Do as we do not as we say

Recently George Will has spilled a lot of ink on the Supreme Court. The other day it was a shallow and snarky analysis of the takings clause, today
the same for the establishment clause. This time we have a Scalian excursus on original intent. Rather than consulting a dictionary contemporary to the founding fathers for the meaning of the word “wall” in “wall of separation,” Will consults their behavior. According to the author Will cites–and we have no reason to doubt him–the founding fathers’ notion of “wall of separation” did not include religioius services in a government building, among many other things. On the strength of the founding father’s behavior, and some rather shallow lampooning of the very real problems of constitutional interpretation, Will concludes that 25 years of constitutional “hair-splitting” have been a waste.

In response it should be said that some of what the founding fathers thought and did was deplorable. Some of this (to our everlasting shame) they even enshrined in the Constitution. So it’s certainly not the case that their behavior should serve necessarily as a guide for our own. And though it might remain an open question as to whether some of their behavior should serve as a guide for our own, we would need some way to tell which behavior to emulate and which to eschew. Once we do this, we’re back to what George Will calls hairsplitting and what the student of constitutional law might call “reasoning.”


We have never discussed a letter to the editor before, but considering the very impressive medical credentials of the author (whose name we deleted) of the following piece from the June 21st, 2005 *New York Times*, and the fact that he challenges the *logic* of the argument of the supporters of Michael Schiavo, we felt we had no choice.

Here’s the letter in full:

>To the Editor:

>Terri Schiavo’s autopsy report claimed that she was probably blind. Supporters of the decision to starve her to death have hailed this finding as bolstering their argument that withdrawal of her feeding tube was ethical.

>Their reasoning is hard to follow.

>If Ms. Schiavo was in a persistent vegetative state, blindness is a meaningless diagnosis. Only sentient people can see, and only sentient people can be blind. And if she were blind, then she was sentient, and the diagnosis of persistent vegetative state was a genuinely fatal mistake.

>The lapses in logic aside, it’s chilling to assert that it’s more ethical to starve a handicapped person if that person is blind. This is what passes for ethics among advocates for euthanasia.

Now let’s take a closer look.

The author claims that supporters of the decision to remove the feeding tube have mistakenly concluded that evidence of Ms. Schiavo’s blindness bolstered their argument. This argument, however, suffers from a number of fatal lapses in logic.

First, the term “blind” and “blindness” is used in all sorts of ways. Certain bats and moles are referred to as blind in order to indicate their complete inability to see. This is presumably the sense in which the term was meant. Certainly if all that was meant was that Ms. Schiavo was blind, but still conscious, then the case never would have gotten so far. One might think of the blindness claim as evidence against the Fristian and Bushian view that Ms. Schiavo could “see” her mother.

Second, the author of the letter compounds his error by constructing a specious implication. We might restate this as follows: if someone can or cannot see, then that person is sentient, so if someone cannot see, then someone is sentient. That’s fine as it stands, but this means that dead people are sentient–after all, they are blind (in that they cannot see).

Third, it must be the case that by “blind” Dr. Whosits means “sentient, but not able to see” in which case he has simply assumed what was meant to be demonstrated–i.e., that she was sentient. The blindness (understood as it was meant to be) was evidence in support of the clinical diagnosis of a persistent vegetative state. That it can be used, as the doctor uses it here, as evidence of sentience can only be due to a semantic trick.

Finally, it may not be the case that all sentient things are conscious. A doctor of neurosurgery ought to know this.

Worth it or not

Now that some on the right have concluded the obvious–the Iraq was a mistake in its inception and in its execution–a new argument has appeared on the scene. It’s not a new argument, of course, it’s an old one dressed up to fit current circumstances. It goes something like this. For those, like John Kerry, who say the Iraq was not worth it, we have to ask what the costs of leaving Saddam in power would have been. We see a variation on this argument in Sunday’s *Washington Post.* Short of saying that the invasion was worth it, Robert Kagan revives the rhetorically effective 2004 Republican campaign strategy of citing the opinions of Clinton-era policy types as evidence that Saddam would have gotten worse if left unchecked. And that’s just the thing. For serious and responsible world leaders–some of them perhaps French–the question was never the one that was thrust on them by bifurcating American hawks:

>go to war against Saddam and remove him from power


>trust that he will no longer be an evil person and do nothing (or some variation of the status quo).

Perhaps it’s overly pedantic to point out that between these two false alternatives lies a range of possibilities. Even if the status quo was not keeping weapons out of Saddam’s hands (and it was–by the way–he didn’t have any WMDS; and he barely had an army with any will to fight, least of all invade a neighbor), there were still many options short of an Anglo-American invasion. The depressing thing about Kagan’s piece is that Bush’s silly dichotomy–something for which he has a marked tendency (cf., “you are either with us or with the terrorists”)–resurfaces in the calm light of what otherwise might seem to be careful historical analysis. But it’s not careful or historical–it’s simply regurgitated pro-invasion talking points that were no more cogent the day they were uttered than they are today.