of abortion in the case of rape, etc.? If not, then this whole discussion about consent seems to be beside the point.

2. If you do, then who should bear the burden of proof? If a woman claims that her pregnancy was the result of rape, does that suffice? If not, then what proof should be proffered? Who should evaluate the proof’s merits? In what timeframe?

The simplicity of the issue grows complicated quickly.

The Only way around this truth is to Dehumanize the unborn child.

To re-phrase: If you subscribe to the Assumption of the Risk model, then society may remove the choice about having an abortion from the pregnant person and instead impose some social standard on the individual.

What should that standard be? Different societies have drown it at different points. Some permit euthanasia even for a period after birth. Many bar euthanasia after birth. Some identify “quickening,” when the fetus begins moving in the womb. Some identify conception. And some arguably identify an earlier point, objecting to masturbation as loss of a potential person. Each point has its merits, I guess.

That said, because I’m not so hung up on the Assumption of the Risk standard, I’m generally inclined to let people choose for themselves what to do with their bodies.

Regarding “dehumanizing”: I don’t believe that there’s any dispute that people who are need dialysis are human. Yet this fact does not establish a duty for you to use your body for their benefit—even if an innocent human would die otherwise. Thus, the human/non human distinction is not the sole consideration here.

Dehumanizing another human being is a VERY slippery slope; I need not give you the most obvious of examples home and abroad over the prior two centuries.

Indeed. That’s one more reason why I’m reluctant to deny any human being’s agency over his or her own body; you can scarcely do more to reduce a person to an object than to deny them control over their own body.

You may say, “we simply can’t know when life begins”. And, this may be so. But the current state of embryology is in fact very capable in this regards….

In WHAT regards? “Life” is a word in the English language. There is no “scientific test” to determine the meaning of a word. What would the hypothesis be? What would be the control group? The dependent and independent variables? Look, if words could be established by some kind of universal scientific basis, then wouldn’t everyone in the world speak the same language, just as everyone experiences the same science?

To the contrary: The word “life” has whatever meaning we choose to give to it, and we can change that meaning whenever we like (just as people who speak other languages can establish and alter their words).

[D]oes not, a wise and above all just, judiciary, when dealing with matters of life and death, when there is shadow of a doubt, justly give the benefit of the doubt to a course of action protective of life? What government worth keeping does not protect the very most vulnerable among us?

Hey, if you want state-mandated kidney donations, I think there are some good arguments in favor of the policy. But, for better and worse, our wise and over all just judiciary tends to default to the position of personal autonomy.

“[T]he mother is an Actual person, the fetus is only a Potential person. The actual person of the mother deserves protection over the potential person in her womb. She is poor, she is young, she has her whole life ahead of her…."

For what it’s worth, the Guttmacher Institute found that the typical person having an abortion already has kids, and wants to focus her attention on the kids she’s got.

My parents wanted another kid, but had a miscarriage. They proceeded to try again, and now I have a sister. But for that miscarriage, the sister I’ve grown up with never would have existed. So, should I sit around mourning the fact that I grew up with this really cool sister instead of some OTHER person? Cuz I don’t.

That seems to be the situation with many abortions: People aren’t abandoning having kids; they’re simply choosing the right time. IF they had a kid earlier, they’d then choose to refrain from having a kid later. That later kid’s existence would be obliterated.

Nobody has a crystal ball….

Yeah, but I’m only supposed to use it for official business. (They’re REALLY strict about it.)

[I]t CAN be predicted 100% without dispute, that that so-called ‘potential person” in the womb, will grow into anything other than a real human person, if only its growth is not permanently interrupted, permanently ceased by abortion.

Uh … no. The great majority of egg/sperm unions fail to implant in the uterus, or implant but then fail to thrive, and are flushed away in the menstrual cycle. So if your religion regards every union of egg and sperm as a life, and your religion has mandatory funeral rites, you might want to conduct those rites for every used tampon.
Conversely, you might want to acknowledge that even you don’t really regard a fetus as having the same status as you and me.

You may just come to recognize this is not a merely a Religious Belief issue, but a Human Rights Issue – the greatest our time will ever know.

Look, if we’re worried about the loss of potential humans, abortion is just a drop in the bucket. The biggest source of loss is … chastity! The number of humans who might have come to be, but didn’t, is driven by the fact that plenty of fertile people are constantly doing things OTHER than having sex. The losses are staggering. So if you’re really concerned about all that “loss of potential,” that’s where I’d start: Turn off your computer and turn on your neighbor.

But before you go, consider this. (Ok, what I’m about to say won’t be very sexy, so maybe you should consider other thoughts, too.) If you could save every unwanted fetus by transferring it into an artificial womb—but doing so would cost $1 million per fetus—would you support increasing taxes to pay for the creation and operation of a fleet of artificial wombs? How much? It’s easy to be righteous and absolutist when the cost of your religion is born by somebody else. When YOU have to bear a share of the costs, then it’s a different story….

(On the flip side, an artificial womb would create an analogous conflict for the pro-choice side. Abortion rights have at least two “benefits”: Maintaining a woman’s bodily integrity, and permitting a woman to eliminate an unwanted child. A mechanical womb would permit a pregnant woman to get rid of an unwanted fetus, thereby maintaining her bodily integrity. But it would not relieve her of the existence of another child. THEN we’d get to see how much of the support for abortion rights was driven by a desire for bodily integrity, and how much was just an excuse to eliminate a “mistake.”)

Final thought: I’m not saying that there would be NO circumstances when I’d embrace abortion restrictions. We draft soldiers to put their bodies on the line for the good of society. But we do that only when we think that society is under grave threat. Right now, the globe has never had more humans, so it’s hard to see abortion as a threat to society. But if humans were on the verge of extinction, would we “draft” people—or perhaps just people with certain especially valuable genes—to procreate? Yeah, this all sounds kind of Dune/Handmaid’s Tale-y. But before I say, “I would never support X,” I try to consider the most extreme circumstances that might justify such a policy.

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nobody.really
on July 17, 2017 at 12:20:46 pm

Nobody, you may tease the argument as thinly as you like, twist, regurgitate it and throw it back in the face of the commentator in any manner and number of ways you are able to contrive, but none of what you say changes that there can never be a right to do a wrong.

Beyond, this Nobody, I have nothing more to offer you. What I have advanced above will simply have to stand or fall with you on their own merits. If you are thoroughly positive of your position, you will stand or fall with it, in the same manner as I with mine.

Peace, Nobody

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Paul Binotto
on July 17, 2017 at 12:35:08 pm

Your post should have a respectful, carefully reasoned response. I have copied and saved it and will work through it as time allows. I will discuss it with those whose background includes study in law, moral philosophy, and moral theology.

Some time may pass before I respond.

You are a fortunate person in at least two ways: You have had time to form carefully considered opinions and you have time to post your ideas here. Those are certainly two forms of wealth.

One point: A disturbing gulf between citizens of this nation has opened and is widening.

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Linda Smith
on July 17, 2017 at 12:43:10 pm

Gabe and Mr. Binotto (the forms of address you prefer, I hope):

This blog conversation provides disturbing evidence of the great divide, a chasm really, between those who, for want of a better term, adhere to our original arrangements and those who are in the process of destroying those arrangements in order to form something new and, in their opinion, better.

I responded to nobody-really's post of today, explaining that his post requires more time than I have available. I will respond after thought and consultation.

Very best wishes. Thank you for this discussion.

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Linda Smith
on July 17, 2017 at 12:51:01 pm

Paul, please. And, I look forward to your response.

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Paul Binotto
on July 17, 2017 at 16:18:34 pm

To all:

"But, for better and worse, we don’t compel people to dedicate their bodies for another human being. Rightly or wrongly, we have concluded that individual autonomy outweighs the consequences for other human beings—even when that consequence is death. "

And there IT is:

Starting with such an initial premise (wrongfully analyzed and concluded, to my mind), nobody. really strings a *logical chain* that ensnares all who attempt to weaken said chain.

Again, the problem is that nobody IS being logical AND is NOT thinking, or more to the point OBSERVING the world. A faulty premise, no matter how logically expounded (and expanded) still yields a faulty conclusion (policy prescription), i.e., a culture where the convenience, yes, convenience even for those who bear a child through no fault of their own (yep, hard to say, isn't it) of an individual outweighs the very life of an innocent child.

It is no more complicated than that.

And as to forcing others to live under my (editorially speaking) religious beliefs, that too is simply part of life and human intercourse / exchange. Comes now news of certain Mexican criminal gains fostering a religion that promotes human sacrifice. Ought they be able to practice and proselytize for their beliefs?
Are we to accept the gruesome and disgusting Muslim practice of female genital mutilation? (Well, only if you are a Leftist and are incapable of uttering anything even remotely critical of this *diverse* religion.)

Nope, only if one starts with a certain premise, i.e., that the individual's convenience is paramount, can you arrive at a place where it is not only acceptable to slaughter the unborn - but we even applaud it and we have British (and some American) females boasting of their own *courage* in doing so.

The "sacrifice" of these delusional damsels is akin to the sacrifice made by the hen in order to provide you with a breakfast of bacon and eggs - it freakin' pales in comparison with the sacrifice made by the pig!

But then again, one needs to" observe" the world as my boyhood hero Yogi Berra said: "You can OBSERVE (active form) a lot just by watching"

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gabe
on July 17, 2017 at 17:45:36 pm

I find it regrettable that so many conceived human beings will die for lack of a kidney. You can meet them any day in any dialysis clinic. Generally they experience kidney failure through no fault of their own. They are guilty merely of existing with defective kidneys.

Now, most people have two healthy kidneys. They could simply dedicate their body to promote another human being’s life.

But, for better and worse, we don’t compel people to dedicate their bodies for another human being. Rightly or wrongly, we have concluded that individual autonomy outweighs the consequences for other human beings—even when that consequence is death.

Perhaps we should change this legal principle, and start compelling people to dedicate the use of their bodies for other people’s welfare. It might be good public policy. But until we do, we don’t.

And there IT is:

Starting with such an initial premise (wrongfully analyzed and concluded, to my mind), nobody. really strings a *logical chain* that ensnares all who attempt to weaken said chain.

Again, the problem is that nobody IS being logical AND is NOT thinking, or more to the point OBSERVING the world. A faulty premise, no matter how logically expounded (and expanded) still yields a faulty conclusion (policy prescription)....

??? I can only surmise that gabe has donated a kidney.

I congratulate you, sir. You have my admiration. Many a hypocrite will pontificate about a person's duty to sacrifice his or her body for the benefit of others, but few walk the walk.

This still leaves open the question of whether government should seek to compel such behavior. But the donation is all the more noble because is is not compulsory, but voluntary. You are an example for us all.

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nobody.really
on July 17, 2017 at 18:47:35 pm

You seem to speak about kidney disease as from first-hand experience or personal knowledge, either your own, or of someone close to you who suffers from this dreadful affliction. If so, my sincere best wishes go out to you or yours.

It strikes so many families and I know of more than one person who has sadly lost their lives waiting for a "matching" kidney to become available.

Its good that you raise this awareness. Who knows, you may convince someone to be open to becoming a donor who has been reluctant or unaware of the need before now.

I now motion that we all agree to conclude this string of commentary (aside from Ms. Smith's response to follow at a later time) once and for all. I think the topic is quite exhausted from what can be accomplished in this forum, Lord knows, I am exhausted of it. May we agree to disagree now, until another day when we can meet in verbal sparring under a new day's sky, but always under the banner of mutual respect and good will.

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Paul Binotto
on July 17, 2017 at 21:08:31 pm

nobody: (re: donating a kidney and other inanities)

Number #1:

You have absolutely no conception of what I may have sacrificed OR proffered as sacrifice.

Number #2:

Even someone as accepting of your *logic* as I can, at times, find your sarcasm TEDIOUS.

Number #3:

You make much of YOUR claim that the government is not asking others to share your view (or the view of those similarly inclined). As Paul Scofield, portraying Thomas More in A Man for All Seasons,vehemently proclaims "NOT SO" (a great scene BTW)

What if anything is this essay / discussion about - if not guvmnt compelling citizens via the medium of taxation and / or compulsory insurance requirements to fund behavior and practices inimical to their belief systems?

Surely, you can do better than this.

Number #4:

And you wonder why some think you "haughty" and sarcastic.

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gabe
on July 17, 2017 at 21:20:07 pm

Shall I take it you aren't seconding my motion to adjourn this discussion , Mr. Gabe? ha-ha I would gladly donate a kidney if that's what would take to pull the shades on this bad-boy and call it a day... ha-ha.

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Paul Binotto
on July 18, 2017 at 10:48:50 am

To Gabe, Paul, nobody really, all to whom this discussion is of interest:

"In the field of Christian ethics [with its deep root in Jewish moral wisdom], as elsewhere, we must earn our bread by the sweat of our brow." Fr. Servais Pinckaers, "The Sources of Christian Ethics"

"It is clear that ethics is not something that can be [easily] expressed. Ludwig Wittgenstein, as quoted by Dr. Robert Spaemann.

"Plato was well aware of the fact that it is not possible to give a text-book definition of the word 'good'; 'It is only after frequent and informal discussion directly on the topic, within the setting of our common life, that the Idea springs up in the soul like a light kindled from a spark of fire, which then continues burning of its own accord.'" From the Preface to "Basic Moral Concepts" - Dr. Robert Spaemann

"... Stand ye in the ways and see and ask for the old paths, where is the good way and walk therein, and ye shall find rest for your souls. But they said, we will not walk therein." Jer 6:16

"It is in moments of obedience to God's commandments that the ultimately real becomes available in the present order. It is in these rare but ever available moments that the deeply flawed present is forced to yield to the perfect future." [The writer goes on to say that this represents the basis for the concept of the "mitzvah" as a theurgic act.
This passage is quoted from memory, not word for word, and can be found in "Creation and the Persistence of Evil" by Dr. Jon D. Levenson]

"... There are some actions which always harm human dignity and which always violate the nature of a person as an end-in-him [or her] self. ... If body and language are not respected as the means by which the person is represented but are used as means to other ends, then the person is used only as a means." To repeat: "the person is used only as a means."

These short passages are some of those to which I will refer in defining my first principles; the ground on which I stand, and from which I will attempt (with help from consultants, family, friends, and teachers) to to present a respectful reply to the comments from nobody really.

One person has expressed the opinion that the comments can be dealt with swiftly in stating a few simple principles of civilized living. Also that interminable discussions/arguments, as in "having or seeming to have no end, esp. wearisomely protracted", are a waste of everyone's time. He may be right.

"Et in terra pax hominbus bonae voluntatis" Peace to all of good will. No one who is striving for the best good of all is excluded.

Best wishes.

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Linda Smith
on July 18, 2017 at 11:02:42 am

Excellent Quotes; I anticipate with eagerness, that your response will be quite poignant and well reasoned, Ms. Smith!

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Paul Binotto
on July 18, 2017 at 11:13:18 am

What if anything is this essay / discussion about – if not guvmnt compelling citizens via the medium of taxation and / or compulsory insurance requirements to fund behavior and practices inimical to their belief systems?

And that’s my point: Yes, government makes decisions which we may disapprove of all the time. And, where those decisions are about the use of government revenues, we generally must put up with it. In contrast, where those decisions pertain to bodily integrity, we can generally fight back in the interest of autonomy. That’s the distinction

So, a tax that funds something we disapprove of? Too bad; render under Caesar….

A law that compels us to use our own bodies in a manner we disapprove? We draw the line. That doesn’t mean it never happens: We draft people during wartime. We interred Japanese citizens during WWII. And, I’ve suggested, perhaps we’d commandeer reproductive capacities if faced with extinction. But these are measures to be taken in the face of extraordinary threat.

And you wonder why some think you “haughty” and sarcastic.

<a href="https://disqus.com/home/discussion/firstthingsmag/nikki_haleys_mistake_mark_bauerlein_first_things/#comment-2460397645"Uh … no.

But again, that’s the point: Government is CONSTANTLY using funds in ways that differ from people’s religious views. Government provides medical services, contrary to the views of Christian Scientists. It provides blood transfusions, contrary to the views of Jehovah’s Witnesses. It kills people in war and in capital punishment, contrary to the views of the Mennonites. It serves alcohol, contrary to the views of Muslims, and beef, contrary to the views of Hindus. Etc., etc., etc.

So, after centuries of government engaging in such polices, to now expect government to cater to YOUR religious views while ignoring everyone else’s: Isn’t that the very definition of “haughty”?

I don’t mean to dismiss or denigrate anyone’s sincerely held views. But if you believe that people with sincerely held views should be entitled to some special accommodation, then we should also provide comparable accommodation for EVERYONE’s views. In Employment Division v. Smith, the Court concluded that this was simply impractical. You are free to draw a different conclusion—but that conclusion should not be based on ignorance of the vast amount of special accommodation any different policy would require.

(Sorry, Paul; good effort!)

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nobody.really
on July 18, 2017 at 11:29:11 am

Oh, well, I tried, I tried...ha!

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Paul Binotto
on July 18, 2017 at 13:04:31 pm

After re-reading past and present (even today's) exchanges between Gabe and nobody really (recently joined by Paul), I think it best that I absent myself from this quite masculine "Parry-Riposte - with a helping of humor"discussion.

All kind and generous words notwithstanding, my earnest approach is almost guaranteed to be useless; worse it hs every possibility of encouraging "more of the same" from nobody. His gleeful enjoyment of combat lacks the seriousness I would hope to find. He has "an answer for everything." I tend toward the fact that answers are not so easily obtained. I accept that we are simply shouting across a great divide to no good purpose.

So I will abandon the field with gratitude for this interesting, thought-provoking exchange.

Thank you to Paul and Gabe.

Best wishes.

I will read all further discussions with interest and, often, admiration.

Best wishes.

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Linda Smith
on July 18, 2017 at 14:47:20 pm

masculine “Parry-Riposte – with a helping of humor” discussion

Ha! A fair assessment.

I share Paul’s general view that we’ve probably gotten about as much good out of this discussion as we’re likely to get. But I regret that my writing style is so off-putting. That was not the goal.

The Socratic Method is designed to help people see the contradictions in their own positions. It’s designed to provoke cognitive dissonance—which, famously, isn’t fun. People characterize it as an “intellectual mugging.” So I try to add a spoonful of sugar to the exercise with humor. But where sincerely held beliefs are at stake, that doesn’t always help.

Discussing sincerely held beliefs is hard. I hate to prick people just when they’re being vulnerable. As Alasdair MacIntyre remarked, “It is only insofar as someone satisfies the conditions for rendering him or herself vulnerable to dialectical refutation that that person can come to know whether and what he or she knows….”

Yet this is precisely the point: We ALL have beliefs. We ALL want them respected. And, pretty much, we’re ALL disappointed with the resulting compromises.

I suspect that there is no intellectual resolution to such matters. These are matters that are only resolved by the ballot or the bullet. So if you’re a sincere American orthodox Jew who regards the Sabbath—which begins at sundown on Friday—as a sacred time, too damn bad. Your tax dollars will finance your kids’ public high school which will schedule their dances and football games during this sacred time, and your kids will simply be left out. But those same high schools will never, NEVER schedule anything on a Sunday morning. Why? Because doing so would conflict with someone’s “sincerely held beliefs.”

It’s not an intellectual thing. It’s a brute force thing.

As Linda Smith remarked, I’m powerful—on the web. I’m articulate. I know some jokes. But in the real world, it’s not the glib who prevail; it’s the majority that has the privilege to impose its views on everyone else. If you have that opportunity, I hope you’ll reflect on this discussion—and exercise your power over us with compassion. That’s my last request.

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nobody.really
on July 18, 2017 at 15:55:21 pm

As I wrote above, I began the day filled with enthusiasm for the discussions to come. But, after reading comments on other subjects and realizing that my formality does not fit the combative tone that this particular blog post has taken. I decided to abandon the field, at least for some considerable time.

The almost smug, overly certain tone, the answers for everything, simply are not right, in my opinion, when the subject at hand is that of human life and of the importance of faithful marriage, of fatherhood and motherhood. A painful dissonance is produced when conception and birth of human babies and the subject of abortion are discussed in connection with, for example, kidney disease and its often tragic but natural consequences. Yes, human beings do sicken and die in spite of all that medical science can do. It is our natural condition. It is not and can never be natural and only tragic to tear a developing human baby from the womb, sometimes in pieces. So I am discouraged.

My earnest arguments cannot have any effect against such a complex web of misunderstandings, often skillfully blended with remnants of natural law and other moral teachings.

Very best wishes.

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Linda Smith
on July 18, 2017 at 17:04:38 pm

I wish you well in the sense that your passion for justice will be rightly ordered by those who "in the setting of your common life" will assist you in your quest.

Dr. Spaeman writes: "Dealing justly with people and with reality goes beyond mere justice. Two further things are required: knowledge and love.

But, enough.

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Linda Smith
on July 18, 2017 at 17:52:50 pm

Dear Ms. Smith,

Your dashed enthusiasm is certainly understandable, just as it is regrettable. I would encourage you not to abandon the discussion; you have too much to contribute to it. In fact, Your voice is too vital in the public square, especially on this topic, as it ever could be - don't let yourself be silenced by tactics of those who attempt to silence opposing view-points by combative and exhaustive rhetorical obstacle-coursing and mine-fielding.

I would instead suggest, instead of feeling compelled to respond in total, or to even reading the comments expressed by commentators that you find particularly difficult to interact with, that you instead direct your comments to the ideas expressed in the essay, or in response to a particular commentator to which you feel comfortable, respected, and who you know is genuinely interested in the content of your argument, rather than merely how it may be seized upon, countered, and dismissed.

Hope you will re-consider, but I understand why you may still wish to not.

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Paul Binotto
on July 18, 2017 at 19:16:35 pm

This is truly generous of you.

I very much appreciate your encouragement and your valuable counsel.

Thank you.

Best wishes.

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Linda Smith
on July 18, 2017 at 22:39:11 pm

Horsepuckey, nobody.

It had VERY little to do with "military" service and everything to do with membership (near mandatory, almost hereditary BTW) in the *militia.

And to your un-*Observant* perceptual capabilities, da ya think that it may have had something to do with the colonists inability to PREVENT the British Army from a) seizing your home, b) seizing your property / goods / business, c) forcibly *quartering* themselves in your domicile and d) _Oh why bother listing them anyway?

Again, it had NOTHING to do with military service but with the COMMON "obligation" (something which you Progressive types abhor) recognized by the citizenry to provide for a COMMON defense.

Again and again, another demonstration of educational incapacity!

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gabe
on July 18, 2017 at 23:31:39 pm

”In the First Federal Congress, James Madison, representing Virginia, proposed a version of what became the Second Amendment that stipulated that ‘no person religiously scrupulous, shall be compelled to bear arms.’ Georgia Representative James Jackson insisted that if such an accommodation were made, then those accommodated should be required to hire a substitute….”

But why should anyone take note of what these rubes had to say? They obviously labored under the delusion that the language they were drafting was somehow focused on military service and conscription—whereas our contemporary Supreme Court divined that the amendment was actually focused on an individual’s discretion to bear arms.

Horsepuckey, nobody.

It had VERY little to do with “military” service and everything to do with membership (near mandatory, almost hereditary BTW) in the *militia.

Oh dear; this is the challenge of humor on the internet. I fear you missed the part where I admitted that “I spoke sarcastically about the Supreme Court’s conclusion that the Second Amendment pertained to an individual’s discretion to bear arms.”

I was simply making fun of the Supreme Court’s Heller decision finding that the framers of the Second Amendment intended the language to focus on ensuring an individual’s discretion to bear arms rather than on the common interest in organizing a military. The fact that the people drafting the Second Amendment were talking about contentious objector status was a strong indication that they were NOT focused on an individual’s discretion to bear arms. After all, you don’t need to assert a conscientious objection to the discretion to bear arms; you only need to assert it if someone is compelling you to bear arms--as in the military.

As for the military/militia distinction: When the Second Amendment was adopted, there wasn’t any distinction. The US disbanded the army immediately after the Revolutionary War (ok, except for a regiment to guard the Western Frontier and one battery of artillery guarding West Point's arsenal). The state militias were basically all we had. So when the Second Amendment talks about “[a] well regulated Militia, being necessary to the security of a free State,” it’s talking about the military as understood in 1789.

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nobody.really

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