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Roe’s Progeny: The Abortion Extremes

The kind of extremism on display on the Planned Parenthood videotapes and in the reflexive closing of ranks around the group—whose own leadership has done more to disavow its grotesqueries, or at least the depictions of them, than have its political supporters—is the product of Roe v. Wade, but not for the reasons commonly supposed.

The issue is not simply that Roe legalized abortion. Many states were doing that in the early 1970s anyway. It is that Roe constitutionalized an issue everyone knows but few admit is susceptible of reasonable regulation on the one hand and sensible compromise on the other. The result shoved all parties to extremes at which few previously resided. Those extremes now lie exposed. They are not pleasant to face.

From across the mutual denunciations that characterize the abortion debate, there would seem to be little room for common ground. Little will be found in this space. But the fact is that few pro-choice Americans seriously believe what some pro-choice politicians contend, which is that the right to abortion extends to the moment of birth, while few pro-life Americans would seriously follow where the logic of some pro-life politicians leads, which is that abortion should be prosecuted as first-degree murder from the moment of conception.

That debate will not be settled here. But it may be worth pondering how constitutionalizing the issue so radically deformed the debate that today’s conversation, or lack of it—and it is the inability to discuss the immense moral complexities of abortion that is as coarsening as abortion itself could be—even became thinkable.

The Constitutional process—replete as it is with mechanisms like the separation of powers and the gradual turnover of the Senate—is not conducive to total or sudden victory. It almost always requires compromise and accommodation for achievements to endure.

The casting of abortion in terms of rights exempts it from this process, so it is little surprise that Justice Kennedy’s woeful fear of a “jurisprudence of doubt” notwithstanding, Roe has produced nothing but.

The well documented backlash effect that Supreme Court decisions often trigger galvanizes opposition movements that did not exist before, in extremes to which they would otherwise not have resorted. Because judicial disputes foreclose the path of compromise and operate in absolutes—only one party to a case can win—the losers walk away not merely disappointed but resentful: You want to make it a right without qualification, I’ll restrict it without qualification.

This mode is utterly hostile to both the nuance that characterizes actual human affairs and the prudence that is necessary to deal with it. Mary Ann Glendon, whose pro-life credentials are impeccable, has noted the irony: A woman in America has her rights and little else. Society provides the right to make choices about pregnancy but scant support for the decision. In the hardly sexually repressed societies of Europe, Glendon notes that abortion laws are more balanced—it is allowed up to a certain point and restricted beyond that in a manner that would, under the Roe regime, be regarded as a violation of basic rights—and the support offered for childbearing is more generous.

Politics tends to produce solutions like that. Rights talk, laden with Glendon’s “illusion of absoluteness,” does not. Americans almost certainly would have crafted balanced solutions if forced to grapple squarely with the moral complexities on both sides of the issue. It takes little imagination to conjure wrenching circumstances that would complicate the compromises—accommodations that can be abused, restrictions that can foreclose genuine needs. Such exceptions ought not, as Burke reminds us, be the basis of general rules.

As matters stand, Planned Parenthood can crunch without consequence, and its opponents can talk of criminalization—with the safety net of Roe protecting them from the actual implications of such a policy—the same way.

The constitutionalization of policy disputes creates incentives for these extremes. The Constitutional regime, of which the Court is a part but often understands itself to be the whole, discourages them. These are the results. None of it excuses Planned Parenthood’s behavior. It may help explain how society became inured to it.

Reader Discussion

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on August 05, 2015 at 09:18:51 am

Roe v Wade, like any other civic issue has been made miserable by the infusion of religion into the debate. Indeed governance in the USA is made miserable by the state partnering with religion. Read Machiavelli, "The Prince," Chapter XI (http://www.constitution.org/mac/prince11.htm; stop at "nevertheless" in other words after the first paragraph), and consider the intent of the First Congress and the current Supreme Court in imposing "legislative prayer," quoting Greece v Galloway. On our website, we assert that candid civic discussion is what we need.

You come close to our concerns in " . . . Supreme Court decisions often . . . foreclose the path of compromise. This mode is utterly hostile to both the nuance that characterizes actual human affairs and the prudence that is necessary to deal with it." I very much like your expression of the dilemma.

We think candid discussion by a civic people is what is needed, and to keep religious morals from preventing the pursuit of civic morality, we propose to use physics-based ethics. "Physics" herein is not a study but is energy, mass, and space-time, from which everything has emerged over 13.7 billion years. Competitive religion and ethics have emerged over the last 10 thousand to 40 thousand years of cultural evolution. "Civic" herein refers to human connections made necessary because we are in the same land rather than "social" which implies choice or preference in human connections.

Please read and comment on our essay, The well documented backlash effect that Supreme Court decisions often trigger galvanizes opposition movements that did not exist before, in extremes to which they would otherwise not have resorted. Because judicial disputes foreclose the path of compromise and operate in absolutes—only one party to a case can win—the losers walk away not merely disappointed but resentful: You want to make it a right without qualification, I’ll restrict it without qualification.

Please use Google search to find our essay, Abortion is civically moral, May 4, 2015. We posit that the woman's dreaded decision not to remain pregnant is the ultimate natural abortion and would like to discuss that opinion. In other cases, such as abortion on demand, we oppose abortion. This second class of abortion should not be a focus of taxpayer debate, but civic alternatives, such as terminating fertility, should be candidly discussed.

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Phil Beaver
on August 05, 2015 at 09:24:28 am

Sorry: "Please read and comment on our essay," should be deleted.
How can a writer edit such blunders?
Phil

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Phil Beaver
on August 05, 2015 at 16:40:00 pm

I suspect there’s something to this “backlash effect, “ though I may understand the mechanism differently than Weiner.

That is, I suspect court decisions do tend to legitimate the causes they uphold, swaying the undecided. But by removing an issue from the realm of politics, courts free up political actors to demagogue against the court. While a politician might have to walk a careful tightrope in dealing with a contested issue, once an issue is safely resolved the politician can freely lambast the court for making the wrong decision. In this manner, the politician demonstrates solidarity with those on the losing side, for whom the issue remains salient, without actually threatening the winners, for whom the issue rapidly loses salience.

That said – so what?

If you sued someone for stealing and trashing your car, how would you feel if the judge said, “Gosh, I’m sympathetic to your plight, but your absolutist attitude about property rights is creating a real win/lose dynamic that is needlessly provoking hard feelings. So I’m going to send you and the joyrider to mediation, and if that doesn’t work, to binding arbitration”?

Similarly, do you conclude that Heller and Citizens United were wrongly decided because they carved out spheres of personal autonomy in what has previously been topics addressed in the political realm?

I’m guessing not. But why would we think that a person’s control over his property, guns, or speech should be entitled to greater protection than her control over her body? Short of mind control, body control is about as invasive as it gets. It would seem profoundly weird to say that it violates my autonomy rights to compel me to quarter troops in my house – but not to compel me to quarter another human being in my body.

And if that kind of absolutist thinking provoke people, well -- I'm ok with that.

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nobody.really
on August 05, 2015 at 20:18:42 pm

Actually, NOBODY.really *compelled* you to quarter any one in your body. With the exception of criminal assault / rape, I do not see any evidence of compulsion here. As you are wont to say, one's *autonomy* was acting here - and that autonomy engaged in behavior that may or may nor result in having another human being (albeit, quite small and insubstantial) *quartered* in your body.

But I sure as sh*t did not *compel you to do it, did I? Now, I could accept your argument if you were forcibly impregnated / artificially inseminated, but just as I must pay the bill if I decide to order a bottle of 1972 Chateau Lafitte Rothschild (or some other silly thing), so too I should pay the price of my *autonomous* behavior. Yes, in the former instance it is nothing more than an added charge to my credit card and in the latter something more *substantial*, still one should be willing to own up to ones obligations.

Then again, why should I when there are actors out there who can make money off this insubstantial mass of potential *research* tissue and I can be free of my obligations AND delude myself into thinking that I have struck a blow for female liberty.

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gabe
on August 06, 2015 at 07:37:37 am

Hey, I'm flexible.

Assume you subscribe to the view that fetuses are entitled to state protection to advance their life, liberty, and happiness. What weight would you give to Weiner's argument that, gosh, democracy would work so much better if we simply subject everyone's vital interests to the vagaries of the political process rather than to the rigidity of "rights" discourse?

Again, I'm not saying Weiner is necessarily wrong about his claims about the moderating effects of the political process. I'm asking who would would sincerely find his argument persuasive? Basically, I'm asking to identify someone who has won the argument that the autonomy interest she cares about is a "right," but could be persuaded to surrender that right to the vagaries of the political process in the interest of democracy.

That's why I pose the Heller and Citizens United hypotheticals: I suspect that Weiner may be sympathetic to the outcomes of those cases, even though they eliminated popularly-adopted legislation.

In sum (and at the risk of appearing mean-spirited), I'm suggesting that Weiner's argument is disingenuous. I often hear the argument that abortion rights should be resolved via the political process -- but only from people who don't favor abortion rights. I suspect that when the Court identifies an autonomy right that they like, they're unwilling to surrender those victories in the interest of the democratic process.

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nobody.really
on August 06, 2015 at 09:07:38 am

Hey, fair enough on those terms, i.e., *autonomy* as a right. It is a good, and, perhaps, non-resolvable question and one for which the political process would not necessarily render a universally acceptable answer.

However, even if one were to accept *autonomy* (however defined) as a "right", to my mind, the issue still remains: "Are rights not the other side of the coin of *obligations* (won't go into detail on this, you know the argument)? My concern is a broader one and it revolves around a fairly prevalent modern attitude of simply disregarding the *obligation* end of rights.

I think we, as a culture, have lost something as a result. would you agree.

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gabe
on August 06, 2015 at 09:56:23 am

“Are rights not the other side of the coin of *obligations* (won’t go into detail on this, you know the argument)? My concern is a broader one and it revolves around a fairly prevalent modern attitude of simply disregarding the *obligation* end of rights.

We’re going a bit off topic, but in general: No, I don’t know the argument.

To take one concrete example, some people say that fetuses have rights. But what reciprocating obligations could fetuses possibly have?

I tend to think of a right as a claim an individual has on society – sometimes to be left alone (a negative right) and sometimes to call upon social resources to promote the individual’s interest (a positive right). In the case of positive rights, we need some resources to call upon. So in that sense, the creation of a positive right for an individual implies an obligation for society to provide resources for the defense of that right. Is that what you mean?

Alternatively, some people say “rights imply responsibilities” as a kind of Golden Rule: If you would claim a right, you have a duty to acknowledge the reciprocal right exercised by similarly-situated people. And hey, I don’t care for hypocrisy any more than the next guy. But as a legal matter, I disagree:

- The Nazis may want to utterly suppress the free speech and association rights of Jews – but that does not justify withholding free speech and association rights from Nazis.

- You may be an utter pacifist – but that would not justify withholding from you your rights to enjoy the benefits of society that are secured by force.

- I may be an anarchist, reciprocally rejecting both the benefits and burdens of society. But my duty to contribute to society (paying taxes, being drafted) is imposed upon me by society, regardless of how fervently I reject participation in society or refrain from partaking.

Alternatively, John Rawls proposes a “social contract” thought experiment – considering the kind of world we would have devised prior to knowing the role we’d play in this world, and then imposing on everyone the duty to act in a manner to bring that kind of world into existence. Perhaps in this sense we could argue that rights imply responsibilities, in the sense that generally every clause in a contract is deemed to be consideration for every other clause. Is that what you mean?

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nobody.really
on August 06, 2015 at 11:34:06 am

You impute positions to me--including assumptions about my beliefs on abortion, Heller and Citizens United--without basis. The piece above will indicate my positions on the former are not as simplistic as those you assume. Pieces I have posted previously in this space will show I have written, in fact, quite skeptically of Heller and McDonald, in defense of NFIB and similarly on a variety of other cases with whose policy outcomes conservatives disagree. Citizens United is a more complex case, involving as it does a government restriction of participation in the political process itself. But whatever my other sins, which are surely ample, opportunism on the question of judicial supremacy is not among them.

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Greg Weiner
on August 06, 2015 at 11:36:37 am

To be clear, my comment at 11:34 is in reply to "Nobody" at 7:37.

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Greg Weiner
on August 06, 2015 at 13:22:54 pm

I apologize if I havemischaracterized Weiner’s positions. That said, my point remains, and is not specific to Wiener.

In sum: Do you believe that individuals should enjoy some sphere of autonomy independent of the views of the majority? If so, then I suspect the fact that policies designed to defend that sphere of autonomy might result in polarized politics will not prompt you to surrender that sphere of autonomy to the democratic process. Thus arguments about the advantages of making such a surrender are inevitably irrelevant, even if true.

So the Heller and Citizens United hypothetical doesn’t work for you? Fine: pick some other aspect of personal autonomy.

How ‘bout religion? In the US religion is clearly a really divisive issue. I suspect we wouldn’t see quite so much of that in Saudi Arabia where, as I understand it, issues of faith are resolved by law. (Ok, perhaps not democratic law, but probably majoritarian.) Yet even if we could demonstrate that Saudi society is less polarized as a result, does anyone here think that this would be a better way to resolve questions of faith? Imagine I were to lecture you for hours about how polarized Americans have become over issues of faith. Imagine I were even to persuade you that American society would become less polarized if we started resolving issues of faith on a majoritarian basis. Do you think you’d change your views on this issue?

If not, why would anyone think this style of argument would work for Roe? It might work for people who are not persuaded that Roe is an issue of personal autonomy (or the slaughter of innocents). But not otherwise.

True, prior to Roe various jurisdictions had fashioned abortion regulations that adopted a middle path, neither banning the practice nor leaving unregulated. Does that demonstrate that pre-Roe, people’s views on abortion differed from today’s views? Or merely that people make political compromises where they find it advantageous to do so—and not where they don’t? After all, in the pre-freedom-of-religion days, Jews occasionally managed to negotiate some accommodations vis-a-vis a hostile majority, from medieval Europe to Shindler’s List. Does this fact persuade anyone that a policy treating religion as an issue of individual autonomy, beyond majoritarian control, is superfluous?

To conclude, I concur with Weiner that there are practical advantages to avoiding treating an issue as a matter of personal autonomy -- provided you don’t regard it as a matter of personal autonomy. For what it’s worth….

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nobody.really
on August 06, 2015 at 15:01:52 pm

None of the above - one day, as appropriate we may go into it.
In a nutshell, however, there are no rights without a willingness to voluntarily discharge obligations!

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gabe
on August 06, 2015 at 23:49:10 pm

Harry Blackmun's papers have been given to the Library of Congress, indexed, and available by them at the Madison Building. An avid diarist despite constantly painful eyes, Blackmun says that as the "doctor's lawyer," he was assigned to write the opinion by the Chief. He spent two weeks in the Mayo Clinic library in Rochester and was not lobbied by the librarian, his wife, or his daughters.

The fact that there was no "justiciable issue" (no one was pregnant when the case came before the bar) was disregarded. Blackmun asked counsel in oral argument how the Hippocratic Oath figured, and both counsel said they didn't consider it, just the Constitutional question. Blackmun remarked that the doctors surely consider it. He had been the first in-house corporate counsel to the Mayo Clinic. He had several boxes of pro-Roe correspondence and several boxes of hate-Roe letters (I did not count them).

Anyway, he came up with the remarkable theory that while privacy was not explicitly protected under the Constitution, there was a penumbra that protected it. I like Harry but this was quite a stretch. Later, I learned that one of his daughters had to drop out of college because of an unplanned pregnancy.

As Santorum said last night, just like Roe v. Wade, "so was Dred Scott the law of the land until Abraham Lincoln " changed all that. I like to think Blackmun would come down on the other side now based on the Hippocratic Oath and the rights of an unborn, defenseless citizen,which are recognized in tort and criminal law when an unborn child is killed by a third party.

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terry seale
on August 07, 2015 at 14:40:49 pm

Actually, nobody, I am at a complete loss to get the meaning of some of your examples - i.e., "Nazi." pacificist arguments - are you being sophomoric again?

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gabe
on August 07, 2015 at 15:01:48 pm

Gabe--

I join Nobody in not following your arguments here.

If we follow one basic typology of rights, you can break them out into two broad categories:

Prescriptions on governmental ability to pass certain kinds of legislation; and
Obligations that government must discharge in its relationship to me.

These are sometimes labelled, respectively, negative and positive rights.

I am not sure how the prescription on government to legislate creates any obligation from me to do anything.

Obviously, positive rights do involve obligations, but not on me. Rather, they obligate others to act on my behalf.

I am clearly missing something here. Edify me, please!

Well wishes,
Kevin

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Kevin R. Hardwick
on August 07, 2015 at 15:33:13 pm

Gabe--

You seem to believe that both Aquinas and the traditional English commonlaw get it wrong. Aquinas argued that life begins with the capacity for knowledge and mobility, a principle embodied in the English commonlaw at least from Bracton forward to well past Blackstone.

Under the commonlaw for most of its history (until modified by parliamentary statute in the mid-19th century) abortion of a quickened fetus was a significantly more serious misdemeanor than abortion of an unquickeded fetus. In neither instance, however, did the crime rise to the severity of homicide. Under the commonlaw, well past the time of Blackstone, it was by definition not possible to muder someone who had not yet been born. Abortion was misdemeanor, not felony.

The 19th century abandonment of quickening coincided with developments in enlightenment medical science, and with a consequent minimization of scholastic standards derivative from Aquinas. But it should be evident that the question of when a fetus aquires a soul is a religious question, and not one that medical science can answer, one way or the other.

The notion that abortion is not felony, but instead misdemeanor, and that abortion of a quickened fetus is much more heinous than of an unquickened fetus, is a pretty venerable, traditional standard. It has born the test of time for many hundreds of years. Why should we abandon it for some new-fangled, enlightenment definition?

Obviously I am being mischievous here. But even so, the contemporary argument in the US on both sides represents a radical departure from many centuries of established English commonlaw practice. Surely the Burkean thing to do here is to prefer the standard derivative from centuries of practice, and not that suggested by enlightenment rationalism?

Well wishes,
Kevin

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Kevin R. Hardwick
on August 08, 2015 at 10:12:15 am

Ok, both you and nobody are looking at this from the perspective of *rights* either granted or sustained by a "government" whereas I am referring to the notion that "rights" (whatever that may mean) carry with them the implicit (sometimes explicit) understanding that when I assume / accept / recognize or claim for myself such a *right* I am effectively agreeing that with that acceptance I am VOLUNTARILY and knowingly imposing upon myself certain obligations to not only recognize that others possess the same rights but that I will support and sustain those rights in others AND that as a willing member of such a society I am prepared to do all reasonable things to assure that this is so.

And yet, this is not simply contract theory - it is, to my mind, more of an epistemology - a change in ones basic stance to civil association. Perhaps, it is religious moral precepts without the doctrinal accompaniment.

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gabe
on August 08, 2015 at 10:38:02 am

"Aquinas argued that life begins with the capacity for knowledge and mobility,"

Apparently, Aquinas never had a grandson as my six month old grandson was incapable of mobility until a short while ago and there is no way to demonstrate conclusively that he possesses any knowledge other than mere bodily functions. Is he viable? - Actually, no, he is not. (Here, I am being mischievous).

My point is not to dissect Aquinas, Roe v Wade, etc. but only to assert that whatever point in time is selected is ultimately arbitrary when that selection is made without recourse to some other (higher?) principle. One may also argue that the Burkean solution fails as it is based upon some rather primitive understandings of medical science in general and more specifically fetal development. For much of the period cited, was there not still a belief in the "incubus," spontaneous generation, phlogistans (sp?), etc. etc. Why should we not employ the best of latest medical science.

Also in Burkean times, the practice of abandoning unwanted / unsupportable children was not uncommon.

I say this as one who does respect tradition; but frankly sometimes tradition does have it wrong.

In a nutshell what these 1) "factual, scientific (?)" arguments or 2) moral arguments end up with is this: either a) we are all just of a bunch of tissue, whether fetal or post-birth or b) all life has value
Positivism, especially *scientific* positivism leads to just such a disheartening conclusion.
Moral arguments are not without their own set of difficulties - yet, they do seem to elevate the human spirit -just a wee bit more than the purely positivist!

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gabe
on August 08, 2015 at 12:03:09 pm

Oops! forgot something - wherein I offer my apology to nobody for earlier comment.
Perhaps, it is my failing memory but I thought I recalled nobody.really engage in a discussion several months back with a number of commenters on the notion of "personal" obligations - not governmental obligations - attendant upon civic association.

So apparently, we were talking past each other on this merry thread stream!

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gabe
on August 08, 2015 at 12:18:54 pm

Gabe--

I hope it was evident I was writing with some affection and respect, and not with any malice! It is so easy for intent to miscarry in this kind of medium.

I think what Aquinas had in mind was the faculty of motion, one of the lower faculties in the faculty psychology, and something humans share with brute creation (I am purposefully being a bit old fashioned, and adopting the terminology of the 18th century moral philosophers who employed it). So even an infant is capable of motion in this sense--which is why under English commonlaw killing an infant was murder, whereas killing an unquickened fetus was a common misdemeanor.

I actually think the English commonlaw prior to the 19th century has something valuable to teach us. Commonlaw jurists like Blackstone drew a tripartite distinction. Killing any living human tissue was criminal, but the degree of criminality advanced in three stages: misdemeanor, heinous misdemeanor, felony, corresponding with before or after quickening, and birth. This leaves open degrees of moral nuance that strike me as appropriate.

The traditional commonlaw distinctions strike me as intuitively right. Any abortion is a tragedy, and should be an absolute last resort, but some abortions are morally worse than others. That is why, when anti-abortion protesters employ the rhetoric of pathos, they show images of third-trimester abortions, and not of women taking "plan-B" abortifacients the morning after a sexual encounter. They know that the intuitions the general public whom they are trying to persuade view the one as more heinous than the other. So I would submit that judged from their actual rhetorical practice, even the most ardent anti-abortion folk share my intuition here.

As an aside, I think quickening is a better measure than trimesters.

So when it comes to abortion, I think, for all that medical knowledge has advanced in the interim, tradition has much to say for it, and better captures human reality than does the dual, all or nothing distinctions we employ today.

It is always a pleasure to exchange thoughts with you. I hope this finds you well!

All best wishes,
Kevin

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Kevin R. Hardwick
on August 09, 2015 at 11:09:48 am

"I hope it was evident I was writing with some affection and respect, and not with any malice!"

Kevin:

It absotively was - as I always expect from you. Being so, I thought I would add my own little mischief to your comment.

As to your 8/8 12:18 comment, I find it quite informative (as always). What you say does, in fact, seem to be a fair representation of observable facts / behavior in the present and the past.

As an example:

"...better captures human reality than does the dual, all or nothing distinctions we employ today."

This is a sentiment I share with you and have been tempted to comment upon it - but that will have to wait for another day. I will only say that the "all-or-nothing" attitude you mention appears to me to lack subtlety and an inability (refusal?) to accept the reality of human frailty / error.

take care as always
gabe

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gabe
on August 09, 2015 at 18:30:03 pm

I join Nobody in not following your arguments here.

Kevin R. Hardwick is second to nobody in my esteem.

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nobody.really
on August 09, 2015 at 19:32:22 pm

Is that nobody.really or nobody? Ha!

And BTW: I share your feelings in the matter.

BTW2: Nobody: I do apologize. I REALLY did think that you were involved in a discussion we had on this site re: "personal obligations:. As is not unusual I was mistaken - so forgive and forget my comments.

take care
gabe

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gabe

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.