Comments for Philosophy, the Handmaid of Judicial Review at http://www.thecatholicthing.org , comment 1 to 6 out of 6 comments http://www.thecatholicthing.org Wed, 19 Jun 2013 15:35:23 +0100 FeedCreator 1.7.3 http://www.thecatholicthing.org/columns/2011/philosophy-the-handmaid-of-judicial-review.html#comment-9028 Mr. Töpfer, Steinberg is a decision of a federal district court: a trial court of first instance. The principle of stare decisis generally only indicates that a court should follow or preserve decisions of an equal or superior court. Thus, the Supreme Court prefers to follow its own precedents; Courts of Appeal prefer to follow their own precedents and must follow those of the Supreme Court; and District Courts prefer to follow their own precedents and must follow those of their respective Court of Appeals and the Supreme Court. But when viewed from the perspective of a higher court, the decision of a lower court has only persuasive effect. Whether the Supreme Court's articulation of stare decisis is intelligible and defensible is another matter altogether. But the Court did not go off the reservation in its application of that principle simply by failing to follow the reasoning of Steinberg. - Titus Mon, 28 Nov 2011 04:17:15 +0100 http://www.thecatholicthing.org/columns/2011/philosophy-the-handmaid-of-judicial-review.html#comment-9016 Prof Beckwith Thank you for your very helpful reply and for the reference to your article, which I read with interest. It would seem there are two possibilities: 1) The zygote is an individual substance that ceases to exist on division into two (or more) discrete individuals. 2) The zygote is not an individual substance, but is composed of two (or more) “latent” (“incipient?”) individuals, in a symbiotic relationship, until division occurs. On either view, what we have is, in Miss Anscombe’s words, a “living individual whole whose life is—all going well—to be the life of one or lives of more than one human being.” In this she echoes Tertullian, who said “That is a human being which is going to be one; every fruit is already in its seed.” [Homo est et qui est futurus; etiam fructus omnis iam in semine est – Apologeticum 9:8] This is the morally significant point; how it can be expressed in the juridical concept of “person,” is a more difficult question. - Michael PS Sat, 26 Nov 2011 00:42:38 +0100 http://www.thecatholicthing.org/columns/2011/philosophy-the-handmaid-of-judicial-review.html#comment-9015 Professor Beckwith, please correct me if I am wrong, but, if Steinberg antedates Roe, and SCOTUS simply ignored the former precedent on the basis of the defendant not citing one of the arguments from the former in their briefs or oral argumentatiion, (which argument it seems to me would apply without needing reiteration), is it not abundantly clear the the doctrine of stare decisis is one that the court uses as a matter of convenience to arrive at the result desired by a majority of the justices? If that is the case, what are we to make of SCOTUS' adherence to even the idea of the Rule of Law? Pax et bonum, Keith Töpfer - Martial Artist Fri, 25 Nov 2011 17:09:48 +0100 http://www.thecatholicthing.org/columns/2011/philosophy-the-handmaid-of-judicial-review.html#comment-9014 Another perceptive comment by Professor Beckwith following up on Professor Arkes’ earlier piece. As I mentioned in my comment on the earlier article, does the term ‘person’ in the third sentence of section 1 of the 14th Amendment mean an unqualified person, or should it mean only those persons identified in the first sentence? It seems that it should, for not all persons are given the benefit of due process, e.g., combatants in war, and terrorists killed or interrogated or imprisoned outside the US (at least before President Obama’s ukase). There is still some ambiguity whether person in the third sentence should be interpreted as ‘such’ person. That is a matter for judicial interpretation. - senex Fri, 25 Nov 2011 12:23:18 +0100 http://www.thecatholicthing.org/columns/2011/philosophy-the-handmaid-of-judicial-review.html#comment-9012 Michael: I am not addressing the question of what a person is. What I am addressing is the question of whether the Court may extend the protections of the law that apply to persons IF the unborn is a person. It is a conditional claim. Hence, the Vulcan analogy. This is why it would be no response to my argument to point out that there are no Vulcans. But, of course, if there were, then the law should be extended to them as well. Having said that, I do address, in some detail, in other venues the question of whether the early embryo is in fact an individual substance of a rational nature. See, for example, a piece I published in the journal Christian Bioethics, "The Explanatory Power of the Substance View of Persons." You can access it via the articles menu on my personal website francisbeckwith.com. Nevertheless, even if you are correct that the early embryo is not a unified organism, that would not prevent the Court from extending the protections to the unborn at a later stage of development when in fact it is a unified organisms, e.g., 20 days after conception and onward. Thus, my point would be made regardless of when you think it is reasonable to believe an individual substance of a rational nature comes into being. - Francis J. Beckwith Fri, 25 Nov 2011 07:42:05 +0100 http://www.thecatholicthing.org/columns/2011/philosophy-the-handmaid-of-judicial-review.html#comment-9008 There is a real problem here, with the idea of “individual” (i.e. indivisible) substance. The zygote is not individual, that is, indivisible, as can be seen in the case of monozygotic twins. If James and John are monzygotic twins, they cannot each be identical with the original zygote, for then they would be identical with each other: which is absurd, as Euclid would say. By calling them “identical twins,” we certainly do not mean they are numerically identical! Now, we all know what a person is, when we speak of “the person over there,” or “Offences against the Person.” We mean a living, human body. That, one can argue, the zygote is. Do we really need to import the notion of individual,/indivisible, into that concept? Is it not sufficient to argue that the term “person,” in the Constitution is used in the popular, everyday sense of a living, human body? - Michael Paterson-Seymour Fri, 25 Nov 2011 02:59:04 +0100