Difference between revisions of "OCT 26"

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===Dennett, Daniel. Chapter 3: "Thinking about Determinism" Freedom Evolves===
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==18: OCT 26==
  
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:*Chapter 3: Thinking about Determinism
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===Assigned===
  
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:*Three Errors in thinking about determinism:
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:*Tribe, Lawrence. "Deconstructing Dobbs" (1st half, 1-9)
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::*1. We think determinism limits what is possible. (Austin's putt)
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:*Supreme Court of the US, "Excerpts from the Dobbs Decision," (13-29)
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::*2. We think determinism implies that "S(0) causes or explains S(t)". This misses the way causal inquiry works. (Computer marathon / JFK)
 
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::*3. Determinism rules out self-directed change, change in character or "life-hopes". (Closed/open futures)
 
  
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:*Dennett believes his arguments in showing these errors apply to '''both''' det and indet worlds.
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===In-class===
  
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:*Defining possibility, necessity , and causation in terms of "possible worlds"
+
:*Some basic data on abortions from Pew [https://www.pewresearch.org/fact-tank/2023/01/11/what-the-data-says-about-abortion-in-the-u-s-2/]. 
 +
:*Comparting gestational limits by country.[https://righttolife.org.uk/what-are-the-abortion-time-limits-in-eu-countries].  Note: This is from a right to life group, but I have seen similar data elsewhere.
 +
:*Small group: Basic understand of Dobbs decision and related issues.
 +
::*In your small group, work through these questions to check on your understand.
 +
:::*What was the basic thinking on abortion in the Roe and Casey courts?
 +
:::*How did the majority decide Dobbs?  Explain the role of interpretive theories of the constitution in this decision (originalism v living document).
 +
:::*Does abortion seem like a "majoritarian" (statutory) right or a "basic liberty" (constitutional or otherwise protected from rule by a simple majority of either state or federal government)? Try out arguments either way.
 +
:::*Keep track of questions that arise during your discussion.
  
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::*'''Necessity''' -- What is true in all possible worlds.
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===Lawrence Tribe, “Deconstructing Dobbs”, NYRB, Sept 22, 2022===
  
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::*'''Possibility''' -- Whatever isn't "necessarily not" the case. Roughly, all of the possible differences one might imagine between worlds.  (Informal and identification predicates come in here.)
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:*Concerns: 10 year old rape victim in Ohio; criminal penalties for doctors, no IVF, Texas style enforcement, criminalizing abortion seeking? Point: Dobbs is creating lots of uncertainty in the law.   
  
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::*'''Determinism''' -- '''There is at any instant one possible future.'''  In possible worlds talk, "A world is deterministic if it has the property such that, if it shares the same S(0) with any other world at time 0, it will share S (the same state description) at t." Determinism is about causal sufficiency, not necessity.
+
:*The jurisprudence:
 +
::*Roe and Casey had created settled law, contra majority. 
 +
::*Majority makes Roe and Casey look like isolated precedents, abberations, but not so. 
 +
::*Criticism of the court's treatment of the 9th amendment:
 +
:::*9th: enumeration of rights isn’t exhaustive. problem of "unenumerated rights".  Constitution says they exist, but can't list them.  Invites "living document" approach. see p. 3. 
 +
:::*But the Majority just say that they don't find abortion among the unenumerated rights referred to by 9th am. Tribe thinks that's an odd claim to make since the 9th just says ''any'' (unspecified) rights not enumerated are still reserved to the People.
 +
::*Majority decision doesn't say why compelling pregnancy isn't a violation of liberty.
 +
::*The court has found unenumerated aspects of other rights, extending 1st am for example.
 +
::*Agrees with dissent that travel rights could be impacted, not withstanding Kavanaugh's claim. p. 5
 +
::*Reviews the approach to liberty of contract in Lochner Era: SC used to strike down min wage laws on grounds of "liberty of contract". 
 +
::*Agrees with the dissent that merely saying abortion is different from other rights supported by Roe and Casey (like contraception and same sex marriage) isn't sufficient because they are clearly analogous.  p. 6
 +
::*Key argument against the decision at p. 7: Dobbs doesn't recognize fetus as a legal person yet allows it's interests to supersede the interests of the legal person who gestates it.  Tribe quotes from his one arguments in Roe v Wade that the development of the fetus is continuous and does not offer a clear distinction between potential and actual life.
  
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:*Causation - How do we assign causes?  (Note: Laplace's demon knows state descriptions not causes!)
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===Supreme Court, Excerpts from Dobbs (13-29)===
  
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::*'''Causation''' -- Two logically distinct senses:
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:*From the dissent: Breyer, Sotomayor, and Kagan.
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:::*"Causal necessity" - without A, C would not happen. Had Bill not tripped Arthur, he would not have fallen. In all of the possible worlds in which Bill trips Arthur, he falls.
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::*Opening claim at 13, Roe/Casey engaged in a balance of interests recognizing difference in moral viewpoint.
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:::*"Causal sufficiency" - A is sufficient to cause C, but other antecedents might as well. Arthur's fall is an inevitable outcome of being tripped. In ''any'' world in which Bill trips Arthur, Arthur falls.
+
::*In practice, after Casey, states were allowing states to impose some restrictions before viability (but not a "substantial obstacle", prohibition after viability, protecting maternal health after viability.
 +
::*Claims that Dobbs: allows state to compel gestation even in cases that endanger maternal health, or cases of rape and incest, severe fetal abnormalities (ex. Tay-Sachs disease). Also, potential for states to prohibit travel, possibility of Federal ban (which means states don't have the right).
 +
::*The decision "curtails the rights of women and status as free and equal citizens."  Potentially includes other rights: contraception, marriage...
 +
::*Basic liberties: 17 “protecting autonomous decision making over the most personal of life decisions.”
  
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::*Evaluating counterfactuals (as in the causal necessity example) requires establishing a "comparison set X" of worlds approximately similar to ours in which tripping Arthur leads to his falling. The selection of the comparison set is crucial. '''Many problems of causation and necessity turn on how we choose the comparison set of possible worlds'''  
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::*Historical record:  19th century criminalization of abortion was short term change, common law not so harsh on “pre-quickening” abortion.  (21).
 +
::*The ratifiers of the 14th am were all men.  They did not consider women to be equal members of the society.  Since we do, this undermines aspects of their thinking. 
 +
::*On interpretation:  "living document" argument (24); reviews history of using the 14th to strike down miscegenation laws, allow gay marriage.  response to conservative concerns 25. Evolution of meaning of "liberty" still tied to constitutional principles. (It won't be "anything goes".)
 +
::*Dobbs majority lowers the test of an abortion law's constitutional legitimacy to "rational basis" (lowest standard -- basic liberties use "strict scrutiny"). rational basis standard may ignore maternal health, allow travel restrictions, prevent medical abortion. 28
  
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::*In assigning causes, we also typically assume "independence" and "temporal priority".  But here are some cases to show how various considerations are used to assign causation in different contexts:
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===Finding the language of basic liberties===
  
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::*The Sharpshooter Case -- The sharpshooter has a low probability of hitting the target, but does.  We favor 'causal necessity' over sufficiency in this case in saying he cause the death.   
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:*For John Stuart Mill, the language of basic liberties starts with freedom of conscience, thought, and discussion.  But that's not enough.  You also have to be able to live your life according to your own way of thinking, without interference from church, state, or any other coercive power.
  
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::*The King and the Mayor (overdetermination) - Both issue exile orders for someone.  Neither is necessary.  Pick one, maybe the king?
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:*In practice, specific areas of our lives seem to be the focus of liberty, so the "language of basic liberty" might include the way we talk about these area.  The integrity and privacy of our bodies, the ability to make decisions about what happens to and in my body.  By extension, the privacy of my intimate relationships.  But the ability to live my identity publicly requires some toleration of my choices and my identity.  Of course, others have freedom of conscience as well.  So they may think what they want about me, but enjoyment of basic liberty involves a commitment not to treat others unequally because of our differences.
  
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::*Billy and Susie - Billy's rock is sufficient to cause a bottle to break, but Susie's gets there first.  We favor temporal priority in assigning the cause.
+
:*Body, Bodily Autonomy, and Physical Intimacy:
 +
::*In a free society, you should expect to have a great deal of control and decision-making about your body, your health, and intimacy.  Some of these liberties are covered by your due process rights, which place rules on the condition under which you can be incarcerated, especially prior to a trial.  But many other bodily autonomy rights are not specifically enumerated as basic liberties.  How do you respond to the following hypothetical constraints on liberty? Some you may find easier to locate your response than others. Note that. Try to describe your reaction, including reasoning.
  
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::*French Foreign Legion case -- a series of "but for" causes, all of which are sufficient. Which is the cause?
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::*Examples: Which of these laws would violate a "basic liberty" (something that should not be decided by majority rule?)  Which of these are easy and which more complicated? Can you think of more examples?  
  
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:*Austin's Putt --
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:::*A law allowing discrimination against women for hiring to jobs deemed too hard for women.
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::*narrow method for choosing comparison set X - worlds identical to Austin's prior to his putt. If you choose the set this way, Austin could not have made the putt (looks like determinism eliminates the possible). But you could choose a slightly different comparison set and in some of those worlds, Austin makes the putt
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:::*Pumping a person’s stomach for drugs as part of a criminal investigation. 
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::*It follows that even in det world it makes sense to say that he might have made the putt.
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:::*Forced sterilization, forced reproduction.
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::*Austin seems to choose the narrow method, but equivocates about "further experiments" (which imply changing the antecedent conditions).
+
:::*A law prohibiting vasectomies or requiring men to reverse them.
 +
:::*A law allowing anyone doubting a student athlete’s eligibility for a team sport to demand “genital inspection” (actual proposed law, tabled).
 +
:::*A law prohibiting you from receiving gender affirming care from a physician. 
 +
:::*A law prohibiting tattoos.
 +
:::*A law forcing a person to get an abortion.
 +
:::*A law requiring end of life medical care against a person’s wishes. (Note diffs among states.)
 +
:::*A law requiring blood donations.
 +
:::*A law prohibiting same sex marriage and intimacy or contraception.
 +
:::*A law requiring you to notify the government when you travel or restricting travel.
 +
:::*A law requiring you to register with the government to access social media or when you rent a hotel room.
 +
:::*A law requiring cis-gender conforming dress and behavior in public.
 +
:::*A law allowing police or others gov't representative to do a "wellness check" on you. 
 +
:::*A law allowing the gov't to remove weapons from your possession on reports of erratic or disturbing reports about you, including disturbing social media posts.
 +
:::*A law requiring employer's to pay a minimum wage, regulate contracts, etc.
  
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::*Conclusion (77): The truth or falsity of determinism should not affect our belief that certain unrealized events were nevertheless "possible," in an everyday sense of that term.  
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::Some “maybe nots”.  Maybe these would not violate basic liberties.  With these items (assuming you agree), try to develop language for saying why liberty is not violated by the law.  If you disagree, try to express your reasons.
  
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::*'''Point: Possible worlds analysis of causation shows that "assigning causes" is not as straightforward or "inquiry independent" as we typically think. Everyday talk about determinism tends to confuse "causal necessity" with "causal sufficiency".  Determinism only entails causal sufficiency.'''
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:::*Maybe not: A law legalizing very addictive and deadly drugs.
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:::*Maybe not: Limiting access to dangerous biological agents or radioactive materials.
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:*Computer Marathon
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:::*Maybe not: Laws regulating explosives and bomb making materials, including surface to air missiles.
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::*random number generators.  To generate variations in the play, we introduce slightly different conditions.
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:::*Maybe not: A law decriminalizing sex with minors.
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::*With this random variation, you find the A beats B a thousand times in a row.  It would not be ''explanatory'' to say A was caused to beat B.  You have to go up to the design or intentional level to explain A's behavior.  '''A has a competence that B lacks.'''
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:::*Maybe not: A law allowing someone to choose to become an indentured servant or slave.
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:::*Maybe not: A law allowing first responders to restraint or detain or medicate a person in a mental health crisis from harming themselves.   
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::*81: '''"...the determinism of their world does not rob them of their different powers, their different abilities to avail themselves of the opportunities presented."'''
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:::*Maybe not: A law prohibiting private companies from imposing appropriate workplace attire rules, and confidentiality agreements.
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:::*Maybe not: A law prohibiting public nudity.
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::*Could B have castled? You have to do the analysis.  Might look at related possible worlds and say it was a fluke B didn't.  Or you might find that B would have found the option if he's been coded a bit more efficiently.  Point: (82) Philosophers choose the narrow set (Could I have done something different in ''exactly the same universe as I am in''?) when thinking about determinism and free will, but no one seriously investigates possibility and causation that way.
 
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:*83: read at: "The universe could be det on even days...."
 
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:*'''Events without causes in a deterministic universe'''
 
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::*'''1st error''': Determinism is about causal sufficiency, not necessity.  The actual universe at S(0) was sufficient to lead to JFK's death, but we don't know if it was necessary.  Note that we wouldn't say that S(0) caused JFK's death.
 
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::*'''2nd error''': Philosophers who assert that under determinism S(0) "causes" or "explains" C miss the main point of causal inquiry.
 
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:*coin flips have "no cause" even though they occur in a deterministic universe.  Note details. Important thing is to create conditions that make prediction impossible.  In a sense the coin flip amplifies micro-variaitons and thereby reduces necessity. 
 
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:*Randomized Control Trials and Randomized Experiments.  Use "uncaused events" break the influence of patterns we want to exclude for purposes of the experiment (and to determine causation).   
 
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:*88: Why do we focus on necessity if it confuses us about free will?  Our rationality requires it.  Example of man falling down elevator shaft.  Landing is inevitable, maybe dying isn't.  We can change the future because evolution designed us that way.  We have search algorithms, we are "anticipator-avoiders" (who look for necessary relationships).  The fatalists lose in the the evolutionary competition.
 
−
 
 
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:*Third Error: Determinism rules out self-directed change, change in character or "life-hopes".
 
−
 
 
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::*Whether the future is Open or Closed is independent of determinism / indeterminism.  Things can be "determined to change"  "In some deterministic universes there are things whose natures change over time, so determinism does not imply a fixed nature."
 

Revision as of 17:23, 26 October 2023

18: OCT 26

Assigned

  • Tribe, Lawrence. "Deconstructing Dobbs" (1st half, 1-9)
  • Supreme Court of the US, "Excerpts from the Dobbs Decision," (13-29)

In-class

  • Some basic data on abortions from Pew [1].
  • Comparting gestational limits by country.[2]. Note: This is from a right to life group, but I have seen similar data elsewhere.
  • Small group: Basic understand of Dobbs decision and related issues.
  • In your small group, work through these questions to check on your understand.
  • What was the basic thinking on abortion in the Roe and Casey courts?
  • How did the majority decide Dobbs? Explain the role of interpretive theories of the constitution in this decision (originalism v living document).
  • Does abortion seem like a "majoritarian" (statutory) right or a "basic liberty" (constitutional or otherwise protected from rule by a simple majority of either state or federal government)? Try out arguments either way.
  • Keep track of questions that arise during your discussion.

Lawrence Tribe, “Deconstructing Dobbs”, NYRB, Sept 22, 2022

  • Concerns: 10 year old rape victim in Ohio; criminal penalties for doctors, no IVF, Texas style enforcement, criminalizing abortion seeking? Point: Dobbs is creating lots of uncertainty in the law.
  • The jurisprudence:
  • Roe and Casey had created settled law, contra majority.
  • Majority makes Roe and Casey look like isolated precedents, abberations, but not so.
  • Criticism of the court's treatment of the 9th amendment:
  • 9th: enumeration of rights isn’t exhaustive. problem of "unenumerated rights". Constitution says they exist, but can't list them. Invites "living document" approach. see p. 3.
  • But the Majority just say that they don't find abortion among the unenumerated rights referred to by 9th am. Tribe thinks that's an odd claim to make since the 9th just says any (unspecified) rights not enumerated are still reserved to the People.
  • Majority decision doesn't say why compelling pregnancy isn't a violation of liberty.
  • The court has found unenumerated aspects of other rights, extending 1st am for example.
  • Agrees with dissent that travel rights could be impacted, not withstanding Kavanaugh's claim. p. 5
  • Reviews the approach to liberty of contract in Lochner Era: SC used to strike down min wage laws on grounds of "liberty of contract".
  • Agrees with the dissent that merely saying abortion is different from other rights supported by Roe and Casey (like contraception and same sex marriage) isn't sufficient because they are clearly analogous. p. 6
  • Key argument against the decision at p. 7: Dobbs doesn't recognize fetus as a legal person yet allows it's interests to supersede the interests of the legal person who gestates it. Tribe quotes from his one arguments in Roe v Wade that the development of the fetus is continuous and does not offer a clear distinction between potential and actual life.

Supreme Court, Excerpts from Dobbs (13-29)

  • From the dissent: Breyer, Sotomayor, and Kagan.
  • Opening claim at 13, Roe/Casey engaged in a balance of interests recognizing difference in moral viewpoint.
  • In practice, after Casey, states were allowing states to impose some restrictions before viability (but not a "substantial obstacle", prohibition after viability, protecting maternal health after viability.
  • Claims that Dobbs: allows state to compel gestation even in cases that endanger maternal health, or cases of rape and incest, severe fetal abnormalities (ex. Tay-Sachs disease). Also, potential for states to prohibit travel, possibility of Federal ban (which means states don't have the right).
  • The decision "curtails the rights of women and status as free and equal citizens." Potentially includes other rights: contraception, marriage...
  • Basic liberties: 17 “protecting autonomous decision making over the most personal of life decisions.”
  • Historical record: 19th century criminalization of abortion was short term change, common law not so harsh on “pre-quickening” abortion. (21).
  • The ratifiers of the 14th am were all men. They did not consider women to be equal members of the society. Since we do, this undermines aspects of their thinking.
  • On interpretation: "living document" argument (24); reviews history of using the 14th to strike down miscegenation laws, allow gay marriage. response to conservative concerns 25. Evolution of meaning of "liberty" still tied to constitutional principles. (It won't be "anything goes".)
  • Dobbs majority lowers the test of an abortion law's constitutional legitimacy to "rational basis" (lowest standard -- basic liberties use "strict scrutiny"). rational basis standard may ignore maternal health, allow travel restrictions, prevent medical abortion. 28

Finding the language of basic liberties

  • For John Stuart Mill, the language of basic liberties starts with freedom of conscience, thought, and discussion. But that's not enough. You also have to be able to live your life according to your own way of thinking, without interference from church, state, or any other coercive power.
  • In practice, specific areas of our lives seem to be the focus of liberty, so the "language of basic liberty" might include the way we talk about these area. The integrity and privacy of our bodies, the ability to make decisions about what happens to and in my body. By extension, the privacy of my intimate relationships. But the ability to live my identity publicly requires some toleration of my choices and my identity. Of course, others have freedom of conscience as well. So they may think what they want about me, but enjoyment of basic liberty involves a commitment not to treat others unequally because of our differences.
  • Body, Bodily Autonomy, and Physical Intimacy:
  • In a free society, you should expect to have a great deal of control and decision-making about your body, your health, and intimacy. Some of these liberties are covered by your due process rights, which place rules on the condition under which you can be incarcerated, especially prior to a trial. But many other bodily autonomy rights are not specifically enumerated as basic liberties. How do you respond to the following hypothetical constraints on liberty? Some you may find easier to locate your response than others. Note that. Try to describe your reaction, including reasoning.
  • Examples: Which of these laws would violate a "basic liberty" (something that should not be decided by majority rule?) Which of these are easy and which more complicated? Can you think of more examples?
  • A law allowing discrimination against women for hiring to jobs deemed too hard for women.
  • Pumping a person’s stomach for drugs as part of a criminal investigation.
  • Forced sterilization, forced reproduction.
  • A law prohibiting vasectomies or requiring men to reverse them.
  • A law allowing anyone doubting a student athlete’s eligibility for a team sport to demand “genital inspection” (actual proposed law, tabled).
  • A law prohibiting you from receiving gender affirming care from a physician.
  • A law prohibiting tattoos.
  • A law forcing a person to get an abortion.
  • A law requiring end of life medical care against a person’s wishes. (Note diffs among states.)
  • A law requiring blood donations.
  • A law prohibiting same sex marriage and intimacy or contraception.
  • A law requiring you to notify the government when you travel or restricting travel.
  • A law requiring you to register with the government to access social media or when you rent a hotel room.
  • A law requiring cis-gender conforming dress and behavior in public.
  • A law allowing police or others gov't representative to do a "wellness check" on you.
  • A law allowing the gov't to remove weapons from your possession on reports of erratic or disturbing reports about you, including disturbing social media posts.
  • A law requiring employer's to pay a minimum wage, regulate contracts, etc.
Some “maybe nots”. Maybe these would not violate basic liberties. With these items (assuming you agree), try to develop language for saying why liberty is not violated by the law. If you disagree, try to express your reasons.
  • Maybe not: A law legalizing very addictive and deadly drugs.
  • Maybe not: Limiting access to dangerous biological agents or radioactive materials.
  • Maybe not: Laws regulating explosives and bomb making materials, including surface to air missiles.
  • Maybe not: A law decriminalizing sex with minors.
  • Maybe not: A law allowing someone to choose to become an indentured servant or slave.
  • Maybe not: A law allowing first responders to restraint or detain or medicate a person in a mental health crisis from harming themselves.
  • Maybe not: A law prohibiting private companies from imposing appropriate workplace attire rules, and confidentiality agreements.
  • Maybe not: A law prohibiting public nudity.
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