Kent Pitman's Open Salon Blog

Settled Law on Abortion, and Why Stare Decisis Matters

Sun, 22 Nov 2009 14:11:54 -0500

For what is now officially the umpteenth time, I have heard someone bemoan Roe v. Wade as an issue of “judicial overstepping.” It's become a rallying cry for the right wing. I will here answer that charge, and in so doing suggest a way to reframe the entire dialog on the question of legislating from the bench and judicial activism in a way that has applicability well beyond Roe.

In comments about Challenging the Abortion Exclusion, McGarrett50 wrote:

The Supreme Court removed this issue from the legislative process with no right of appeal... except to the Supreme Court. Catch-22. Had this not occurred, then the people would be able to express their will fully on this issue rather than having to express it through alternate means.

Although I respond here to this one specific remark, my response is really addressed generally to the community from whom I routinely hear such remarks, not just to “Steve.”

On Recourse

The suggestion made here, but not just here—one hears this kind of thing all the time—is that beyond the Supreme Court, there is no recourse, no “right of appeal..” This is quite obviously false, although it's popular for the Right to characterize it this way. To the speaker's political opposition it hints that the speaker's group is politically downtrodden, deserving of pity. To the speaker's loyal base, it is red meat, stirring the crowd into a frenzy of righteous anger that can be harnessed at the ballot box in support of changing the makeup of the Court.

The truth is that the Supreme Court sometimes rules on gaps and ambiguities in the law, filling in or clarifying details that urgent circumstances may require. In such cases, if Congress is unhappy with the outcome, override legislation can be passed. On other matters, the Supreme Court rules notwithstanding existing law, in a manner that may sometimes be contrary to what the law would seem to suggest, declaring such law unconstitutional. But even in that case there is recourse because the Constitution is a living document and is subject to amendment.

There are most certainly avenues of appeal. And, as such, this argument seems an emotional one, not based in fact.

On Time and Visibility

One might raise the issue that yes, there is recourse, but the road to such recourse is long and difficult. Congress, by design, works slowly, and so if the road to True Justice is through Congress is long. Worse still, Congress may simply not have the awareness or interest to address every matter that goes by, and so this is a path fraught with peril. Some of this I agree with, though with some caveats.

As to the matter of time, it's hard to establish any one amount of time that such corrective measures take, but I will note that Prohibition, in the United States, ran just over a dozen years and that involved changing the Constitution twice. So, independent of the ways the Constitution defines things, which establishes a kind of lower bound on the amount of time these things take, the case of Prohibition establishes a kind of upper bound on how long the matters of mere process must take. That is, even accommodating delays of a pragmatic nature, such changes can be done in that amount of time when there is a will to do it. Any additional time is not about the length of time the process takes, but is about establishing the political will.

As to the matter of awareness and interest, it's just common sense to observe that there is no risk that Congress is unaware of or has overlooked the matter or is not interested in it. It is nearly impossible to conceive that anyone can be a national political leader without forming an opinion on the abortion matter. When a candidate for high office any more claims to have no already-formed opinion on the matter, it shocks the imagination and makes one wonder what planet such a person might hail from. If there is a political topic that perfectly illustrates the notion of “political visibility,” beyond health, economics, and war, it is abortion. And so to fear that Congress would not at least take note of a Supreme Court ruling that it felt unjust is implausible.

Judicial Activism

Modern politics seems all too often to reduce to mere sloganeering. The terms “legislating from the bench” and “judicial activism” have been coined in recent years by the political right as ways of highlighting rulings they don't like. Many times when such a ruling appears, rather than address the merits of the ruling, they prefer simply to dismiss it.

The notion that judges have a particular authority that they must not overstep might even be a rational political theory if applied uniformly, but of course there are cases where the situation goes the way they like where the same group turns a blind eye to concerns about legislating from the bench. The strong tendancy is to assume that in the case where the outcome seems to match their own opinion, it must be right and neutral. This may not always be done deliberately or cynically, but opposing sides in any given political discussion may see things very differently.

Einstein put it this way: “Common sense is the collection of prejudices acquired by age eighteen.” We all have different upbringings, and so different sources of ”common sense,” and so what seems to us to violate common sense may be more of an indication of what is not common among us in the first place.

As a neutral analogy, consider an observation about language. It's common for members of a certain group to poke fun at the pronunciation of other groups. (“You like tomato, ...”) Language is learned by observing those we see early on, in our formative years, who we come to regard as normal, and it's easy come to regard others we later encounter as deviating from the norm, as “having an accent.” It's common to reject the notion that we ourselves have one. In fact, all people have accents, but it's just hard to hear one's own.

And so it probably is with Court rulings. Many presently consider that the US Supreme Court is engaging in judicial activism, but people on the right don't see it. So is it there? It's hard to answer objectively. However, I'm going to argue that it is no longer necessary to know in order to answer the political question posed by Roe v. Wade.

A Hypothetical Concession, for Purposes of Debate

In fact, let's suppose, just for the purpose of what remains in this article, that legislating from the bench does exist and is a bad thing, and let's even suppose that it's what happened in the case of Roe v. Wade.

Note well—I am not granting, not even for this hypothetical, that I disagree with the effect of the ruling in Roe. There will always be people who both agree and disagree that it's a just ruling, so I might as well be honest about the fact that I think it was, in fact, a just ruling. But that's not my point. My point is that even if I agree with the ruling, I don't have to agree that it follows from the Constitution or the law. I might think the court trying the case just made it up out of nowhere. There are many people who believe that. I happen not to believe it. But for the purposes of this article only, let's assume that it's just objective truth that the court was overreaching inappropriately in making this ruling, and that this is agreed by all of us to be a textbook case of legislating from the bench. Let's see where that leads.

I'm willing to do this because I want to make an argument for why Roe should stand that doesn't depend on whether it was judicial activism or not. I want to make the argument, in fact, that our political system allows for people to be human beings, even human beings who have political biases. And so I'm going to grant this controversial point for debate purposes, to argue that it doesn't actually matter, and that in fact any attempt to raise the issue of judicial activism when talking about long-settled matters is irrelevant.

Conservative Readings

“But it's not settled,” I can hear some of you say. “Many of us don't agree even to this day that abortion should be legal, we don't agree with the ruling, and we don't agree with the rationale for the ruling.”

Well, all of that may be, but this now becomes the core rationale behind stare decisis as a legal principle. Informally, stare decisis is the notion that what has been decided should stay decided—or, at least, tend to stay decided unless circumstances change materially.

As I researched this article, I was interested by a quote from Justice Antonin Scalia on the matter. According to Wikipedia, Scalia has opined, “Stare decisis is not usually a doctrine used in civil law systems, because it violates the principle that only the legislature may make law.” I agree with Scalia to the extent that it would be ideal to have legislatures be the ones to make law, provided it's within the scope of the Constitution, though I don't think it follows that judges have no discretion to fill gaps. We'd not even have Marbury vs. Madison without that. To me, the principle of stare decisis seems one of the most stable ways of filling gaps, far superior to having a judge make up a theory that is in conflict with the status quo.

Wikipedia goes on, presumably still summarizing Scalia's point of view, but no longer as a quotation. Here I quote Wikipedia, therefore, and not Scalia, although I assume this to be Scalia's position: “However, there is still room within an originalist paradigm for stare decisis; whenever the plain meaning of the text has alternative constructions, past precedent is generally considered a valid guide, with the qualifier being that it cannot change what the text actually says.”

This is reminiscent of the position taken by Robert Bork in his The Tempting of America. I listened to an abridged audiobook of this text some years back with considerable interest, and even for a while thought that he might be correct in his analysis. His premise seemed to be neutral on questions like abortion, and instead seemed to suggest that we would all be better off if the Supreme Court made its findings on the basis what was written in the law and nothing else.

Following with that idea just a bit further, for example, I took Bork's point to be that even if you believed that the nation should be a pro-choice nation, it was important for the court to rule as if there were no such right simply because there was no text in the Constitution to say otherwise.

On Strict Construction

At first when I read Bork's analysis, it seemed right. Why not just write things down so they are plain for all to see? It would be hell to change the world over to that model, but perhaps it would indeed be easier if people really did just write down what they meant in detail and not leave things to chance.

Well, for one thing it's hard to guess what things need to be written down. As I recently wrote in another post on The Elusive Nature of Fairness, it's difficult to actually codify such matters fairly. So maybe it would be a little bumpy under Bork's system because, realistically, there would be many cases where legislatures wouldn't think of the right things to codify into law until after they were needed. But the devil is often in the details. Even when the law had tried to anticipate a certain case, the fact pattern would be different the next time. And the core of Bork's theory, although he probably wouldn't put it this way, is that judges should not exercise judgment. That seems kind of odd. Perhaps we should call them “mindless automatons” while we're at it.

But beyond that, under Bork's theory, the Supreme Court should generally be issuing some ruling, whatever the ruling is, and implicitly finishing with “If you don't like it, you'll have to change the law or, in some cases, the Constitution.” The clear implication, since he knows as well as anyone how the rules work, is that, no matter the outcome, Congress always has the option if it doesn't like the outcome of overriding the ruling by Congressional action. Surely neither he nor Scalia is proposing changing that. After all, to quote Scalia, “only the legislature may make law.” So we may assume, after a period of time, that if the Congress did not like the outcome, it would change the law. And if not, it would leave the law alone. But in either case, if I read Bork correctly, there would be no issue that strict constructionism could hurt because if it ever led to an outcome that was unwanted by the People, recourse exists to remedy that through the Congress, and ultimately because the Congress is elected, through the People.

Well, it should be obvious from this that the same situation is true even if the Supreme Court does not follow strict construction. Even if they commonly generate the opposite ruling of what is seen as right by any given side of the political spectrum, they are a source of authority only for a limited—though admittedly quite bumpy—time on any given issue. Ultimately Congress has the final say. If Congress likes the ruling, Congress will allow the ruling to stand. If it sufficiently disagrees, it will take action to either clarify legislation or, in rare cases, amend the Constitution.

Independent of the issues of originalist paradigm, I don't think I'd like to live in a world based on strict constructionism precisely because it would seem constantly full of turmoil, with the primary job of the legislators to be always saying “They inferred what?” and then racing to patch their legislation with little fixes because there would be no end of misinterpretations. I don't think the goal of unambiguous text is achievable, nor perhaps even a good idea.

A Self-Correcting System

If you listen to their rhetoric, what seems to bug the strict constructionists and originalists—they don't usually express it this way, but I don't think this misstates their position—is the arbitrariness of individual interpretation. That is, they appear to worry that if a judge is allowed to decide based on personal preference, then the interpretation of laws will be essentially random, since it might be random who is in office at the moment something is decided.

We may certainly infer that in a world with judicial activism, the day after an activist ruling, the world is in a funny state, where Justice has not yet really prevailed. A world that allows this kind of complex process is going to have delays and will have periods of inconsistency. But certainly, hundreds of years later, if nothing has changed, one must infer that the world wanted something a certain way. So the question is where the change occurs from temporary to permanent, and the line is not really clear. Still, I would argue that it's not hundreds but tens of years that matter.

Had the Prohibition, for example, been established by an activist Supreme Court, we can see that the problem could have and would have been resolved within a much smaller number of years. And by resolved I don't mean that every person in America agrees. Some to this day probably believe alcohol is wrong, just as many believe marijuana is not wrong. But there's no disagreement on what the settled law is on the matter. Society has an opinion on the subject, and the task of either group is to change society's mind, not to attempt some procedural trick that says the law never was as it was.

As I noted earlier, the designers of our political system did not build into it the notion that our leaders had to be paragons of virtue. Instead, they built in an understanding that people would be petty, nasty, selfish, and corruptible. And so they put their trust not in the notion that we would elect just the right people, the ones capable of resisting temptation, the ones honest and pure enough to never use personal discretion. Such people do not exist, and the presence of heavily biased people on the present Supreme Court who counts themselves champions of this paradigmatic fantasy is proof that there cannot be an objective middle ground. What we need are processes that are constantly under review, not people who are pure and clean and perfect. The reliance on people being a certain way and actions being a certain way as the guarantors of our liberty is by far the weakest part of Bork's argument, and is ultimately why I have come to disbelieve him.

On Stare Decisis

And so we finally come back to the case of Roe, decided so long ago. It is commonly inferred that stare decisis is somehow a prescriptive power, stating that there must not be a change in ruling because of the mere fact of time passing. That's not quite the best way to see it, I think. Rather, I think stare decisis is a descriptive term, which highlights the fact that legislatures have been given the opportunity to take corrective action and have not availed themselves of the need to do that.

Going back to my earlier point about objective truth, there may indeed be no objective notion of what is a good or bad ruling. So what, then, if Roe had been ruled the other way. “Then,” I hear pro-Life advocates say, “the world would be a better place.” If by that you mean that still today abortion would be illegal, I think they're mistaken.

There is a concept of hysteresis which you might imagine that somehow modern politics adopts, and you could say stare decisis in some ways captures that notion, though it requires a different theory of causation to parse it that way: Rather than saying society likes stare decisis because it makes the rules stable and easier to plan with, you'd have to say that we're just lazy or change-averse and will pretty much settle into a rut with any old situation tossed our way. I'd like to think that as a society, we're not that feeble—though I know a few of my regular readers will be quick to correct me on that point.

Perhaps the pro-Lifers envision that if the ruling had gone the other way, we would have just stuck with that, too. That certainly sells us as a do-nothing populace, and I suppose that's possible. But it's been three dozen years since Roe. Both Republican and Democratic Congresses and Presidents have come and gone. That's more than enough time for things to have changed, and yet no change has come. At some point, we must infer intent from that inaction. It is not sufficient to say that that this matter has been overlooked. It is not sufficient to say that the majority wanted change, yet took no action. There is indeed a committed minority that wishes it were otherwise, but that minority has not succeeded in changing the minds of the majority, and at some point even they must accept that while they may continue to believe as they like, they do not enjoy the right to claim their view as the majority will of the people.

And even were there to be a change to one day make things “the other way,” that would not mean pro-Life community suddenly enjoyed the moral authority to claim righteousness. There are many paths to such victories, some by legitimate of public opinion and some by procedural machination. What it would do would be to give notice to the opposition that they'd better take action to rectify the situation because it would otherwise restart the clock on stare decisis for the matter. A shift in policy in the other direction allowed to stand for enough time would come to be settled law. But a brief breach would be just an aberration.

The moral authority that stare decisis confers is not gained overnight in other words. It is built up over a long period exactly because it's easy to pull a coup involving long-settled law: Those comfortable with the majority position are often not on guard, comfortable that their way is the established way. Were that to change, the sleeping dragon of majority opinion would finally awaken and then we would find out the truth of the matter. I hope it doesn't have to come to that.

Conclusion

I hope my point is made, which is this: Roe v. Wade has existed now long enough that its opposition no longer enjoys the right to claim it was due to some procedural trick. It was not made under cover of darkness. Or maybe some people think it was, but those people can certainly not argue that it has remained out of view. It is visible. Notice has been brought to those who object that if they need to make a change, they should. Three decades have passed. Small changes have occurred, but the basic rights have stood, not by accident, but by concerted effort of a majority who insists on those rights.

There has been adequate time for due process, and no override of either a Congressional or Constitutional nature has occurred. I don't mean by this to claim there is no longer opposition, but let's at least agree that Roe is at this point in history no longer merely something that happened once and was subsequently unsupported by society. Rather, let's agree that the entire reason that Roe has been allowed to stand is that it is supported by society, at least collectively. Individually, we will never all agree on much of anything, but if we cannot agree that our political and legal processes are the ultimate arbiter of what we collectively believe, then we have really no nation whatsoever. It is at this point in a discussion being won by Republicans that one would often hear the catch phrase “America—love it or leave it.” I might instead end with, “America—live with it or exercise your due process to make change in it in an orderly way, and meanwhile live proudly with the fact that it is what it is.” It's not quite as punchy, I guess. I'll work on that.

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When the Bow Brakes

Wed, 18 Nov 2009 23:11:59 -0500

Sandra Stephens' post Land of a Thousand Bows reminded me of some remarks I had wanted to make about Obama and bowing:

There are different ways to show strength. I often think the neocons don't get this. They project a kind of cartoon underestanding of strength and weakness that attempts a sort of “Rule by Stereotype.”

In my dating days, I was warned that on dates with women I must never “show weakness.” Women prefer a strong man, or so goes the advice. I never found this to be true.

I do think it takes a certain level of strength to be comfortable enough showing weakness. But I think what the showing of weakness indicates to others is much more subtle than would be summarized by saying it was “always bad.”

Everyone is weak in some way or another, and people who are really comfortable this fact often send the message that they know who they are and are not bothered by it. Being willing to expose a weakness can, if done right, make the point “I have enough strength elsewhere that I can afford to not worry about sharing my weakness here.” This can, in turn, add an almost enigmatic power even while appearing to be utterly straightforward because it does not require one to reveal the source of strength.

In fact, the origin of the handshake is rooted in this same notion. The hand one shakes with is the weapon hand. Extending one's hand says, “I carry no weapon.” Superficially, this might be regarded as exposing weakness. But in showing that particular kind of weakness, one adds via the subtext, “I am not threatened.” This, in turn, shows strength.

I think Obama shows this kind of deep understanding of the symbolism of strength and weakness. He knows he commands from strength but doesn't feel a need to be forever beating others over the head with it. By contrast, when Cheney has historically refused to bow, it has shown what I would regard as weakness because it seems to project the notion that “the entire fate of the free world rests in my doing this gesture right, and if I slip up the US will be at risk.” Nothing could be less true, and by projecting that this is where the battle is fought, he has shown incredible short-sightedness.

It is said that one must pick one's battles. I'll go out on a limb and say that Obama has consciously elected his to be “not while greeting someone hello at a diplomatic event.” Obama's understanding that this can't possibly injure us shows strength.

I would liken the entire fuss over bowing to the superficial fuss over lapel pins, as a sign of patriotism. If our friends and enemies around the world come to think that we are ruled by the trivial, that's where I expect they will lose respect. And, indeed, they did lose respect for us in recent years. We only just recently got a lot of that respect back, in case the Republicans didn't notice.

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Who Will Be Sarah Palin’s Darth Vader?

Wed, 18 Nov 2009 08:11:30 -0500

Last year during the election season, I wrote my article “Election Stratego,” in which I made various speculations comparing modern Republican political strategy to that used in the game Stratego®:

Election Stratego by Kent Pitman

October 12, 2008

... I admit I’ve been nervous all along that Bush hasn’t been calling the shots. He seems to be serving up a lot of agendas fed to him by others, and I he frankly hasn’t impressed me that he’s bright enough to hold bad ideas at bay on the strength of his own intellect. If there were someone who wanted to control the nation from some undisclosed location somewhere, you might think it was better just to become VP than President. Note, too, the strength of such a configuration. Bush is almost impeachment-proof because impeaching us would lead to Cheney as President.

So the question arises: Could that be the strategy used for McCain? It seems at some level implausible. Is McCain another Bush? He shows himself every day to be less and less smart than I’d thought. But he’s still hard to control. And Palin? Well, she’s scary like Cheny, but again seemingly not as bright. So it doesn’t match up.

Even more speculatively, perhaps they just see McCain as not likely to make it through office, so Palin is planned not as a Cheney replacement but as a Bush replacement—a puppet in waiting. That would beg the question who her eventual VP might be, of course. One would have to be nominated eventually, and it does require Congressional approval, but ....

Everyone these days seems to be speculating about whether Palin will run for President. I think it's pretty certain she's interested. But could she succeed? I hope not. But I think it's at least worth the effort to think through before dismissing the possibility out of hand.

After all, to some of us, George W. Bush seemed pretty clueless, too. It was astonishing anyone took him seriously in the first place, much less that he got elected. But Bush brought with him a great deal of personal charm. People liked him. And his campaign handlers worked to play on his personal likability, while at the same time chipping away at the likability of his opponents. Could such a strategy work for Palin?

Modern political campaigns are not always run from the top. Candidates yield to their handlers to get them elected by whatever means possible. Should it come as a surprise if a person or people with such power decided not to graciously step back and yield it at the time of election? Scott McClellan, former White House Press Secretary (2003-2006), in his book What Happened, speaks of the ill effects of the “perpetual campaign.” Certainly the worst of these risks is that the person elected might not be the one really running things.

A pairing in the style of Bush/Cheney, with a weak player at the top and a powerful Vice President “advising,” is something we can't simply write off as implausible, since we've seen it happen. Cheney worked from the shadows, and the press allowed that configuration to go without sufficient before-the-fact challenge. Questions during the campaign about whether Bush could stand up to his own Vice Presidential pick on critical issues seemed far-fetched or perhaps just rude. How could Bush be a puppet to someone he himself had chosen? And yet, in retrospect, one might wish many more such questions had been asked.

Before ruling Palin out, I'd want more details about how she'd be packaged and who she'll be matched up with. For example, is there someone out there who's got what it takes to step into the dark and “Forceful” role of Darth Vader?

In a game of Stratego, it's hard to win twice in a row using the same configuration. The surprise factor counts. So that's why I'm writing this article—to make sure that if they repeat the strategy, it's not a surprise.

Of course, they say journalists often fall into the trap of covering the previous war rather than the current one, so maybe I'm leading you astray in just that way. Maybe there's a new problem afoot, and maybe I should be asking completely different questions instead. It could be. But then, I'm not done asking questions. I'll ask more and different questions another day. And I hope you will, too.

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All graphics Copyright © 2009 Kent Pitman.
Graphic of Sarah Palin as a Stratego® piece is is derived from
a photo at Wikipedia by Bruce Tuten.
Graphic of Darth Vader as a Stratego® piece is derived from
a low-resolution image at Wikipedia, used as fair use.

Seeing Roe v. Wade as a Political Compromise

Sun, 15 Nov 2009 17:11:17 -0500

It seems to be the case that much of the pro-Life camp regards Roe v. Wade as a kind of left liberal “pro-abortion” plot of some sort. It is not.

Although I can see how if you live at the extreme end of the spectrum, anything toward the center might be regarded as a plot, or perhaps a capitulation, I don't think it's politically useful to think this way.

Let me begin by identifying that my personal position is pro-choice. That is, I think the question of whether to have an abortion or not must be chosen by the woman who is pregnant. That isn't to say that I think one should always have abortions or always not have abortions. I think these are things anyone can hold individual opinions on, and yet I also think the ultimate choice at any time during pregnancy in the sense of legally authorizing an action and in the sense of being immune from legal prosecution should be with the woman who is pregnant. That's what I think is right and just. But it's not a position I will argue for here as an outcome.

My analysis here is not for the purpose of advocating my personal preference. If it were, other people would just express their personal preference and there would be a lot of “Oh, yeah, so who put you in charge?” or “What makes your position any more valid than mine?” While I don't agree with the positions others take on this, I think that in a pluralistic society, one has to regard the positions of others, especially large numbers of others, with a degree of respect at least to the extent of hearing them out and seeing if they can be accommodated. I expect the same of those on the other side, of course.

I begin with the assumption that this debate will not be won by everyone on one side changing the mind of everyone on the other side. Therefore, I think that, absent genocide (which I'm going to assume most rational people do not want), the right answer will not be at one end of the spectrum or the other. So we can line out “no abortion” and we can line out “unconditional abortion any time for any reason.” I can see the pro-Life camp wincing because already it's as if their mission has failed. But what you should understand is that I may have already pissed off a great many pro-choice women by this remark. Even people I agree with on principle.

I don't make this first observation out of some desire for a particular outcome, however. I am merely observing that these are not legitimate hopes for anyone with any understanding of politics. They will not, as a practical reality, happen. Or, if they do, it will be a period of time in American history that is as unstable as Prohibition was. Whatever your feeling about alcohol, there's simply no question that outlawing it was not a good plan. The same will be true with either a law that allows no abortion or a law that allows utterly unfettered abortions.

It's hard to summarize a whole movement in concise form, so I won't attempt to. I'll assume anyone reading this has read and discussed the matter extensively before and I will appeal to shorthand descriptions that others have used before me. For simplicity of discussion, let's assume this comes down to a question of whether personhood begins at conception or at birth. The entire argument seems to revolve around this. If you believe that a group of a few cells is “a person” that's going to lead you to a certain line of thinking whereas if you think it's not, it will lead you to a different line of thinking. And that's how the discussion ends up breaking down. So where is the middle ground?

Well, speaking in my role as neutral arbitrator, and leaving my personal preference aside, it's pretty clear that there's a continuum between these points of view. The pro-Life group is quick to point out that if something is a person at the moment of birth, then it's hard to argue that it's a not a person just a moment before. But let's be careful. This implies a certain transitivity that may apply locally in a kind of ad hoc way, but that clearly doesn't apply as you get farther away in time, away from birth and toward conception.

For example, by the same fuzzy argument, Boston is close to San Francisco. How do I know this? Well, ten feet away from anything is close to something. And so if I'm only ten feet away from something that's close to something, surely I must be close. And if ten feet away from Boston is close, then so is ten feet away from ten feet away. And so on. Until ten feet turns into three thousand miles. Clearly, at some point I'm far away. But where? Does the fact that I cannot articulate that precise point at which I am far rather than close mean that I am never far away? Or is the precise point simply elusive? There may not even be a single point in the sense of working for all purposes. Philadelphia may be close to Boston for some purposes and far for others. In fact, western Massachusetts may be close to Boston for some purposes and far for others.

And so one possible analysis (not my personal way of analyzing this, incidentally—I'll write about that another day) is to say that at one end of the pregnancy, there is personhood, and at the other end there is not, and so presumably in the middle it gets a little fuzzy, with properties of each.

And so along comes Roe v. Wade, which I will argue reached the most politically optimal and correct conclusion, even if for the wrong reasons. The rationale offered in Roe was based on viability, which seems to me an objective quality that is irrelevant. Moreover, it is a messy quantity because viability clearly has no uniquely determined sense. Relying on such a definition puts the debate into the hands of those in control of dictionaries rather than leaving it in the control of public discourse between aggrieved parties. So I don't like the rationale for the reasons that the terminology has been possible to co-opt and manipulate. What I do like, not in my personal point of view but in my role as neutral arbitrator, is structure of the decision. That is, it's a good decision for reasons independent of its stated rationale.

I think what saves Roe is that it creates a staged transition between opposing communities unlikely to agree. A trimester in which those who claim that a fetus is not a lot like a person have a strong case to make, a trimester at the other end in which those who claim a fetus is a lot like a person have a strong case to make, and a trimester in between when there are interests on both sides, and where some negotiation seems possible.

Structurally, as a political compromise, this is not ideal for either side. And this is what makes it a good political compromise.

I think the pro-Choice community already sees Roe v. Wade, as a compromise, and there are those who seek for greater autonomy. I personally think they are right. What they say is compatible with my personal theory of how the world operates. But they ask for anything beyond this compromise at some peril in a world where the opposing side seems committed to pushing back.

By contrast, I think the pro-Life community mostly does not see Roe v. Wade as a compromise. I think they view it as a victory for what they call the “pro-abortion” side. I think this is a political mistake because I think they can't do better than this middle point without risking backlash.

The two sides should recognize this impasse and agree to terms. I think pushing this forward risks eternal strife and to no good end.

I also doubt the pro-Life camp will take my advice. They will continue to push, and so this notion of compromise will have no purpose. In that world, expect me to simply champion the pro-Choice position right up to birth. Adopting this middle ground is only useful in exchange for a promise of cessation of conflict, and I think would be well worth that price.

Then again, in the coming years, as population increases further on a crowded planet of finite size, this issue may become moot.

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The Elusive Nature of Fairness

Sat, 14 Nov 2009 23:11:27 -0500

As a byproduct of my work as Project Editor for a technical committee called X3J13, which produced the “standard” for a programming language called Common Lisp, I learned many interesting things. One in particular is what I want to share today—a lesson about the elusive nature of fairness.

The subject matter of the standard I was working on is what most people would call highly technical or just plain nerdy, but you don't have to be a technical person or a nerd to appreciate this thing I learned, so please don't tune out. In spite of the occasionally nerdy-sounding organization name, I promise not to get gratuitously technical on you. This article is really about politics, philosophy, and life in general.

The standards created by American National Standards Institute (ANSI) are really just documents that carefully describe agreements made among members (which are usually businesses), assuring the consistent quality of products and services. The purpose is to allow interchange to occur smoothly between these members.

This would seem an obvious enough thing to want to do, except for the fact that normally businesses are heavily restricted by law from doing this very act. Antitrust legislation exists to prohibit such action, in order to keep players from being crowded out of a market by collusion among other vendors.

When I first started doing standards work, representatives of ANSI appeared to talk to us about the process. As I recall, they identified the primary function of standards-making bodies as “to avoid being sued.” After that, they explained, we were also allowed to make standards. It seemed to me almost funny, but I came to understand it was quite a serious matter, and a great deal of their process was designed to help achieve fairness.

They gave us each a big rule book that would help us navigate the process. Like Roberts Rules of Order, which we also used from time to time, I'm relatively sure most members did not read the complete rules. They trusted that rules were there to help them but they didn't always know precisely what those rules were. They imagined they would look them up when they needed them. However, importantly, they did not know that rules were there to aid them (or to work against them) even at times when they did not perceive a need.

Reading the rules seemed to arm certain participants with special powers they could invoke at strange times. As these rules were applied, everyone made a point to learn them, so the rules rarely caused a problem twice. But sometimes even a single application of them mattered a lot.

I came to think that the rules were not really fair because since it was predictable that some would not have read them, the people who had read them were at an advantage. You might think everyone should therefore just read them, but before they do, you might consider whether you yourself have read the complete set of laws that govern your own existence and behavior as a citizen of wherever you live. I'm going to bet most citizens, and even many of you reading this article, have not.

However, the alternative would be to not have rules. That didn't seem right. After all, when there are no rules, bullies rule. Rules exist for a purpose.

Now, you might think the answer would be to write shorter rules, so that people would be more inclined to read them. Perhaps. But then their precise meaning would be left to the interpretation of situation and to the person empowered to interpret them. That might not be fair either. So it's not what was done. The rules we had were very detailed, and so they often did not get read.

I suppose the lesson to be taken from this is a personal choice. Life is like that. You experience something and then draw on it in a personal way to guide future behavior. What I learned from this is the following:

Fairness is an abstract concept which we can conceive, but it has no uniquely determined, objectively correct form. In practice, it must be defined, since if there were no such process there would never be any end to bickering over what counts as fair. And yet, by becoming a matter of definition, rather than one of describing abstract truth, we create a process that will substitute for fairness, rather than one that will actually be fairness.

Those are the cards we're dealt in the world. It doesn't seem quite fair. But that's just the nature of fairness.

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