From: kevin@rotag.mi.org (Kevin Darcy)
Subject: Re: Equal protection dead end? 1.
Organization: Who, me???
Date: Mon, 28 Dec 1992 00:07:12 GMT

In article <34554@rnd.GBA.NYU.EDU> smezias@rnd.GBA.NYU.EDU (Stephen J. Mezias) writes:
>In article <1992Dec22.163523.26601@rotag.mi.org> kevin@rotag.mi.org
>(Kevin Darcy) writes to me:
>
>>>Your original complaint was about specific language that I had used,
>>>not the suggestion that you need to read critical legal theory.  
>>
>>Incorrect. My original complaint was, word for word:
>> 
>>"I am quite familiar with critical legal theory, thank you, Stephen. No
>> need for condescension."
>>				Fri, 11 Dec 1992 04:51:31 GMT
>>				<1992Dec11.045131.124@rotag.mi.org>
>
>That was the follow-up complaint.  

No, this WAS the complaint, Stephen. It was the very first sentence of
the first article in which I complained. Stop weaseling. It is obvious from 
the text above that my complaint was SPECIFICALLY about "familiarity with 
critical legal theory".

>Your original complaint was about language I had lifted from your post.  

Wrong.

>I am not interested enough to go back and find the complaint.  

s/interested/brave/

>>>>Then tell me where I went wrong, whiz-kid! If you can't refute what I have
>>>>said, then the bluster above is just empty ad hominem posturing.
>>>
>>>I have pointed out to you in several places where you have stated
>>>views that imply objectivity to law that critical legal theory is
>>>quite insistent does not exist.  
>>
>>Sigh. Where have I *EVER* implied that law was completely objective?
>
>You make several statements that I have pointed out as characterizing
>law as more objective than someone who believes critical legal theory.

How many authors have you read on "critical legal theory", Stephen? You
seem to be laboring under the misconception that all criticial legal 
theorists march lockstep to the same tune. Nothing could be further from
the truth. There are as many different ways of approaching critical legal
theory as there are of approaching economic theory, metaphysics, or any
highly abstract field. You've got Hart, Dworkin, the strict Utilitarians,
any number of viewpoints. If you're just going to wave your hands and
say "critical legal theory backs up Stephen Mezias' viewpoint in every
detail" I'm certainly going to challenge that, and demand proof. Don't
get so uppity when I do.

>Your claim that fetus fanatics would say it is the love /z/e/f/s that
>is behind their zeal is quite correct.  

Okay, now maybe we're getting somewhere. You see, I tend to give people the
benefit of the doubt on matters of opinion, UNLESS I have clear proof to
the contrary.

>The crux of whether one
>believes this `refutation' of the misogyny chare is below:
>
>>>If they did, I am certain
>>>that I asked them why /z/e/f/s are entitled to protections not given
>>>to children.  
>>
>>The question is loaded with an assumption that many pro-lifers are not
>>willing to accept, i.e. that abortion restrictions would give z/e/f's more
>>protections than children. I can't blame them for not answering. Perhaps
>>you should prove that this is the case first, and THEN ask the question.
>>By loading your question with an unproven assumption, all you do is insult
>>people's intelligence.
>
>In the original post as well as many follow-ups I posted the question
>with the example of the 5 year old child that needs bodily support
>from a parent.  This is the example to show how the /z/e/f/ gets
>special rights.  I have never seen any serious response to this
>question.  My claims about 5 year olds are facts, not unproven
>assumptions.  Isn't interesting that you are the only person on the
>net that seems to have missed this and had his intelligence insulted?

Okay, Stephen, I didn't think you REALLY wanted me to provide more "ammo"
for the pro-lifers, but since you've provoked me, here goes...

Five-year-olds are protected against ARBITRARY deprivations of life just
as fetuses are. So the issue turns on whether abortion, or, more specifically,
the REASONS for abortion, are "arbitrary" or not, not whether the fetus is
being given more rights than a five-year-old. Some reasons certainly are
fairly arbitrary -- the teenager who sought an abortion on the basis that
"she didn't look good in [her] bathing suit" while pregnant, for instance.
The vast majority are not, IMO, but the point still remains. It's only a
question of where to draw the line of "arbitrariness".

>>Widely recognized, eh? Cite a specific reference from any precedent you
>>want, which refers specifically to my right to eat Rocky Road ice cream
>>whenever I want.
>
>There you go, reifying written law in contradiction of critical legal
>theory.  

Quote some critical legal theory on this point.

In any case, until a law is written, it's questionable whether the "right"
being proposed is "widely recognized" in any meaningful sense or not.

>Ask anyone who can put together two sentences whether they
>have a right to eat whatever food they want.  

Non-responsive. My point is not that people might agree, WHEN ASKED, whether
I have a right to eat Rocky Road; the point is that it is not a "widely-
recognized" right RIGHT NOW, before I ask. In the absence of written evidence,
I conclude that it is not, necessarily, a "widely recognized" right.

>There's your proof that
>the right to eat rocky road is a well-recognized social construction.

It doesn't even approach the status of proof. "Ask anyone" is about the
lamest argument one could possibly make. Argumentum ad populum.

>>A media phenomenon does not necessarily establish any valid legal principle,
>>Stephen. Do you believe everything the tube tells you?
>
>Again, you seem to show a complete ignorance of the critical legal
>theory you claim to have right.  The fact that millions of Americans
>were socially constructing arguments about BA in the wake of his
>comments tells me that it is a widely shared social construct: This is
>consistent with how rights are defined in critical legal theory.

Can you prove that they didn't all recant their views the very next day?

Until it's in writing, in some sort of binding form, it's not "widely
recognized", Stephen. You may WISH it to be recognized. So may I. But that
wishful thinking doesn't make it so.

>>I do the same thing, except I eliminate first those who have personal axes
>>to grind with me. The final number rarely gets to 3.
>
>Can't argue with that.  The number of people out to get you does seem
>to exceed the population of the net at times.  

I think your sense of proportion is out of whack, Stephen. The number of 
people "out to get [Kevin Darcy]" is a tiny, miniscule fraction of the total
population of the Net. It's a noisy minority, true, but a small one 
nonetheless.

>>The Supreme Court is hardly a typical "minority of the electorate", however.
>>The process of getting something presented to the Supreme Court for 
>>adjudication is, as I put it, "a long and arduous process", and I'm 
>>relatively confident that this process is not conducive to mere whims and
>>caprices.
>
>While we may be conditioned not to believe that Supreme Court
>decisions are whimsical or capricious, after all those are terms that
>are generally assigned to women's behavior anyway, that does not mean
>that the decision are any more objective.  Again, you seem to
>fundamentally misunderstand critical legal theory here.

Quote some critical legal theory on this point.

>>Not in Constitutional Law, Stephen, and that's all that matters to the
>>abortion issue. Until the Constitutional Law "elite" starts recognizing
>>BA rights, then that is not a solid foundation for protecting abortion
>>rights.
>
>Again, as the rocky road example shows, rights can be protected
>without an explicit or widely recognized Consitutional basis.
>
>>Is Stockdale a Constitutional scholar?
>
>Yet another example that you do not understand critical legal theory.

Quote some critical legal theory on this point.

>Stanley Fish is not a Constitutional scholar either.  Do you think he
>has no worthwhile observations about rights in our legal system.

I think he's probably a low-grade academic hack with only enough ability 
to convince lightweight pseudo-intellectuals that his point of view 
represents all of "critical legal theory".

>>>I am so glad to have you on my side of this issue, Kevin, I may break
>>>down in tears of relief.  A simple statement that a right is widely
>>>recognized is hardly the same as a statement that it is unassailable.
>>
>>It is not "widely recognized" as a Constitutional right.
>
>I never said it was.  Why do you keep putting the word Constitution in
>my mouth?  I never said it was.

If it's not recognized as a Constitutional right, then what use is this
"wide recognition"? What does it buy?

>>>There are plenty of cases where BA is widely recognized, in for
>>>example, the case of not forcing a parent to donate blood, tissues, or
>>>organs to their childre.  
>>
>>I am unaware that this has ever been addressed as a Constitutional issue,
>>or, if it has, whether it was addressed as an issue of BA rights, or of
>>privacy.
>
>More placing of Constitution in my argument.  I never brought it up.
>Again, it shows an objectivist streak in your argument that not only
>is wrong if one believes critical legal theory, but also shows your
>apparent ignorance of that theory.

Quote some critical legal theory on this point.

>>You assume that they "selected" women then? More likely than not, they
>>"selected" the protection of fetuses, which has a discriminatory EFFECT on
>>women, but not necessarily any specific INTENT to discriminate against
>>women.
>
>You can believe what you like.  As I have said since before you jumped
>into this thread, to agree with me one has to accept discriminatory
>effect as proof of discrimination.  This is neither unprecedented nor
>uncontroversial.  

Do you really expect any reasonable person to accept that? If a crazed 
sniper fires into a crowd, killing more men than women, was that act
necessarily discriminatory? Your premise is laughablle.

>>Then again, I've never raised (1). In fact, I just got done telling you
>>that I do *NOT* hold to a Strict Constructionist viewpoint. Straw man.
>
>Go back and reread your own posts, even your previous quotes above.  

I have not argued a Strict Constructionist viewpoint, Stephen. You are
guilty of straw man tactics. Why, you just got done admitting that your
"wide recognition" doesn't amount to hill of beans in the field of 
Constitutional Law. So, are you implying that all Constitutional Law
scholars are Strict Constructionists, just because they don't believe
in your "wide recognition"? Or, are you arguing that something in 
particular I said marked me as a Strict Constructionst? If so, what was
it? I'd like to know.

>>>(2) strikes me as a smokescreen.  Why provide rights for /z/e/f/s but
>>>not for children?  Could it be that the former are in women's bodies
>>>and helping them keeps a traditionally disenfranchised group in its
>>>place?  
>>
>>An interesting question, but a question isn't proof, and if you want to
>>launch accusations of misogyny, you should have some proof first.
>
>The proof is discriminatory effect.  This is what I have said from the
>beginning.  You can reject this proof, in which case we disagree.

This "proof" is completely irrational. EVERY VOLITIONAL ACT affects some
class of people more than another. By your "proof", every volitional act
is therefore discriminatory. I refuse to accept that, and I doubt you'll
find many who will support it. Yet it's a logical extrapolation of your
"reasoning".

Before you can make the charge of "misogyny" stick, and before you can
defend abortion rights under Equal Protection, you have to produce 
independent evidence of discriminatory intent. You are unable to do so.
Therefore your assertions are rejected as irrational.

								- Kevin