March 4, 2004

GIVE ME LIBERTY AND GIVE THEM DEATH:

Justice Harry Blackmun's Papers: Documents, Oral History Reveal Supreme Court's Inner Workings (NPR, March 2004)

Five years after his death, the accumulated papers of Supreme Court Justice Harry Blackmun, author of the landmark Roe v. Wade abortion rights opinion, become public. NPR's Nina Totenberg was the only broadcast journalist granted advance access to the papers, which are housed in 1,576 boxes at the Library of Congress. In a series of reports, Totenberg reports on the inner workings of the court as revealed in the mountain of files and 38 hours of oral history recorded by Blackmun.

If you listened to NPR for more than five minutes today you likely heard about this much-pimped exclusive [The NY Times has it too].

At any rate, Ms Totenberg finishes her first report--about how Mr. Blackmun got Anthony Kennedy to switch his vote in Casey and preserve Roe v. Wade, which the Chief was on the tantalizing verge of eviscerating--with a little vignette about how proud the Justice was of Roe and that it was the perfect example of the Court protecting individual rights against the tyranny of the majority. That's an interesting way of framing a ruling that has allowed the majority (women) to kill over 40 million individuals, no?

Posted by Orrin Judd at March 4, 2004 6:05 PM
Comments

Presuming, of course, that fetuses are actually individuals.

Not everyone believes that to be true.

Posted by: Jeff Guinn at March 4, 2004 6:21 PM

Everyone believes it to be true, but those who want to kill them deny it. That's how tyranny works.

Posted by: oj at March 4, 2004 6:28 PM

Are twin fetuses individuals?

I was happy to hear Justice Blackmun including my church among the "powerful forces" he had to face in creating the right to an abortion. He should have listened.

Posted by: Jason Johnson at March 4, 2004 6:44 PM

It will be interesting to see, if Scott Peterson is convicted under the California statute for killing both his wife and their unborn child, if the verdict on the latter is appealed to a higher court, with nullifcation sought using the basis of the fetus' status as a non-person as specified by the Roe decision. That would keep the court system busy for a while...

Posted by: John at March 4, 2004 6:46 PM

John - the issue of the different status of a fetus in abortion and homicide cases has been litigated several times in the California appellate courts. The decisions, while incoherent, saw no problem in treating the fetus as non-human in abortions but as a person in a homicide case, and upheld convictions for double murder when a pregnant woman was killed.

Posted by: Fred Jacobsen (San Fran) at March 4, 2004 8:24 PM

I have always considered Blackmun a moran and a numerologist and Totenburg just a plain moron.

She proved both points today.

According to her, other justices deplored Blackmun's plan to open the papers, citing their privacy. But Blackmun said that history overrides privacy.

If privacy is so important that it overrides the inclination in decent humans not to kill little babies, then surely it is powerful enough to overrride something as insignificant as a few years' delay for history in looking at Blackmun's Harvard dance cards.

Posted by: Harry Eagar at March 4, 2004 8:29 PM

Fred --

I didn't realize that, but have any of the cases gone past California appellate and into the federal court system yet?

Even if they have, I'm assuming none of the others have been as high profile as the Peterson case is going to be, and if that eventually works its way up into the federal system -- especially into the always-entertaining Ninth Circuit -- that's when you're really going to see some pretzel logic at work, only this time played out on a national stage.

Posted by: John at March 4, 2004 8:50 PM

John - I'm not aware of any federal review of these state homicide prosecutions. Federal review is unlikely, with the possible exception of a death penalty case in which multiple murder is the basis for the death sentence, and federal review sought by the defendant in a habeas corpus petition.

Posted by: Fred Jacobsen (San Fran) at March 4, 2004 9:20 PM

After listening to Totenberg's report and Blackmun's own voice, I immediately thought what a bitter and pathetic guy Blackmun was. He sounded like no matter how much he tried to defend his authoring the opinion, he knew deep down how embarassingly bad it was and that he just couldn't admit it.

Posted by: pchuck at March 4, 2004 10:46 PM

Fred --

Given the paucity of death penalty cases in California, I guess that shouldn't surprise me. But the Peterson case, because of its national publicity, could trigger the death penalty, which would eventually force the appeals into the federal court system.

Posted by: John at March 4, 2004 10:58 PM

Anyone who's taken the time to read the decision knows that the minority opinion actually reads much like a majority opinion, and that it's clear that the majority fell apart at the last minute. This is not really news. But I guess the liberal journalists owed it to Blackmun to give his ego a little boost, even at his own initiation. What a proud day, to be responsible for the death of so many babies!

Posted by: kevin whited at March 5, 2004 12:40 AM

Jeff: Slaveowners thought their involuntary charges were less than human, too. In both cases, the system falls apart as soon as you accept the contrary proposition.

Posted by: Chris at March 5, 2004 10:41 AM

Chris:

You are mixing up the terms of the debate.

Whether you like it or not, some people do not believe a fetus is an individual, but rather an organic part of the mother.

So assumption under consideration isn't "less than human", but "when human."

Some believe the moment of fertilization is when. Others, later. Who's to decide?

Posted by: Jeff Guinn at March 5, 2004 11:48 AM

And you would answer 'Some judge'?

Posted by: John Barrett Jr. at March 5, 2004 11:58 AM

Jeff:

Those are precisely the terms of the debate. The majority just dehumanizes those they wish to oppress, be they Jews, blacks, babies, etc..

Posted by: oj at March 5, 2004 12:27 PM

Jeff:

Those are precisely the terms of the debate. The majority just dehumanizes those they wish to oppress, be they Jews, blacks, babies, etc..

Posted by: oj at March 5, 2004 12:36 PM

Jeff-

Slaves were bought by their owners and fed and housed while working purely for the benefit of their owner. The defense of an abortion right purely at the pleasure of the woman seems to based on a sort of property right not much different from that of a slave owner. Human life is either precious and worthy of respect and protection in its own right or it is merely property whose disposition is dependent soley on the wishes of the owner. The purely materialistic view could, of course,be used in support of both the enslavement of the weak by the strong and abortion on demand.

Posted by: Tom C., Stamford,Ct. at March 5, 2004 12:57 PM

Tom:

You also take liberties with terms. Your belief system leads you to conclude that fetuses are fully privileged individuals from the moment of conception.

Others, however, do not share that belief.

Your reasoning cannot be extended to slavery. A fetus cannot exist separately from its mother. Slaves can exist separately from their owners.

It isn't a matter of dehumanization, but when humanization.

Religious freedom doesn't mean much if those who don't share your beliefs get them rammed down their throats, anyway.

Posted by: Jeff Guinn at March 5, 2004 6:08 PM

Jeff:

So you're pro-infanticide too, since they fail that "away from their mother" test.

Posted by: oj at March 5, 2004 6:14 PM

Tom, you can leave the materialists out of the slavery argument. Christianity proved quite enough to justify slavery before anybody ever thought of being a materialist.

Posted by: Harry Eagar at March 5, 2004 8:15 PM

Slavery is amply justified, but chattel slavery is a peculiar function of racialism. It does predate Darwin but Darwinism justifies it.

Posted by: oj at March 5, 2004 9:08 PM

I know why you say that.

You take the position that only morality, specifically a Christian morality, can support a decent society.

Yet a morality that encourages slavery is not worth having.

But Christianity encourages slavery.

Therefore, to save Christianity, you have to declare slavery non-moral.

I admire your consistency, but I'm the grandson of a slaveowner. You're not going to persuade me.

Darwinism, which denies races among humans, cannot justify slavery of any kind. Christianity, Islam, Hinduism, Aztec religion.

I am not aware of any religion that does not justify slavery. But you could give a list if I'm wrong.

Posted by: Harry Eagar at March 5, 2004 11:31 PM

Harry:

That's your opinion. I'd argue that slavery was a better solution to perennial warring between societies than our solution, which is murder on a massive scale.

The chattel slavery we had here was indeed immoral as a religious matter, for those who recognized blacks as fully human. But under Darwinism we need not do so.

Posted by: oj at March 5, 2004 11:40 PM

"I'd argue that slavery was a better solution to perennial warring between societies than our solution, which is murder on a massive scale."

One could debate the truth of that if slavery actually solved perennial warring between societies. A glance at the history books provides rather strong indication that slavery is an adjunct of, not a replacement for, war.

Your notion that Darwinism allows blacks to be defined as less than human is the most moronic statement I have yet seen you make regarding evolution. And that is a high bar.


"So you're pro-infanticide too, since they fail that 'away from their mother' test."

????

Last time I checked, newborns can survive perfectly well without their mothers; even significantly pre-term fetuses can survive without mom.

So, the answer is no, because they don't fail that "away from mom" test.

Posted by: Jeff Guinn at March 6, 2004 8:51 AM

So those fetuses we can keep alive, which at this point is as early as four months are fully human? When is the magic moment?

Posted by: oj at March 6, 2004 8:58 AM

Certainly in the early days of Darwinism, it was not yet appreciated that there are no human races. The notion that there were was inherited from the superstitious, religious past.

Eventually, and in a short time (about 80 years), the logic of Darwinism, plus accumulating knowledge about populations, revealed that there are no human races. Darwinists no longer accept that there are human races.

Contrast that with any religion, and specifically Christianity, that over a period of more than 1,500 years, never came up with any logical reason to either write race out of the system or to object to slavery.

That moral antislavery arose only after the rise of secularism certainly suggests, even if it does not prove, something.

Moral antislavery is the view that no one should be enslaved. It is different from the view, sometimes advanced during the Christian era, that I should not be enslaved. That is, it might be called, immoral or perhaps non-moral antislavery.

It is a category error, often made, to claim that the occasional Christian objections to slavery before the Enlightenment were moral.

Thomas claims Sewall as the first person to make a reasoned statement of antislavery. (Thomas does not make the distinction between moral and non-moral antislavery, that's my own contribution). Sewall was a very religious man and arrived at his stance through religion, not skepticism.

But his view was not welcomed by Christians, and, as a practical matter, was a personal outgrowth of his remorse at his crime of murdering witches, in the name of Christianity.

Posted by: Harry Eagar at March 6, 2004 5:09 PM

Harry:

Your view that we should just kill all the Muslims, perfectly consistent with modern war, is less moral than traditional slavery, a perfectly moral way of bringing them not just into society but even into families and into political power.

Witches you have to kill.

Posted by: oj at March 6, 2004 5:48 PM

I have never said we have to kill all Muslims. My estimate is about 3 to 5%.

Posted by: Harry Eagar at March 6, 2004 7:43 PM

So that's what, 30 million? It would put you on a par with Stalin.

Posted by: oj at March 6, 2004 7:52 PM

Except that Americans would be perfectly happy if those billion Muslims stayed home and wallowed in their own filth. We wouldn't seek them out to destroy, if they didn't keep blowing up people.
Even when they DO blow people up, Americans would rather look away.

THEY brought the war to US.

If Muslims could, by and large, manage to live in societies and under governments that actually WORKED, then they wouldn't need the Great Satan to blame for their self-inflicted misfortunes.

Posted by: Michael Herdegen at March 6, 2004 10:17 PM

Michael is right. We didn't ask for this fight. We wouldn't have to kill any if they weren't so blinded by religious certainty.

I doesn't sound like Harry wants to kill 3-5%. Rather, that is his estimate of how much harsh reality it will take to convince the Islamists they don't, after all, have a corner on truth.

Posted by: Jeff Guinn at March 7, 2004 3:51 PM

Jeff:

It warms the heart to hear you thirsting for blood over a question of "truth".

Posted by: oj at March 7, 2004 4:20 PM

Michael and Jeff state my views exactly.

My estimate is little more than a guess, based on how many Japanese we had to kill be get them to behave.

Before the "war on terror" began, Muslims were attacking on every border where they were not militarily overawed. After two and a half years of the war on terror, Muslims are attacking on every border where they are not militarily overawed.

If messages of peace and love were going to do the job, we'd see something different by now, you'd think.

Posted by: Harry Eagar at March 8, 2004 3:01 PM

We dop see something different. Those who aren't hiding under the bed from those mean chanting Shi'ites.

Posted by: oj at March 8, 2004 3:10 PM

They are the ones thirsting for blood over a question of truth. They can believe whatever they want so long as they avoid slaughtering others for thinking differently.

They are the ones with the blood thirst, and the desire to universally apply truth.

Posted by: Jeff Guinn at March 8, 2004 9:39 PM

Of course, the other is always to blame.

Posted by: oj at March 8, 2004 11:40 PM
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