As to your first point, I should have been clearer. When I said that the courts can “create rights out of thin air” I should have said “positive rights.” Having clarified that, I think, takes care of the first paragraph.
As to the second point, centralizing power – and the right to privacy – are both things that I think can be argued on prudential grounds increase statism.
For one, I don’t think it will do it all to merely say of the difference between state and federal tyranny that “It depends.” This appears to imply that the burden is equal. However, I think it clearly is not. Even the same policies that have been enacted on the federal level were enacted on the state level, the federal level’s actions would be, ceteris paribus, more tyrannical if they are tyrannical. However, if they are liberating, it does not immediately follow that they are ceteris paribus more liberating – as the general effects of centralizing power are dangerous – whereas the general effects – the ceteris paribus effects – of devolving powers – is liberating. I can’t imagine you’d disagree – but perhaps you will.
To make your case you’d have to show that historically larger levels of government have not only been as libertarian as more provincial ones, but that they have been more so – and I hardly think that stands to reason.
As far as privacy law goes, it is a bit of a harder case – but I suppose it is my view that the creation of privacy law gives governments license to do a variety of further things that violate rights – not to mention violating the rights of individuals to collect information on their own. Not having privacy law is not inherently rights violating at least not in most of the cases of law on the books. To be fair though, some privacy law is justified – so long as it is coextensive with private property rights.
My impression from my libertarian lawyer roommate is that the large majority of it is not – and instead extends government’s grasp over private interactions. That’s my concern about the “right to privacy” as such.
But there is a further concern: the precedence set by allowing the Supreme Court to make up positive rights – the danger I originally cited. I can’t imagine that Roe hasn’t made it easier for a potential future court to find a “right to healthcare” in the constitution.
But thanks for your thoughtful response.
]]>The reasons I say that Roe is out of the Supreme Court’s jurisdiction are:
1) The Court is a tax-sponsored body, appointed by the president,i.e., it is part of the state structure, and therefore doesn’t have legitimate power over anything.
2) Even if we set that aside for the moment and assume that it is a legitimate body, it is governed by the U.S. Constitution, which, read narrowly, gives it no jurisdiction over the state governments in the vast majority of cases. According to normal readings, abortion would not appear to be an exception.
3) It is, as you say, strategically very dangerous to vest the Supreme Court with the authority necessary for them to make this kind of decision.
I hadn’t realized that your argument was based specifically around the 13th amendment. Most people, as far as I can tell, assume that where it says “slavery nor involuntary servitude”, that it is talking about a fairly specific sort of human interaction, i.e. chattel slavery. I can see where it could be construed to apply to abortion, but, then, it could also be construed to apply to just about any rights violation. This would (in addition to federalizing all criminal law) enact more or less the entire libertarian program in one fell swoop. This would not be a bad thing, but it would make it impossible for the Supreme Court to continue to function. This is a valid way of understanding the texts, but it means that, insofar as the ruling in Roe is good, SC rulings are irrelevant.
As for the 14th amendment, frankly, I have no idea what it is supposed to mean, so I generally try to ignore it.
With regard to the strategic issue, let me pose this hypothetical question. Suppose that, tomorrow, Kofi Annan declares medical marijuana to be legal in the United States, and the decree is enforced. Would you consider this to be a good thing or a bad thing?
]]>The genetic lottery you are refer to has a few billion years of natural selection behind it and it has protected the species from countless diseases and natural disasters. Even though most instances of extreme variation and mutation do not end up being very important, they do wind up being very important in the overall dynamic of the species.
That is why I am concerned about your statement to �eliminate disease or to increase health from the current socially-accepted baseline.� People are prone to start calling the below average height, IQ, and musculature �diseases� and traits of �substandard health� and then proceeding to self-select. Well so what? What is wrong with is idea is that it will remove the natural diversity and replace it with a human construction of which we will have little understanding of the long term impact without carrying out experiments on small samples of the human population as the Nazi’s did.
]]>The idea that it is better to allow the make-up of a child to be determined by genetic lottery rather than rational choice is simply indefensible (when germline gene technology is safe and effective). Although the bearer of a fetus should have sovereign authority over what happens to it, the providers of enhancement technology can and should be regulated. You can get an abortion, but that doesn’t mean the doctor can use a piece of barb wire: she must conform to thorough medical practices and legal regulations. Same goes for germline enhancement technology.
“The power to determine the genes of a human being is an immense one, and there should be some kind social regulation.”
I concur. And when the technology is available, to deny someone the means to eliminate disease or to increase health from the current socially-accepted baseline would be immoral.
]]>If parents get the freedom to select for traits in their offspring, how exactly are parents going to be made responsible choices they make?
The power to determine the genes of a human being is an immense one, and there should be some kind social regulation.
This is already happening. In China and India, female fetuses are aborted at a much higher ratio, and this is changing the natural gender balance.
]]>The salient question, and the concern of many well-meanig detractors of these technologies, is whether children will be treated more as a commodity and less as people. Look at how anybody reacts to a baby. Once it is born, even if it has terrible mental/physical defects, the psychological architecture of H. sapiens kicks in and makes parents love their children unconditionally. I submit that they could only be more proud of children that come closer to their hopes and desires in having kids.
]]>If it is correct that a woman has the right to terminate her pregnancy at will, she will also have the right to choose what kind offspring she wants to have.
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The kind of uberliberal abortion policies Charlie is arguing for would be the first step in legalizing eugenics.
It’s certainly true that choosing to have an abortion for reasons of so-called voluntary eugenics should be legal. Indeed, it already is under the provisions of Roe. If a woman has the right to control her own internal organs, then she has the right to do so out of the desire to see certain genotypes propagated and others suppressed.
That doesn’t mean, however, that the sort of choices encouraged by neo-eugenics shouldn’t be considered creepy, selfish, foolish, manipulative, and many other things besides. It only means that no-one has the right to pick up a gun and make you avoid those sorts of follies. Having a right to do X for any reason is not the same thing as having a guarantee that all your reasons are good ones.
Indeed, most of the people that the eugenicists have tried to exhort throughout history have seen quite well what perfect asses the eugenicists are. This is why “voluntary eugenics” has so often taken a back seat to anti-choice atrocities such as forced sterilization or involuntary euthenasia on the eugenicists’ cultural and political programme. Which should not, in the end, be too surprising; not because voluntary eugenics (foolish though it may be) necessarily entails coercive eugenics (it doesn’t), but rather because the sort of reasoning that supports voluntary eugenics is usually a bunch of mystical, scientistic, pseudo-biological, racist, collectivist humbug, and people who are prone to reasoning in that way are also prone to throwing such minor concerns as freedom from slavery to the wind.
]]>She could use genetic testing, and then end the pregnancy if she didn’t want to have a child with that genetic profile.
The kind of uberliberal abortion policies Charlie is arguing for would be the first step in legalizing eugenics.
I am not saying that this is wrong or right. I am saying that it is true. And that if it is correct that women have the right to terminate their pregnancies, then it is correct that they have the right to select the traits of their children.
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