Our Brothers' Keepers

Once, during a discussion about abortion, I made the argument that if we allow the government to tell citizens that they can not abort a pregnancy, philosophically it was similar to allowing the government the power to tell citizens that they must abort a pregnancy. Needless to say, that discussion did not resolve the issue; we'll probably eradicate world hunger or achieve world peace first.

In reexamining this argument, I wondered how easy it would be to reword a given prohibition to reverse the wording while keeping the dictate intact. For instance if we passed a law stating "No citizen shall be allowed to abort a pregnancy"; assume for the sake of argument that we've already agreed on the definition of the term abortion. The exact procedures are moot because we want to focus on the wording of the prohibition and not on the technicalities of the definitions or shades of grey. Picking abortion is done solely to start with an issue that is easily construed in terms of black and white.

If the law says, "You shall not abort" it could just as easily have been written as "You shall carry to term regardless". So even though the wording only states an action which can not be taken, it implicitly mandates the opposite action.

China already condones abortion through euphemistically named "One Child" policy. While China does not officially force abortions, there continue to be reports nonetheless. "You shall have up to one child" turns into "You shall not have more than one child".

Using another example, capital punishment, we could conceive of a law which says, "Thou Shall Not Kill" it implicitly demands "Thou Shall Protect Life". A capital punishment law which allows the State to kill someone could state "Causing the death of a person (through means described as "In the first degree") is punishable by death" is effectively saying, "The State shall kill those who commit first degree murder." If we really believe in the principle of "Thou shall not kill" then capital punishment must by necessity claim an exception in the definition of what the term 'kill' means. Killing usually means ending a living persons life. Allowing the State the power to define exceptions makes the commandment not to kill into a morally relative value "Thou shall not kill... unless the State says it's ok" which could include self-defense, war, defense of others, or the state ordering the killing of a citizen which it feels is deserving of the ultimate punishment. One counter argument has been "they don't deserve to live" or "they lost their right to life when they took another's". If I don't deserve to live, then I deserve to die. If a State uses it's sovereign power to execute someone unjustly, upon whose soul does the responsibility for a wrongful death rest? Since a State does not have a soul in and of itself, then evil done by the State must then be shared by the people of that State, unless it can be determined to have a singular responsible ruler, a 'Unitary Executive' if you will. If the State can not be held responsible for it's own moral failings, then that leaves the people who actually carry out the misdeeds. The hooded executioner,for example, who either cares not about such metaphysical questions or uses their faith in the infallibility of their leaders judgement as a shield against the possibility of personal guilt.


"Thou shall not covet" (stealing is illegal) becomes "Thou shall be content with what you have and your opportunities to change what you have." (No short-cuts to wealth, only follow the culturally acceptable avenues." Of course I'm paraphrasing here but I'm wandering through examples, trying them on for size to see whether there is an example which disproves the idea.

Summary: You must do X is equivalent to You shall not do non-X, or You must not do X becomes You must do non-X.

In programming-speak, (X == true) is the same as (X != false) .

Questions for Sotomayor

Now that President Obama has nominated Appeals Court judge Sonia Sotomayar to replace retiring Justice Souter on the High Court, what should the Senate focus on in its confirmation process to give Sotomayor a fair hearing while respecting her obligation to not prejudge specific cases that will undoubtedly come before the Supreme Court during her tenure (assuming confirmation)? This article by Neomi Rao asks some good questions that senators should ask Sotomayor to get to the root of her judicial philosophy:

• Do you believe that judges should use "empathy" to decide cases?


• Do you believe that interpretations of the Constitution should evolve to keep up with the times?


• Should Supreme Court justices be bound by precedent?


• What is the court's role when interpreting ambiguous laws?


• What matters most, the law or the result?

If Sotomayor's answers reveal a role for identity politics and policy-making in judging the facts of cases or the constitutinality of laws, then her nomination should be voted down.