Sunday, January 23, 2005

Roe v. Wade

Yesterday was the 32nd anniversay of the Supreme Court's decision in Roe v. Wade. Roe was a great libertarian decision, but unfortunately inconsistent with the Supreme Court's other decisions which, since the 1930s, have generally held that both states and the federal government have the power to make any law they want.

It's too bad that liberals only praise libertarian principles with respect to matters about sex. Another great libertarian Supreme Court decision, Lochner v. New York, is today viewed as an example of bad jurisprudence.


The Law Fairy said...

Just to be provocative:

How does your praise for Lochner square with your endorsement of a tax on breast implants? Lochner is a big freedom of contract (FOK) decision, whereas a tax on breast augmentation imposes a burden on FOK. For a small class of people, it eliminates choice: those who can afford the surgery without the tax but cannot afford it with the tax have had choice completely eliminated. For others, the opportunity cost of the surgery has risen, effectively altering their incentives; FOK is thus burdened for them as well, as the decision is not made under wholly uncoercive circumstances.

In addition, it seems to me the same rationale for limiting FOK applies equally in both instances. If workers are allowed to opt for more hours, those who don't are at a comparative disadvantage (not just an objective disadvantage, in that less hours worked = less money earned) because they're not seen as dedicated, hard workers. This is a common problem in the workplace for people who must choose between having a life/raising a family etc. and putting in longer hours at the office. It's the same as the breast augmentation problem -- getting bigger breasts puts smaller-breasted women at a comparative disadvantage, because not only are their breasts smaller, but they are even more smaller (that sounds grammatically wrong somehow) in comparison to their augmented peers', and the comparison is more stark as a larger number of women have larger breasts, putting smaller-breasted women further in the minority. So to support Lochner and to advocate a breast-implant tax seems to me a contradictory position.

Tom said...

With every post you look more and more like the Hot Abercrombie Troll, but what the hell I'll bite anyway.

The problem is that both decisions are bad law. The idea of judges moving outside the law is seductive when it involves creating new rights. It can be equally seductive when it comes to finding new avenues for protecting recognized rights or applying guarantees against federal action to actino by states. The problem is that when judges are not constrained by the actual law, there is nothing to require them to protect the rights which are protected by it. It's judges plus the law which protect us from a tyranny of the majority; without the law there is nothing to protect us from that or from a tyranny of judges.

Scott said...

The difference, as I see it, is that Libertarian Girl believes that the “breast size” market is merely one of competition for scarce resources, not competition to be the better producer. That is to say, in the Lochner decision, there were beneficiaries from the bakers being allowed to work as much as they want: their customers. Whereas, in the breast-size market, there are no beneficiaries as she sees it, because Libertarian Girl believes that there is no absolute value to breast size, merely a comparative value. Men do not appreciate the size of the breast as a good in and of itself (as someone would with a Danish or other sweet roll), but rather only as it is compared to other goods.

I think, technically, she believes breast augmentation to be rent-seeking behavior, whereas she believes baking, and presumably most industries, to be simple market competition.

That is not to say I agree with her proposed breast augmentation tax, because being a male, I’m suitably convinced that there is an absolute value to breast size, apart from any comparative value. But I’m willing to defend her, because she’s cute.

Libertarian Girl said...

Law Fairy, the breast implant tax was suggested within an environment in which all medical procedures are already heavily regulated by the government. And we need taxes, so why not tax negative sum activities (or "rent-seeking behavior")? Taxing the activity is far better than just banning it, which the FDA already did with silicon breast implants and what some people would like to do with the saline implants as well.

Libertarian Girl said...

Tom, I find the "Hot Abercrombie Troll" comment extremely offensive. (1) I've put in a lot of effort to post frequently on interesting topics, and you're demeaming that effort. (2) The implication is that I'm a guy pretending to be a girl? Why? Because my blog is too good for me to be a girl? Only a guy could create such a good blog? That these kinds of insults are offensive to all women.

Tom said...

Sorry. I did not mean that the posts weren't somehow worthy or that women shouldn't be allowed to think or anything of that sort. Rather, I thought that the combination of the cute picture, the posts on breast augmentation, etc. looked like trolling. Sorry, if you misread troll to mean "Man". I meant it in the old USENET fashion of someone who is saying incendiary things just to get a response. Things like libertarians calling for tax increases and then throwing in the added titillation of it being a tax on breast augmentation.

Scott said...

Let's be fair here. Even were she making comments for no other reason than instigation--which I doubt--it's not as if she was making those incendiary comments on the USENET or on somebody else's website or blog.

It is her blog; presumably she's well within her rights, and well within common standards of etiquette, when posting whatever she wants.

Everyone is welcome to stop visiting, after all.

Tom said...

Again, sorry. Of course she's within her rights. I never questioned that, just shared my perception which was hopefully incorrect. It was ill-advised and politically incorrect.

Stephan Kinsella said...

Libertarian girl is almost half-right when she praises Lochner and Roe as "libertarian" decisions. Lochner did indeed strike down clearly unlibertarian state laws; and Roe struck down state abortion laws which were at least *arguably* unlibertarian. But the decisions were not libertarian, since they were issued by the *federal* court to strike down state laws, on the grounds of violation of the 14th amendment. But this is ridiculous; the 14th amendment did not empower the federal government to strike down state laws regarding regulation of work hours nor of abortion. Nor would this be libertarian, since libertarianism recognizes the importances of federalism as a structural limit on central state power. Roe and Lochner were horrible decisions, from a libertarian standpoint. I have written on related topics, from an explicitly libertarian legal perspective, here: and here .

Anonymous said...

Amendment XXVIII

The Laci Peterson Act, previously called the Unborn Victims of Violence Act, was signed into law on April 1, 2004 by President George W. Bush. This makes the harming of a developing human a separate federal crime during an assault on a pregnant woman. Though not stated explicitly, the implicit assumption is that life begins at conception. The Supreme Court decided Roe vs. Wade on January 22, 1973. This decision made the abortion of a fetus a constitutional right. Though not stated explicitly, it was implied that human life begins at birth, otherwise abortion would be murder. Needless to say, these two governmental decisions are contradictory. The obvious decision is for the government to state when human life begins and leave no room for interpretation. The correct thing for the government to do is actually quite obvious; I am surprised it took me this long to entertain the thought. First I’ll tell you why I’m right. Then I’ll tell you why you’re wrong. This is not meant to be a compromise or a solution. Like any action of government, it is a tradeoff; albeit a logically consistent one. defines death as “The end of life; the permanent cessation of vital bodily functions, as manifested in humans by the loss of heartbeat, the absence of spontaneous breathing, and brain death.” I think they are off by a little bit. While the lungs are very important organs, humans can survive on respirators and die with fully functioning lungs. I am going to go ahead and change that definition to “The end of life; the permanent cessation of vital bodily functions, as manifested in humans by the loss of heartbeat and brain death.” It doesn’t hurt my argument because I have never in my life heard someone justify their pro-choice beliefs because birth is when the lungs begin functioning.
If death is defined as the absence of a heartbeat and the absence of brainwaves, then life should be defined as the presence of a heartbeat and the presence of brainwaves. Consequently, human life begins the moment the fetus/developing human has both a heartbeat and brain activity. This stands to reason because many developing humans can exist outside the womb for months prior to the expected delivery date.
For those of you who believe that human life begins at birth, I have never found your arguments to be persuasive. To say that “I have a right over my body.” implies that a fetus is part of the woman body. That is simply not so. When a pregnant woman feels kicks, those kicks are a direct result of the fetus’s brain activity, not the mother’s brain activity. A fetus is a separate entity that lives inside of a woman, but it is not a part of that woman. I have heard feminists refer to them as scavengers, and that is technically true. But the scavenger is not a part of you. You were not born with it. It is a human being, reliant on the mother for the very same reasons that newborn infants are reliant on their mothers; food and shelter. You know that I am right about this. I am not without empathy; I consider it a blessing that I never have to go through childbirth.
For those of you who believe that life begins at conception, I agree with you. However, I acknowledge that it is a religious belief. I cannot demand that an atheist accept that human life begins when the soul enters the body at conception. I cannot prove that souls exist and I do not believe that the government should legislate religious beliefs, or any other beliefs.
Our founding fathers forgot to expressly define “human life” in our constitution. But at that time, it was not a debate. It is now and the country is bitterly divided. Amendment XXVIII to the Constitution of the United States should resemble: “The life of an American citizen begins the moment that citizen gains the function of both the heart and the brain. No laws shall be passed intruding on the rights of American citizens.” It does not have to be verbatim, obviously.
This amendment would not overturn Roe vs. Wade. The constitutional right to an abortion would not extend to women whose babies have a heartbeat and brain activity. Killing such a baby could and should be considered murder. However, the constitutional right to an abortion would still apply to pregnant women whose fetuses do not fit the definition of life as outlined in the 28th Amendment. Even if Roe vs. Wade were overturned, it would not satisfactorily fix the problem. That just puts the decision back on the states. In many states, the Laci Peterson Act and the absence of laws prohibiting abortion would still contradict each other.
I do not want anyone to compromise what they feel is the truth. However, the pro-abortion crowd should be honest and acknowledge that the belief that human life begins at birth is purely political. It is a statement that needs to be made in order to justify abortion and to not justify murder. The brain activity of a newborn infant is remarkably similar to that of the fetus of a fully gestated woman. From the perspective of a developing human, birth is an arbitrary point in time. Also, pro-lifers should be aware that if the government were to define human life as beginning at conception, you would necessarily be guilty of imposing your religious views on others. While it can be argued logically that life begins at conception, it can be proved that life begins when the vital organs begin functioning. It can only be proved that life begins at conception if you incorporate religion into the argument.
Those who are pro-life and pro-choice can still do battle over the Roe vs. Wade decision. Amendment XXVIII would settle the logical contradiction in the federal government between the Laci Peterson Act and the current policy on abortion.

2spotlefty said...

What's "too bad", is that the crux of the issue, is "it" a human being, Is lost in all the talk.I am a libertarian and it is NOT a libertarian prerequisite to disavow life in the name of "privacy" or any other imaginary constitutional hokum.Checkout a sonogram,then check your heart.That IS a human being and it IS murder to kill them out of ones alleged compassion for women,the downtrodden or more honestly, the inconvenienced.I hope You will revisit this issue on a more human level some day without checking Your heart at the door.Your still young and intelligent, I'm sure You'll figure it out.Mark, over & out.

2spotlefty said...

What's "too bad", is that the crux of the issue, is "it" a human being, Is lost in all the talk.I am a libertarian and it is NOT a libertarian prerequisite to disavow life in the name of "privacy" or any other imaginary constitutional hokum.Checkout a sonogram,then check your heart.That IS a human being and it IS murder to kill them out of ones alleged compassion for women,the downtrodden or more honestly, the inconvenienced.I hope You will revisit this issue on a more human level some day without checking Your heart at the door.Your still young and intelligent, I'm sure You'll figure it out.Mark, over & out.

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