Christopher Hurtado

(1) According to Mackinnon, what is the difference between obscenity and pornography?

According to MacKinnon, obscenity is a moral issue, whereas pornography is political issue. MacKinnon claims that obscenity is “ideational and abstract” and “probably does little harm,” whereas pornography is “concrete and substantive” and “integral to attitudes and behaviors of violence and discrimination” against women. According to MacKinnon, obscenity deals with the legality of the depiction or portrayal of sex, whereas pornography deals with the representation of women as sex objects as natural.

(2) Who has the most persuasive argument: Dworkin or Mackinnon? Explain.

Dworkin has the most persuasive argument. As loathsome as the majority may find pornography, and as virulent as its production and consumption may be, this does not justify the violation of the right of the minority to the freedom of speech and of the press guaranteed by the Constitution. While I include myself in the majority who find pornography loathsome, I am nevertheless bound to defend the freedom of the minority who do not. I contend, along with with Ayn Rand, that “in the transition to statism, every infringement of human rights has begun with the suppression of a given right’s least attractive practitioners. In this case, the disgusting nature of the offenders makes it a good test of one’s loyalty to a principle” (“Censorship” 173).

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Bowers v. Hardwick upheld the constitutionality of Georgia’s sodomy law that criminalized oral and anal sex in private between consenting adults. Despite precedents for penumbral privacy rights argued to be implicit in the due process clause of the Fourteenth Amendment to the United States Constitution, the majority opinion in Bowers v. Hardwick held that the Fourteenth Amendment did not imply a right to homosexual sex acts in private between consenting adults. Justice Byron White framed the legal question in terms of “a fundamental right upon homosexuals to engage in sodomy” and rejected any claim to such a right arguing that there is no right to such conduct “deeply rooted in this Nation’s history and tradition” or “implicit in the concept of ordered liberty.”

Lawrence v. Texas struck down Texas’ sodomy law, overruling Bowers v. Hardwick, holding that its view of liberty was too narrow. The majority opinion in Lawrence v. Texas held that sex acts in private between consenting adults, whether homosexual or heterosexual, were a liberty protected by substantive due process under the Fourteenth Amendment. Justice Anthony Kennedy, who wrote the majority opinion, strove to cast doubt on the finding in Bowers v. Hardwick that homosexual sodomy is historically a widely condemned practice. Justice Sandra Day O’Connor also found that the Texas law violated equal protection guarantees. The Court concluded that the decision in Bowers v. Hardwick was incorrect, ought not to remain binding precedent and should be and now was overruled.

(1) What justification could be given for enacting (a) laws governing moral behavior and (b) laws which are for a person’s own good?

Justification could be given for enacting moral laws on two grounds: (1) on the grounds that they protect the rights of others which would otherwise be infringed upon, and (2) on the grounds that they protect the society which is based upon agreement on the the principles underlying such moral behavior. Justification could be given for enacting laws which are for a person’s own good on the two grounds also: (1) on the grounds that the person is unable to act rationally based on his or her level of maturity (as in the case of minors) or mental health (as in the case of senility or mental illness) and (2) on the grounds that the person would want to be proscribed in his or her actions because either (a) he or she lacks the willpower to carry out his or her own will or (b) her or is is not fully cognizant of the consequences of the conduct proscribed by law, and would otherwise agree with being coerced. In the former case, the person agrees to being coerced in advance. In the second, the person would presumably agree if her or she were reasonable.

(2) Do you agree? Why or why not?

I agree with enacting laws that proscribe immoral behavior that directly harms others. Otherwise, I disagree on the grounds that the individual is sovereign and his rights are inviolable inasmuch as they do not violate the rights of others. I base my argument on the precarious nature of life and man’s need to act rationally, according to his own conscience, in order to survive and thrive. He has a right to life, and by extension a right to property to secure the fruits of his labor for the sake of his own survival.

(1) In your opinion do people have either a moral right or a constitutional right to engage in offensive public conduct which does not directly harm others?

In my opinion, people necessarily have a moral, but do not necessarily have a constitutional right to engage in offensive public conduct which does not directly harm others. I say they have a moral right, because I am liberal in the traditional sense of the word. I agree with John Stuart Mill, though for different reasons, that no one has the right to coerce anyone out of his or her rights unless failing to do so would infringe upon their own or others’ rights. I say people do not necessarily have a constitutional right, because the constitution is open to interpretation. Some would interpret it such that the kind of natural law that would support the right of an individual to engage in offensive public conduct which does not directly harm others, where as others would not.

(2) What is the best justification for legally prohibiting offensive public conduct?

The best justification for legally prohibiting offensive public conduct is that it directly harms others. Any justification based on the idea that it harms others indirectly is a lesser argument as it is based on a subjective claim.

Are the justices in the plurality successful in distinguishing the cases in which precedent should be followed from the cases in which precedent should be overruled? Why or why not? How do they draw the distinction?

In distinguishing the cases in which precedent should be followed from the cases in which precedent should be overruled, the justices in the plurality argue that precedent should be followed unless the rule has proved to be intolerable simply in defying practical workability; whether the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation; whether related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine; or whether facts have so changed or come to be seen so differently, as to have robbed the old rule of significant application or justification.

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Facts

Griswold, an Executive Director of the Planned Parenthood of Connecticut and a medical doctor were convicted under a state statute criminalizing of married couples seeking to take contraceptives.

Issue

Is there a right to privacy in marriage implicit in the Constitution, despite the lack of explicit language guaranteeing such a right?

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Original understanding refers to the philosophy of adjudication that considers the Constitution and the notions of its adopters are binding. The intent of this philosophy is the consistent interpretation of the Constitution over time. Originalism can be divided into four forms: “strict originalism” (or literalism), “strict intentionalism,” “moderate originalism” and “nonoriginalism.” The intent of the strict textualists is to interpret the text of the constitution very narrowly and precisely. The aim of intentionalism is to interpret the text according to the intent of the framers and adopters of the Constitution. The more common “moderate originalism” holds the text of the Constitution as authoritative, but open to interpretation according to the general purpose of the adopters. Nonoriginalist interpretation views the original history of the Constitution as grounds for inference of the appropriate interpretation, while at the same time leaving it open to revision or valid objection, and even forfeiture or annulment, according to changing experiences and perceptions.

Textualism assumes that (a) only a written text can impose constitutional obligations, or (b) that the adopters of the Constitution intended it to be interpreted according to strict textualism, or (c) that the text is the surest way to ensure the correct interpretation of the intent of the adopters. Intentionalists, on the other hand, view the Constitution as a useful guide to determining the intent of its adopters, but do not accord it favored status over other sources.

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Those who argue against the proposition that same-sex marriage should be legal believe homosexuality a matter of choice and an immoral one at that. They also argue that homosexuals are not a disadvantaged group when compared to blacks. Thus, they argue, homosexuals do not need or deserve special protection from the government since they can protect themselves by hiding their sexual orientation. Those who argue in favor of same-sex marriage counter that demanding that homosexuals hide their sexual orientation while heterosexuals is discriminatory.

Those who argue in favor of the proposition that same-sex marriage should be legal believe that homosexuality should be protected against discrimination just as religion is, since, they argue, homosexuality, like religion, is a choice. They argue that just as people are not expected to hide their religion, but rather are protected in their choice, homosexuals should not be expected to hide their sexual orientation, but rather should be protected in their choice also. Those who argue against the proposition that same-sex marriage should be legal counter that many religious groups are not disadvantaged. In fact, like many homosexuals, they are advantaged when compared to blacks. Furthermore, religion is explicitly protected by the constitution,whereas homosexuality is not. Furthermore, they argue, some homosexual acts violated laws that have been found to be constitutional.

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MacKinnon points out that traditional equality is based on an Aristotelian notion of equality – the treatment of likes alike and unlikes unalike. She then argues that the Aristotelian notion of equality fails to recognize that the subordination of groups and the existing hierarchy in a society results in the perception of differences as natural. In MacKinnon’s view, the opposite of equality is a hierarchical social construct, not difference. Therefore, she argues for the dismantlement of group hierarchy and the promotion of equality of status for historically subordinated groups. She proposes equality jurisprudence that defines sex equality under the law as opposed to traditional notions of equality, which she views as abstract.

I agree in principle with MacKinnon’s substantive approach to the jurisprudence of sex equality under the law. However, I fundamentally disagree with her notion that the only way to promote equality of status for historically subordinated groups is to dismantle group hierarchy. If the existing hierarchy in society does, in fact, result in the perception of differences as natural, then MacKinnon and others who may agree with her ought to be able to demonstrate it within the existing group hierarchy. If they cannot demonstrate it, then they cannot reasonably expect to succeed in overturning common law. As a negative cannot be proven, it is up to MacKinnon and her followers to prove the claim they make against the current situation.