Robin West says lots of interesting things (and can obviously handle a very long sentence when the need arises!). I comment on a couple of her points and touch on common issues. She said:

"Lastly, on the jurisprudence of lethality, again from general to specific. Leave aside the status of the fetus. An abortion is a killing."

1. The status of the fetus determines whether or not there is a “killing.” How can it be left aside if we are to evaluate the lethality of abortion? It would have been clearer to say leave aside the “legal” status, since the biological status is at issue. How can something be killed except in a metaphorical sense if it did not have a present individual identity? I believe life begins at conception, and I believe the pregnant woman has an absolute right up to some point to end the pregnancy. The use of the verb “killing” here seems more designed to arouse some kind of anguish and passion about the violence that can be imputed or implied by thinking of the fetus as though it were at a later stage of development. Your point could have been made here much better by reference to the billions of animals that are killed in cold blood every year so humans and other animals can eat the dead flesh. That is a culture of lethality. And that contemplation takes us the core violence that man underwrites against man: war. Alasdair McIntyre identifies two ethical streams in our society. The one in which war is legitimated and idealized has its source in the Homeric paeans to social violence. The other one arises from later settled life of the Greek polis. Community values had to be prioritized because life was not war, we could seek eudaimonia and related states through the common ends of peaceful political life, etc. To generalize, violence and the conditional right to kill other humans has always been part of communal life; and it generally has always been potentially present in family and individual life. The ordering of any community’s sense of right is found in its political theory, or constitutional order. I say this keeping in mind that constitutions (positive law) arise from and exist in an ordered set of ethical/political norms (natural law, ius gentium and international law), they do not exist sui generis as completely independent bodies of law. The fundamental principles by which violence is legitimated (regulated) are found in the justice that orders a collective.

Any contemplation of lethality, I think, must begin with the ideas of war, self-defense, sacrifice and revolution. To cabin the idea of lethality within the bioethics narrative distorts the problem. We have the most openly violent and mean administration in ages, and it was supported for many years by an openly violent and mean congress. The judiciary and public were changed by these dark moral currents. Speak to or observe any law enforcement officer today and you will hear the militarization of a civil institution, you will hear hints of how you, a full citizen, are potentially the enemy with no rights whatsoever, a potential subhuman, non-citizen. The military is the state force used for acts in the Hobbesian anarchy at the international level where all that exists are autonomous sovereigns, and there is no true rule of law. The sound of the military (in law enforcement) means the enemy has penetrated the border, and now more than ever there is the state and everyone else. Since all the citizens are potential enemies, the need for security has been reduced to the need to secure the state, since that is what remains of pure American identity. Globalization feeds into this paranoid madness and is used by the state to reinforce its solipsistic powers. In this environment the Christian pro-fetus, anti-life movement resonates with the larger violence; however, there is some evidence even the Christian right is pulling back, taking into account the larger social issues, and so on. Anyway, there is a profound culture of violence and it is inherent in the idea of sovereignty, the political community, instituted most recently in the UN Charter, the International Bill of Human Rights and the Geneva Conventions. Been that way since pre-history.

2. So, when reading the following:

"We have a jurisprudence, now quite developed, of individual, counter-majoritarian, antidemocratic rights, to use handguns to kill people that aggress against us, a thin right to say no to intrusive medical procedures meant to extend our lives when our suffering becomes sufficiently severe, and, of course, still, a right to kill a fetus, albeit within ever more tightly constrained circumstances. We don’t have a right to the protection of the state when we are threatened by violence from co-habitants or strangers so that we might live free of fear of one another; we don’t have a right to the health care that might palliate the pains of age rather than a right to end it should health care prove unavailing, and we don’t have a right to community or collective support in meeting our own health needs during our pregnancies and childbirths, much less a right to such help as we attempt to care for our infants and toddlers. We don’t have a right to health care or education for our growing children, should we carry those pregnancies to term. What we have -- and what we have partly developed -- is a constitutional jurisprudence of chosen lethality, rather than a jurisprudence of met needs that might enrich life. That jurisprudence ought to give us pause."

it is unclear to me what ordered set of norms (ought), what political theory, you use to judge the lethality problem (is), when that “is” consists of both constitutional and statutory norms and when there are no earthly political orders in which violence is not widely recognized and the subject of much legislation. Hobbes/Weber and the delegation of the power of violence to the state, etc.

Many fundamental questions are begged when you state, by implication, that there are rights that are counter-majoritarian and antidemocratic, and there are some other kind of rights, or that these features are somehow not “right.” I trust I am reading you correctly here. This passage is a polemic, so I assume you are taking some liberties with exact expression, but the implications of what you say must be commented on to avoid misunderstandings in innocent readers, if there are any. Those things called rights have characteristics, the most important of them being that they are anti-democratic and counter-majoritarian. You point out these features as though there is something wrong with them, or that there is some other class of rights that do not have these features. First, there are no individual rights that do not have these features (communal rights are a much more complicated matter). Whether one thinks the social contract arises from a bunch of people getting together and making a contract ala Locke/Rawls, etc.; is in the line of Aristotle/Hegel and thinks the state is a natural phenomena; or is some kind of religious person who thinks God or god or gods put the idea in mans’ mind(s); is positive or natural; the very idea of a right is that it is a norm and a related power that reside or are inherent in the individual living human, and those norms/powers are how the individual is distinct from the communal body, and are about choice and the recognition that individuals have some priorities over the communal body. In our constitutional order those rights are said to be inalienable AND, most importantly, they are created by the social contract we call the constitution. Not all features of a democracy are democratic; that is, the components parts of a democracy include irreducible elements, and democracy is a word that describes how those parts work together for the democratic end. Certainly the social contract itself is hardly a democratic idea. Rights and the judiciary are elements that cannot be reduced out of existence into constituent “democratic” parts. So, rights are anti-democratic and counter-majoritarian, but only because that is the nature of the democratic social contract. One can therefore also say all US rights are democratic, since they exist subject to the procedures established in our democracy to articulate the rights. A citizen’s rights are what gives her her dignity. Dignity is about being able to go against the majoritarian wind and be able to be safe and find social fulfillment in our polity. Democracy is inherently a problematic set of norms/values. So, there is considerable confusion in your first normative statement.

The Heller right is framed as a right to self-defense. That is as fundamental a right as exists. That it includes the right to own a gun in some circumstances is secondary to the theory of rights. You frame the problem as being one of rights. It is not. It is a problem with those who would make and underwrite a social contract that embodies the right to self-defense as a limited right to own a gun. Our country has long had a deep and unhealthy fascination with the ideas embraced by Scalia and his ilk. We are a moralistic mean bunch of bastards. A democratically powerful bunch of us, in any event.

I would say our right to refuse medical treatment for any reason is fairly strong for competent adults. To describe it as weak is off-key. There are many areas of health care where doctors have assumed the rights of the individual. Those rights are weak. Roe rights, for example. The woman was given the right ***in conjunction with her doctor****!?!?!?! to get an abortion. What a load. Why can’t a woman simply have the right within reason to have an abortion – to balance her right to life against the potential being that is completely dependent on her and to which she might have to allocate overwhelming and impossible resources to carry to term and raise?

You say we “don’t have a right to the protection of the state when we are threatened by violence from co-habitants or strangers so that we might live free of fear of one another.”

Huh? Every system of justice I am aware of has as a fundamental tenet of its existence the protection of the security of its members. Thus criminal laws, etc. Our prisons are filled – 2.3 million – with dangers to your security so you can live free of fear.

You say we “don’t have a right to the health care that might palliate the pains of age rather than a right to end it should health care prove unavailing.”

Huh? What about social security and the medicare system?

You said “we don’t have a right to community or collective support in meeting our own health needs during our pregnancies and childbirths, much less a right to such help as we attempt to care for our infants and toddlers.“ and “we don’t have a right to health care or education for our growing children, should we carry those pregnancies to term.”

No we don’t much, but in theory Medicaid, an entitlement (aren’t entitlements a kind of right?), gives some coverage here. There is no question we do not have universal coverage for health, and that what coverage there is is gamed by mean people in power to exclude as many needy as possible (even the “worthy poor”).

Education is a different matter. It may not be construed as a right, but it is mandated by law for all children. Our under-nourished, over-medicated (with social control prescribed pharmaceuticals), marginalized children must go to school.

I agree with your rant, basically, but think it would be valuable to get down to the realist position, which is contained in much earlier ideas about norms. A right can be thought of as a norm and a power. In modern usage the power part has been stripped from the norm part. This is not quite the right/remedy thing. A right always has at least a rhetorical remedy such as found in international human rights practice (name and shame). Sure, X can have a right, but without power it is meaningless. On the other hand, with power the idea of right-as-norm loses much of its interest. What you are complaining about, really, is allocation of resources, is power for the little people. Fighting for the rights of the powerless amounts to no more than conferring on them some of the advocate’s or collective’s power. The norm exists well in the powerless, but without power to be implemented, recognized, asserted. Lawrence is a story of the trajectory of power. Bowers, by almost the same court, was overturned because of intellectual and material resources (power) brought to bear on the norm in the intervening years. The norm (or right) was always there.. How can society more justly distribute power? Rights are of secondary importance in answering this question. First there has to be the political will to enact a more equitable communal arrangement.

To put it another way. The norm exists in one part of society, but not another (the mean people do not recognize the value of social welfare). The problem is not about creating a right, i.e., saying “we need a right.” The problem is using power to force the other people to recognize the norm. Although the positivist would say the norm does not exist until it is recognized or enacted by the state, that may be formally true, but it does not capture the nature of the social transaction. The argument for the norm would have no power unless it was already present in a significant way as a social, moral fact. That is why important cases tap into the social milieu, because that is where the norm exists. But even when the norm becomes positive, is enacted, it has no effect without power. There are plenty of enacted rights that are violated as a matter of course.

Rights are a public good, a function of the system of justice, even though [core] rights are held to be inherent. We do not invoke them in family and friendship matters; only when the relationships involved are somewhat impersonal. Rights *and* power are needed when we want to exclude the stranger or the state from our sphere of liberty, whether private liberty such as family and health matters, or public liberty. That same system of justice holds or includes the communal right to commit violence. Those who have power control the violence, not those who have rights. Mostly they control it in compliance with the rights, but not always (e.g., Democracy Now at the RNC; Iraq; abstinence only education; etc.), and then we clamor of rights and dream of power.
 

There is another idea that must be considered when contemplating lethality, slavery (in addition to war, self-defense, revolution and sacrifice). Although democratic theory and current practice seem to have moved on from that idea, in fact it lingers in many social structures, including those that address the problems of poverty and ignorance.

A major problem for democratic theory is the uneducated franchisee. Why should someone be allowed to vote who cannot even distinguish what is best for themselves in the public realm? How many lower SES people voted for Bush and support McCain, often either on single issues such as abortion or “the” war, when their policies only help the very wealthy, if anyone?

A slave is someone with few if any rights/power. Aren’t those the people Robin West (we) wants to protect in our society, by impassioned talk of rights? If a right exists for any individual by virtue of that individual having power to enforce the right, how can we reasonably argue those without power have rights? If we compound this with the observation such powerless persons are also incompetent to evaluate the content of their vote, then what social status should these people have? The argument that all human beings have something in common that is the basis for universal suffrage, now called dignity, is minimally very abstract and metaphysical. Finnis and Nussbaum, after Aristotle, argue from basic goods they claim are self-evident, practical. But in so arguing they downplay the immensity of the intellectual problem of getting from our received social contract narrative to their simple goods, and the social contract tradition is radically unequal. Now, if we look at it from the perspective that there is wisdom in the common vision, we see that those same common folk instinctively treat some classes as though they have fewer or no rights. They groove on that. So, either way one goes with trying to legitimate a democratic ideal of equality, one encounters institutionalized social stratification. We may not have “slavery,” but we have lower classes with no rights. Through tax laws covering fixed income workers we treat workers as though their bodies are perpetual motion machines. They are not allowed to deduct the cost of their meals taken at work (fuel, if you will), their clothes, nor to depreciate themselves as they grow older. Is there anything more slavelike than a machine? Don’t the unemployed families of slaves/machines/wage earners have the same or lower status than their most elevated member? We permit many rights’ stripping mechanisms, including the crossing of an invisible line called a national border.

We neo-liberals encourage lower quality food and healthcare, and a diminished set of rights/powers, for the lower classes with “free-market” and other ideologies that include Wal-Mart (slavery in China, Central America, etc.), a mean kind of Christianity, etc. I think the idea of slavery teaches that there is something natural about this, although it does not necessarily teach that it is right.