Difference between revisions of "OCT 26"

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==15: OCT 26==
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==18: OCT 26==
  
 
===Assigned===
 
===Assigned===
  
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:*Dennett, Daniel. Chapter 3: "Thinking about Determinism" Freedom Evolves. (300) (63-97) (Kennedy/Hendrick)
+
:*Tribe, Lawrence. "Deconstructing Dobbs" (1st half, 1-9)
 +
:*Supreme Court of the US, "Excerpts from the Dobbs Decision," (13-29)
  
−
===Some Context for discussing Determinism===
+
===In-class===
  
−
:*Really, we are confronting the "spectre of determinism", like the "spectre of evolution".  It may feel like a loss.  It might feel like alot is at stake.  
+
:*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/].   
−
:*Recall Henrich.  Western "free will" is ''at least'' an artifact of Christian culture, whether it is metaphysically true or not. Again, it may seem like Christianity itself is at stake!
+
:*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.
  
−
:*Lowering the stakes
+
===Lawrence Tribe, “Deconstructing Dobbs”, NYRB, Sept 22, 2022===
−
::*The modern concept of free will is not an article of faith. Is it?
 
−
::*Naturalizing free will isn't the denial of free will. (Further assessment, is it FW "worth having"?)
 
−
::*We have lots of example of "naturalizing" phenomena from pseudo-explanations and false metaphysics.  Witches, mental illness, but also understanding how "mind can come from matter," what human nature is, etc.
 
−
::*Moreover, religions appear to evolve. (OT to NT God..., separation from culture of origin's views of women, men, sexual orientation, slaves, metaphysics, etc.
 
  
−
:*What if rethinking determinism puts FW and MR on a better foundation?
+
:*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. 
  
−
===Dennett, Daniel. Chapter 3: "Thinking about Determinism" Freedom Evolves===
+
:*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.
  
−
:*Chapter 3: Thinking about Determinism
+
===Supreme Court, Excerpts from Dobbs (13-29)===
  
−
:*Three Errors in thinking about determinism:
+
:*From the dissent: Breyer, Sotomayor, and Kagan.
−
::*1. We think determinism limits what is possible. (Austin's putt)
+
::*Opening claim at 13, Roe/Casey engaged in a balance of interests recognizing difference in moral viewpoint.
−
::*2. We think determinism implies that "S(0) causes or explains S(t)". This misses the way causal inquiry works. (Computer marathon / JFK)
+
::*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.
−
::*3. Determinism rules out self-directed change, change in character or "life-hopes". (Closed/open futures)
+
::*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.”
  
−
:*Dennett believes his arguments in showing these errors apply to '''both''' det and indet worlds.
+
::*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
  
−
:*Defining possibility, necessity , and causation in terms of "possible worlds"
+
===Finding the language of basic liberties===
  
−
::*'''Necessity''' -- What is true in all possible worlds.
+
:*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.
  
−
::*'''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.)
+
:*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.
  
−
::*'''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.
+
:*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.
  
−
:*Causation - How do we assign causes?  (Note: Laplace's demon knows state descriptions not causes!)
+
::*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?
  
−
::*'''Causation''' -- Two logically distinct senses:
+
:::*A law allowing discrimination against women for hiring to jobs deemed too hard for women.
−
:::*"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.
+
:::*Pumping a person’s stomach for drugs as part of a criminal investigation. 
−
:::*"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.
+
:::*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.
  
−
::*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.  
+
::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.
  
−
::*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:
+
:::*Maybe not: A law legalizing very addictive and deadly drugs.
−
 
+
:::*Maybe not: Limiting access to dangerous biological agents or radioactive materials.
−
::*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. 
+
:::*Maybe not: Laws regulating explosives and bomb making materials, including surface to air missiles.
−
 
+
:::*Maybe not: A law decriminalizing sex with minors.   
−
::*The King and the Mayor (overdetermination) - Both issue exile orders for someone.  Neither is necessary.  Pick one, maybe the king?
+
:::*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.   
−
::*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. 
+
:::*Maybe not: A law prohibiting private companies from imposing appropriate workplace attire rules, and confidentiality agreements.
−
 
+
:::*Maybe not: A law prohibiting public nudity.
−
::*French Foreign Legion case -- a series of "but for" causes, all of which are sufficient.  Which is the cause?
 
−
 
 
−
:*Austin's Putt --
 
−
::*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
 
−
::*It follows that even in det world it makes sense to say that he might have made the putt.
 
−
::*Austin seems to choose the narrow method, but equivocates about "further experiments" (which imply changing the antecedent conditions).
 
−
 
 
−
::*Conclusion (77): The truth or falsity of determinism should not affect our belief tha tcertain unrealized events were nevertheless "possible," in an everyday sense of that term.  [Well, possible worlds talk isn't exactly everyday. ]
 
−
 
 
−
:*Computer Marathon
 
−
::*random number generators.  To generate variations in the play, we introduce slightly different conditions.
 
−
::*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.
 
−
 
 
−
::*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.
 
−
 
 
−
:*83: read at: "The universe could be det on even days...."
 
−
 
 
−
:*Events without causes in a deterministic universe
 
−
 
 
−
::*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.
 
−
 
 
−
:*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.   
 
−
 
 
−
:*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). 
 
−
 
 
−
:*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.
 
−
 
 
−
:*Third Error: Determinism rules out self-directed change, change in character or "life-hopes".
 
−
 
 
−
::*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."
 

Latest revision as of 17:27, 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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