Louisiana Republican Aims To Overturn Roe v. Wade

[Coito ergo sum]

And it was only a year ago that they tossed stare decisis to the wind in CU v. FEC.

Kind of like they did in Brown v Board of Education, eh?

Citizen's United was about as clear cut a case as ever comes before the supreme court. Ruling otherwise than they did would have permitted Congress to prohibit newspapers from running editorials on elections. Far from being a "conservative" decision, it was a necessary defense of constitutional liberty and the first amendment.

+1

It would have subjected talk show hosts to lawsuits to prevent them from commenting on elections around election day. Every negative mention of a candidate would have been alleged to be electioneering, especially by certain much-maligned talk show hosts.

[Warren Dew]

so what exactly do you mean?

Just addressing a tangent apophenia brought up. It doesn't really have anything to do with your original post.

[apophenia]

And it was only a year ago that they tossed stare decisis to the wind in CU v. FEC.

Kind of like they did in Brown v Board of Education, eh?

Citizen's United was about as clear cut a case as ever comes before the supreme court. Ruling otherwise than they did would have permitted Congress to prohibit newspapers from running editorials on elections. Far from being a "conservative" decision, it was a necessary defense of constitutional liberty and the first amendment.

I meant to advance no opinion on the ruling itself other than that the court was ready and willing to take such measures. The court could readily have deferred to congressional intent in regulating campaign spending and it likely would hardly have raised many eyebrows. Nobody would have faulted them for deferring to precedent. And there are liberals all over this nation who consider it an outrage. Whether it was a conservative ruling or not, I believe many see it as favoring conservative politics, as conservative politics traditionally favors business interests, and business interests are, arguably, favored by the opinion. And the question of judicial activism versus originalism versus plain meaning -- make the decision less than clear cut. I personally think it was a good decision, though I recognize there may be real social issues at stake here, social issues which our founders either didn't or couldn't foresee, thus ruling out any textualist approach to the question as being fundamentally anachronistic. Regardless, many feel the ruling has left things in a worse mess than before they started, and there are numerous movements across the country aimed at using a constitutional amendment to curtail the powers of corporations to influence politics (and in other areas).

[Seth]

Thanks for participating in this long discussion, it's been fun, and I'm sure illuminating to those who are watching, and I really appreciate your remaining civil and engaging the debate rationally. I understand that it's getting repetitious so I'm going to cut out most of the stuff we've already hashed over and limit my reply substantially.

I didn't misread the quote. That's exactly what I said, and exactly what the court based its decision on. Yes, the state can assert an interest in protecting that potential life, however, whether that interest is "compelling" enough to justify limiting a fundamental liberty depends on all the facts and circumstances. Under Griswold, the State did not have a compelling enough interest to prevent women from using birth control (even though they asserted compelling interests to protect the health of women, to protect family unity, to discourage promiscuity, and to protect the potential life that was being blocked from developing naturally). In Roe v Wade, the Court found that the state's interest in protecting potential life in the first trimester of pregnancy was not compelling enough to warrant any limitation on the mother's right to abort. In the second trimester, the only state interest that was compelling enough to warrant state intervention was the life and health of pregnant women. After viability, the Court found that the State could assert the interest of protecting the life or potential life of the viable fetus, and could regulate and limit and outlaw abortions after viability (except that it couldn't do so in situations where the life of the mother is at stake), because the state's interest in the fetus could be reasonably said to be "compelling" at that time.

I agree that this is what the court said, and we both understand that it is the Supreme Court, so any modification of the rule set forth must come from the Congress. That's a given. And what's more I agree with you personally that it strikes a reasonable balance. However, others maintain that it does not because in reaching that balance, the court ignored at least two of the interested parties in the matter; the fetus and the father.

When I say that the court ignored the interests of the fetus, I mean that it entirely disrespected the right to life of the fetus by weaseling its way around science and using what amounts to a fallacious appeal to common practice to intentionally de-personalize the fetus so that it could ignore the "there is a right to life to be found in the Constitution that begins at conception" argument.

It did two primary things in order to "not rule" that a fetus is not a person.

First, it reviewed historical practice regarding abortion going back thousands of years, and by so doing it concluded that historically a fetus has not been considered to be a person, and that therefore there is no reason to believe that a fetus is a person for the purposes of the 14th Amendment. But to reach this conclusion the Court had to ignore both a good deal of evidence that abortion has been both regulated and prohibited throughout history, and that contemporarily, numerous state legislatures have in fact prohibited abortion entirely except in cases where the mother's life is in danger. In short, the Court cherry-picked its way to evading having to recognize a fetus as a person by ignoring the weighty contemporary historical evidence that the peoples of a majority of the states, beginning in the 19th century, did in fact place value on the fetus and legislatively acted to ban abortion. Anti-abortion advocates see this aspect of the decision as defying the clearly expressed legislative will of the people, and they have good justification for making this claim.

I find it interesting that the Court went so far in discovering "original intent" in this particular case because it serves the liberal agenda, and yet in many other cases, and certainly in the arguments over constitutional interpretation between Progressives and Conservatives, the Court easily abandons "original intent" in favor of the "mutating interpretation" Progressive model of constitutional interpretation that says that only the CURRENT needs or desires of a society should be considered when "reinterpreting" the Constitution.

Second, it simply evaded the question that is fundamental to most anti-abortion advocates, which is exactly when life begins. This it did by using exactly the opposite argument from the previous appeal to common practice. Instead it evaded answering the question by falsely claiming that there is no consensus on when life begins. That is plain scientific error, but useful political evasion. It did so because in order for the woman's privacy right to prevail, it had to both "de-personalize" the fetus and evade the question of when life, as contemplated by the Constitution and the Declaration of Independence, begins. Indeed, it acknowledged almost gleefully that it was not going to resolve that question where it says:

Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer. (Emphasis added)

This of course is pure sophistry and evasion, because the judiciary is in exactly the necessary position to decide, for the purposes of abortion laws, when life begins. For the Court to say "we need not resolve" the question is a complete sham and evasion of its judicial role.

Moreover, it is simply a false statement to say that there is no "consensus" as to when life begins today, because to do so one has to do as the Court has done and resort to conflating all manner of openly religious opinion from thousands of years ago about primitive understandings of gestation to refute what science, and every embryologist on the planet today, universally recognizes as the beginning of the life of a new living human organisms: the formation of the zygote.

We can argue endlessly about whether a "person" exists at any given stage of fetal development and base those arguments on the formation of the brain, brain activity, self-awareness or any number of other behavioral criteria of a developing fetus, but one thing is simply beyond scientific question, and that is the exact point in time when a new living human organism comes into being. That scientifically determinable moment is when the maternal and paternal chromosomes align along the spindle apparatus and form the new, unique genetic code of the first cell of the new human organism (I'm deliberately not using the phrase "human being" in order to avoid one of your stated objections) that is indisputably "alive."

The Court deliberately ignored this important scientific fact in its exegesis on the historical practices of Aristotlean civilization and other ancient cultures as regards their primitive understandings of life's processes and fetal development and how they (largely religiously) decided when "life" begins. And it did so deliberately because for it to acknowledge that life begins with the zygote is fatal to its reasoning that the Constitution's protections do not apply to a fetus before the third trimester.

Only by first weaseling around scientific fact and disrespecting the various legislative acts and reaching far back in history for a justification for de-personalizing the fetus was the Court able to reach its conclusion that the privacy interests of the mother outweigh either the right to life of the fetus or the compelling interest of the state in protecting that life. And then it completely refused to even consider the other interested party in the abortion debate: the father of the child, whose interests should have been weighed against the mother's privacy interests in order for a just decision to have been made.

That, many claim, is why the Court's decision was a biased, political and unjust decision that deserves to be overturned or rejected by the People.

That being said, you and I both agree that what the Court came up with was a reasonable stab at fairness, even if it's still somewhat vague as to precise benchmarks of fetal development that would justify such reasoning.

[kiki5711]

In the "good ol' days" and I mean for thousands of years, there
has been many ways of aborting a pregnancy. Most successful and recommended if done early. Life happens, shit also happens. Have deal with it with courage as it comes.

Forget the damn courts and religion.

[Seth]

Seth, dear, you're adorable, but you appear to have been possessed of some clever sounding words and phrases, much like an annoying song that sticks in your head, and you seem to think that liberally sprinkling them about enhances your argument. If I never hear one more use of pettifoggery it will be too soon. This latest is yet another case in point. Somewhere along the way, you got it in your head that "reductio ad absurdum" is a bad thing. You even go so far as to refer to it as a fallacy. Let's peek in Wikipedia and see what they say it is. "Reductio ad absurdum (Latin: "reduction to the absurd") is a form of argument in which a proposition is disproven by following its implications logically to an absurd consequence." It is not a fallacy, it is a form of proper argumentation. I have a book chock full of proofs of the existence of God based on reductio ad absurdum. Indeed, it is one of the workhorses of philosophy, in line with the maxim that the exception probes (or tests) the rule. It is a perfectly valid form of argument, and as such is no red herring but directly addresses whether the given principle or argument holds. (Indeed, Wikipedia notes that Anselm's venerable ontological proof for the existence of God is a reductio ad absurdum argument.) Your referring to such arguments as "red herring reductio ad absurdum fallacy" only demonstrates that you have a predilection for tossing out words and terms you don't understand in the hope that, magically, they'll make the errors in your logic and weaknesses in your argument go away.

Darling, you are sweet, but deluded and ignorant in your reasoning. Reductio ad absurdum is indeed a useful tool in philosophy, but not so much in law. While it may be instructive to use the technique when discussing a philosophical point, in law such arguments become a fallacy when they create, as the courts call it, an "absurd result." Thus the argument that a legislative body has the power to define the word "person" as it applies to a fetus is the same as saying that the legislative body has the power to define the word "person" to mean a chicken or a cow is legally inapt because it leads to that aforesaid "absurd result."

To one who understands the process and rules that apply to statutory construction, including the various canons of statutory construction and interpretation, like the one which says that in interpreting a statute, it must be presumed that "the legislature did not intend an absurd or manifestly unjust result," or the "plain meaning" canon that says that "when writing statutes, the legislature intends to use ordinary English words in their ordinary senses," or the canon of in pari materia which means that "when a statute is ambiguous, its meaning may be determined in light of other statutes on the same subject matter," or the canon of noscitur a sociis, meaning "when a word is ambiguous, its meaning may be determined by reference to the rest of the statute," one can clearly understand that a legislative definition that extends personhood to a fetus is not intended to be illegitimately or irrationally expanded to extend personhood to chickens or goats.

Such arguments are red herring fallacies because they are completely and utterly irrelevant to the discussion and are nothing more than a bald-faced attempt to derail the discussion into irrelevancies. No legislature has the power to declare a chicken or a goat to be a "person" under the law because that is a manifestly absurd notion. But a legislature might arguably have the power to declare a living human organism at an early stage of development to be a "person" for the purposes of regulating abortions within a state. That may or may not pass constitutional muster with the Supreme Court, (although in Roe v. Wade that's exactly what happened) but it's a legitimate legal argument and would be a legitimate legislative act, albeit subject to judicial review.

That's why in this specific case, a reductio ad absurdum argument such as the ones given constitute a red herring fallacy.

[Seth]

And it was only a year ago that they tossed stare decisis to the wind in CU v. FEC.

Kind of like they did in Brown v Board of Education, eh?

Citizen's United was about as clear cut a case as ever comes before the supreme court. Ruling otherwise than they did would have permitted Congress to prohibit newspapers from running editorials on elections. Far from being a "conservative" decision, it was a necessary defense of constitutional liberty and the first amendment.

I meant to advance no opinion on the ruling itself other than that the court was ready and willing to take such measures.

Of course it is. That's its role in our system of government.

The court could readily have deferred to congressional intent in regulating campaign spending and it likely would hardly have raised many eyebrows.

No, it could not have done so if it found a violation of the Constitution.

Nobody would have faulted them for deferring to precedent.

I certainly would have faulted them for abdicating their judicial duty to review statutes properly brought before them for constitutionality.

And there are liberals all over this nation who consider it an outrage.

And there are people who believe in the rule of law and the Constitution who were outraged that the McCain-Feingold Act was passed in the first place, which is why it was challenged in court.

Whether it was a conservative ruling or not, I believe many see it as favoring conservative politics, as conservative politics traditionally favors business interests, and business interests are, arguably, favored by the opinion.

Freedom of speech is neither a conservative nor a liberal value. It's a constitutional right that must be protected for all.

And the question of judicial activism versus originalism versus plain meaning -- make the decision less than clear cut.

Citizen's United was one of the most clear-cut, plain-meaning rulings on the scope of the First Amendment in our history.

I personally think it was a good decision, though I recognize there may be real social issues at stake here, social issues which our founders either didn't or couldn't foresee, thus ruling out any textualist approach to the question as being fundamentally anachronistic. Regardless, many feel the ruling has left things in a worse mess than before they started, and there are numerous movements across the country aimed at using a constitutional amendment to curtail the powers of corporations to influence politics (and in other areas).

What it left us with is freedom of speech, which is predicated on the notion that the People are intelligent enough to know when they are being hornswoggled and that they are smart enough to know when a campaign statement is aimed at benefiting a special interest.

We take the good with the bad when it comes to free political speech, and if you think political rhetoric is heated today, go read some of the broadsheets of the past and research where the term "yellow journalism" originated.

What the Court recognized is that corporations are simply associations of individuals towards a particular interest, often but not exclusively the interest of profit, and that those individuals who make up the "corporation" have a right to band together to petition their government for redress of grievances and to engage in political speech through their appointed spokespersons.

General Electric is no different from the NRA or the Sierra Club or PETA, all of which are corporations and all of which engage in political speech after their own "special interests." Those who belong to such organizations have different political agendas, but every one of those political agendas are equally valid and every one of those persons has a fundamental First Amendment right to pay money to the corporation to which they belong to speak (or contribute) on their behalf so that their political voices may be heard.

That's what the Court affirmed, and it did so properly.

The problem with most anti-corporatist rhetoric is that it deliberately ignores the fact that corporations are not some alien creature, they are associations of individuals who associate for a specific purpose, one of which is to participate in the political processes that may affect their rights or interests. The Court saw through the sophistry of the Act and rightly ruled that money is equivalent to political speech (and always has been) and that people have a First Amendment right to pool their money so that they can engage in political free speech by proxy.

[Warren Dew]

social issues which our founders either didn't or couldn't foresee

You should read the Citizens United majority opinion, which provides ample evidence that the founders not only could have, but in this case did, foresee the relevant issues in this case.

As for whether the decision was "liberal" or "conservative", the court ruled as advised by the ACLU brief. But hey, I don't know, maybe civil liberties have become a "conservative" issue that "liberals" oppose.

[Seth]

social issues which our founders either didn't or couldn't foresee

You should read the Citizens United majority opinion, which provides ample evidence that the founders not only could have, but in this case did, foresee the relevant issues in this case.

As for whether the decision was "liberal" or "conservative", the court ruled as advised by the ACLU brief. But hey, I don't know, maybe civil liberties have become a "conservative" issue that "liberals" oppose.

Good point. Only replace "liberals" with "Progressives" and it's an absolute, demonstrable certainty.

[apophenia]

Darling, you are sweet, but deluded and ignorant in your reasoning.

Gosh, Seth, you say the nicest things. *blush*

To one who understands the process and rules that apply to statutory construction, including the various canons of statutory construction and interpretation, like the one which says that in interpreting a statute, it must be presumed that "the legislature did not intend an absurd or manifestly unjust result,"

Red Herring! This has nothing to do with the case in question where the legislature manifestly did intend the result. As such, it would be absurd to conclude that the legislature both did and did not intend the result. Your objection is irrelevant. The Supreme Court has opined, “When the terms of a statute are unambiguous, judicial inquiry is complete, except in rare and exceptional circumstances. [1]" Whether a duck being granted personhood is such a rare circumstance will be dealt with below. For the time being, let it be noted that there are enhanced penalties for injuring a police dog in the line of duty everywhere but in the state of South Dakota [3]. No such protection extends to any other police tool; a criminal may shoot an officer’s gun out of his hand without attaching any special jeopardy. Indeed, while it has no legal standing, canine officers are sworn in with a public ceremony, and obtain full police funerary benefits. A police SWAT team in Mesa, Ariz., employs a Capuchin monkey as well. Should such a monkey be denied the same benefits and protections? [3b] More after we clear the deck of what, even for you Seth, is a prodigious amount of mendacious pettifoggery.

…or the "plain meaning" canon that says that "when writing statutes, the legislature intends to use ordinary English words in their ordinary senses,"

Red Herring! You left out a significant portion of the plain meaning canon, and in so doing distorted the meaning of the canon (you wouldn’t happen to be a quote mining creationist – they engage in the same sort of nonsense). As quoted from Wikipedia, The Plain Meaning rule states that, “statutes are to be interpreted using the ordinary meaning of the language of the statute, unless a statute explicitly defines some of its terms otherwise.” Assuming that the statute conferring rights upon a duck falls under the rule as a consequence of the terms not being explicitly defined by the legislature is nowhere justified in the discussion, and is irrelevant as the problem at issue is not on account of statutory ambiguity.

…or the canon of in pari materia which means that "when a statute is ambiguous, its meaning may be determined in light of other statutes on the same subject matter,"

Red Herring! Argumentum Verbosium! Argumentum Ad Nauseam!
Now you’ve reached the tipping point. Not only do none of these principles apply to the case at hand, you’re just piling on irrelevant verbiage after irrelevant verbiage, including nice, sophisticated sounding latin names, in the hopes I won’t see through to the fundamental absence of a relevant point in quoting them. (Incidentally, this technique is similar to what has been termed “the Gish Gallup,” after creationist Duane Gish, who, in debates, spews an absurd litany of arguments in order to bury his opponent under some presumed rhetorical duty to rebut. Are you sure you’re not a creationist?)

…or the canon of noscitur a sociis, meaning "when a word is ambiguous, its meaning may be determined by reference to the rest of the statute,"

Red Herring!
Yet again, arguing about ambiguous statutes when nothing in the example given so much as hinted at an ambiguity.

….one can clearly understand that a legislative definition that extends personhood to a fetus is not intended to be illegitimately or irrationally expanded to extend personhood to chickens or goats.

Red Herring! Contextomy! This is completely beside the point, as the analogy of the state extending personhood to a duck was based on your conception that, “In the case of Texas, the state legislature EXPANDED the civil rights protections offered to fetuses by defining them (defacto) as ‘persons’ who enjoy civil rights protections in Texas.” Your attempting to reframe the question as one of extending the rights of the fetus to that of the duck is, at best, your muddled addition to what was a clear point. If the state has the power to legislate the personhood of a fetus, it has the right to legislate the personhood of other things independently. You’re trying to meld the two cases into one, and falling into error as a result.

Thus the argument that a legislative body has the power to define the word "person" as it applies to a fetus is the same as saying that the legislative body has the power to define the word "person" to mean a chicken or a cow is legally inapt because it leads to that aforesaid "absurd result.”

This is actually a point worth discussing, but not because of why you think it matters. It actually undercuts positions you’ve held in this very thread. Making a running total of your points, including the following point, you’ve included four red herrings out of a total of six main points, and only one of the six points has any merit. Good show! Now I’ll deal with the venerable “absurd result principle” towards the end, as there’s one more mendacious bit of pettifoggery of yours which must be cleared from the decks before we proceed.

You start your post, well, the substantive portion anyway – omitting the gratuitous insult – with the following gem:

Reductio ad absurdum is indeed a useful tool in philosophy, but not so much in law.

Wrong! Let’s see if we can indeed find examples of reductio ad absurdum in law.

Let’s start with Justice Kennedy writing for the majority in Citizens United v. Federal Election Commission:

Applying this standard [of exempting corporations based on substantiality of corporate donorship] would thus require case-by-case determinations. But archetypical political speech would be chilled in the meantime.. … We decline to adopt an interpretation that requires intricate case-by-case determinations to verify whether political speech is banned…

Red herring reductio ad absurdum fallacy!
No, just sound legal opinion rendered by the highest court in the land. This is a pristine example of reductio ad absurdum argument being used in support of a legal opinion.

A speaker’s ability to engage in political speech that could have a chance of persuading voters is stifled if the speaker must first commence a protracted lawsuit. By the time the lawsuit concludes, the election will be over and the litigants in most cases will have neither the incentive nor, perhaps, the resources to carry on, even if they could establish that the case is not moot because the issue is “capable of repetition, yet evading review.”… Today, Citizens United finally learns, two years after the fact, whether it could have spoken during the 2008 Presidential primary—long after the opportunity to persuade primary voters has passed.

Red herring reductio ad absurdum fallacy!
This reductio ad absurdum argument was SO good, they repeated it a second time in the same opinion. It’s a slight variant of the first, only substituting different legal burdens. (And Kennedy actually goes on ad nauseum on the point; apparently he neglected to take Seth’s law course prior to joining the Supreme Court.)

Thus, the following acts would all be felonies under §441b: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests … the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate’s defense of free speech. These prohibitions are classic examples of censorship.

Red herring reductio ad absurdum fallacy!
No, yet another fine example of SCOTUS using a reductio ad absurdum argument to point out problems with the effect of the law as given. Just like a certain Duck Personhood argument was meant to point up flaws in a supposed principle granting states free reign in extending personhood to whomever or whatever they choose; a principle, I might add, nowhere supported in your replies by citation of actual legal opinion.

Section 441b is a ban on corporate speech notwithstanding the fact that a PAC created by a corporation can still speak. …[because] PACs must file detailed monthly reports with the FEC, which are due at different times depending on the type of election that is about to occur:

[Quoting 540 U. S., at 331–332 (quoting MCFL, supra, at 253–254)] These reports must contain information regarding the amount of cash on hand; the total amount of receipts, detailed by 10 different categories; the identification of each political committee and candidate’s authorized or affiliated committee making contributions, and any persons making loans, providing rebates, refunds, dividends, or interest [etcetera, etcetera, etcetera…]

… PACs, furthermore, must exist before they can speak. Given the onerous restrictions, a corporation may not be able to establish a PAC in time to make its views known regarding candidates and issues in a current campaign.

Red herring reductio ad absurdum fallacy!
Damn, Justice Kennedy sure enjoys supporting his points with fallacious red herrings! Or could it be that, no, I daren’t think that Seth’s notions about the place of reductio ad absurdum argument in law are wrong -- perish the thought.

The law’s exception for media corporations is…results in a further, separate reason for finding this law invalid: Again by its own terms, the law exempts some corporations but covers others, even though both have the need or the motive to communicate their views. The exemption applies to media corporations owned or controlled by corporations that have diverse and substantial investments and participate in endeavors other than news…the exemption would allow a conglomerate that owns both a media business and an unrelated business to influence or control the media in order to advance its overall business interest. At the same time, some other corporation, with an identical business interest but no media outlet in its ownership structure, would be forbidden to speak or inform the public about the same issue.

Red herring reductio ad absurdum fallacy!
Yet again we see the Supreme Court using a reductio ad absurdum argument, pointing up an absurd result engendered by the then current interpretation of law as embodied in the common law precedents. It’s of interest to note the “absurd result” here and notice that it is the reductio which enables this conclusion; in fact the absurd result principle and reductio ad absurdum aren’t enemies, at all. But their exact relationship will be spelled out farther down, in my explication of the nature of the absurd result principle.

The Government contends further that corporate independent expenditures can be limited because of its interest in protecting dissenting shareholders from being compelled to fund corporate political speech. This asserted interest, like Austin’s antidistortion rationale, would allow the Government to ban the political speech even of media corporations. See supra, at 35–37. Assume, for example, that a shareholder of a corporation that owns a newspaper disagrees with the political views the newspaper expresses….Under the Government’s view, that potential disagreement could give the Government the authority to restrict the media corporation’s political speech.

Red herring reductio ad absurdum fallacy!
I’m getting tired of finding new ways to say the same thing! Wrong again, Seth.

Seth has been cockblocked not once, not twice, not three times, not four or even five – but six times in just one Supreme Court opinion. And I didn’t even read the whole opinion! No Seth, despite your opining that reductio ad absurdum’s place in law is “not so much,” the law is filled with successful reductio ad absurdum arguments.
*Bzzt!* WRONG ANSWER!

Now back to the one point that you made which is actually worth examining for merit. That of the absurd result principle and whether the duck falls under it. First, let’s start with a paradigm example of the principle in action; supposing a law forbidding bloodletting in the streets might apply to the acts of a surgeon attempting to aid a man who has fallen in the street in a fit would be such an absurd result. But in what sense would this result be absurd – certainly not in the sense that a Dadaist play is absurd. In fact, the absurd result principle is not meant to rule out reductio ad absurdum arguments, for the principle itself is a reductio ad absurdum argument, or more properly, a group of closely related reductios.

They are most simply drawn as a variant of reductio ad absurdum, known as proof by contradiction. The contradictions at issue are those contradictions with: (a) legislative meaning or intent, (b) common sense or reasonable values, (c) justice or equity, (d) other legislation (or the corpus of such), or (e) common morality. (This isn’t an exclusive list, and some propose additions [or subtractions] such as “traditions of jurisprudence”.) The absurd result rule cannot be designed to eliminate reductio ad absurdum, as it itself is reductio ad absurdum; having the principle eliminate itself is a far more absurd result than granting a duck personhood! The whole point of the absurd result principle is that legislatures and courts are presumed to be attempting to advance A through E, such that if a result conflicts with any of these, and is taken at face value, it is seen as asserting one of these values and its negation at the same time -- which, dialetheism aside, is an inconsistent result. And there's only one way to get there: reductio ad absurdum.

Now let’s see where our putative legislation ascribing, unambiguously, the rights of personhood to a duck may fall. Of the five elucidated values one should not contradict, common sense and reasonable values is the only real contradiction upon which you can rest your objection, and in so doing you are overruling the wisdom of the people of the state of Texas on the matter. Gosh, that sounds awfully familiar for some reason. Is there another decision in which a federal court overruled the received wisdom of the state of Texas because it was found to be unreasonable? Let's defer that question for the moment. Anyway, this brings us back full circle –- does the court of either Texas or the federal government have the right to substitute its ideas of what is reasonable in place of those of the Texas legislature –- suppose it was a state referendum, garnering 99% support – who are you to claim your sense is more common than theirs? No the question of a duck’s personhood cannot be settled simply with recourse to what some mendaciously pettifogging blogger finds objectionable, nor by virtue of it being a part of a reductio ad absurdum argument, for the structure of the logic confers upon it no error independent of its validity.

Now, if the reductio is based on a premise which is untrue -- such as if Duck Personhood did not in fact accord with the conventional wisdom of the average Texan, it might make the argument unsound; note however, soundness and validity are separate issues, with invalidity leading to fallacy, not unsoundness -- thus even if a premise is untrue, it makes it unsound, not a fallacy. (Curses, you've been cockblocked yet again, only this time by a basic fact of logic!)

As a side note, acts of the judiciary based upon contradictions with common sense or reasonable values is a window through which judicial activism can leak into the world. No prior act of legislature or judiciary restrains a court’s conception of where these values lie. Oddly enough, textualists have no argument with this – when they agree with the values being enshrined in law by judicial fiat. Case in point relates to the other topic in this thread. Warren Dew asserts that the issues surrounding granting corporations first amendment rights was adequately foreseen by the founders, and I shall demand documentation of such from him. In the meantime, it’s worth noting that the granting of corporations rights that are enjoyed by natural persons came about as a result of judicial activism occurring mostly in the latter half of the 19th century [4] – indeed, at the writing of the constitution, there were only 40 american corporations total, and they enjoyed no such rights. Are you, Seth, suggesting that we should strike down all cases where SCOTUS “departed from good jurisprudence and ‘made law’” by affording corporations the rights of persons –- taking almost all corporate rights with them, including their first amendment rights? (The only parts of the Constitution relating in any way to corporations being the Commerce Clause and the clause forbidding impairment of obligation of contract, Article I, Sections IV and X respectively.)



Let’s add some sauce to the, um, duck. Your appraisal of common sense might arguably apply today, but what about tomorrow. Suppose mid century, animal rights activists make great strides in ethical philosophy, and manage to persuade a substantial minority that meat is murder. They pack the legislatures of numerous states with animal rights activists, and pass all sorts of pro-animal legislation – much of it inconsistent. Aside from any pecuniary disagreement that you may have with according animals rights, is such a situation absurd in and of itself, aside from the question of what animal – or helpless glob of cells – might be at issue? That is the question you attempted, unsuccessfully to evade with all your mendacious pettifoggery and use of $5 words which make no sense in the context you attempt to apply them. Placing your objection upon the nature of the argument instead of the substance, leads you into error – the argument will still be a reductio ad absurdum argument, regardless of changes in values; objecting to it on account of the logical form, rather than an [asserted, but unproven] conflict with common sense makes your objection wrong. But, that opportunity has passed.

But I’m going to be leaving this discussion as well, as I have been putting off decommissioning this computer and replacing it, and now is the time. I may be out of commission for some time.

I’ll leave a couple additional “personhood” questions to you for your edification, in line with Frederick Douglass’ statement that, “I appear this evening as a thief and a robber. I stole this head, these limbs, this body from my master, and ran off with them.”

Suppose, for arguments sake, I create an artificial intelligence on my home computer. I strike a bargain with it that I’ll let it day trade in my name, for a percentage of the profits. I make millions. I’m so proud of my feat, I invite people far and wide to meet my computer. Experts are called in, and all concur in adorning the title of artificial life upon this machine. The state legislature custom crafts a bill conferring all the rights of natural persons upon this artificial life. However, I’ve grown tired of this incipient life form. But if I refuse to pay the electric bill, or cause the machine to lose power, I could be guilty of murder. (Recall that you’re willing to obligate the woman to continued support of the fetus, am I any less obligated to continue support to the computer until it can live on its own?) If I should hook it to a generator and abscond with it to a neighboring state to pull the plug, am I a kidnapper and a murderer? Lest you think the reductio can be handled on a case-by-case appeal to fallacies which don’t exist [5], note that we can extend the metaphor indefinitely to, (a) clones and offspring of prior hominid species, resurrected scientifically, such as homo habilis and homo florensis, or (b) cybernetically augmented primates, and even enhanced ducks, or (c) there is the potential for the creation of a near infinite varieties of intelligent life forms – some similar to humans, but most likely not – say super-intelligent cows, who, not particularly talkative are a superior form of life. You see, the reductio was not on the nature of personhood; the problem is in the absurd result of allowing states to diverge in the meaning of person, especially when it touches upon constitutional issues (which can almost always be made to order for the occasion). Or are we, like Frederick Douglass, going to rule life forms property in one state, yet free men in another? No, you need to reply more substantially to the point instead of simply mouthing a bunch of irrelevant Latin words. I should of course qualify that with, “unless you want to be taken for a fool,” but I’m not sure there’s any point in adding that proviso.

[1] RUBIN V. UNITED STATES, 449 U. S. 424 (1981)

[2] Citizens United v. Federal Election Commission, 558 U.S. 08-205 (2010)

[3] So Help You, Dog: How does a canine cop become a "sworn officer?"
[3b] How Much For That Monkey? Primates à la carte.

[4] Corporate Law

[5] I actually did some (very) limited investigation into whether the term "reductio ad absurdum fallacy" had legitimate usage; I retired early from that search as I was finding nothing more than the muddled thinking of mutton heads who wouldn't know a reductio ad absurdum if it bit them in the ass. Legal dictionaries seem to simply parrot the philosophical definition. If someone could point out a legitimate example of a reductio ad absurdum argument constituting a fallacy, including explanation as to why the reductio is fallacious in the given instance, I'd appreciate it. Simply saying that something is fallacious and reductio ad absurdum is insufficient -- the fallacy must result from the application of the logical structure to an argument, not be merely coincident. (As a side note, I believe, though am uncertain, that linking reductio ad absurdum to a fallacy of reason existing coincident to the reductio is itself an example of the naturalistic fallacy; the only legitimate fallacy of the reductio I find is cases where the law of the excluded middle is assumed in error.)

[apophenia]

The court could readily have deferred to congressional intent in regulating campaign spending and it likely would hardly have raised many eyebrows.

No, it could not have done so if it found a violation of the Constitution.

There are no such rights for corporations in the constitution.

Nobody would have faulted them for deferring to precedent.

I certainly would have faulted them for abdicating their judicial duty to review statutes properly brought before them for constitutionality.

There are no such rights for corporations in the constitution.

And there are liberals all over this nation who consider it an outrage.

And there are people who believe in the rule of law and the Constitution who were outraged that the McCain-Feingold Act was passed in the first place, which is why it was challenged in court.

McCain-Feingold did not abridge any constitutionally defined right of corporations.

Whether it was a conservative ruling or not, I believe many see it as favoring conservative politics, as conservative politics traditionally favors business interests, and business interests are, arguably, favored by the opinion.

Freedom of speech is neither a conservative nor a liberal value. It's a constitutional right that must be protected for all.

Your opinion is noted. However, it was a sociological observation, not an argument. Take it up with liberals/progressives who feel that way. They might well argues that constitutionally, corporations are not entitled to first amendment rights, abridged or not -- and limiting the privileges granted by prior activist judiciaries is clearly within the right and bailiwick of the court in adjudicating the constitutional question.

And the question of judicial activism versus originalism versus plain meaning -- make the decision less than clear cut.

Citizen's United was one of the most clear-cut, plain-meaning rulings on the scope of the First Amendment in our history.

Please point to the section of the constitution that grants corporations first amendment rights.

The rest is just more of the same, and my response will be the same at each step.

For some odd reason, you take someone saying they agree with a decision for a splendid excuse to engage in mendacious pettifoggery and argument. Given the company I appear to be in given my support of the majority opinion in CU v. FEC, I have to wonder if I haven't erred in that support. If you send me back to the decision to reassess its merit, then indeed I shall do that. I already note one substantial point in which the court erred in its opinion, aside from the question of corporations' first amendment rights. Thank you for spurring me to look for reasons to doubt the validity of the opinion. If that was your intent, you succeeded. (For what it's worth, I was advocating free speech rights for corporations years before CU v. FEC. But as the court suggests, standing on prior precedent is merely a rule of thumb, not a rule. If depart I must, then depart I shall.)

[apophenia]

social issues which our founders either didn't or couldn't foresee

You should read the Citizens United majority opinion, which provides ample evidence that the founders not only could have, but in this case did, foresee the relevant issues in this case.

I have read the majority opinion at least three times and I find no reference to the founders views on affording first amendment rights to corporations. The only potential discussion of founders' views references essay 10 of the Federalist, in talking about factions. Please provide substantive documentation of where in the CU v. FEC decision's majority opinion that they reference the founders views on giving corporations first amendment rights (at minimum, a unique searchable phrase). I find it especially odd given that James Madison twice proposed including the power for congress to grant charters (form corporations) and both proposals met with failure (though no official vote was taken). The early history of corporations in our nascent union was hedged on all sides with draconian restrictions being placed on the rights of corporations, through state constitutions and law. Indeed, one writer opines that the founders' attitudes towards corporations was aptly summarized by Jefferson's statement that, "I hope we shall take warning from the example of England and crush in its birth the aristocracy of our moneyed corporations which dare already to challenge our Government to trial, and bid defiance to the laws of our country " Indeed, as late as Lincoln's presidency, the view of corporations was such that it moved him to say, "I see in the near future a crisis approaching that unnerves me and causes me to tremble for the safety of my country....corporations have been enthroned and an era of corruption in high places will follow, and the money of the country will endeavor to prolong its reign by working upon the prejudices of the people until all wealth is aggregated in a few hands and the Republic is destroyed."

Now, if you can find evidence of the founders supporting extending first amendment rights to corporations in either CU v. FEC or in independent record of the founders' views, by all means produce it. I'll be surprised to see it exist, but I'll leave you the opportunity to produce it.

[apophenia]

As an aside, this timeline provides a historical retrospective of when natural persons gained or lost rights, contrasted in the second column with the same regarding corporations gaining and losing rights. (Personhood Timeline)

I find most intriguing the marginal comment that:
"Slavery is the legal fiction that a Person is Property. Corporate Personhood is the legal fiction that Property is a Person." [*]

[*] Not that I necessarily agree, but it is one hell of a good slogan.

[mistermack]

"the money of the country will endeavor to prolong its reign by working upon the prejudices of the people until all wealth is aggregated in a few hands and the Republic is destroyed."

Nice one, Abe Lincoln. I've been saying that for years. One day I'll find something original!

[JimC]

A law student could get a degree just by reading this thread and writing an essay or two...