Pro Logica

September 3, 2012

In the Aftermath of the AFCA Decision by SCOTUS

Filed under: Specific rulings of SCOTUS — Tags: , , , , — Ron Toczek @ 12:42 pm

The news sphere has been rife with comments about the SCOTUS decision to uphold the Affordable Care Act.  In a 5-4 decision, Chief Justice Roberts has been credited with the swing vote whereas many pundits were ready to give that position to Justice Kennedy.  So much for predictions.  Since this was an important milestone for health care here in the U.S. it was not surprising to see the number of news articles and blog posts which appeared–I know that I have only read a small portion of what is available.  For all the analysis, criticism and praise thrown out to the public, I am commenting here on three aspects of the ruling which, in my opinion, has received very little coverage:

  1. The ruling is very conservative, much more so than the dissenting opinion by the ‘conservative’ justices,
  2. The arguments against the forced expansion of Medicaid are specious, and
  3. The use of the word ‘liberty’ as a synonym for ‘freedom’ by Justice Kennedy.

(Before getting to the above three topics, I am expressing my disapproval of any simple majority vote being either an expression of democracy or an example of the rule of law–stated in a prior post—simply because one vote by one person is not enough to establish a law to be worthy of enforcement.  One can only marvel at the possible attempts to corruptively influence a single person to change their vote.  A 5-4 SCOTUS ruling, for or against, should always be declared  as favorable to the defendants of the suit or to the constitutionality of the law in question.)

1.   ‘Conservative’ in its adjectival sense expresses a desire to do things as they have been done in the past and there are many old sayings which attest to its virtue.  Here, its opposite is ‘innovative’ or ‘a desire to change from the traditional’.  Since new ideas and new gadgets are always arising and shortcomings of the traditional methods–usually due to unforeseen consequences caused by individuals trying to exploit the traditional for their own benefit, deficiencies from the expected public outcome of the traditional may occur and some innovative course of action may be necessary to correct the imbalance.  Being conservative means to weigh the innovations against their practicability and to guard against a hasty acceptance of the new before many of its unintended consequences have enfolded.  Many times, innovation wins out before a long enough trial period due to youthful exuberance for the new, necessity for an immediate solution, special interest lobbying or sometimes just plain ignorance, enough so that the new does not quite live up to its expectations necessitating further modifications or even some backtracking, all to be expected in a working republican government.  It is very disconcerting that a political party (the Republican Party) using the name of the classification of our government is actively rejecting the essential principle underlining republican governments, that of compromise among the lawmakers.

The oldest tradition applicable to a constitutional government comes from parliamentary law and basically says that the legislative body determines the law and that any judicial body can only determine that law’s constitutionality and specific applicability, in other words, a judiciary does not have the authority to make law; the purpose of the law and whatever its effects on the governed cannot be a consideration of the judicial body.  Essentially, this tradition can be restated as saying that the finding of a constitutional provision which allows the legislative act is enough to make it constitutional.  The dissenting opinion is relying upon the principle that finding a provision which might not justify the law is enough to declare such law as unconstitutional, a principle which is found nowhere in parliamentary law.  Chief Justice Roberts found a constitutional provision which allowed the mandate and being conservative in outlook made the conservative decision.  I point out again that for SCOTUS to enter a ruling stating that a Federal law is unconstitutional is an attempt to make law and by examining the law which authorized the establishment of the Federal marshal system one can see that it prevents the Judiciary from enforcing any of its rulings.

2.   The ruling concerning the Medicaid expansion is specious only because it differentiates between the methods employed by Congress to enact laws.   As I read the ruling, it would be allowable for Congress to rescind the old Medicaid law and substitute new provisions for Medicaid which exactly coincide with the new parameters.  This seems to set an artificial condition on Congressional methods for enacting laws–SCOTUS cannot really enforce any of its rulings.  As one can gather from the criticism of this aspect, Medicaid is a voluntary program for the States.

3.   Finally, the difference between ‘freedom’ and ‘liberty’, when talking politics, is the difference between individual and group action.  Every individual in a given society or culture has the freedom to obey or flaunt the norms or laws of their society or culture.  There may be consequences of that freedom, but the individual can accept those consequences.  The question of liberty does not arise until there is a subpopulation of some society or culture which considers itself distinct and separate from the present political entity and forms a goal of separating themselves from that ruling group.  Liberty in this political sense indicates that the group wants responsibility for its own laws and customs.  Revolutions are about liberty, not freedom; liberty is about groups, not individuals.  The question of viability, worthiness and morality of any revolutionary group are unrelated to the concept of liberty, contrary to most people’s expectations; not every revolutionary group has bettered the life of those people it purportedly represents.  Justice Kennedy, by using ‘liberty’ instead of ‘freedom’, had two aims: to rhetorically have the readers of the dissenting opinion associate his belief of the injustice of the mandate is on a par with the injustices of the British rule over its territories which later became the United States of America and also to mislead those same readers into thinking he has a valid argument but is nothing more than the freedom any individual already has to either obey or flaunt the law.

January 3, 2010

Logic, Argumentation and Rhetoric

Filed under: Philosophy — Tags: , , , , — Ron Toczek @ 2:44 am

Deductive logic can  be described as reasoning from assumptions i.e. , deriving valid statements from either universal statements generally considered “true” or statements defining a subject of discourse.    The essential problem with using deductive logic in human discourse is one of codification by which is meant that unless the statements used in a deductive sequence are  codified to the extent that everybody reading the statements has the precise same understanding of the statements the reasoning will fail to convince an interested listener with a different interpretation of even one statement within the deductive sequence; however, this does not prevent people from using this form in their arguments, a practice I refer to as pseudo-deductive reasoning.  Proper deductive logic does have its use in such fields as symbolic logic and many of the sciences.

Inferential logic is a process whereby a general statement is claimed to be valid or true on the basis of one or more specific experiential occurrences by the claimant.  It is generally the result of what might be termed as an “aha” moment wherein the memory of past experiences are seen to be but specific instances of a more general statement.  Most of the physical sciences important advances have come about in just this fashion.  One needs to remember that inferential conclusions have no claim to either truth or accuracy–think back to the ether theory of electromagnetic wave propagation, or how about relativity replacing Newtonian gravitational theory and when it comes to human motivation or actions every general statement has its exceptions.  Inferential reasoning can be described as the process of listing specific experiential instances to support a general conclusion.

Argumentation can be described as the process of demonstrating that some statement has  validity within a certain context, but does not include the demonstration of a mathematical proof  since the “proof” can be mechanically verified by either a human or a machine.  With this proviso the tools of argumentation are the two forms of reasoning described above along with the citation of authority and analogy.  Claiming the validity of an assertion  by citing its author is meaningless unless that author’s argument is also cited and is useless in an oral debate if the debatee is unfamiliar with that author’s work or even if familiar, does not have a working knowledge of that author’s particular argument.  Analogy is  weak because  resemblance of one or more aspects does not guarantee a resemblance in the aspect under consideration, for instance, a drug that cures an illness in a chimpanzee does not always cure a similar disease in a human. The tools of argumentation being what they are it can be rightly said that argumentation cannot prove any assertion.

Rhetoric is primarily the art of winning a verbal battle for the purpose of crediting or discrediting a person or an assertion using argumentative tools and other  devices some of which may be labeled as unsavory.  Use of the term “rhetoric” when referring to an argument will always mean the use of these other devices.  There is usually an impending action of some sort such that when it happens the rhetorician can be said to have either won or lost his case.  A skilled rhetorician should be able to represent all views since his/her concern is only the immediate battle.  However, with human beings, nothing is simple and in many situations where the art of rhetoric is used there may be winners, losers and dropouts due to the interplay of people and assertions and/or ideas.  The status may even change at some later date due to unintended consequences or unplanned events.   Written rhetoric will generally be ineffective unless its author knows that all the people who matter will read his rhetoric.

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