From: smezias@rnd.GBA.NYU.EDU (Stephen J. Mezias)
Newsgroups: talk.abortion
Subject: Re: Equal protection dead end? 1.
Date: 22 Dec 92 19:03:04 GMT
Organization: NYU Stern School of Business

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.  Your original complaint was about
language I had lifted from your post.  I am not interested enough to
go back and find the complaint.  I have said you whined in response to
my use of language that you had used; in response, you changed the
complaint.  Posting the changed complaint does not refute what I said
you did; this also answers the next part of your post.  If you post
the original complaint and what I had said that preceded it, and this
contradicts my memory, then I'll consider my characterization of what
you did refuted.

>>>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.
Presumably you respond below to specific examples.

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

>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.  Ask anyone who can put together two sentences whether they
have a right to eat whatever food they want.  There's your proof that
the right to eat rocky road is a well-recognized social construction.

>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.

>>(1) I suppose the amici were homeless people who walked into the
>>Supreme Court off the street?  
>
>No, the amici were whoever the parties to the case invited to submit briefs.
>Amicus curiae briefs are often slim on legal points and long on propaganda.
>They are often ignored.

The fact that millions of citizens are now talking about BA and it has
become a debating point in the abortion controversy suggests that this
argument has not been ignored even if the tiny minority of
unrepresentative citizens on the Supreme Court chose to reject it.

>However, the opinions of the Supreme Court are a helluva lot closer to
>establishing "socially constructed rights" than any given _amicus curiae_
>brief submitted by a special interest group, or a now-forgotten media event
>surrounding the views of a unsuccessful vice-presidential candidate.

We're talking about it; I guess that means it's not forgotten.

>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 wonder why?

>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.

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

>>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.

>>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.

>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.  You are entitled to your opinion.

>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.  

>>(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.

SJM
Newsgroups: talk.abortion