Benefit of the Doubt
A couple of days ago, I linked to a Mother Jones piece about Virginia’s Attorney General and GOP gubernatorial candidate Ken Cuccinelli on a 4th Circuit case involving a sodomy law that the 4th Circuit Court of Appeals deemed unconstitutional.
One of my former students responded thoughtfully about the particulars of the case, which are at least somewhat elided in the Mother Jones piece and in my own post on the matter.
One might read the piece and get the sense that Cuccinelli is acting in a completely unreasonable manner, defending a law that criminalizes sodomy between consenting adults. In fact, though, the case before the Court involves a 47 year old man and a 17 year old girl.
It’s a bit more confusing than all of that, of course, but the fact remains that Cuccinelli isn’t acting unreasonably at all in seeking to preserve the convinction or registration as a sex offender of someone who has three times been convicted of engaging in or attempting to engage in sex acts with minors.
The trouble is that Cuccinelli is seeking to do it by defending a law that is unconstitutional. At issue is whether or not Virginia’s anti-sodomy law could be preserved in cases involving an adult and a minor (since, based on Lawrence v. Texas we know it cannot be preserved in cases involving consenting adults). The Court ruled that it could not because Virginia’s law makes no distinction between minors and adults; it simply issues a blanket ban on sodomy.
Cuccinelli is appealing that decision, attempting to sever and preserve improper sexual behavior with a minor from the unconstitutional blanket ban on that behavior as written in the law. I think it’s wrong-headed, but it’s not an unreasonable thing for an Attorney General to do. Nor is obviously homophobic or hypocritical or whatever else I might have intimated in my post.
I ought to have given Ken Cuccinelli the benefit of the doubt but my opinion of him, especially on this particular question, was already muddied by other things that I know about him. This long quote from a recent ThinkProgress piece by Josh Israel outlines a bit of the history:
In 2003, the U.S. Supreme Court’s Lawrence v. Texas ruling held that states may not ban private non-commercial sex between consenting adults. Virginia’s Crimes Against Nature statute, which made oral sex (even between consenting married couples) a felony, was clearly the sort of legislation the Court was referencing.
A year later, a bipartisan group in the Virginia Senate backed a bill that would have fixed the state’s Crimes Against Nature law to comply with Lawrence — eliminating provisions dealing with consenting adults in private and leaving in place provisions relating to prostitution, public sex, and those other than consenting adults. Cuccinelli opposed the bill in committee and helped kill it on the Senate floor. In 2009, he told a newspaper that he supported restrictions on the sexual behavior of consenting adults: “My view is that homosexual acts, not homosexuality, but homosexual acts are wrong. They’re intrinsically wrong. And I think in a natural law based country it’s appropriate to have policies that reflect that. … They don’t comport with natural law.” As a result, the law’s text remains unchanged a decade after the Supreme Court’s ruling.
While the state could have brought misdemeanor charges under other statutory rape laws, the prosecution instead utilized the felony provisions of the Crimes Against Nature law. Because its provisions were never updated to comply with the constitutional privacy protections, the appeals court ruling determined that the law itself is unconstitutional. Even if Cuccinelli wins, the cost in time and money to Virginia will be huge — and could have been entirely avoided had he and the Republican majority in the Virginia General Assembly not been so determined to ignore the Supreme Court.
With this knowledge of Cuccinelli’s opinions, I did less of the hard work of explaining as much of the case as I could as well as I could and instead took the easier road of simply jumping right to a conclusion that might not be supported by the particulars of this case (even if I think they are supported by the reason for the way the case has turned out).
In doing so, I surely took readers down a shorter path with fewer details and that’s not what I’m trying to do here on the blog.
Even though I sometimes make fun of some of my Facebook friends, bringing their comments over here to push some broader point of mine about guns or the death penalty or politics more broadly, I’m encouraged today to see all of the status updates and photos in favor of same-sex marriage. My entire Facebook feed has been filled with them all day.
And, certainly more impressive, I haven’t seen a single hateful, angry, or negative comment. I’m sure there’s plenty of it out there, but not from my Facebook friends. Whatever our differences on some matters of public policy, it’s telling that everyone I know seems to have a positive or neutral opinion when it comes to same-sex marriage.
So … now I just need to change everyone’s minds about everything else.
The problem with Peter Singer’s account is not only that a lot of people would consider it to be monstrous but also that it’s based on what I take to be an unsupportable distinction.
At what point, one might justifiably wonder, does a fetus gain a right to life: conception, viability, birth, or some other time? Famously, Peter Singer has argued “that since no fetus is a person no fetus has the same claim to life as a person” (Writings on an Ethical Life, 160). On this point, he and I are in agreement: fetuses are not self-conscious, cannot engage in self-creation, and are not bearers of dignity.
But Singer goes much farther: “Now it must be admitted that these arguments apply to the newborn baby as much as to the fetus. A week-old baby is not a rational and self-conscious being, and there are many nonhuman animals whose rationality, self-consciousness, awareness, capacity to feel, and so on, exceed that of a human baby a week or a month old. If the fetus does not have the same claim to life as a person, it appears that the newborn baby does not either” (Ibid.). The reason, on my reading, that Singer goes too far with his suggestion about the permissibility of infanticide is that he puts too much weight on the psychological aspect of the human mind and not enough on the biological.
It might well be the case that we who are persons do not have strong psychological connections to the infants we were, but – as yet – we aren’t certain. We know, however, that healthy infants’ brains display organized cortical brain activity (OCBA) and, David Boonin argues, we can measure both the beginning and ending of this “electrical activity in the cerebral cortex of the sort that produces recognizable EEG readings” (A Defense of Abortion, 115).Given that, Boonin’s argument for using OCBA as the standard by which to judge whether a fetus is a person makes a good deal of sense. If OCBA is not present, we would be hard pressed to make a case for the self-creative feature of the human mind about which I’ve already said so much. For the cerebral cortex must be working in a organized manner before anyone can claim that the brain has created the sense of self that is the key feature of personhood.
If we are drawing lines – and with questions of birth and death it often appears that we must – then the line should be drawn at the earliest stage possible. With regard to self-consciousness and dignity, it seems to me that Boonin’s line allows much less room for error than Singer’s. Although it might very well be the case that selfhood (as we understand it) begins in infancy – and with it, dignity and personhood – Boonin suggests that we draw the line at the 25th week of pregnancy; the reason is that there is “ample evidence to suggest that [OCBA begins] to occur sometime between the 25th and 32nd week” (Ibid.).
We might push the line back a bit, however, and adopt an even more conservative estimate about OCBA by drawing the line at 20 weeks; as Boonin concedes, “Burgess and Tawia identify 20 weeks of gestation as ‘the most conservative location we could plausibly advocate’ as the beginning of what they call ‘cortical birth,’ because it is at this point that ‘the first “puddle” of cortical electrical activity’ of an ‘extremely rudimentary nature’ begins to appear in brief spurts” (128). Adopting this position – rather than Singer’s – would be to argue for a fetal right to life at the 20th week of pregnancy (the earliest time at which it is possible for OCBA to occur) and, of course, to prohibit things like infanticide.
This is, of course, a somewhat radical position, as it suggests that the ruling in Roe v. Wade – already controversial enough – needs to be reconsidered in favor of limiting some abortions. While many would argue that redrawing this line is wildly problematic, those who would most feel the effect of doing so are those who suggest that fetuses are persons with rights from the moment of conception, for Boonin notes that “even if we push back the gray area from 25 weeks to 20 weeks, it will still turn out that 99 percent of abortions take place before the fetus acquires a right to life” (Ibid.). In the end, tying the permissibility of abortion to the absence of organized cortical brain activity seems to have a limited effect on public policy and squares a difficult issue with the nonreligious understanding of personhood I advance in my book.
Since when do people think they have an inalienable human right to be vigilantes?
I understand that people want to feel safe and believe that having a gun in the home will enable them to defend themselves. And I understand that acting in one’s self-defense is a legitimate legal defense. But using the language of self-defense to defend oneself in the (rare) case of shooting an assailant is not the same thing as asserting a human right to defend oneself.
To be sure, if we read a foundational text like John Locke’s Second Treatise of Government, we find a natural right to punish anyone who would harm us in our life, liberty, health, or possessions. In the state of nature, Locke tells us, each person is effectively judge, jury, and executioner unto herself. And, of course, it’s precisely the problem of a lack of independent judgment in the state of nature that leads people to join together to form a political community.
But for people to establish a political community, Locke asserts that people must give up to the government their natural right to punish criminal behavior and agree to have the government settle grievances. This is why we have standing laws that are meant to be applied equally by independent officers of the law and by the courts.
So, again, where is all of this talk of self-defense and vigilantism coming from?
With all of the discussion yesterday (and in the past few weeks) about the Second Amendment and the Founders’ intentions, I thought it might be worth considering whether it’s really so clear that the Founders wrote up the Second Amendment as a bulwark against the tyranny of the government they’d just created.
In an earlier post about gun control, I said that I wasn’t particularly interested in hearing from people who think the Second Amendment is designed to protect us from governmental tyranny (because I’d heard all about it already and don’t find the logic particularly compelling). I repeated this in my reply to critics yesterday but I might also have discussed why I don’t think it’s compelling to believe that the Second Amendment enshrines some sort of right to armed insurrection.
Most people, most of the time, focus on one part of the Second Amendment:
“The right of the people … shall not be infringed.”
This leads people to believe that the only thing that matters is the right of the people to keep and bear arms, which leads to the notion that the Founders feared nothing so much as a government that wasn’t itself perpetually afraid of the weapons to which the citizens were constitutionally entitled.
But there are alternative explanations, which stem from reading the whole Second Amendment (rather than just the nice part that talks about possessing weapons) and they cast the Second Amendment in a very different light.
If you read any of the news about Hobby Lobby and its fight against (some forms of) contraception, you won’t be able to avoid being stunned by the complete and utter nonsense of the claims that are being made by the company’s owners.
They don’t object to including contraception in their health plan, but they object to including the morning-after pill (which is generally understood to be emergency contraception but which they have decided for themselves is actually an abortion-inducing drug):
“All they’re asking for is a narrow exemption from the law that says they don’t have to provide drugs they believe cause abortions,” Hobby Lobby attorney Kyle Duncan, a general counsel for the Becket Fund for Religious Liberty, told CNN affiliate KFOR in November. “Our basic point is the government can’t put a corporation in the position of choosing between its faith and following the law.”
The Supreme Court has rejected their request for an injunction while their lawsuit is pending, as they’re seeking a religious exemption but are not a religious organization. And so they say they’re prepared to pay fines of more than a million dollars a day after January 1 as they await the results of their lawsuit.
Here’s a handy chart with the stark differences between an emergency contraception pill and an abortion-inducing pill.
The bottom line is this: If you own a company and don’t understand how women’s bodies work, you might end up having to pay a million dollars a day to remain faithful to your understanding of what contraception means.
My friend Jeff Miller has written an interesting response to my post about taxation and the individual mandate.
The crux of his argument is that I’m wrong when I agree with Chief Justice Roberts that the individual mandate’s tax/penalty is well within the federal government’s taxing authority:
Justice Roberts’ decision has, in fact, expanded the taxing power of the United States, and it does so in a way that ought to us feel uncomfortable. Even if you agree with the decision, it is not accurate to characterize this decision as ordinary.
My sense is that we’re probably at loggerheads here.
I think that the majority opinion is convincing in its interpretation of the Constitution. Miller disagrees. I’m eventually going to swtich from the example of the child tax credit that I used in my original post to illustrate why I think Roberts’ decision works but for now we’ll stick with the example of having children.
Here’s how I summed it up in my first blog post on the topic:
I have a child; I get a credit and thus pay less. You choose not to have a child; you don’t get a credit and thus pay more. Your inactivity results in a higher tax burden. Just like the inactivity with regard to purchasing health care.
For Miller, I’m mixing things up:
For Ari, the following two laws are the same:
1. You are required by law to have children, and will be subject to a financial penalty if you fail to do so.
2. You may take a credit against the income taxes you owe if you have children.
There is a very real difference in these laws, of course. Under one of them, failure to have children is a credit against taxes owed based upon one’s income. Under the other, you have to pay a penalty for failing to have children regardless of your income.
The first law is the new sort that Roberts’ decision has created, according to Miller, whereas the second law is the one that has existed for some time. This is the one that Roberts thinks corresponds to the mandate’s tax/penalty.
Having now read the decision a second time, I remain convinced that Roberts understands what he’s doing in the ACA opinion. Under Roberts’ understanding of the taxing power, the first law could be found constitutional. If Congress really wants to encourage having children, legislators could pass a law that assigns a tax/penalty for those who voluntarily elect not to have a child. A law like this would be massively unpopular, and I think it’s likely that all of the Justices would oppose it.
But whether or not absolutely everyone opposes it doesn’t actually speak to its constitutionality. And this is precisely what Roberts writes in his opinion: “Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.”
Health Care: Tax vs. Penalty
From Ezra Klein:
Here, via the Kaiser Family Foundation, is how the individual mandate works if we call it a tax: “Those without coverage pay a tax penalty of the greater of $695 per year up to a maximum of three times that amount ($2,085) per family or 2.5% of household income…Exemptions will be granted for financial hardship, religious objections, American Indians, those without coverage for less than three months, undocumented immigrants, incarcerated individuals, those for whom the lowest cost plan option exceeds 8% of an individual’s income, and those with incomes below the tax filing threshold.”
And here is how the individual mandate works if we call it a penalty: “Those without coverage pay a tax penalty of the greater of $695 per year up to a maximum of three times that amount ($2,085) per family or 2.5% of household income…Exemptions will be granted for financial hardship, religious objections, American Indians, those without coverage for less than three months, undocumented immigrants, incarcerated individuals, those for whom the lowest cost plan option exceeds 8% of an individual’s income, and those with incomes below the tax filing threshold.”
As you might have noticed, there’s no difference between the description of the mandate in those two paragraphs. That’s not because I’ve made some disastrous copy-and-paste error. It’s because the individual mandate works the exact same way whether you call it a tax or a penalty.
Politically, it isn’t going to matter if you call it a tax or a penalty because the populace doesn’t like either one of those things. Of course, politicians don’t like to use the word “tax” when they’re trying to get elected … but there’s nothing inherently problematic about a goverment taxing the citizenry, penalizing them for behavior the government wants to curtail, or rewarding them for behavior the government wants to encourage.