From: kevin@rotag.mi.org (Kevin Darcy)
Subject: Re: Equal protection dead end? 1.
Organization: Who, me???
Date: Tue, 22 Dec 1992 16:35:23 GMT

In article <34471@rnd.GBA.NYU.EDU> smezias@rnd.GBA.NYU.EDU (Stephen J. Mezias) writes:
>In article <1992Dec20.235152.21010@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?
>
>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>

Where is the alleged reference to "specific language", Stephen? The only 
"specific language" I might have conceivably been complaining about was this 
language of yours:

"Read some critical legal theory, I previously gave you the cite to Fish."
				10 Dec 92 18:02:58 GMT
				<34018@rnd.GBA.NYU.EDU>

>When
>I pointed out that the language was lifted directly from your post,
>you changed the complaint.  That's why I did not respond.

Are you claiming that the condescending remark above "was lifted directly"
from a post of mine, Stephen? If so, which post?

>>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?

>>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.
>
>The only answer I ever saw from tommy was that he advoated forced
>pregnancy to enhance the nobility of women.  I cannot recall a single
>response to my post from a pro-forcer explaining how their position
>was to protect /z/e/f/s not harm women.  Please give specific cites
>where they posted this in response to me.  

I don't keep track of every response every pro-lifer makes to you,
Stephen. However, I do know that you have characterized *all* pro-lifers
as misogynists, so perhaps we could start with pro-lifers that are close
to home. If you ask, say, Peter Nyikos, why he would outlaw some abortions,
do you think his answer would be

	a) because he hates women

		or

	b) because he values the fetus?

If you ask, say, Suzanne Forgach, why she would outlaw some abortions,
do you think her answer would be

	a) because she hates other women

		or

	b) because she values the fetus?

Actually, pick any pro-lifer you want. I bet that if given a choice between
those alternatives, they'll pick (b) every time. Now, you may not BELIEVE
their answer, but unless you have proof that they are lying, perhaps you
shouldn't be throwing around accusations like you have been.

>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.

>>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".
>
>Your statement shows a complete ignorance of critical legal theory and
>contradicts your earlier statements about the right to eat Rocky Road.
>It's not in the constitution, but I bet it is widely recognized.  

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.

>You
>have also yet to respond to my example of the coverage of James
>Stockdale as an example of it being widely recognized.  You have
>conveniently omitted every reference I have made to it in your
>responses.

A media phenomenon does not necessarily establish any valid legal principle,
Stephen. Do you believe everything the tube tells you?

>>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).
>
>(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.

>(2) Yet another statement that shows
>complete ignorance of critical legal theory.  Socially constructed
>rights ultimately depend on shared beliefs.  While the Supreme Court
>is an important arbiter of shared beliefs, it is hardly an ultimate
>authority.

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.

>>You're asking me to explain the stupidity of others!?!!? Maybe there's some
>>traces of mercury in their water supply, I dunno....
>
>You know, Kevin, I have a personal habit of tallying up the number of
>people making a similar accusation against me.  If it exceeds three, I
>start to consider seriously the possibility that it is true.

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.

>>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.
>
>One of the fundamental points of critical legal theory is that the
>whim of a tiny minority like the Supreme Court can create and destroy
>rights.  

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.

>Again, your ignorance is showing.  I never claimed that BA
>had any Constitutional basis.  You are now putting words in my mouth
>because this is what you can disprove.  My claim is that the right was
>widely recognized.  

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.

>You have yet to respond to the Stockdale coverage
>as an example that this is true.

Is Stockdale a Constitutional scholar?

>>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.
>
>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.

>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.

>It seems to me that the essential question
>is why pro-forcers want to pursue a legal agenda of selectively
>limiting this right only for women.  

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.

>The refutations you have raised to the accusation consist of (1) its
>not in the Constitution and (2) they love /z/e/f/s.  (1) does not
>address my point, because I never said it was in the Constitution.

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.

>(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.

								- Kevin
Newsgroups: talk.abortion,talk.religion.misc