Law: August 2008 Archives

Obama on Abortion

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I've tried hard to make sense of Barack Obama's various statements, stumbles, votes, and explanations related to abortion. With many of them, I haven't succeeded. I've come to the conclusion that he simply hasn't thought hard about the issue and that he's grossly unaware of many of the important background facts, both about the legal background and the general philosophical conversation about this important issue. I wanted to put my conclusions together in one post, with links to some of the places where I've spent more time on the details for some of these things.

1. Obama misunderstands Supreme Court precedent so badly that he thinks it prohibits using the word 'person' for a prematurely-born infant. Supreme Court precedent does prohibit certain kinds of laws from restricting abortion, but it never does so by defining the moral status of a fetus (it simply ignores that issue as if it's unimportant) or by declaring anything about which human beings count as persons. I've discussed this issue at length here, with some followup discussion here, and those who were defending him in the comments didn't seem to me to have anything that really helped.

2. Obama misunderstands Supreme Court precedent so badly that he thinks he can require the kinds of exceptions to abortion that his voting record shows he insists on (and the Supreme Court has consistently required) while saying that mental health exceptions only mean diagnosed mental illnesses. This is not how pro-choice politicians opposing laws without mental health exceptions have based their opposition, and it's not how the Supreme Court has taken it. Any mental distress or psychological harm counts as a legitimate exception, according to Roe v. Wade, Doe v. Bolton, Planned Parenthood v. Casey, and pretty much all abortion decisions the Supreme Court has rendered where it's come up. (The only exception is the one instance since the 80s when the conservatives have won the day, the second time the Supreme Court heard a case on a partial-birth abortion ban. The removal of the mental health exception there applies only to one method of late-term abortion and not to all late-term abortions.)

What's interesting about this is that it pulls Obama (1) to the left of the Supreme Court on the first issue, to the point of refusing to support a law that requires doctors to comfort and care for born infants who happen to be premature enough that it's unlikely but possible that they'll live and (2) to the right of the Supreme Court on the second issue, to the point of refusing to accept the limit on abortion restrictions that the Supreme Court has imposed, that any psychological trauma, even if not a diagnosed mental illness, can justify an abortion no matter what other circumstances occur (including bans against exactly that instance of abortion). So far there's no inconsistency.

But what Jan Crawford Greenburg points out is that Obama is on record opposing what he's been saying in #2. It's not just that he's on record saying it but has flipped to oppose it. He's currently supporting legislation that opposes his current position in #2, and he's promised that it will be a top priority upon assuming the office of president. The Freedom of Choice Act would basically remove all state and federal restrictions on abortion at any time and for any reason. Is Obama just talking out of both sides of his mouth? Or does he really not understand how badly he's mucked things up on this issue?

This is the fifth post in my Right Reason series on Augustine, faith, social philosophy, and political participation.

In my last post in this series, I looked at Augustine's views on authority and his analogy between civil government and other levels of authority. That took me through City of God 19.16, and now I'm ready to move into section 19.17, which is where he focuses on the main question I wanted to move toward. I thought the issues I've been expositing so far are important to have some grasp of to see what motivates Augustine on these issues, but this is the real payoff. In 19.17, Augustine gives us his view of how members of the earthly city and members of the heavenly city interact in society, and that leads to his discussion of the principles I'm going to want to apply to Christians interacting with a society like what we have in the U.S. today.

So far we've seen the value Augustine places on order in society. It's relatively easy to see why order and authorities in society would be important within the system of the earthly city. It's a compromise between human wills much like the kind of social contract some of the ancient philosophers envisioned (most notably the Sophists and Epicureans). Augustine has no problem talking about that as an explanation of how it is that governments or slave relations might form, at least when they do so in as ideal a manner as is possible from the mindset of the earthly kingdom. People seek rulers for an ordered society and thus give up what they might otherwise be able to do in order to protect themselves from further harm and get what they can of peace in this life. People thus compromise and unite because it would be worse for them not to.

Slavery could also be explained this way in some cases, since in some cases it was something like the bankruptcy system of the ancient world. You would sell yourself into slavery to serve someone else for a certain period of time, and your benefactor would thus assume your debt and pay it off. You transfer a debt you can't pay for a debt you can pay, but it means giving up your economic independence for a time. Even slaves taken as a result of war are exchanging service for someone for the chance to continue living rather than to die as a result of being the spoils of war. So even forcible slavery can in many cases be seen as a kind of compromise between two wills.

But what about the heavenly city? How can its incompatible mindset cooperate with the earthly city's self-interest-based social contract? Doesn't it have higher aims? According to Augustine, the heavenly city in this life also has the limitations of this life and the surroundings of evil people, and thus there is a need to participate in such systems. The people of the heavenly city really belong elsewhere, but for now they're here and thus need to participate while awaiting the restoration of the ideal state when such things are no longer necessary. So the earthly city and the heavenly city are thus intertwined in a sense, both seeking the same goal of peace in what form it can be had here.

The earthly city seeks that as its only possible goal (given that others will prevent one's absolute self-interest), and the heavenly city seeks it as the best possible thing for now (but with the expectation of something greater to come). Members of the heavenly city should seek to obey laws, honor authority in the earthly city, and observe the kinds of earthly relationships that exist in this life that will not be necessary in the next, because that's important for loving our neighbor. Members of the early city will do the same out of self-interest. Thus for both the earthly city and the city of God, this seeking of order in society through authority and law is merely a means to an end, even if the ends differ for the two groups. The intermediate goal is common to both, and it thus makes sense for the two to agree to seek the intermediate goal to the extent that it fits within the ultimate goal of both cities.

What about cases when they can't agree on intermediate goals? If laws in the earthly city involve religion, and they conflict with the heavenly city's obligation to serve God first and foremost, then the heavenly city's laws take precedence. But this also means that the heavenly city couldn't have laws in common with the earthly city that involve religion, since the heavenly city's laws would not serve the interests the earthly city has carved out for itself. If it really knew what was best for it, it would serve God and not whatever other religion it may follow (if any), but everyone serves something, and the earthly city replaces the true God with other things, whether gods or other pursuits. In the early Christian period, this meant persecution of Christians for not following the religious laws of the earthly city.

The heavenly city thus follows whatever laws do seek some sort of earthly peace, provided that they don't conflict with the obligation to follow God above all. Those in the heavenly city should follow whatever different methods of seeking peace their particular earthly government follows, which will differ in different governmental systems.

In my next post, I'll look toward how Augustine might apply this in our contemporary setting.

Matthew Franck notes that on one of Barack Obama's exam questions from when he was teaching law, he asks whether an equal protection challenge can be brought against a law requiring states to be color-blind. Franck says he knows of lots of people who think the equal protection clause requires states to be color-blind, but he hasn't encountered a serious argument anywhere that such laws violate the equal protection clause. I haven't either, but I don't read law reviews. Still, such an argument isn't hard to imagine, and I think it's actually a sound argument.

The equal protection clause entitles people of all races to equal protection of the laws. The laws therefore need to be able to rely on the distinction between members of one race and members of another if they are to ensure that each race is equally protected by them. Therefore, color-blind laws, which disallow the state from paying attention to race, violate the equal protection clause.

It sounds like a pretty good argument to me. As a policy issue, I don't mind restricting affirmative action in universities to class rather than race, or at least ensuring that the standards aren't lowered as much as they are. There's a significant argument that the way affirmative action is typically practiced in that setting (as opposed to in the workplace, which is a very different matter) seems to me to harm the people it's intended to help, given that admissions officers already go out of their way to promote diversity (so there's no discrimination to combat at that level), and it means accepting people who won't be able to do as well and then will appear less good when they graduate than they would at a lower institution with much higher grades and more time for extracurriculars. There are other negatives too, but that's the one that seems decisive to me. I think it's much better to work at the high school level and below to help kids do better in school, to care more about school, and to think of college as something worth doing.

But I can't see how it could be good to ban affirmative action by not allowing a state to recognize racial distinctions in any way. That sort of law is not just bad policy. It really is unconstitutional because it prevents enforcement of the equal protection clause.

Remember that Born-Alive bill that requires an additional doctor present at an abortion to keep any survivor of an abortion alive? Back in February, I wrote about Barack Obama's insistence on not passing such a law in Illinois, finding it at best puzzling given his party's wholehearted passing of the law in the U.S. Senate, with people like Barbara Boxer and organizations like NARAL endorsing the law.

As I said in my previous post, I don't think it's fair to call Obama a supporter of infanticide (as distinguished from abortion) because of this. At the same time, I don't see any consistent justification for opposing the law, and his own official reason didn't hold up. He said it was because the federal version had a neutrality clause that stated that the law takes no stance on the issue of the moral status of the fetus, while the Illinois law had no such clause.

At the time, it seems that Obama himself had held up a neutrality amendment in committee, so he was the one to blame for the laws not being similar in that way, and that's no reason not to pass the law if you do support the federal one. I concluded that either he didn't really support the federal law (and was thus lying about his views) or he was just inconsistent in the various things he's said without any sense of really believing anything clear on the matter.

Now it seems Obama actually did put the neutrality amendment before his committee. But then he and all the other Democrats on the committee voted against putting the amended law before the whole Illinois Senate. So, again, I'm not sure what to make of this. Is this another example among many of him simply lying about a past position that embarrasses him politically because it's far to the left of the mainstream, hoping no one would catch up with him on it? Or is there some way to put together what he's said with this revelation? I suppose he could have forgotten what his reasoning at the time was, but it's been an issue in the campaign long enough that he should be thinking it through and preparing a response that fits with the actual Senate records.

What possible motivation could he have had to pass this amendment and then still vote against the bill? It's not just inconsistent with what he's been saying happened. I'm not sure it's even internally consistent. What would be the point of voting for the amendment (an amendment that I'm pretty sure the Republicans had added) and then voting against the amended law? Was there some other amendment to the law that his party, who was in the majority on the committee, somehow couldn't get away from the law? That sounds unlikely. But if it was something in the law proper, then why would he say he would have been fine with the federal version?

According to Justin Taylor, Obama had also defended his past actions by saying "there was already a law in place in Illinois that said that you always have to supply life-saving treatment to any infant under any circumstances...." (See the 8/12 JT comment here.) He cites a David Freddoso book that says that's factually incorrect. Perhaps Obama misunderstood the law, so he may not have been lying, but if that's right then he at least hadn't done his homework, which as a legislator he ought to have been doing. This is second-hand information, so I'm open to correction on this, but I think if these things are right, then this piece of Obama's past that already reflected very badly on him is probably at least a little worse than it had seemed.

NYT Libels McCain

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Remember that ad used against Harold Ford that portrayed him as a philanderer in the 2006 Senate elections? Since Ford is black and the woman in the ad was white, a lot of people concluded that Tennessee voters were intended to draw the connection that this black boy was fooling around with their white womenfolk. I don't think there's any way to prove it in that case, but it sure was a lot more plausible as a possible play on racist sentiment than this current one.

So the McCain campaign comes along and compares Barack Obama to the substanceless Britney Spears and Paris Hilton. Criticize the McCain all you want for its insinuation that Obama is like them, but please don't pretend that it's like the Harold Ford ad, as the New York Times editorial board does. The comparison is revealing, about those making it anyway, but it's logically invalid. I knew some people were touting it about, because someone on NPR mentioned it only to give a pretty decisive argument against it. Nevertheless, I'm a bit surprised to see it being endorsed by the NYT editors on their blog. That's pretty prominent for what I had thought was a position on the extremes.

There was no insinuation whatsoever in the ad that Obama is getting it on with these women. There was no suggestion at all that he's after white women. The ad compared Obama with these women, suggesting that he himself is like them, not that he's doing something with them. Even granting the premise that the anti-Ford ad is playing on racist fears of intermarriage, there simply is no argument that the McCain ad is remotely in the same ballpark. The ad criticizes Obama, but being black should not make remove someone from the possibility of criticism, even unfair criticism, especially in politics at this level. Criticism, even unfair criticism, is not the same thing as racism, and it's not the same thing as attempts to make use of others' racism. This is, in effect, the NYT editors' argument:

1. The anti-Ford ad had a black man and a hot white woman in it, and that was playing on racist fears of intermarriage.
2. The anti-Obama ad has a black man and hot white women in it.
3. Therefore, the anti-Obama ad is playing on racist fears of intermarriage.

It's not hard to see that the argument is logically invalid. There are any number of explanations for why an ad can have a black man and hot white women. The one offered in premise 1, even if it's true, is not the only one or even a remotely plausible one in this case. The ad portrays these white women as moronic celebrities, not as potential lovers for Obama. The point is absolutely clear to anyone with any political sense, and many pundits have criticized the ad in a way that recognizes its point without adding nonsense to it.

So why is the New York Times editorial board making it out to be racism? I have two theories. Either may be false, but I can't think of another, so I'm assuming one is true. Either (a) they're really, really stupid and can't see how fallacious this comparison is or (b) really, really immoral and want to make McCain look like a racist when they know there's no evidence in this ad that he or anyone in his campaign is. The first is uncharitable about their intelligence, and the second is uncharitable about their motivations, so the principle of charity can't help us out. There is no charitable explanation of their behavior.

If it's the latter explanation, then we have good reason to think this constitutes criminal defamation of character. If they know full well that they're lying to make him look like a racist, then it's legally prosecutable as libel. Perhaps they're not directly motivated by wanting him to look bad so much as to defend Obama's recent claims that the McCain campaign would use racist attacks by pointing out just such an attack, but I don't think that matters legally. They know they're lying about something that they know will defame his character. As I understand the law, that's sufficient for criminal defamation, and Wikipedia seems to confirm that judgment. On the other hand, they could believe the above argument is actually a good one, but then they'd be much dumber than you'd expect for people as highly educated as they are.

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