From: kevin@rotag.mi.org (Kevin Darcy)
Subject: Re: Equal protection dead end? 1.
Organization: Who, me???
Date: Sun, 20 Dec 1992 23:51:52 GMT

In article <34459@rnd.GBA.NYU.EDU> smezias@rnd.GBA.NYU.EDU (Stephen J. Mezias) writes:
>In article <1992Dec19.215456.16869@rotag.mi.org> kevin@rotag.mi.org
>(Kevin Darcy) writes: 
>
>>Word for word, eh? Please point out the part where I condescendingly 
>>"recommended" that you read up on the subject matter?

[Note: my request was NOT complied with in the following paragraph]

>Your claim that you are familiar with critical legal theory is belied
>by your positions.  You may have read it, you seem to either not
>believe or not have absorbed the fundamental points.

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.

>>It's not that it's just absent from the Constitution, Stephen, it's also
>>lacking from the INTERPRETATION of the Constitution, i.e. precedents of
>>Constitutional Law. You claim that it is "widely recognized". What 
>>Constitutional Law scholars have recognized it? What Supreme Court opinions
>>have affirmed it? Here's a counter-example, from RvW:
>>
>>	In fact, it is not clear to us that the claim asserted by some
>>	amici that one has an unlimited right to do with one's body as one 
>>	pleases bears a close relationship to the right of privacy previously 
>>	articulated in the Court's decisions.  The Court has refused to 
>>	recognize an unlimited right of this kind in the past. Jacobson v. 
>>	Massachusetts (1905) (vaccination); Buck v. Bell (1927) (sterilization)
>
>Where did I ever say the right to bodily autonomy was unlimited?
>Answer: I did not.  Is it a basis for legal discussion?  Yes, as your
>counterexample shows.  I have been consistent in asking those who
>support legal restrictions on abortion to explain why they support
>such a restriction on this right.  I have asked them to explain why a
>mother can refuse to donate bodily resources to save the life of her 5
>year old, but they want to force her to do the same for a /z/e/f/?

And they have answered you. Repeatedly. They tell you that they value the 
fetus, and that's why they strive to protect it. But you don't listen. You
just put your hands over your ears and screech "MISOGYNISTS! MISOGYNISTS!"
until they just walk away in disgust. Real productive.

>>I am not claiming that they "reject" BA, Stephen. I am claiming that they
>>fail to recognize it. You are asking me to prove a negative. Why don't you
>>prove your _positive_ claim that BA is "widely recognized"? 
>
>You have shown that they do not recognize an unlimited right.  The
>right to free speech has limits as well.  What have your proven?

Well, in the conspicuous absence of any proof to the contrary, I think I've
established that there is no Constitutional Law precedent for respecting
BA rights. This is _contra_ your claim that the right is "widely recognized".

>>As for defining the "clique", why don't we say, any scholar who has published
>>a work dealing primarily with Constitutional Law, which is or has been 
>>required reading in at least one of the top 10 law schools by reputation, or 
>>any federal judge who adjudicates matters of Constitutionality.
>
>As your own example proves, amici in RvW argued for BA.

Shows how much you know. Anyone can file an _amicus curiae_ brief, Stephen.
I know that the NOW _amicus curiae_ brief contained some form of BA argument,
but I have no reason to believe that they were particularly authoritative
(and the fact that the Court explicitly REJECTED that part of the argument
suggests that they were NOT, in fact, very authoritative).

Still waiting for examples which meet the criteria, Stephen...

>>Huh? Have you lost track of the discussion, Stephen? My point is that just
>>because someone doesn't think something is legally VALID doesn't mean they
>>don't believe in it personally. Lots of people believe that God exists, for
>>example, but they would strenuously oppose any attempt to pass a law that
>>declared the existence of God. Therefore, just because I recognize that BA
>>is not a legally-recognized "fundamental right", in Constitutional terms,
>>doesn't mean I believe in BA any more or less than you do.
>
>You seem to have lost track of the discussion.  Would a law limiting
>the right to eat Rocky Road survive a constitutional challenge?  I
>think the answer is clearly no.  This despite the fact that it is not
>specifically enumerated in the Constitution.  If you want to claim
>that you believe in BA as `much as I do,' I'll happily concede the
>point.  

Then let's drop it.

>Maybe your intention is to be a gadfly, but in your
>`enthusiastic' support for BA and a woman's right to choose, people
>often interpret you as being less than enthusiastic.  What do you
>think causes this?

You're asking me to explain the stupidity of others!?!!? Maybe there's some
traces of mercury in their water supply, I dunno....

>>The LEGAL right, Stephen. I agree that there is a MORAL right to BA, but
>>I have yet to see proof that this MORAL right has any legal validity at a
>>Constitutional level.
>
>Again, you claim to have read critical legal theory and yet your
>argument is in direct opposition to it.  Rights are socially
>constructed...

Yes, rights are socially constructed, but that doesn't mean legal rights
come into existence on the whim of a localized minority of the electorate,
Stephen. There is a long and arduous process of getting rights recognized,
and that is as it should be -- I don't _want_ whims and caprices becoming
recognized as fundamental rights, since I may not AGREE with those whims 
and caprices, and I want at least a decent crack at trying to show why 
they're wrong. You have not shown that the BA rights have attained any
recognition in Constitutional Law whatsoever.

>Legal validity and, perhaps even more importantly the
>potential for increased protection, is thus indicated by the support
>for James Stockdale's argument about a woman's body.

One emotional response from a highly-selective debate crowd audience 
amounts to the establishment of a legal principle???

>>Let's see your proof that BA is "widely recognized" as a Constitutional 
>>right. Then we'll talk further...
>
>Again you belie either your reading of or agreement with critical
>legal theory: The constitution, while a strong indicator of wide
>support within a polity for a particular socially constructed right,
>is neither the sole nor absolute arbiter of that right.

Stephen, stop purposely misreading me. I'm *not* arguing a Strict 
Constructionist viewpoint here, i.e. that because BA isn't enumerated in the 
Constitution, it's not a fundamental right; I'm arguing that BA rights
aren't even recognized given a LOOSE interpretation of the Constitution.
I'm arguing that BA rights don't even have as much status as the much-
attacked Right to Privacy. I'm saying that BA rights DON'T EXIST in 
Constitutional Law. I'm willing to work to change that, but I'm not going
to walk around with your rose-colored glasses on and assume that the battle
is already won. It isn't. There is a long way to go. These things often take a
LONG time. It may not even happen in my lifetime, or yours. Deal with it.

								- Kevin