![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.).[1] 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.
[1] This does, however, affect that notion – drawn from the ruling in Planned Parenthood of Pennsylvania v. Casey – that viability is an important moment to consider in the life of a fetus. As William Cooney suggests – in “The Fallacy of All Person-Denying Arguments for Abortion,” 8 Journal of Applied Philosophy 2 (1991) – it is not: “Does a 5-month-old fetus then become a person when that stage of technology exists? Can personhood be a condition relative to and dependent on technology?” (161). If technology were to allow for earlier viability, this would not change the facts about personhood because a viable pre-OCBA fetus lacks a sense of self and, consequently, dignity and rights.](http://25.media.tumblr.com/33b7359f79f1179d0f9fa678e8d3030c/tumblr_mjwuk17nM61qzy2emo1_500.png)
![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.
[[MORE]]
Here’s Saul Cornell, who holds an endowed chair in American History at Fordham University:
In 1776, most of the original state constitutions did not even include an arms-bearing provision. The few states that did usually also included a clause protecting the right not to bear arms. Why? Because, in contrast to other cherished rights such as freedom of speech or religion, the state could not compel you to speak or pray. It could force you to bear arms.
The founders had a simple reason for curbing this right: Quakers and other religious pacifists were opposed to bearing arms, and wished to be exempt from an obligation that could be made incumbent on all male citizens at the time.
When the Second Amendment is discussed today, we tend to think of those “militias” as just a bunch of ordinary guys with guns, empowering themselves to resist authority when and if necessary. Nothing could be further from the founders’ vision.
Militias were tightly controlled organizations legally defined and regulated by the individual colonies before the Revolution and, after independence, by the individual states. Militia laws ran on for pages and were some of the lengthiest pieces of legislation in the statute books. States kept track of who had guns, had the right to inspect them in private homes and could fine citizens for failing to report to a muster.
Also important to consider is the fact that taking up arms against the government is specifically considered treason in Article 3, Section 3 of the Constitution:
The founders had a word for a bunch of farmers marching with guns without government sanction: a mob. One of the reasons we have a Constitution is the founders were worried about the danger posed by individuals acting like a militia without legal authority. This was precisely what happened during Shays’ Rebellion, an insurrection in western Massachusetts that persuaded many Americans that we needed a stronger central government to avert anarchy.
Many people think that we have the Second Amendment so that we can take up arms against the government if it overreaches its authority. If that interpretation were correct, it would mean that the Second Amendment had repealed the Constitution’s treason clause, which defines this crime as taking up arms against the government. In reality, in the first decade after the Constitution, the government put down several rebellions similar to Shays - and nobody claimed that they were merely asserting their Second Amendment rights.
So what happened?
In 2008, a closely divided Supreme Court abandoned more than 70 years of precedent and for the first time in American history affirmed that the Second Amendment is about a right to have a handgun in the home for self-defense. Lost in most of the commentary then and now is that this is almost the exactly opposite of what James Madison, the primary architect of the amendment, intended, and is hard to reconcile with the way most ordinary Americans would have read it in 1791.
There’s also little chestnut, from Thom Hartmann:
The real reason the Second Amendment was ratified, and why it says “State” instead of “Country” (the Framers knew the difference - see the 10th Amendment), was to preserve the slave patrol militias in the southern states, which was necessary to get Virginia’s vote ….
[…]
At the ratifying convention in Virginia in 1788, [Patrick] Henry laid it out:
“Let me here call your attention to that part [Article 1, Section 8 of the proposed Constitution] which gives the Congress power to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States… .
“By this, sir, you see that their control over our last and best defence is unlimited. If they neglect or refuse to discipline or arm our militia, they will be useless: the states can do neither … this power being exclusively given to Congress. The power of appointing officers over men not disciplined or armed is ridiculous; so that this pretended little remains of power left to the states may, at the pleasure of Congress, be rendered nugatory.”
George Mason expressed a similar fear:
“The militia may be here destroyed by that method which has been practised in other parts of the world before; that is, by rendering them useless, by disarming them. Under various pretences, Congress may neglect to provide for arming and disciplining the militia; and the state governments cannot do it, for Congress has an exclusive right to arm them [under this proposed Constitution] … “
Henry then bluntly laid it out:
“If the country be invaded, a state may go to war, but cannot suppress [slave] insurrections [under this new Constitution]. If there should happen an insurrection of slaves, the country cannot be said to be invaded. They cannot, therefore, suppress it without the interposition of Congress … . Congress, and Congress only [under this new Constitution], can call forth the militia.”
And why was that such a concern for Patrick Henry?
“In this state,” he said, “there are two hundred and thirty-six thousand blacks, and there are many in several other states. But there are few or none in the Northern States… . May Congress not say, that every black man must fight? Did we not see a little of this last war? We were not so hard pushed as to make emancipation general; but acts of Assembly passed that every slave who would go to the army should be free.”
Patrick Henry was also convinced that the power over the various state militias given the federal government in the new Constitution could be used to strip the slave states of their slave-patrol militias. He knew the majority attitude in the North opposed slavery, and he worried they’d use the Constitution to free the South’s slaves (a process then called “Manumission”).
[…]
[Madison’s] first draft for what became the Second Amendment had said: “The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country [emphasis mine]: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.”
But Henry, Mason and others wanted southern states to preserve their slave-patrol militias independent of the federal government. So Madison changed the word “country” to the word “state,” and redrafted the Second Amendment into today’s form.
HT: Brandon Locke.](http://25.media.tumblr.com/71e86be530c6c6d4a5afe0205ae53b58/tumblr_mgsplcljN61qzy2emo1_500.jpg)
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.