Difference between revisions of "OCT 24"

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(Created page with "==17: OCT 24: Unit Three: Roe, Dobbs, and the Search for Basic Liberties== ===Assigned=== :*Kahn Academy, "The Fourteenth Amendment and equal protection" [https://www.youtub...")
 
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==17: OCT 24: Unit Three: Roe, Dobbs, and the Search for Basic Liberties==
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==18: OCT 24. ==
  
 
===Assigned===
 
===Assigned===
  
:*Kahn Academy, "The Fourteenth Amendment and equal protection" [https://www.youtube.com/watch?v=re2d80cqhYw]
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:*Introduction to Capabilities Approach [https://www.youtube.com/watch?v=hZgsFd-huFw], Sabine Alkire [https://en.wikipedia.org/wiki/Sabina_Alkire]
:*Scotus Brief, Dobbs v. Jackson Women's Health Organization  [https://www.youtube.com/watch?v=mQllmb-0Lnk]
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:*Read, Martha Nussbaum, C2, The Central Capabilities (17-45; 28)
:*Alfino, "Interpretation, Political Orientation, and Basic Liberties in the Dobbs Decision" (1-13)
 
:*Supreme Court of the US, "Excerpts from the Dobbs Decision," (1-13)
 
  
===Kahn Academy, "The 14th Amendment and equal protection"===
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===In-class===
  
:*Section 1: "'''All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws'''."
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:*"How cultures commit impersonal or structural injustice."
 +
:*A continuum of justice positions (good for thinking about PP1!)
  
:*prohibitions by Federal gov't to potential state actions.  Restates 5th ammentdment as applying to states, not just feds.
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===Is there a limit to kin partiality? - thought experiment===
:*"equal protection clause"
 
  
:*Historical context
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:*One way to promote altruism is Dillion’s strategy - give your money and maybe a kidneyBut another way to assess altruism is at critical junctures in your life, such as between generations. Many of you are "behind a veil of ignorance" about your future wealth, so this might be a good time to sample your intuitions.
::*1868 - after civil war, 13th abolished slavery, 14th responding to "black codes" - statutes that repressed rights of recently emancipated African Americans.   
 
::*Supreme Court opinion in Plessy v Ferguson: 1896 - separate train car travel.  equal but separate is OK! doesn't violate the 14th amendment. (The textbook example of how ''stare decisis'' can't be absolute.  Widely viewed as a shameful decision.)  Reversed by Brown v Board of Education.  Separate is not equal.  1954.  Took decades to make progress enacting this decision.
 
::*14th Amendment key to civil rights arguments. Sexual equality in the workplace. Also pro-life arguments (liberty of the unborn). Quotas in higher education (recent cases pending Summer '23). 
 
  
===SCOTUS Brief, Dobbs v Jackson Women's Health Organization===
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:*Imagine three futures for yourself.  In all of them, you grow up to have a successful career, a family with two kids, and a medium size extended family.  You are approaching retirement and your retirement and estate planning recalls a distant memory of an ethics class which talked about "justified partiality." You and your partner are wondering if you should leave all of your estate to your children or not.  Remember, you will have access to this money until you die, so you could cover end of life care for yourself and your partner.  Consider these three scenarios:
  
:*June 2022. Mississippi Gestational Age Act. 15 week abortion limit. Conflict with Roe and Casey.
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::*A. You and your partner retire with about 1 million dollars, a paid off house, and good health insurance.
 +
::*B. You have all of the conditions in A, but 2 million dollars in net worth.
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::*C. Same as B, but 8 million dollars.
  
:*Majority decision:
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:*For all three scenarios, assume that all indications suggest continued growth of your assetsYou are also "aging well"!
::*5 of the 6 (not Roberts) voted to overturn Roe and Casey.  Roberts wanted a more moderate approach - allow 15 week bans.
 
::*Stare Decisis - 5 reasons for overruling.  Revisits Roe - invoked complicated argument from several amendments. Casey affirms Roe, but focuses only on 14th am. '''Abortion rights not found in text or tradition (originalism).''' 
 
::*Claims not to impact anything but abortion, which involves potential life.  Left standing other decisions that seem to depend on Roe.  Contraception, same sex relationshipsThomas went further, court should reconsider "due process" cases. Rec alternative approach.
 
::*Roberts concurrence: Urged more restraint. Throw out the "viability standard" (digression) Accept the Mississippi limit
 
  
:*Minority decision:
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:*In your group discussion, pretend you are actually making this estate planning decision. Would you give 100% of your estate to your kids and relatives in each scenario?  What considerations come into the discussion?  (Note: you could continue the options by imagining an estate with larger value - 16 million -- 16 billion.)
::*Major claims
 
:::*1. Majority decision takes rights away from women if they are pregnant.  
 
:::*2. Roe and Casey support a long line of settled cases on privacy, private choices about family matters, sexuality, and procreation. (In a way, Thomas might agree, but want to reconsider those.) 50 years of reliance.
 
  
===Supreme Court, Excerpts from Dobbs (1-13)===
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:*[https://www.stlouisfed.org/publications/regional-economist/second-quarter-2019/wealth-retired-households Data on household net worth at retirement]
  
:*Majority Decision
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===How Cultures commit "impersonal or structural injustice"===
::*Background and context of Roe as departure from history of country.  Liberalization was occurring but Roe cut it off.  Presents Casey as disputed opinion, not really an endorsement of Roe. Casey was a partial overruling of Roe. 
 
::*p. 5: Major statement of ruling.  ....not in history or tradition... (new, originalist, standard for "unenumerated" rights)
 
::*Long evidentiary argument to support the major premise about history and tradition.  Draws conclusion p. 7/25. 
 
::*Discusses Plessy as example of overturning stare decisis. 
 
::*Robert's concurrence: p. 11/7: Throw out the viability standard
 
  
===Alfino, "Interpretation..." main points (1-13)===
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:*Our discussion of PPNs (personal preference networks) like the Alumni Association might help us think about another category of injustice, one supported by cultural processes.
 +
:*Main Claim: Cultures allow humans to "normalize" claims that legitimate conduct not perceived as unjust, but later determined to be unjust.
  
:*Basic Intuitions about liberty and abortion:
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:*Think of examples of cultural ideas related to justice that were considered normal, but have since been shown to be incorrect:
::*Not unreasonable to say life begins with conception
 
::*Also, unreasonable to deny that liberty and autonomy are constrained without a right elective of abortion.
 
::*Abortion rights is a problem of understanding what basic liberties are.  Start there.
 
  
:*The Dobbs decision:
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::*Some races are superior to others.
 +
::*Some cultures are superior to others.
 +
::*Race is not just a political category, but biologically real.
 +
::*Women can't do math and science.
 +
::*Women shouldn't do strenuous exercise.  Etc....
  
::*The majority determined indirectly that elective abortion isn't a constitutional right by applying an originalist approach to determining unenumerated rights.  That approach is in contrast to the "living document" approach of the minority (and the jurisprudence of privacy of the past 4-6 decadesThey left open the possibility that the right could be legislated as a statutory right or prohibited.
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:*What's interesting about "cultural impersonal injustice" is that it involves a "normalization" a set of beliefs that support practices that, from hindsight, we don't just say that we have different beliefs, but that our predecessors were mistaken(Something we wouldn't say, for example, about other cultural beliefs, like attractive clothing styles or art.)
  
:*'''Originalism''' - Unenumerated rights must be part of the history and tradition of the countryWithout this constraint judicial opinions are too subjective.  Interpreting a contract requires finding language in the contract that speaks to the immediate issue.
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:*An obvious example for US culture would be structural injustice against ethnic minorities that experience discriminationIf you are a formal rights theorist about justice, you might overlook or minimize the impacts on opportunity and success that come from “impersonal injustice”.  Maybe an easier example to see this comes from Italian culture and the “problem of the south”. Overview of Italian attitudes toward the south, which still experiences lower socio-economic successNorthern Italians still normalize attitudes toward southerners that we now explain through culture and history. This allows them to explain lower SES in Sicily as a condition that contemporary Sicilians are responsible forLikewise, we may underestimate the effect of disruptions of culture that come from slavery and discrimination in US history.
:*'''Living document''' - The meanings of words like "liberty" and "autonomy" change over timeThe Framers and Ratifiers ''intended'' us to update the meanings of basic terms in light of experience(Justice Kagan: "We're all originalists." see p. 9 Alfino). Many of our decisions do require applying new meanings or cases not envisioned by the Framers.
 
  
:*Political Orientation Issue -- In light of our study of the nature of morality, we can't miss the fact that these different approaches to interpretation reflect fundamentally conservative and liberal political orientationsHow should we take that into account if finding a solution to conflicts over basic liberties?
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:*Now we have better ways of understanding different outcomes for culturally distinct groups. Compare for example Sicilian cultural experience and the cultural disruption that comes from slavery and discrimination.   
  
===Small Group Discussion===
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:*Point: From the standpoint of a formal justice model, you might not see an injustice, but if you ask about differential life outcomes and capabilities for Northern and Southern Italians, you might see an injustice.
  
:*On our initial dive into the Dobbs decision, we now see that the Court engaged the broad question: "How do we interpret "unenumerated rights"In that sense the decision was about more than abortionMore like, "How do we update the social contract (as embodied in the constitution) when new liberties arise?One group advocates and "originalist" approach while the other advocate a "living document" approachIn a small group discussion, consider what you find appealing or negative about these approachesKeep a list.  You may also want to consult the list of sample laws for next class discussion.
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===Martha Nussbaum, C2, The Central Capabilities===
 +
 
 +
:*note on the references to Vasanti from the previous chapter.
 +
 
 +
:*Capabilities Theory - approach to social justice that focuses on what people in a society can do or be(This a short of material freedom - Sen's major work was Development as FreedomNote how a development economist looks at things.) Rather than thinking about justice as fairness in the distribution of economic goods, capabilities theory sees the measure of social justice in a society in terms of how well they support basic human capabilities.
 +
 
 +
:*20: Capabilities are kinds of freedoms. They are both internal and external.  (Example: Internal: Ability to ride a bike vs. External: having a bike and a place to ride it. "Combined capabilities" are both internal and external.
 +
 
 +
:*People don't only deserve to have their capabilities realized '''only if''' they are smart or can afford it.  Capabilities theory takes in the range of "innate capabilities" that people have, including cognitive and other disabilities.  
 +
 
 +
:*Capabilities theory isn't about "making" people function, but rather about giving people real options.  A real option includes both the internal and external conditions for the capabilities.
 +
 
 +
:*26: problem of how to treat "options" that people might choose that damage their own capabilities: risky sports, drugs, selling organs.   
 +
 
 +
:*29: Nussbaum adds a duty of dignity to the theory.  This might help justify restricting options that are self-abasing (allowing oneself to be servile or live in squalor). With treatment of animals it might eliminate breeding of dogs against health, or banning cock fights or dog racing.
 +
 
 +
:*33: The List -- Health, Safety, Education, Social connection, Absence of fear or stress (note upcoming Sapolsky chapter on Stress and SES), Affiliation, recreation, autonomy.   
 +
::*Note how abstract this list is, but also how it would allow a social justice critique that wouldn't just be about income transfer (Rawls).

Latest revision as of 17:32, 24 October 2024

18: OCT 24.

Assigned

  • Introduction to Capabilities Approach [1], Sabine Alkire [2]
  • Read, Martha Nussbaum, C2, The Central Capabilities (17-45; 28)

In-class

  • "How cultures commit impersonal or structural injustice."
  • A continuum of justice positions (good for thinking about PP1!)

Is there a limit to kin partiality? - thought experiment

  • One way to promote altruism is Dillion’s strategy - give your money and maybe a kidney. But another way to assess altruism is at critical junctures in your life, such as between generations. Many of you are "behind a veil of ignorance" about your future wealth, so this might be a good time to sample your intuitions.
  • Imagine three futures for yourself. In all of them, you grow up to have a successful career, a family with two kids, and a medium size extended family. You are approaching retirement and your retirement and estate planning recalls a distant memory of an ethics class which talked about "justified partiality." You and your partner are wondering if you should leave all of your estate to your children or not. Remember, you will have access to this money until you die, so you could cover end of life care for yourself and your partner. Consider these three scenarios:
  • A. You and your partner retire with about 1 million dollars, a paid off house, and good health insurance.
  • B. You have all of the conditions in A, but 2 million dollars in net worth.
  • C. Same as B, but 8 million dollars.
  • For all three scenarios, assume that all indications suggest continued growth of your assets. You are also "aging well"!
  • In your group discussion, pretend you are actually making this estate planning decision. Would you give 100% of your estate to your kids and relatives in each scenario? What considerations come into the discussion? (Note: you could continue the options by imagining an estate with larger value - 16 million -- 16 billion.)

How Cultures commit "impersonal or structural injustice"

  • Our discussion of PPNs (personal preference networks) like the Alumni Association might help us think about another category of injustice, one supported by cultural processes.
  • Main Claim: Cultures allow humans to "normalize" claims that legitimate conduct not perceived as unjust, but later determined to be unjust.
  • Think of examples of cultural ideas related to justice that were considered normal, but have since been shown to be incorrect:
  • Some races are superior to others.
  • Some cultures are superior to others.
  • Race is not just a political category, but biologically real.
  • Women can't do math and science.
  • Women shouldn't do strenuous exercise. Etc....
  • What's interesting about "cultural impersonal injustice" is that it involves a "normalization" a set of beliefs that support practices that, from hindsight, we don't just say that we have different beliefs, but that our predecessors were mistaken. (Something we wouldn't say, for example, about other cultural beliefs, like attractive clothing styles or art.)
  • An obvious example for US culture would be structural injustice against ethnic minorities that experience discrimination. If you are a formal rights theorist about justice, you might overlook or minimize the impacts on opportunity and success that come from “impersonal injustice”. Maybe an easier example to see this comes from Italian culture and the “problem of the south”. Overview of Italian attitudes toward the south, which still experiences lower socio-economic success. Northern Italians still normalize attitudes toward southerners that we now explain through culture and history. This allows them to explain lower SES in Sicily as a condition that contemporary Sicilians are responsible for. Likewise, we may underestimate the effect of disruptions of culture that come from slavery and discrimination in US history.
  • Now we have better ways of understanding different outcomes for culturally distinct groups. Compare for example Sicilian cultural experience and the cultural disruption that comes from slavery and discrimination.
  • Point: From the standpoint of a formal justice model, you might not see an injustice, but if you ask about differential life outcomes and capabilities for Northern and Southern Italians, you might see an injustice.

Martha Nussbaum, C2, The Central Capabilities

  • note on the references to Vasanti from the previous chapter.
  • Capabilities Theory - approach to social justice that focuses on what people in a society can do or be. (This a short of material freedom - Sen's major work was Development as Freedom. Note how a development economist looks at things.) Rather than thinking about justice as fairness in the distribution of economic goods, capabilities theory sees the measure of social justice in a society in terms of how well they support basic human capabilities.
  • 20: Capabilities are kinds of freedoms. They are both internal and external. (Example: Internal: Ability to ride a bike vs. External: having a bike and a place to ride it. "Combined capabilities" are both internal and external.
  • People don't only deserve to have their capabilities realized only if they are smart or can afford it. Capabilities theory takes in the range of "innate capabilities" that people have, including cognitive and other disabilities.
  • Capabilities theory isn't about "making" people function, but rather about giving people real options. A real option includes both the internal and external conditions for the capabilities.
  • 26: problem of how to treat "options" that people might choose that damage their own capabilities: risky sports, drugs, selling organs.
  • 29: Nussbaum adds a duty of dignity to the theory. This might help justify restricting options that are self-abasing (allowing oneself to be servile or live in squalor). With treatment of animals it might eliminate breeding of dogs against health, or banning cock fights or dog racing.
  • 33: The List -- Health, Safety, Education, Social connection, Absence of fear or stress (note upcoming Sapolsky chapter on Stress and SES), Affiliation, recreation, autonomy.
  • Note how abstract this list is, but also how it would allow a social justice critique that wouldn't just be about income transfer (Rawls).