Quote:
Originally posted by Yorick:
Well I challenge that "usual consideration" but, even if given, what about morals such as
"don't have sex with your four year old son"
"don't sodomise your daughter"
or other such things.
|
Yorick, for one I must point out that I wrote "once" when I mean "one" in the post you quoted. Sorry.
Look, there is one moral accepted in American, and all Euro-descended law: that you should not harm others in exercising your liberty. Once again, the examples you post are examples of harming others. Prohibiting that is in keeping with all of the law, and is not legislating morality (in your examples, the law presumes children cannot consent, meaning any sex with them is non-consensual, and is rape). (Oh, a picky point: if your daughter is over the age of consent, say 18 in most states, she can consent, meaning it is not a crime to have sex with her, as Jerry Springer may have pointed out to you at one time or another.)
Legislating morality is limiting liberty based on other rights than the universal of "the right to be free from harm caused by others." Legislating morality is limiting liberty of what the person does to themselves (e.g. masturbation or suicide or watching porn) or limiting the liberty of what two or more consenting people may do to each other (e.g. telling me and you we cannot agree to have a fistfight, or telling two lesbians they cannot have cunnilingus, or telling a room full of gay men they cannot have group sex, or telling a woman she may not sell sex).
Back to me telling Maelakin he is more libertarian than me. As I said, I think at some points it is acceptable to legislate morality. Why? Well, let us take one example or two that you, Yorick, have picked on before. Above I stated that suicide is a personal liberty issue. I know your argument against this is: "It harms others. It harms relatives and children and all those you leave behind."
That may be true in many instances. However, telling you I hate bouncing eggs may also harm you, hurting your feelings. The same is true for Rush Limbaugh stating things about black football players -- it may harm their feelings. At some point, however, the harm caused to another diminishes to the point that it is very minor compared to denying liberty to the one who is forbidden from exercising their liberty.
For this reason, it is logical to realize (and it is also, coincidentally, the current state of the law) that these things come down to a balancing test. The question to ask is: On balance, how does the inhibition of liberty weigh against the possible harm caused by the exercise of liberty?
Let us take suicide for instance. As far as I'm concerned, the right to live or not, the very essence of existence, is paramount, whereas some psychological scarring suffered by the child of a suicide "victim" is not paramount. We all suffer hurtful emotions, get the hell over it, life is tough, I say.
Now let's take Rush Limbaugh for instance. The right to free speech, the free exchange of ideas, however odd they may be, is paramount. Surely you agree, given your belief in the dialectic. The dialectic structure of our maturation as individuals and society is the essence of being, and, as such, I am glad that the freedom of speech is the "first among equals" when it comes to our Bill of Rights. For that reason, the ability of Rush to point out the controversial (yet true) view that our media really would like to see minorities succeed in whatever they do, be it quarterbacking or taking the SAT, is more important than the few feelings he may hurt in saying something that may (or may not) be true. The free exchange of ideas (even bad ideas) is more important than our individual sensibilities.
It is for this reason, the balancing test (inherent in so much of constitutional law, by necessity, because it is inherent in any "my rights" vs. "your rights" analysis), that I say I could, and perhaps do, support legislating morality. But only when the inherent paramount value of liberty can be overcome.
[ 11-25-2003, 02:05 AM: Message edited by: Timber Loftis ]