LOUIS POJMAN: ETHICAL RELATIVISM AND OBJECTIVISM
Introduction
Examples: missionaries imposing their values on tribal cultures
Ethnocentrism: the prejudicial view that interprets all of reality through the eyes of one’s own cultural beliefs and values
Moral objectivism: there are universal moral principles, valid for all people and social environments
Ethical nihilism: no valid moral principles exist, that morality is a complete fiction
Two kinds of ethical relativism
Subjective Ethical Relativism (subjectivism): all moral principles are justified by virtue of their acceptance by an individual agent him or herself
Conventional ethical relativism (conventionalism): all moral principles are justified by virtue of their cultural acceptance
Subjective Ethical Relativism (Subjectivism)
Moral judgments are person-relative
Criticism: notions of good and bad cease to have interpersonal evaluative meaning
Conventional Ethical Relativism (Conventionalism)
The diversity and dependency theses
Diversity Thesis: What is considered morally right and wrong varies from society to society, so there are no universal moral standards held by all societies
Anthropological contention, also called “cultural relativism”
Dependency Thesis: Whether or not it is right for an individual to act in a certain way depends on or is relative to the society to which he or she belongs
Criticisms of Conventional Ethical Relativism
Undermines important values
Can’t criticize anyone who espouses heinous principles (Hitler’s genocidal actions)
Moral reformers are always wrong (civil disobedience isn’t justifiable)
Unless we have an independent moral basis for law, it is hard to see why we have any general duty to obey it
Moral diversity is exaggerated
There are some core moral values that we see throughout the world (O.E. Wilson, rejection of the diversity thesis)
e.g., duties of restitution and reciprocity, regulations on sexual behavior, obligations of parents to children, a no-unnecessary harm principle, and a sense that the good people should flourish and the guilty people should suffer
Weak dependency does not imply relativism
Two dependency theses
Weak view: the application of moral principles depends on one’s culture
Strong view: the moral principles themselves depend on one’s culture
The non-relativist can accept the weak view
Relativists need the strong view, which is difficult to prove since it requires ruling out all rival sources of substantive moral principles
Moderate objectivism
Argument against moral relativism
Acceptance of at least one objective moral principle
“It is morally wrong to torture people for the fun of it”
Core morality
Do not kill innocent people
Do not cause unnecessary pain or suffering
Do not lie or deceive
Do not steal or cheat
Keep your promises and honor your contracts
Do not deprive another person of his or her freedom
Do justice, treating people as they deserve to be treated
Reciprocate: Show gratitude for services rendered
Help other people, especially when the cost to oneself is minimal
Obey just laws
Argument for core morality from our common human nature
Human nature is relatively similar in essential respects, having a common set of basic needs and interests
Moral principles are functions of human needs and interests, instituted by reason to meet the needs and promote the most significant interests of human (or rational) beings
Some moral principles will meet needs and promote human interests better than other principles
Principles that will meet essential human needs and promote the most significant interests in optimal ways are objectively valid moral principles
Therefore, since there is a common human nature, there is an objectively valid set of moral principles, applicable to all humanity (or rational beings)
JOHN LOCKE: NATURAL RIGHTS
a. Thesis: God has invested all people with fundamental rights to life, health, liberty and possessions, and governments are formed to protect these rights; revolution is justified when the government violates laws and threatens the life, liberty and property of citizens.
b. State of nature and its laws.
i. State of nature: a pre-political, yet moral, society where humans are equal and bound by divinely commanded laws of nature.
ii. Fundamental law of nature: “we ought not harm others with respect to life, health, liberty, or possessions”.
iii. Law-breakers: each person has the authority to punish those who break the law of nature.
iv. Right to life: We retain our right to life unless we forfeit it by violating the rights of others.
c. State of war.
i. The innocent have a right to wage war against law breakers.
ii. Includes a justification to kill, even when the perpetrator doesn’t present an obvious threat to life; if a thief takes away my liberty to get my money, I may also assume that he’d take my life.
iii. State of war vs. state of nature: state of nature is a peaceful condition of rational beings; in a the state of war we protect ourselves against aggressors (in a political state the government has the task of protection).
iv. A state of war can also emerge when someone harms us and a corrupt political system prevents adequate redress.
d. Property.
i. We create private property when we mix our labor with an object held in common.
ii. Everything in the world first belonged to all humans in common, and we don’t need to seek permission to mix our labor with common objects.
iii. God has provided virtually unlimited natural resources that we may acquire.
iv. Land is also acquired by mixing our labor with common land; this is in virtually unlimited supply, especially in America.
e. Political society: we form larger communities for the benefit of mutual protection, but in exchange for this we give up some of our liberty.
i. We must follow the will of the majority, which is the only basis of lawful government.
f. Revolution
b. Two ways of dissolving governments.
i. Voluntary and peaceful disbanding of the government.
ii. Violent resistance or insurrection.
c. Violation of public trust.
i. The purpose of government is preserving our basic rights, and when it fails to keep its part of the agreement, the people may remove the offending government and set up a better one.
ii. Legislative and executive branches of the government can violate public trust and justify revolution.
d. Criticism: perhaps people will always be dissatisfied with a government and thus continually overthrow and replace it.
i. Locke’s response: people grow content with their systems and would not likely do this.
e. Criticism: permissiveness regarding insurrections may lead to all out civil war, and this is not justified.
i. Locke’s response: the fault of civil war is that of the offending government, not that of people who are seeking to preserve their rights.
MILL: LIBERTY OF SPEECH AND ACTION
A. Thesis: governments may restrict a person’s liberties only when his actions harm other people, but not simply because that person’s actions harms himself.
B. Chapter 1: Introductory
1. Tyrannies
a. Political tyranny: governments imposing civil penalties upon people who break the law
b. Tyranny of the majority: the tendency of society to impose the majority views upon those who dissent from them through the moral coercion of public opinion
2. Principle of liberty: “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others”.
a. Harm to oneself is not sufficient to restrict a person’s conduct.
3. Argument based on utility only, not on abstract rights
4. Three kinds of liberty necessary for any free society
a. Liberty of conscience; inseparable from the freedom of expression and publishing
b. Liberty of tastes and pursuits
d. Freedom to unite for any purpose not involving harm
C. Chapter 2: Of the Liberty of Thought and Discussion
1. The world loses when intimidating people from following independent trains of thought
2. Four ways that freedom of opinion contributes to happiness (i.e., “the mental well-being of humankind”)
a. Suppressed views may in fact be true
b. Even an erroneous view may contain some truth
c. Even a true view will be viewed with prejudice unless it is vigorously defended
d. The meaning of the truth will become lost if it is not vigorously defended
D. Chapter 3: On Individuality, as One of the Elements of Well-Being
1. People should be free to act (as well as be free to think) so long as their actions don’t harm others
2. People currently have only half truths and thus there should be different experiments of living to test various ideas.
E. Chapter 4: Of the Limits to the Authority of Society over the Individual
1. Social coercion is justified when a person’s conduct adversely affects the interests of others; coercion can be legal and social
a. Such coercion is not justified when only the individual is affected
2. Benevolence: people should still be benevolent to others, but not intrusive or coercive
3. Offensive conduct
a. Conduct cannot be restricted on grounds that it offends or disgusts people.
b. Religious groups have imposed restrictions based on the offensivness of some conduct: e.g., adhering to other religious denominations, married clergy.
c. If we allow restrictions by one religious group (e.g., Puritans), we make ourselves vulnerable to restrictions by others (e.g., Methodists).
JOHN RAWLS: JUSTICE AS FAIRNESS
Thesis: if we ignore our actual advantages and disadvantages within society, we will arrive at two basic principles of justice that establish a base-level of equality and allow for unequal advantages only when they are to everyone’s benefit.
Introduction
The fundamental idea in the concept of justice is fairness
The notion of justice is restricted here to only social institutions or “practices” (e.g., a principle of a just society), and not to people (e.g., a just person)
Justice is only one of many virtues of social institutions
“Justice involves the elimination of arbitrary distinctions and the establishment of a proper balance between competing claims”
The two principles of justice offered below are not the only possible ones
Two principles of justice
Two principles express the notions of “liberty, equality, and reward for services contributing to the common good”
Principle 1: “Each person participating in a practice, or affected by it, has an equal right to the most extensive liberty compatible with a like liberty for all”.
Equality of liberty is the starting point
Principle 2: “Inequalities are arbitrary unless [a] it is reasonable to expect that they will work out for everyone’s advantage, and [b] provided the positions and offices to which they attach, or from which they may be gained, are open to all”.
Principle 2.a (the “difference” principle) allows for an unequal redistribution of power and wealth (e.g., like the different roles that people play in games)
The initial equality between people can be modified, with some having more advantage than others, so long as it is consistent with everyone’s advantage
Principle 2.b: there may be a common advantage to having special offices with special benefits (e.g., attracting the best talent for the job), but the offices must be won in a fair competition
Original position
Proving the above principles
It is usually not successful to claim that such principles can be known intuitive or deduced through a priori principles of reason
Conditions of people in the original position
Mutually self-interested
Rational: they know their interests, can trace out consequences, can resist short term temptations, can be free from envy
Similar needs
The people ignore their actual advantages and disadvantages within society when settling on principles of justice (veil of ignorance)
The principles will be binding on future occasions, regardless of one’s actual position in society
This ensures impartiality, and a fair balance or equilibrium between competing claims is arrived at
In this situation, the people will arrive at the above two principles of justice
Clarification
Does not assume any particular theory of human motivation, i.e., that people are always selfish; it only assumes that people are rationally self-interested when deciding rules of justice
They do not establish any particular society or constitution (as with social contract theory) nor do they follow a particular strategy (as with game theory).
They are not coming together for the first time
This avoids the criticism of social contract theory that it is an historical fiction
Fairness.
Fairness is fundamental to justice: the right dealing between people who are cooperating with or competing against one another
e.g., fair games, fair competition, and fair bargains
Without fairness, people’s relations will appear to them as founded on force
THOMAS AQUINAS AND HUGO GROTIUS: CRITERIA OF JUST WAR
Thomas Aquinas: proper authority, just cause, rightful intention
Thesis: there are three requirements of a just war, i.e., proper authority, just cause, rightful intention
Proper authority: private individuals cannot declare war or summon people to fight
Just cause: wars can be declared only to address some fault, such as to make amends for some wrong
Rightful intention: the advancement of good, or the avoidance of evil
Hugo Grotius: Just Causes and Conduct in War
Just Causes of War: defense, reparation, and punishment
Defense of life and property: derived from self-defense
We have a right to defend our lives by killing the attacker
“I am not bound to submit to the danger or mischief intended, any more than to expose myself to the attacks of a wild beast”
Killing in self-defense is not purposeful: it is not the primary object, but an unintended consequence that is foreseen
The danger must be immediate
We have a right to attack in anticipation of danger, but fear alone is not a ground for killing someone
We have a right to defend our property by killing the attacker
We have a right to kill a robber if it is a necessary step to preserve our property, unless the property is of little value
These two rights, which apply to both private wars and public wars
Reparation for damages
Damages include the harm done both the property itself, and what we could reasonably expect the property to produce (e.g., a farm field in a particular growing season)
The losing side in a war cannot justly claim damages
Countries have an obligation to any piracy and robbery directed towards other nations
Punishment
Not all injuries have just grounds for war; trivial offenses should be overlooked
Unjust wars
Some wars result from ferocity alone, with no good reason
Many wars are justified from pretexts which do not stand up to moral scrutiny
Fear alone doesn’t justify war; it must be a fear backed by necessity
Just Conduct in War
The means of war derives its moral character from the end to which they lead
“We may justly avail ourselves of those means, provided they be lawful, which are necessary to the attainment of any right”
Discrimination
Wars should not be unnecessarily cruel
The lives of the innocent should be protected: women, children, ministers
The lives of those who sustain society should also be protected: farmers, merchants, and artisans
Prisoners who surrender should not be put to death
Proportionality
Three justifications for destruction of property:
It is necessary to stop the enemy
The destruction satisfies some debt
The destruction is the only adequate punishment for aggression
Destruction should not extend any further than is necessary to make the aggressor pay for his offence
PAUL WEISS: THE ETHICS OF PACIFISM
Five justifications for pacifism
Religious pacifism
Two forms
Classical: there is a God and he does not approve of war
Modern: silent on the issue of God’s existence; there great religious leaders defend pacifism
Both forms appeal to scripture; but scriptures can be interpreted in various ways
Majority religious view is that there are just wars
Ultimately based on a conviction that he has interpreted the texts correctly
Criticism: has no defense
Criticism: convictions can change
Governments accept this justification the most, largely because of the strength of the believer’s inner conviction
Cynical pacifism
Skeptical about the motives and gains of wars, based on evidence of past wars
Wars encourage the worst human tendencies, sacrifice rights, create poverty, sacrifices lives of promising people while others live in luxury, involves lots of secret agreements
Criticism:
Wars also encourage the best human tendencies (spirit of cooperation and self-sacrifice), it aims at peace for all, it aims to secure more rights for people, makes international law possible, it leaves the common person stronger than he was before
There can be a war fought properly, and for good ends
Cynical pacifism is a peacetime view
Sentimental pacifism
War is wrong since all people are of incalculable worth, to be helped and loved, not injured or destroyed
Criticism:
Love is not incompatible with, and sometimes necessitates, acts of discipline, prevention, correction, and even destruction
If there is no justification for war, then there is also none for surgery, prisons, and mental hospitals
Sentimentalists overlooks what people actually are in favor of what they should be
Political pacifism
Political ends are more effectively attained through non-resistance than through war (Gandhi’s view)
Opposition usually intensifies the fury of an attack
Non-resistance keeps destruction at a minimum, and may even turn the temper of the conqueror by the beauty of its spirit
Criticism:
Assumes that the conqueror is wise and can be moved at the sight of nobility
Non-resistance assumes that the goods one has attained are worthless, and it is indifferent to the welfare of those weaker than oneself
Ethical pacifism: contemplative commitment to the highest good
The above types of pacifism make important points, but none withstands criticism; since they are inherently conflicting, they cannot be combined
Ethical pacifism is a consistent commitment to the ideal of non-violence during both peace and war times
It involves a contemplative commitment to the highest moral good or universal truth, that doesn’t change with practical situations
It is “the correlate and not the negation of an ethically responsible militaristic view”
It is a contemplative vision of life that counterbalances a practical vision of life
The practical vision aims to make humanity whole by combating concrete evils
The contemplative vision aims to make humanity whole by making manifest the “highest and most universal goods”
Four arguments against ethical pacifism
Kow-Tow: submitting to government
We should follow the decisions of our governments, and thus support war when they declare it
Criticism: sometimes governmental decisions are immoral or perverse and should be resisted by the ethical person (i.e., the contemplative person who is committed to the highest good)
Pow-Wow: submitting to representatives
Through our representatives, the decisions of our government are the decisions of all, and we should support war when they declare it
Criticism: not everything one’s appointed representatives decide is right, wise or judicious
Bow-Wow: distant danger
It is inhumane to standby while a renegade country (i.e., a “mad dog”) poses a danger to those abroad
Criticism: this tells us only that there are times when practical people must act quickly; it does not show us that contemplative people must become practical when danger looms
Ow-Ow: immediate danger
The mad dog is an immediate danger and we are in a desperate situation where civilization is at risk
Ethical pacifism cannot withstand this criticism since it “presupposes the existence of some society or other, and the achievement of a fair degree of civilization”
ALEXANDER MOSELEY: CAN TERRORISM BE JUSTIFIED?
Being terrified
Although death is unforeseen, a good death is usually held to be morally valuable
Dignity in death: assumes a mental readiness to face the end, even though its timing remains uncertain
Terrorism is criticized for upsetting death with dignity and imposing chaos
Criticism: perhaps we should reject the idea of dignity in death
Terrorism cannot be morally rejected because people happen to be “terrified’
The nature of the terrorist act
Terrorism: a form of action intended to terrify a target for an implied purpose
Criticism: there are times when terrifying another is a proper policy, e.g., surgery
Political models of terrorism
Political conception of terrorism: deals with power and therefore with governments, either fighting for them or against them
Criticism: much of human history has involved non-state wars
To terrify a target is to seek some change in its behavior, and that may include altering political allegiances or policies: but not exclusively so
Criticism: terrorism need not be a group activity
The decision to bear arms is always an individual one
Individualist philosophers saw little distinction between the aggression of a criminal and that of an emperor at the head of immense armies
Collectivism wrongly assumes that the individuals concerned are of one mind
Definition of terrorist: someone who has decided to employ a policy of terrifying another; he typically seeks to change others’ beliefs or actions; he may or may not group with other terrorists; he may or may not be motivated by political power
The terrorist’s ends
Possible motivation: the overthrow of an oppressive state through any means
Criticism: if a better result is desired, we can ask why it is sought after over other ends, and we can demand upon what criteria it is to be so judged.
Possible motivation: we all should be kept in a state of terror; terror is the manifest destiny for the human race (suffering is part of our lot)
Criticism: there is something deeply disconcerting about embracing suffering-in-terror as morally superior to peace and security
We must reject humanity’s assumed sinful nature, and our alleged need to live in terror
The assertion of a life-embracing ethic stops any justification of infringements by others
“Just” terrorism
Just war theory
Justification of war (jus ad bellum): just cause; have exhausted all other options; hold a right intention; retain a sense of proportionality (e.g., fighting against a border invasion and not an insult); proper declaration that we all understand.
Practice of warfare (jus in bello): discriminate between legitimate and illegitimate targets; maintain a sense of proportionality in method (e.g., avoiding the annihilation of an enemy position if lesser means could secure a victory); keep a sense of responsibility or accountability in war.
Total war: we need to justify going to war, but there are no conventions and restraints on warfare
Principle of discrimination: need to distinguish between combatants and noncombatants
Double effect: so long as the intended target was legitimate any accidental deaths are thereby morally excusable
Criticism: the harm done to civilians is the same, whether intended or accidental
The principle of discrimination applies to both conventional war and terrorism
Proportionality: should only use the amount of force that is required to achieve one’s goal
Criticism: aggression is itself an unreasonable act, and to respond reasonably and “fairly” or “decently” according to chivalrous codes is morally absurd
The only rule should be to halt and deter attackers by employing the most effective method to return society onto a peaceful footing
Terrorism against an invading armed force is not only tactically but morally acceptable as a means of slowing down their momentum
Justification for terrorism: only for self-defense and only against those who initiate aggression
TOM MALINOWSKI: TORTURE
Introduction
Recent US policies violate human rights of prisoners
Such policies undermined standards that defenders of human rights rely upon
They have diminished America's moral standing and influence in the world
They have hindered, not aided, the fight against terrorism
The US Program of Detention and Torture
The facts
100 prisoners have been held in the CIA program, who have effectively disappeared
Enhanced interrogation: waterboarding, standing motionless for up to 48 hours, sleep deprivation
US Justification
The whole world is a battlefield in an open-ended war on terror
Such people can be seized anywhere, at any time, without judicial authorization
Setting a bad example
Other countries mimic the US policies and the arguments it uses to justify them
The United States is a standard setter in everything it does, for better or for worse
When the United States bends the rules, the entire framework upon which we depend to protect human rights falls apart
This discredits the US and the standard of human rights
Countries commonly say “We're just doing what the United States does.”
Harm to Counterterrorism
These policies do not have national security benefits that justify such costs
Counterterrorism hinges on its morality credibility
Such policies make it easier for terrorists to recruit new members
Such policies hurt efforts to collect accurate intelligence about the enemy
Torture is not a reliable method of interrogation:
To end their suffering they say whatever they think their interrogator wants to hear
e.g., al-Libi tortured into falsely saying that Saddam Hussein was helping al-Qaeda obtain chemical weapons
Secret detention and military trials are less effective than open Federal trials
Results in more convictions, and creates no complaints of unjust treatment
WAR AND CIVIL LIBERTIES: KOREMATSU V. U.S.
Background
Executive order 9066 (1942): authorized the U.S. military to declare portions of the United States as military areas "from which any or all persons may be excluded."
Curfew order (1942) : people of Japanese ancestry within the West Coast military areas were required to remain in their residences from 8 p.m. to 6 a.m
Unsuccessfully challenged in the supreme court case Hirabayashi v. United States (1942)
Civilian exclusion order (detainment camps):
The U.S. west coast was deemed a military area, and, to protect against espionage and sabotage, the U.S. commanding general of the area ordered the detainment of Japanese Americans in secluded camps
120,000 ethnic Japanese were interned for the duration of the war, 62% were American born
Fred Korematsu (U.S. Citizen, born in US, Japanese parents) refused, changed his name and claimed to be of Spanish-Hawaiian descent
Was arrested and convicted for disobeying the relocation order
Unsuccessfully challenged in U.S. Supreme Court (1944)
Court decision: 6-3 against Korematsu
Hugo Black: Majority Opinion of the Court
Forced exclusion is constitutionally questionable, but is justified in situations of "emergency and peril"
Justification of curfew and exclusion: some Japanese Americans were disloyal to the US, but it was impossible to determine which ones (there was evidence of some disloyalty)
The detainment was a hardship for the Japanese Americans, but hardships are part of war, with citizens as well as soldiers
The military necessity outweighed the liberty of the detainees
“the power to protect must be commensurate with the threatened danger”
Detainment was not racial prejudice: it was a security measure to block Japanese invasion from the West coast
Frank Murphy: Dissenting Opinion
In war time, consideration should be given both to military authorities and to the rights of the individual
The key issue: has the military overstepped the allowable limits of military discretion
The judicial test: whether the public danger is so 'immediate, imminent, and impending' that it necessitates depriving an individual’s constitutional rights
The exclusion order failed this test
To remove the present danger, it was unreasonable to assume that “all persons of Japanese ancestry may have a dangerous tendency to commit sabotage and espionage and to aid our Japanese enemy in other ways”
Alleged sociological justification: evidence about strong ties of race, culture, custom and religion
Criticism: these are half-truths directed by people with racial and economic prejudices against Japanese Americans
Alleged urgency justification: there was no time to separate the loyal from the disloyal
Criticism: it took several months for the exclusion order to be carried out
Criticism: since martial law wasn’t declared, the situation was not too urgent
Criticism: other policing agencies had the situation under control at the time of exclusion
The exclusion order was a “legalization of racism” which is not justifiable in a democracy
Robert H. Jackson: Dissenting Opinion
Constitutional harm
Unconstitutional military orders are only temporary, and only last as long as the emergency
But court decisions do long term damage by “validating the principle of racial discrimination”, thus making it a doctrine of the constitution
“The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”
The alleged curfew precedent
The Hirabayashi curfew decision was seen as a precedent that justified the Korematsu decision
Criticism: the curfew ruling only validated “a discrimination of the basis of ancestry for mild and temporary deprivation of liberty”; detention is much more extreme
THE RIGHT TO ABORTION: ROE V. WADE—HARRY BLACKMAN AND BYRON WHITE
Background
Participants:
Norma L. McCorvey (Jane Roe) claimed she was pregnant from rape, sought an abortion but was denied under Texas law. She sued Texas on behalf of similar pregnant women in Texas
State of Texas (Henry Wade, Dallas County District Attorney): abortion is permitted only to protect the life of the woman (not her health); doctors could be prosecuted, but not the woman
Positions:
Extreme anti-abortion side: the fetus is a legal person from the moment of conception, and abortion is not permissible unless the mother’s life is in danger
Extreme pro-abortion side: the fetus is not a person (moral or legal) throughout pregnancy, and a woman can opt for an abortion as a matter her right to privacy
Court’s middle ground: women have a right to privacy, but after viability this right can be balanced against the potential life of the fetus
History of Anti-Abortion Laws
From Ancient Greece to the 20th Century
Introduction: strict abortion laws emerged in the 19th century
Ancient attitudes: abortion was common in Greek and Roman times
Not opposed by religion
The Hippocratic Oath: opposes abortion
The oath represents only a small segment of Greek opinion, influenced by the Pythagoreans
The common law: abortion prior to quickening (movement) is permissible
40 days for a male and 80 days for a female
Probably no punishment for post-quickening abortion
Prior to this point the fetus was to be regarded as part of the mother, and its destruction was not homicide
The English statutory law
1803 first criminal abortion statute: post-quickening a capital crime, pre-quickening lesser penalties
Abortion Act of 1967: allows abortion for life or mental health of the mother, physical abnormality of the fetus
The American law
Most states followed English common law until the mid 19th centuries
In 1828 New York legislation (an early model): pre-quickening abortion is a misdemeanor, post-quickening abortion second-degree manslaughter; excusable to protect the life of a mother
Late 19th century: quickening distinction disappeared States laws and the degree of the offense and the penalties were increased
By late 1950s: “a large majority of the jurisdictions banned abortion, however and whenever performed, unless done to save or preserve the life of the mother” (two jurisdictions included “health” of the mother)
1960s-70s: liberalization of state abortion laws
From 1789 until the mid-19th century, a woman enjoyed a substantially broader right to terminate a pregnancy than she did in 1970
The position of the American Medical Association
Late 19th century: shared the countries anti-abortion mood, and may have contributed to it
1967 committee report: allowed exceptions, including life or health of mother, deformity of fetus, rape
Reasons for Criminalization of Abortion in the 19th Century
Product of a Victorian social concern to discourage illicit sexual conduct
Not relevant to recent cases
Mortality was high, and the laws aimed to restrain the woman from submitting to a procedure that placed her life in serious jeopardy
Perhaps most strict abortion laws aimed at this
Now first trimester abortions low mortality rates at the same level or lower than the rates for normal childbirth
Duty in protecting prenatal life, which may be balanced against the life of the mother
States may also protect the fetus even to the degree that potential life is involved (and not necessarily actual life from the moment of conception)
Constitutional Issues
The Right to Privacy
The Constitution does not explicitly mention any right of privacy, but
“In a line of decisions, however, going back perhaps as far as . . . 1891, the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution”
“This right of privacy . . . is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy”
Physical and mental health issues
“We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation”
Legal Personhood and Fetuses
The word “person,” as used in the Fourteenth Amendment, does not include the unborn
Differing Views of When Life Begins
“The pregnant woman cannot be isolated in her privacy”: at some point the woman’s right must be balanced against the fetus’s right
No answer as to when human life begins (i.e., moral personhood)
Live birth: stoicism, Protestantism
Quickening (movement animation): Aristotle
Viability (survive outside womb)
Conception: catholic view
Laws regarding fetuses: limited to viable or quickened fetuses
May be to protect parents’ interests, and may only depend on potential life (not actual life)
Court’s position: rejects the life-at-conception view of fetus, but accepts that the state’s interest in protecting the fetus becomes more compelling as pregnancy advances
Allowable Government Restrictions of Abortion
First and Second Trimester Abortions and the Mother’s Health
States cannot restrict abortion prior to the first trimester
Fetuses at this stage have no legal standing
The woman’s safety is not an issue
States can regulate abortions during the second trimester
Only to protect the woman’s safety
Fetuses at this stage still have no legal standing
Third Trimester Abortions and Viability
States can restrict abortion during third trimester
After viability protecting the potential life of a fetus is compelling
Abortions are permitted to protect the woman’s life or health
Conclusion and Summary
“(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.
(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.
(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”
Justice Byron White: Dissenting Opinion
Implications of the court’s decision
Prior to viability, women can have an abortion for any reason (not simply to protect life or health)
“The Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries.”
Criticism: there is no constitutional justification for this right
“The Court simply fashions and announces a new constitutional right for pregnant mothers”
Criticism: these are issues that should be left to states to decide
Through the decision, “States are constitutionally dissentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand.”
FETAL PAIN: PRO AND CONTRA
Jean A. Wright: pro
Extension to care in the neonatal intensive care units
Viability for premature infants now at 23-24 weeks, a month earlier than the 28 week gestational age definition that existed when Roe v. Wade was decided
Neonatal units are increasingly concerned for pain relief for premature infants
The disconnect between pain in the neonate and pain in the fetus
Pain affects unborn fetuses just as it does premature infants of the same age
Knowledge of fetal pain is withheld from pregnant women because it might impact their decision to have an abortion
The role of informed consent
Women are entitled to know whether a procedure will be painful for their fetuses
What will we tell them?
After 20 weeks of gestation, the physiology is complete for a fetus to feel pain, and any procedure on an unborn child should take this into account
Why isn’t treating the mother enough for the child?
Anesthesia must be given to address both the woman’s and the fetus’s pain
Conclusion
Knowledge of fetal pain has changed clinical practice, and the legislative issues must change as well
Arthur L. Caplan: Contra
Fetal pain
There is no medical consensus about when the fetus becomes pain-capable (24 weeks, 26 weeks, 28 weeks)
It would be a bad precedent for governments to “mandate disclosures about ‘facts’ for political or even ethical reasons which have no foundation in science or medicine.”
“it is exceedingly dangerous as history shows to try and bend science to serve political goals”
Consent, risk and benefit
A standard of disclosure must include information about fetal age, the effectiveness of pain relief techniques, the risk of anesthesia to the woman, the risks to the woman of continuing her pregnancy
Mandating the content of informed consent
In no other area of health care has government mandated the content of informed consent
It is hard to justify a fixed script since every patient is different, since all situations are different
Interference with the practice of medicine and the doctor/patient relationship
This shows no respect for the ability of the medical profession to present information about pregnancy, abortion and fetal pain to women
AGELESS BODIES: THE PRESIDENT'S COUNCIL ON BIOETHICS
Introduction
Reversing the aging process has long been a human dream, but only now is it achievable
Ethical Issues
The case for: more time allows us to gain more wisdom, from which individuals and society would both benefit
Two assumptions
Technology will be available to significantly retard the process of aging, of both body and mind
This technology will be widely available and widely used
Three possibilities
Aging is slowed more or less equally at all stages of life
The healthy years of the prime of life (middle age) are greatly extended
Death comes suddenly following long years of health and vigor
Effects on the individual
1. Greater Freedom from Constraints of Time.
Longer-lived individuals would have more time to explore new things
Alleviates some fear of death
2. Commitment and Engagement.
All our activities are, in one way or another, informed by the knowledge that our time is limited, and ultimately that we have only a certain portion of years to use up
The scarcity of a commodity contributes to its value
Might result in lesser engagements and weakened commitments
3. Aspiration and Urgency.
We’ll act with less urgency
4. Renewal and Children.
Longer lives may decrease an interest in children
e.g., healthy childless couples today who pursue their own dreams
Without some presentiment of our mortality, there might be less desire for renewal
Age-retardation might impact lifelong fidelity to one’s spouse
Intergenerational family ties may change if there are five or more generations alive at any one time
5. Attitudes toward Death and Mortality
Might lead to anxiety, self-absorption, and preoccupation with any bodily mishap or every new anti-senescence measure
If one’s final years involve chronic debilitating illness, pressures for euthanasia and assisted suicide might mount
6. The Meaning of the Life Cycle.
Longer lives could disconnect us from the guidance of our biological life cycle
Effects on society
1. Generations and Families.
The old might think less of preparing their replacements
The young could see before them only layers of their elders blocking the path
The young might have no great reason to hurry in building families or careers
2. Innovation, Change, and Renewal.
Older generations might slow down regarding innovation and adaptation
Few of us can change our fundamental outlook once we have reached our intellectual maturity
Waiting decades for upper management to retire would suppress this renewing energy and slow the pace of innovation
Society’s freshness depends on the spirit of youth,
3. The Aging of Society.
The nation might commit fewer social resources to initiating the young, and more to accommodating the old
Societies might age and decline more quickly, becoming more inflexible
Conclusion
As biotechnologies improve and extend our lives, the fundamental question of human purposes and ends become more important
IS GENETIC DISCRIMINATION A SERIOUS WORRY: PRO AND CONTRA
Karen Rothenberg: Pro
Genomics holds open great medical promise, but there are no federal laws to safeguard genetic information
Fear of genetic discrimination is widespread in the American public
People are worried that their jobs of their insurance policies could be adversely affected by genetic discrimination
People are reluctant to participate in biomedical research because of employers gaining access to that their genetic profile
History of genetic discrimination
Immigration restrictions based on genetic inferiority in early 1900s
State sterilization laws
Nazi eugenics resulted in the killing millions of Jews
Black Americans who carried sickle cell gene mutation were denied insurance or lost their jobs in the 1970s
Burlington Railway paid up to $2.2 million in a suit for secretly testing employees for a genetic variation associated with carpal tunnel syndrome
Reasons why there is currently little evidence of major problems
No widespread utilization of genetic services
Individuals often will not know or understand the underlying basis for an insurance or employment decision
People may not risk loss of privacy for themselves and their families by going public with a discrimination claim
Discrimination cases may be settled at the trial court levels that are never formally reported
It is reasonable to make laws against genetic discrimination based on fear if we are to fully benefit from the promise of genetic research.
There are a patchwork of laws that address genetic discrimination, but there are serious gaps
A strong and comprehensive law should prevent an employer from the following
Using genetic information in hiring, firing, and determination of employee benefits.
Requesting genetic information unless they can show that the disclosure is relevant to the job.
Accessing genetic information contained in medical records released as a condition of employment, in claims filed for health care benefits, or any other sources.
Releasing genetic information without prior written authorization of the individual for each and every disclosure.
Criticism: new federal legislation may place an undue burden on the business community
Response: this won’t be a significant new burden if they are complying with current state laws
Response: employers have long maintained that they are not practicing genetic discrimination anyway
Burton J. Fishman: contra
There is reason for optimism regarding genetic research
Everyone has one or more defective genes; genetic research will help identify and cure the diseases associated with these
Laws regulating genetic discrimination penalize the flow of information in genetic research
Two fears: (1) employment discrimination (2) discouragement from participation in genetic research and testing
These fears are irrational and fed by anecdotal but apocryphal stories
e.g., Burlington railroad: the employees were able to gain redress under current law, which means that no additional legislation is required
Empirical evidence
Studies show that few employers seek or even understand genetic information
“There is no empirical evidence of genetic discrimination in employment, unlike the mountains of evidence of discriminatory conduct which preceded passage of other nondiscrimination laws”
Fear should not be the predicate for federal legislation
Predictive ability of genetic tests have little practical workplace utility
They reveal only the possibility that a particular trait, condition, or illness may develop in the future
This is too speculative for use with employment decisions
Many of the states which passed legislation early on, have already had to amend laws rendered obsolete by the advance of scientific knowledge
Appropriate legislative principles
Employment decisions should be made based on an individual’s qualifications, not on genetic makeup
Laws should be directed at controlling discriminatory conduct, rather than attempting to regulate the flow of information
If a company does intentionally discriminate, remedies should be available, but punitive and compensatory damages should be limited
Duplicative efforts to guard against genetic discrimination are costly and confusing; new laws should build upon old laws
PRESERVING INTERNET FREEDOM: GUIDING PRINCIPLES FOR THE INDUSTRY -- MICHAEL K. POWELL
The vision for the broadband internet
Increased availability of Broadband (highspeed) internet will lead to new internet technologies, which in turn will create economic growth and give consumers more choices
To be a world leader in this everyone involved (network providers, content and applications developers and policymakers) needs to be devoted to this
Congress thus directed the Commission to “encourage the deployment [of broadband] on a reasonable and timely basis”
Having multiple internet suppliers (e.g., cable, phone, satellite) gives wider access and helps avoid monopolies
Achieving the vision: power to the people
Broadband possibilities empower people: hardware devices (e.g, iPOD), online publishing, retailing (Ebay)
Maintaining openness: empowering consumers without regulating the internet
Consumers must be able to obtain and use the content, applications and devices they want
Broadband providers are agreeing to not block internet access to competing services (e.g., internet phone)
Such access and information is in their own self-interest
Steering clear of potential obstacles on the horizon
Internet providers might have incentives to restrict access (e.g., restricting home networking)
Some restrictions may be reasonable attempts to manage their networks to prevent service disruption to other customers
No current need for government restriction
“Government regulation of the terms and conditions of private contracts is the most fundamental intrusion on free markets and potentially destructive, particularly where innovation and experimentation are hallmarks of an emerging market.”
Industry still needs to take heed of how important unrestricted access is
Consumer are entitled to “internet freedom” (Four Freedoms)
Freedom to Access Content: consumers should have access to their choice of legal content
Freedom to Use Applications: consumers should be able to run applications of their choice
Freedom to Attach Personal Devices: consumers should be permitted to attach any devices they choose to the connection in their homes
Freedom to Obtain Service Plan Information: consumers should receive meaningful information regarding their service plans
Key benefits of preserving “internet freedom”
This preserve consumers’ freedom to access and use whatever they choose
This promotes innovation by giving developers confidence that their programs will run as designed
Protects against the potential rise of abusive market power by vertically-integrated broadband providers
If a balance is struck between service providers and internet freedom, no intrusive regulation will be required
PROTECTING THE FLAG: RICHARD D. PARKER
Introduction
The majority of Americans support flag protection
The burden is on the minority to make their case, and their case is weak
Arguments about (supposed) effects of the constitutional amendment
Trivialization
The “What, Me Worry?” Argument: There are few incidents of flag desecration nowadays, and the flag is just a symbol
Criticism: official approval of flag desecration with wither away at the value of the flag and other community norms
The “Wacky Hypotheticals” Argument: imagine all sorts of bizarre applications of a law (e.g., flags on T-shirts)
Criticism: the proposed amendment refers to a “flag” not an “image of a flag.”
Exaggeration
The “Save the Constitution” Argument: this might lead to more amendments that, eventually, might unravel the Bill of Rights and constitutional government altogether
Criticism: the proposed amendment would not alter “the First Amendment” in the slightest
Criticism: this will not lead to other amendments since only a fraction of proposed Constitutional amendments are ever ratified
The “Censorship” Argument: it will restrain the freedom of speech
Criticism: the law would only block desecration, not the message and other expressions of contempt for the flag
Criticism: the flag doesn’t represent a single ideology or party platform, but transcends our differences and doesn’t compete with challenging viewpoints
Criticism: the flag helps minority views get a hearing (e.g., displaying the flag in civil rights marches)
Argument about (supposed) sources of support for the amendment
Flag supporters are characterized as overly emotional, intolerant, intolerant and frivolous
Criticism: these are false generalizations which are unfairly used as a smear campaign
Ignoring counter-argument
Opponents of flag protection don’t give adequate consideration to the opposite side, particularly in the media which often only presents the view of flag protection opponents
The value of public patriotism
Opponents of flag protection have an uneasiness about public patriotism as a public value
Personal patriotism is OK and is like religious faith
Public expressions of patriotism threaten to cause conflict and official oppression
Criticism: public patriotism essential to the effective enjoyment of freedom and maintenance of the legitimacy of government
PORNOGRAPHY: HARMFUL YET LEGAL -- PAMELA PAUL AND RODNEY A. SMOLLA
Background
Miller test for obscenity
(1) Appeals to the prurient interest according to community standards,
(2) Depicts sexual conduct in a patently offensive way,
(3) Lacks serious literary, artistic, political, or scientific value
Pamela Paul: the harmful effects of pornography
Introduction
Pornography cuts across all segments of society: ethnically, geographically, socio-economically
Use of pornography has serious, negative effects
Pornography’s effects on men
Types of damage: wastes valuable time, interrupts work days, displaces hobbies, results in lost jobs and divorces
Even soft-core pornography teaches men to view women as objects
The first step is usually an increase in frequency and quantity of viewing; moves to more extreme types of porn which previously might have disgusted them
Men consider trust important for a healthy relationship, but are deceptive with their partner about porn
Pornography’s effects on women
Women are viewing more porn and are becoming more tolerant of it
Women still lag far behind men in their use of pornography
Pornography’s effects on relationships
Pornography affects men’s expectations of how women should look and act
For a woman to judge pornography as anything but positive is read as a condemnation of her man or at the very least, of his sexual life
Only 22 percent of Americans believe pornography improves the sex life of those who look at it
In divorce cases these days, enormous amounts of time and money are spent recovering pornography off computers
Pornography’s effects on children
Most kids have easy access to pornography online
Nearly one-third of 12-year olds and nearly two-thirds of 17-year olds say they have friends who use online porn
Some toddlers act out moves from a pornographic movie
Rodney A. Smolla: harmful pornography and legal obscenity
Thesis: Harm alone is not sufficient grounds for making pornography illegal; for pornography to be illegal, it must meet the definition of obscenity established by the Supreme Court in Miller v. California
The Miller Standard of Legal Obscenity
Distinguishes between two types of explicitly sexual material
Fits the legal definition of obscenity and is thus prosecutable (hard core porn)
Does not fit the legally definition of obscenity and is thus not legally prosecutable (soft core porn)
Vast quantities of porn already meet the Miller standard and can be prosecuted
One solution is to just put more resources into prosecution under the Miller standard
Ways of attacking porn protected by the Miller standard
Laws permit filtering technology to protect children
Laws forbid child actors in pornography
Even if pornography has harmful effects on society, laws cannot be enacted against is unless such pornography meets the definition of obscenity established by Miller v. California
The rationale for such protection
There is a natural temptation for us to move against offensive speech of all kind; strict standards like Miller prevent us from yielding to that temptation
Prosecuting Hard Core Pornography
The harmful and addictive quality of internet porn does not change the Constitutional standard of what is legally permissible
Most of the harmful porn is currently prosecutable under Miller v. California
This would require doing so jurisdiction by jurisdiction (because of our federalist system)
If pornography is a serious public health problem, then should be treated as such with more resources (e.g., counseling, education, prosecution)
IRA R. BYOCK: HOSPICE AND THE CRISES AT THE END OF LIFE
How people die in America
Not enough analgesia, preferences for care not honored, family often loses life savings
We worry more about the process of dying more than death
Assisted suicide has been one suggested solution
Care for the aged
Similar to the crisis in orphanages that was addressed in the 1940s (infants failed to thrive due to lack of human interaction)
Elderly today are also untouched by workers
Workers in care facilities are underpaid
Population of elderly is increasing, while potential caregivers among family are shrinking
The burden of family caregiving
About 1/4 of households have at least one caregiver; 3/4 are women
Hospice could be one answer
Hospices now care for barely 20% of dying Americans
Length of stay in hospice programs is decreasing because of fear of being investigated for fraud (thus they only accept people who are obviously dying)
There is a need for less oversight scrutiny in hospice programs
It doesn’t have to be this way
Areas of improvement: palliative care (i.e., symptom reduction)
Complementary therapies
Listening to people’s stories, which gives them a better sense of life’s meaning
Spiritual aspects: a connection to God, country or nature
Massage therapies, therapeutic touch, relaxation training, meditation and contemplative prayer, dream analysis, breath work (i.e., relaxing while listening to the sound of one’s breath)
Costs of better care
Home care is the cheapest, then hospice, then institution-based care
Medicare access to hospice requires that one give up life-prolonging care
Hospice can be combined with Palliative care, as done in Canada and Britain
Eden Alternative: include plants, have activities that involve kids
Government’s role
1. Formal audit of the effects of prevailing regulatory policies on care for the dying
2. Use new models for delivering care
3. Require that medical education includes symptom management
4. Better pay for aides
5. Government tax breaks and health benefit policies for home caregivers
Other players
Volunteer groups who visit nursing homes, hospitals and hospice facilities
Conclusion
Proper end of life should precede the right to preemptive death
“Before we allow our society to recognize a so-called ‘right’ to preemptive death, we must honor a basic human right to die in relative comfort, in the presence of caring people and in a clean, dry bed.”
KATHRYN TUCKER: THE OREGON DEATH WITH DIGNITY ACT: A SUCCESS
Introduction
There is no evidence of abuse, coercion or misuse of the policy of physician assisted dying
Overview of oregon law and experience with implementation:
A. Passage and challenges
An initial legal challenge was overturned by Attorney General Janet Reno (under Clinton)
A second challenge was made by Attorney General John Ashcroft (under Bush), which was overruled by the Supreme Court
B. Implementation of the Oregon law
The Dignity Act establishes tightly controlled procedures
Most patients opting for physician-assisted dying had baccalaureate degrees, health insurance, and enrolled in hospice programs
The Dignity Act resulted in improvements in the care of the dying in Oregon, e.g., increased enrollment by Oregon physicians in Continuing Education on pain medication, recognizing depression, and recommending hospice
Typical reasons for using the Dignity Act: decreased ability to participate in activities that made life enjoyable, the loss of autonomy, and the loss of dignity
Criticism: patients really need is good pain management and palliative care, not hastened death
Response: people who use the Dignity Act have good pain management, but “find that the cumulative burden of their terminal illness is intolerable”
Overview of support for the option of physician aid in dying
There is nationwide support for assisted dying (60-70% in surveys)
The back alley, covert practice
Outside Oregon, thirty-percent of physicians received a request for assisted dying, and 20 percent of those had complied
Patients who cannot find a physician willing to assist under existing law often act alone or with assistance from family members (e.g., a guy shot himself in the front yard)
“The question is not whether assisted dying will occur, but rather whether it will occur in a regulated and controlled fashion with safeguards and scrutiny, or whether it will occur covertly, in a random, dangerous and unregulated manner”
Conclusion
States are “laboratories” for social policy, and assisted suicide is a case in point
WESLEY SMITH: DUTCH DECRIMINALIZING OF EUTHANASIA: A FAILURE
Introduction
Two beliefs by advocates of assisted suicide
Radical individualism
Killing (ending life) is an acceptable answer to the problem of human suffering
Slippery slope: “once the premises of assisted suicide advocacy become accepted by a broad swath of the medical professions and the public, there is little chance eligibility for “permitted” suicide will remain limited to the terminally ill”
Dutch history: 1973 assisted suicide and euthanasia became permitted and fully legal in 2002; their guidelines do not provide protection to the weak and vulnerable
It was presented as being for rare occurrences, but then became frequent and applied to “categories of people whose assisted deaths would have once provoked outrage”
The Remmelink report
1990 investigation to determine how euthanasia was actually being carried out
The results showed that around 11,000 people were intentionally euthanized in one year (out of 130,000 total annual deaths), and many were killed without consent
The figures are probably low estimates since only 28% of Dutch doctors were honest in reporting euthanasia cases
A practice beyond effective control
The voluntary nature of the request is compromised: doctors or family members commonly make the suggestion
Dutch guidelines do not protect and do not restrict because there are no meaningful penalties
“What euthanasia really did to the Dutch was to profoundly alter the nation’s conception of right and wrong”; euthanasia expanded, then the guidelines expanded to account for this
Doctors who are used to euthanizing feel they can make decisions on their own
Many unjustified euthanasia cases, such as with people who are depressed but not terminally ill (e.g., an HIV positive patient with no AIDS symptoms, an anorexic girl)
Coercion from family members: e.g., forcing a choice between euthanasia or a nursing home
A Dutch doctor (Keizer) depicts the lives of frail and dying people as pointless, useless, ugly, grotesque, which makes it easier for him to euthanize them, and he does so without following the protective guidelines
Dutch doctors now also assist the suicides of depressed people who are not physically ill, e.g., a healthy woman was euthanized since she was depressed about the death of her two sons
“The law cannot distinguish between suffering caused by physical illness and suffering caused by mental anguish”
Dutch euthanasia leads to permitted infanticide
Infants are killed because they have birth defects
Infanticide is technically illegal, but such acts are not prosecuted
Groningen Protocol: infanticide guidelines for hospitals
“Dutch euthanasia advocates have also agitated to reduce the age of consent to euthanasia to 12-year-olds”
Drawing conclusions
The slippery slope is very real: “Once we accept the killing of terminally ill patients, as did the Dutch, we will invariably, over time, accept the killing of chronically ill patients, depressed patients, and ultimately perhaps, even children”
Adopting killing as an acceptable answer to human suffering eventually changes popular outlooks
Euthanasia in the United States would be especially dangerous for marginalized populations
Euthanasia is becoming more acceptable elsewhere, e.g., Belgium
BLACK AMERICA: BEYOND EQUAL OPPORTUNITY TOWARDS EQUAL ACHIEVEMENT: LYNDON B. JOHNSON
The revolution of the Negro American
Have demanded justice through peaceful protest
The supreme court declared that discrimination based on race was repugnant to the Constitution, and therefore void
Barriers to freedom are being removed, particularly to vote, to hold a job, to enter a public place, to go to school
The need for equal achievement
Freedom is not enough, and equal opportunity is not enough; citizens must have the ability to take advantage of opportunity
Most blacks are still “another nation”
Achievement gaps between them and whites is widening
Black population is crowding within cities
Two reasons for the inequality
Negroes are trapped, as many whites are trapped, in inherited, gateless poverty
The devastating heritage of long years of slavery and a century of oppression, and hatred, and injustice
Most city blacks live in slums; they are the first affected by unemployment
The breakdown of the Negro family structure is caused by white attacks on the black man’s dignity and ability to produce for his family
Parts of the answer
Jobs, decent homes and surroundings, welfare and social programs designed to keep families together, care for the sick, an understanding heart by all Americans
White House conference on the theme “To Fulfill These Rights.”
APOLOGIZING TO NATIVE AMERICANS: NEGIEL BIGPOND
Benefit of an apology
An important first step in bringing about reconciliation between Native American and other ethnic groups (provide them with “release” and “healing”)
“Apology, the exchange of forgiveness, and a show of respect and honor always brings a fresh freedom to our spirits, our minds, and our bodies.”
Criticism: apology is unnecessary because “the native people have always been a part of this government.”
Response: all 372 US treaties with the Native Peoples have been broken
Legacy of atrocities
Widespread poverty and suicide on Indian reservations; life expectancy as low as 40-45
History of atrocities
The Indian Removal Act, Trail of Tears, Sand Creek and other massacres
Genocide: 4-12 million killed
Native Americans were not even granted U.S. citizenship until 1924
Many atrocities came in the name of Christianity,
Because of this, most Native Americans reject Christianity, and reconciliation would help reintroduce Jesus and “good Christianity”
Physical and sexual abuse at Indian boarding schools; students forbidden from speaking their native language
The apology
Apology may be difficult especially for people today who had nothing personally to do with past injustices
“Our Native people are ready for this and desire this, but they just don’t trust in this because of the past history. But if they are shown and taken on this “first step,” then they will be able to believe again and will trust again.”
Native Americans can forgive if asked
HATE CRIMES: GROUNDS FOR PUNISHMENT: FREDERICK M. LAWRENCE
Motivation as an element of bias crimes
Introduction
Motivation is a critical and valid part of the definition of a bias crime
It is the bias motivation of the perpetrator that caused the unique harm of the bias crime
Motivation and the harm caused by bias crimes
Impact of bias crimes on the immediate victims
There is a particular emotional and psychological impact on the victim, attacking the very core of his identity, from which there is no escape
Involves prejudice against a member of a historically oppressed group (similar to racist speech)
The impact of bias crimes on the target community
Members of the target community of a bias crime perceive that crime as if it were an attack on themselves directly and individually
The impact of bias crimes on society as a whole
It attacks the shared value of equality among its citizens and racial and religious harmony in a heterogeneous society
Motivation as an element of the crime
Criticism: bias crime laws impermissibly stray beyond the punishment of act and purposeful intent and go on to punish motivation
Response: motive often determines punishment
Capital cases: motive is an aggravating circumstance
Racial motivation is the focal point of a vast set of civil anti- discrimination laws governing discrimination in employment and housing among others
Response: motive is intertwined with intent
Formal definitions
Intent concerns the mental state provided in the definition of an offense in order for assessing the actor’s culpability with respect to the elements of the offense
Motive concerns the cause that drives the actor to commit the offense (extrinsic to the elements of the crime)
The distinctions hinge on what are considered to be the elements of the crime
The elements of a bias crime can be worded in a way that includes racial bias
e.g., possessing a first-tier intent of purpose with respect to the parallel crime of assault and a second-tier intent of purpose with respect to assaulting this victim because of his race
Should gender, sexual orientation, gender identity and disability be included in a federal criminal civil rights statute?
Should gender be included in bias crime laws
Criticism: gender-related crimes do not fit the standard bias crime model
With bias crimes, (1) victims are interchangeable, (2) victims generally have little or no pre-existing relationship with the perpetrator
These two factors typically do not obtain in gender-related crimes
Response: some gender-related crimes to fit the model, and these should qualify as bias crimes
e.g., stranger rape or random violence against women (e.g., rape and murder of Amish girls)
Sexual orientation and gender identity
Over fifty percent of homosexuals in the U.S. have been the victims of attacks motivated by sexual orientation
Criticism: homosexuality as a category does not deserve bias crime protection since it is not immutable (as are gender and race)
Response: there’s evidence of genetic predisposition
Response: this argument could apply to religion too
It’s outrageous to suppose that a Jew or Catholic might just choose to avoid discrimination by giving up her religion
Bias crime laws and the right to free expression
Introduction
Criticism: we can’t consistently punish bias crimes while protecting the free speech of bigots
Response: this is a false paradox and we can do both
Bias crime laws are consonant with the first amendment and principles of free expression
Wisconsin v. Mitchell
Wisconsin convicted a black man (Mitchell) for attacking a white man based on bias crime statute
Mitchell appealed saying he was punished for his thoughts
Supreme Court determined that the statute was acceptable since it focused not on the defendant’s bigoted ideas, but rather on his actions based upon those ideas
Virginia v. Black
Virginia convicted some KKK members under a statue which prohibits the “intent of intimidating” someone by burning a cross
Supreme court upheld the conviction