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==11: OCT 3==
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==12: OCT 3. ==
  
 
===Assigned===
 
===Assigned===
  
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:*Haidt, Chapter 7, "The Moral Foundations of Politics" (34)
+
:*Tribe, Lawrence. "Deconstructing Dobbs" (1st half, 1-8)
 +
:*Supreme Court of the US, "Excerpts from the Dobbs Decision," (13-29)
  
−
===In-class Topics===
+
===In-class===
  
−
:*Update on SW1 grading, in progress....
+
:*Finding our language for Basic Liberties
−
:*Method Point: Layers of Explanation
 
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:*Small Group Discussion: In light of physio-politics, is it bigotry to regard someone’s political orientation as inferior?
 
  
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===Better Politics: Practical advice in light of physio-politics===
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===Lawrence Tribe, “Deconstructing Dobbs”, NYRB, Sept 22, 2022===  
  
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:*We'll be thinking about the practical advice that follows from our research on political difference more later in the term.  Here we just pause to make a few inferences from Hibbing et al's "physio-politics"
+
:*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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::*Avoid sterotyping or stigmatizing another person’s political orientation. Avoid bigotry. (See bumper stickers.)
+
:*The jurisprudence:
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::*Avoid escalation of physiological responses. (Notice it, counteract it, if possible.)
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::*Roe and Casey had created settled law, contra majority.
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::*Acknowledge insight across the spectrum of orientations.  
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::*Majority makes Roe and Casey look like isolated precedents, abberations, but not so.
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::*Acknowledge political orientation in the discussion.  
+
::*Criticism of the court's treatment of the 9th amendment:
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::*Cultivate diverse relationships if possible.
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:::*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. 
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::*Remember: Issue commitments can change even if orientations don't.  
+
:::*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.
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::*Accept difference that won't change, focus on pragmatics and cooperation on issues.
+
::*Majority decision doesn't say why compelling pregnancy isn't a violation of liberty.
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::*Humor, if possible.  Self-effacing first.  
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::*The court has found unenumerated aspects of other rights, extending 1st am for example.
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::*Be true to yourself. Don’t compromise your commitments to avoid engaging views.
+
::*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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===Haidt, Chapter 7, "The Moral Foundations of Politics"===
+
===Supreme Court, Excerpts from Dobbs (13-29)===
  
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:*Homo economicus vs. Homo sapiens -- column a b -- shows costs of sapiens psych. commitments "taste buds"
+
:*From the dissent: Breyer, Sotomayor, and Kagan.
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:*Note on Innateness and Determinism: "first draft" metaphor; experience revises - pre-wired not hard-wired. innate without being universal.  (Note this is the same anti-determinism disclaimer we got from Hibbing & Co.)
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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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:*Notes on each foundation:
+
::*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.
−
::*'''Care/Harm''' -- evolutionary story of asymmetry between m/f interests/strategies in reproduction, attachment theory (read def). current triggers.  Baby Max and stuffed animals -- triggers.
+
::*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).
−
:::*Implicit theory about "re-triggering" note red flag.  unexplained. Consider plausibility.
+
::*The decision "curtails the rights of women and status as free and equal citizens."  Potentially includes other rights: contraception, marriage...
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::*'''Fairness/Cheating''' -- We know we incur obligation when accepting favors. So,... Trivers and reciprocal altruism. "tit for tat" ; equality vs. proportionality.  Original and current problem is to build coalitions (social networks) without being suckered (exploited). Focus on your experience of cooperation, trust, and defection (which could just be declining cooperation).  Public goods game research also fits here.  Libs think of fairness more in terms of equality, conservatives more about proportionality.
+
::*Basic liberties: 17 “protecting autonomous decision making over the most personal of life decisions.”
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::*'''Loyalty/Betrayal''' -- Tribalism in story of Eagles/Rattlers.  liberals experience low emphasis here; note claim that this is gendered 139.  sports groupishness is a current trigger.  connected to capacity for violence.  Liberals can come across as disloyal when they think they are just being critical.  Note current culture conflicts over confederate symbols and statues fits here.  
 
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::*'''Authority/Subversion''' -- Cab driver story.  Hierarchy in animal and human society; liberals experience this differently also; note cultural work accomplished by the "control role" -- suppression of violence that would occur without hierarchy. Alan Fiske's work on "Authority Ranking" -- suggest legit recognition of difference and, importantly, not just submission. Authority relationships are a two way street (maybe esp for conservs?). Tendency to see UN and international agreements as vote dilution, loss of sov. (Digressive topic: Should we mark authority relationships more?)
 
−
::*'''Sanctity/Degradation''' -- Miewes-Brandes horror. Ev.story: omnivores challenge is to spot foul food and disease (pathogens, parasites).  (Being an omnivore is messy. One should not be surprised to find that vegetarians often appreciate the cleanliness of their diet.) Omnivores dilemma -- benefit from being able to eat wide range of foods, but need to distinguish risky from safe.  neophilia and neophobia.  Images of chastity in religion and public debate.  understanding culture wars.  The ability to “sanctify” something (bodies, environment, principles) is an important current trigger.
 
  
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:*Some examples from current political bumper stickers. [https://www.cafepress.com/+political+bumper-stickers]
+
::*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
  
−
===Point on Method in the Course: "Layers of Explanation" or "Frames"===
+
===Finding the language of basic liberties===
  
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:*Consider the "disciplinary" layers we have introduced in our study of ethics:
+
:*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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:*1. '''The Biological''' - Selection mechanisms, cooperation, groupishness, theory of mind, all work to create a "moral/social" world in which reputation matters and values help us solve problems, like being taken for a sucker.
+
:*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.
−
:*2. '''The Psychological''' - System 1 give lots of evidence of an evolved psychology, with "modules" around specific evolutionary "value problems" (moral problems). '''C F L A S'''
+
 
−
:*3. '''The Political''' - Physio-politics provides evidence of differences among us in cognitive attention, especially to social cues and threats, but also to policy and our view of society. Many of these differences correlate somewhat with political orientation. Liberalism and conservatism do not change much over time, and seem tied to personality. (More to come in this story: How orientation interacts with "issue commitment". Strategies for non-polarized interaction on political issues.)
+
:*Body, Bodily Autonomy, and Physical Intimacy:
−
:*4. '''The Cultural''' - Differences between cultures, including, for example the remarkable emergence of WEIRD culture. This reading is coming up in the next couple of weeks. (Joe Henrich, The Weirdest People on Earth) literacy and the brain, Christianity as a driver of culture (the Marriage and Family Plan, impersonal honesty and sociality, etc.).  Some remarkable new explanations from a field only 2-3 decades old.
+
::*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.

Latest revision as of 21:47, 2 October 2024

12: OCT 3.

Assigned

  • Tribe, Lawrence. "Deconstructing Dobbs" (1st half, 1-8)
  • Supreme Court of the US, "Excerpts from the Dobbs Decision," (13-29)

In-class

  • Finding our language for Basic Liberties

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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