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Author: xLife Big funky green star, 20000 posts Top Recommended Fools Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: of 1954918  
Subject: Scalia the Sophist Date: 12/11/2012 12:06 AM
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The obnoxious, condescending and intellectually dishonest sophist, that is.

"It's a form of argument that I thought you would have known, which is called the `reduction to the absurd,'" Scalia told freshman Duncan Hosie of San Francisco during the question-and-answer period. "If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?"

Scalia said he is not equating sodomy with murder but drawing a parallel between the bans on both.

Then he deadpanned: "I'm surprised you aren't persuaded."


http://www.huffingtonpost.com/2012/12/10/antonin-scalia-book...

Err, Tony. Nobody says you can't have "moral feelings," whatever those are, against homosexuality. The question is whether you can impose your feelings about homosexuality as law any more than you can impose your feelings about race as law. Plenty of people thought (think?) miscegenation is immoral too. The analogy with murder isn't reductio ad absurdum. It's just absurd.
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Author: JavaRunner Big funky green star, 20000 posts Top Favorite Fools Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 1843865 of 1954918
Subject: Re: Scalia the Sophist Date: 12/11/2012 7:42 AM
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The analogy with murder isn't reductio ad absurdum. It's just absurd.



Well not really....gays want marriage. Murder can lead to a death sentence. My heterosexual friends tell me that marriage can be a death sentence.

Just saying.

:-)Charlie

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Author: JoshRandall Big gold star, 5000 posts Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 1843874 of 1954918
Subject: Re: Scalia the Sophist Date: 12/11/2012 8:31 AM
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Amateurs shouldn't mess with those who are intellectually superior.

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Author: xLife Big funky green star, 20000 posts Top Recommended Fools Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 1843886 of 1954918
Subject: Re: Scalia the Sophist Date: 12/11/2012 10:17 AM
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Amateurs shouldn't mess with those who are intellectually superior.

You would do well to heed your own advice.

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Author: schvitzing Big gold star, 5000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 1843985 of 1954918
Subject: Re: Scalia the Sophist Date: 12/11/2012 1:11 PM
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"It's a form of argument that I thought you would have known, which is called the `reduction to the absurd,'" Scalia told freshman Duncan Hosie of San Francisco during the question-and-answer period. "If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?"

Scalia said he is not equating sodomy with murder but drawing a parallel between the bans on both.

Then he deadpanned: "I'm surprised you aren't persuaded."


I'm not so sure that Scalia would necessarily transmute moral feelings into law, and I'm not persuaded by those remarks that he would. I think that he's too smart for that. Consider for example one of the "other things" that a legislature might someday find immoral, such as private property or eating pork. Then, his quote would read "If we cannot have moral feelings against homosexuality, can we have it against private property [or eating pork]? Can we have it against other things?"

Yes, a legislature could pass laws banning acts they collectively believe to be immoral, as he also stated; but, are they Constitutional?
I would not be surprised if he saw no authority under the Constitution for a state [or the federal government] to ban a relationship for some citizens that is permitted for others, especially since he has already taken such a sweeping view of First Amendment rights regarding speech.

Schvitz

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Author: JavaRunner Big funky green star, 20000 posts Top Favorite Fools Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 1844027 of 1954918
Subject: Re: Scalia the Sophist Date: 12/11/2012 2:41 PM
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Amateurs shouldn't mess with those who are intellectually superior.



And yet here you are.....

Charlie

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Author: JoelCairo Big gold star, 5000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 1844029 of 1954918
Subject: Re: Scalia the Sophist Date: 12/11/2012 2:43 PM
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"If we cannot have moral feelings against homosexuality, can we have it against private property [or eating pork]? Can we have it against other things?"

People do have moral, or at least religious objections to eating pork. And shellfish. And beef. Does it have to influence a judge's decision about the law?

The real issue is that Scalia wants a more active role in the national debate than he gets in his chosen profession and role. And in that role, which is based on impartiality, the rule of law, and the elimination of individual non-legal (aka moral) opinions, judges, by their professional standards, are supposed to remain silent. This does not sit well with Scalia.

So he beefs. Or porks. And gets all self-righteous when anyone calls him on the appearance of bias caused by his failure to keep his moral opinions to himself and stick to the letter of the law of his job.

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Author: goofnoff Big funky green star, 20000 posts Top Recommended Fools Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 1844034 of 1954918
Subject: Re: Scalia the Sophist Date: 12/11/2012 2:48 PM
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Scalia will do his best to impose his racist/classist feelings on law.

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Author: albaby1 Big gold star, 5000 posts Top Favorite Fools Feste Award Nominee! Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 1844092 of 1954918
Subject: Re: Scalia the Sophist Date: 12/11/2012 5:58 PM
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Err, Tony. Nobody says you can't have "moral feelings," whatever those are, against homosexuality. The question is whether you can impose your feelings about homosexuality as law any more than you can impose your feelings about race as law. Plenty of people thought (think?) miscegenation is immoral too. The analogy with murder isn't reductio ad absurdum. It's just absurd.

That's not really the point that Scalia is making with this argument, though. There's actually a fairly important question that he's asking. Framing it in the terms you describe above, it would run as follows:

"Why can you impose your feelings about murder as law?"

Clearly, it is appropriate for a legislature to pass a law banning murder. Every government on earth does. But what is it that makes this an appropriate sphere for government - or for the populace at large - to legislate on the matter? Why does government get to establish "no murder" as a value?

Obviously, you can come up with a laundry list of reasons why murder is bad (murder is a violation of personal autonomy, society cannot function if people are free to kill each other, etc.). But each of those reasons itself represents a statement of values that itself rests on other value judgements (autonomy is good and should be preserved, functioning society is better than chaotic society).

At bottom, Scalia posits, everything that legislatures legislate about rest on a conception of the Good - some moral judgment that some outcomes are better than other outcomes, or reaching the conclusion that society that looks one way is better than a society that looks another way. In government, the way we resolve competing visions of the Good is through the democratic process - both in drafting Constitutions and in the laws that get adopted under them.

In many ways, this is an adoption of a relativistic moral framework - actions are only "wrong" (and therefore subject to government regulation) in the sense that society adjudges them wrong, not because of any inherent "wrongness" that stems from a Deity or some external factor. And if that's the case, why can society not determine that homosexuality is wrong? What is the difference between those two value judgements that itself does not depend on other value judgements? Kant and Rawls grappled with that question at length, and I don't think that Scalia is claiming that he knows the answer - just that it's a tough question.

Albaby

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Author: Wessex99 Big red star, 1000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 1844138 of 1954918
Subject: Re: Scalia the Sophist Date: 12/11/2012 8:36 PM
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That "man" is quintessential right-wing filth.

Wessex

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Author: AdvocatusDiaboli Big funky green star, 20000 posts Top Recommended Fools Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 1844142 of 1954918
Subject: Re: Scalia the Sophist Date: 12/11/2012 8:53 PM
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What is the difference between those two value judgements that itself does not depend on other value judgements?

If murder was legal, the risk of any particular individual being murdered would be far higher.
Are you asserting that the statement "being murdered is bad" constitutes a value judgement?

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Author: 99lashes Big gold star, 5000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 1844144 of 1954918
Subject: Re: Scalia the Sophist Date: 12/11/2012 8:58 PM
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That "man" is quintessential right-wing filth.

Wessex


Is that worse than left-wing filth?

99

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Author: albaby1 Big gold star, 5000 posts Top Favorite Fools Feste Award Nominee! Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 1844148 of 1954918
Subject: Re: Scalia the Sophist Date: 12/11/2012 9:11 PM
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If murder was legal, the risk of any particular individual being murdered would be far higher.

Are you asserting that the statement "being murdered is bad" constitutes a value judgement?


No - the value judgment lies in weighing of the lower risk of being murdered against the inability to murder other people, and deciding that the former vastly outweighs the infringement of the latter. We know intuitively that the 'liberty' or 'autonomy' being infringed by prohibiting murder is vastly inferior to the right to not be murdered...but it's actually a rather difficult exercise to establish why that is in a way that is independent from a system of moral judgments. Kant used the categorical imperative to try to ground it pure reason; Rawls used the veil of ignorance/original position argument to try to ground it in concepts of 'fairness'.

But that's why Scalia puts in terms of reductio ad absurdum. Murder is pretty easy - but why does government get to decide whether to prohibit marijuana, or limit the height of buildings in a certain area, or that real estate contracts must be reduced to writing to be enforceable, or a host of other perfectly legitimate aims of government? We might dispute (rigorously) whether government is wise to adopt regulations in any of these fields - but we accept that they represent legitimate aims of government. But at bottom, all of them reflect little more than community expressed preferences that one conception of the Good should prevail over another conception of the Good.

Thus, almost all government regulation is grounded in a simple values determination that society prefers X to Y. And if that's the case, why can society not state that they prefer a society that excludes sodomy from one that includes it? Note that this does not address the question of whether there are fundamental rights that might trump societies preference. Scalia is simply asking whether - in a legal world where a lot of very 'squishy' things like promoting one aesthetic preference over another is a legitimate aim of government - a moral determination should not also be a legitimate basis for government action. In the end, every regulation is an expression of societal values - why not 'taboo' regulations like nudity, language, and sexual practices to the extent not limited by more fundamental rights?

Albaby

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Author: sano Big funky green star, 20000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 1844153 of 1954918
Subject: Re: Scalia the Sophist Date: 12/11/2012 10:19 PM
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why not 'taboo' regulations like nudity, language, and sexual practices to the extent not limited by more fundamental rights?

1st amendment.

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Author: albaby1 Big gold star, 5000 posts Top Favorite Fools Feste Award Nominee! Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 1844182 of 1954918
Subject: Re: Scalia the Sophist Date: 12/12/2012 7:49 AM
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1st amendment.

Not for the question Scalia is addressing. He's talking about whether government has a legitimate goal in regulating in the first place, pursuing which goal might (or might not) be limited by other constitutional provisions. The Fourth Amendment puts limits on searches and seizures, for example - but there's no debate that government's interest in punishing and preventing crime constitutes a legitimate purpose for conducting searches and seizures in the first instance.

So while the First Amendment might place limits on government's ability to regulate taboo language and nudity, the jurisprudence is pretty clear that government has a legitimate interest in regulating them (which is then trumped by the First). The question Scalia explored in Lawrence v. Texas, and alluded to in his speech, is why government's goal in those matters (and indeed a host of other areas of regulation) is considered a valid aim of government, when it merely reflects a popular moral preference for one type of societal behavior over another.

Albaby

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Author: kenm47 Big funky green star, 20000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 1844186 of 1954918
Subject: Re: Scalia the Sophist Date: 12/12/2012 8:04 AM
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"The question Scalia explored in Lawrence v. Texas, and alluded to in his speech, is why government's goal in those matters (and indeed a host of other areas of regulation) is considered a valid aim of government, when it merely reflects a popular moral preference for one type of societal behavior over another."

Things change. It ain't the 18th century anymore.

Ken

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Author: albaby1 Big gold star, 5000 posts Top Favorite Fools Feste Award Nominee! Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 1844187 of 1954918
Subject: Re: Scalia the Sophist Date: 12/12/2012 8:13 AM
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Things change. It ain't the 18th century anymore.

Certainly true. But that doesn't address the issue. Which competing vision of the Good prevails in the Democratic process - or even which vision of the Good ought to prevail - will change over time. But the core question of whether it is a legitimate aim of government to promote some vision of the Good remains the same.

Albaby

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Author: kenm47 Big funky green star, 20000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 1844189 of 1954918
Subject: Re: Scalia the Sophist Date: 12/12/2012 8:25 AM
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"But the core question of whether it is a legitimate aim of government to promote some vision of the Good remains the same."

So far, it necessarily is, otherwise there's the likelihood of anarchy. We require rules and a State with coercive power to enforce the rules.

The "problem" is the "rules" of "good" keep changing. Some rules seem to be immutable - laws against homicide. But then there are degrees and defenses to be resolved in Courts of law - again backed by the coercive power of the State. Other supposed rules as time goes by turn out to be less "good" and are discarded or ignored or out and out changed - like laws against miscegenation, wives as chattel, etc.

When Scalia asks the question framed by an 18th century view of the world mindset, it's a form of "When did you stop beating your wife?" Very clever, but ultimately designed to avoid the current issues rather than recognize and deal with them.

Ken

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Author: albaby1 Big gold star, 5000 posts Top Favorite Fools Feste Award Nominee! Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 1844208 of 1954918
Subject: Re: Scalia the Sophist Date: 12/12/2012 9:38 AM
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The "problem" is the "rules" of "good" keep changing. Some rules seem to be immutable - laws against homicide. But then there are degrees and defenses to be resolved in Courts of law - again backed by the coercive power of the State. Other supposed rules as time goes by turn out to be less "good" and are discarded or ignored or out and out changed - like laws against miscegenation, wives as chattel, etc.

Exactly. So the key question for the SCOTUS when it applies its "rational relationship" test is to figure out what underlies that distinction - to figure out the core question of, "what is the universe of letigimate government purpose?" How can we reconcile laws against women appearing topless in environments where men are permitted to be shirtless - which are based on notions of societal taboo and sexual mores - while still arguing that government lacks any interest in enforcing sexual mores for their own sake?

More important for Scalia is the question of whether you can distinguish an argument that government cannot legislate against something merely because society might find it violative of some moral norm from every other law in existence, which at the end of the day are also value judgments that one outcome is simply preferable to another.

When Scalia asks the question framed by an 18th century view of the world mindset, it's a form of "When did you stop beating your wife?" Very clever, but ultimately designed to avoid the current issues rather than recognize and deal with them.

I don't think so - I think it's actually the contrary. What he's asking in Lawrence is how a current and new legal standard - moral norms are not a legitimate basis for governmental regulation - can be integrated into the existing legal system, since an argument will be raised that many existing laws reflect nothing more than the elevation of one particular value judgment over another. To take some rather trivial examples from my own line of work, local governments can regulate what color you paint your building or what types of trees (from an aesthetic purpose) you can landscape with. There's nothing their but the expression of one societal aesthetic preference over another - we like color X but not color Y. How does that fit into an environment where societal value judgements are not a legitimate purpose for governmental action?

It's a tough question, and it's tough for judges to articulate where the lines are.

Albaby

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Author: Hawkwin Big gold star, 5000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 1844211 of 1954918
Subject: Re: Scalia the Sophist Date: 12/12/2012 9:42 AM
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That's not really the point that Scalia is making with this argument, though.

Damn Albaby. There you go messing up another rec fest with some truth and logic.

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Author: Hawkwin Big gold star, 5000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 1844214 of 1954918
Subject: Re: Scalia the Sophist Date: 12/12/2012 9:50 AM
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.Some rules seem to be immutable - laws against homicide.

No, even that definition changes over time.

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Author: kenm47 Big funky green star, 20000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 1844539 of 1954918
Subject: Re: Scalia the Sophist Date: 12/12/2012 9:33 PM
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Still comes down to Scalia comparing an intentional act of mayhem whose purpose is to cause ultimate physical harm, with a condition genetically engrained.

There is no "moral" equivalency. It's a subtle, and logically improper, "When did you stop beating your wife?" inquiry.

Ken

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Author: albaby1 Big gold star, 5000 posts Top Favorite Fools Feste Award Nominee! Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 1844544 of 1954918
Subject: Re: Scalia the Sophist Date: 12/12/2012 9:44 PM
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Still comes down to Scalia comparing an intentional act of mayhem whose purpose is to cause ultimate physical harm, with a condition genetically engrained.

No, it doesn't. It's the exact opposite of that. Scalia is not saying that the two are similar - he's using the fact that they are wholly not similar to stress a point about how we think about what the purposes of government are. We know that the two are very different - so what theories of law allow us to distinguish them?

Albaby

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Author: kenm47 Big funky green star, 20000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 1844607 of 1954918
Subject: Re: Scalia the Sophist Date: 12/13/2012 9:46 AM
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"We know that the two are very different - so what theories of law allow us to distinguish them?"

By excluding from the law distinctions made and deprivations of rights based upon genetic make up of the individual(s).

Ken

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Subject: Re: Scalia the Sophist Date: 12/13/2012 10:04 AM
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We know that the two are very different - so what theories of law allow us to distinguish them?

You're saying we need a theory of law to differentiate murder and marriage, i.e. whom the state prohibits you to kill and whom it prohibits you to marry.

Seriously?

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Author: WallyLock Big red star, 1000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 1844628 of 1954918
Subject: Re: Scalia the Sophist Date: 12/13/2012 10:32 AM
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By excluding from the law distinctions made and deprivations of rights based upon genetic make up of the individual(s).

I think that that is very poor idea. Consider antiscocial personality disorder (ASPD).

The Diagnostic and Statistical Manual of Mental Disorders, fourth edition (DSM IV-TR), defines antisocial personality disorder (in Axis II Cluster B) as:[1]

A) There is a pervasive pattern of disregard for and violation of the rights of others occurring since age 15 years, as indicated by three or more of the following:
1.failure to conform to social norms with respect to lawful behaviors as indicated by repeatedly performing acts that are grounds for arrest;
2.deception, as indicated by repeatedly lying, use of aliases, or conning others for personal profit or pleasure;
3.impulsiveness or failure to plan ahead;
4.irritability and aggressiveness, as indicated by repeated physical fights or assaults;
5.reckless disregard for safety of self or others;
6.consistent irresponsibility, as indicated by repeated failure to sustain consistent work behavior or honor financial obligations;
7.lack of remorse, as indicated by being indifferent to or rationalizing having hurt, mistreated, or stolen from another;
B) The individual is at least age 18 years.
C) There is evidence of conduct disorder with onset before age 15 years.
D) The occurrence of antisocial behavior is not exclusively during the course of schizophrenia or a manic episode.

From the abtract of Genetics of personality disorders
N Fontaine, E Viding - Psychiatry, 2008


This paper provides a brief review of genetically informative studies of personality disorders. Findings from twin and adoption studies suggest that personality disorders are moderately to strongly heritable (heritability estimates between 30% and 80%) . . . A new research area of imaging genetics is providing insights to the mechanisms of genetic vulnerability to personality disorders. Studies to date suggest that genetic variation may account for individual differences in neurocognitive functioning, which could lead to differential vulnerability to any given personality disorder . .


ASPD is very much "based upon genetic make up of the individual" but we still want to make certain actions related to ASPD illegal (specifically 4 and 5 above).

This is not to compare ASPD with homosexuality. They are two very different things, and not morally equivalent in any fashion. It is just to point out that your "based upon genetic make up of the individual" does not distinguish between them. If you want a legal theory that will separate "reckless disregard for safety of self or others" from "homosexuality" you will need another test.

Wally

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Author: kenm47 Big funky green star, 20000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 1844639 of 1954918
Subject: Re: Scalia the Sophist Date: 12/13/2012 11:10 AM
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"you will need another test."

What does the "The Diagnostic and Statistical Manual of Mental Disorders, fourth edition (DSM IV-TR)" say about homosexuality?

BTW, homosexuality (like a genetic predisposition to heterosexuality) should not make an individual immune from prosecution of "related" crimes say of a sexual nature including rape or statutory rape. The issue is one of equivalence whatever the sexuality of the individual, with issues of voluntary participation in the acts similarly to be analyzed should complaints be made by a participant therein in the sexual activity.

While the criminality, or not, of the sexual activity should be the same for both heterosexuals and homosexuals, so should the civil consequences and willingness of the partners to commit to civil "marriage" with all consequent rights and responsibilities fully recognized by the State (local and Federal) whether or not any religious institution disputes the propriety of the label.

Ken

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Author: WallyLock Big red star, 1000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 1844643 of 1954918
Subject: Re: Scalia the Sophist Date: 12/13/2012 11:33 AM
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What does the "The Diagnostic and Statistical Manual of Mental Disorders, fourth edition (DSM IV-TR)" say about homosexuality?

Nothing, homosexuality was dropped as mental disorder (I think DSM-II was last the one to have it, but I'm not going to bother and check).

While the criminality, or not, of the sexual activity should be the same for both heterosexuals and homosexuals, so should the civil consequences and willingness of the partners to commit to civil "marriage" with all consequent rights and responsibilities fully recognized by the State (local and Federal) whether or not any religious institution disputes the propriety of the label.

I agree with that completely, but it has nothing what-so-ever to do with what I posted. I was simply stating that a genetic disposition for any act is not a good test for deciding whether or not it should be legal.

From a science stand-point, the genetics of homosexuality is a very interesting question. There are a lot of genetic, epi-genetic, in utero, and environmental factors that can combine and it is a very complex question.

For a legal standpoint (to my mind) the genetics does not matter. I don't care if it someone choose a lifestlye or if someone is born that way, if they can be cured, if they can't be cured. None of that matters. I am very much of the opinion that how two consenting adults want to form a family is none of the government's business. But that's not an argument based on genetics.

Wally

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Author: albaby1 Big gold star, 5000 posts Top Favorite Fools Feste Award Nominee! Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 1844648 of 1954918
Subject: Re: Scalia the Sophist Date: 12/13/2012 11:49 AM
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By excluding from the law distinctions made and deprivations of rights based upon genetic make up of the individual(s).

Fair enough - but again, not relevant to this specific issue. This particular question arises in the context of the Lawrence v. Texas analysis, in which the court never reached the question of whether there was a right involved. Instead, the court took the position that issues of moral values (as well as history) were outside of the realm of legitimate government purposes that legislation could be intended to further - whether they dealt with rights or not.

Scalia's point is that this may seem appropriate when dealing with legislation concerning sexual behavior (like the sodomy cases), but what happens when you apply that reasoning to completely different types of issues (like prohibitions on murder)? Do we find that those prohibitions ultimately reduce down to the same types of moral judgments about one conception of the Good being better than others?

Your point above is exactly the same argument that Scalia raised in Lawrence (and in other fora thereafter) - that this is an issue that is resolved by reference to rights, not by an examination of the legitimate ends of government. But it is not trying to equate homosexuality and murder.

Albaby

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Author: kenm47 Big funky green star, 20000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 1844653 of 1954918
Subject: Re: Scalia the Sophist Date: 12/13/2012 11:56 AM
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"For a legal standpoint (to my mind) the genetics does not matter. I don't care if it someone choose a lifestlye or if someone is born that way, if they can be cured, if they can't be cured. None of that matters. I am very much of the opinion that how two consenting adults want to form a family is none of the government's business. But that's not an argument based on genetics."

It matters to those that insist it is a "life choice" that they believe sinful and condemnable. To the extent they need the "born that way" explanation, so be it.

Ken

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Author: kenm47 Big funky green star, 20000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 1844660 of 1954918
Subject: Re: Scalia the Sophist Date: 12/13/2012 12:03 PM
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"But it is not trying to equate homosexuality and murder."

Then why bring "murder" (and all the emotional "sinful" and otherwise religious connotations the word carries including the Ten Commandment prohibition) into the conversation? Why not "jaywalking"?

Why not a more relevant analogy like the laws against miscegenation?

Ken

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Author: WallyLock Big red star, 1000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 1844673 of 1954918
Subject: Re: Scalia the Sophist Date: 12/13/2012 12:25 PM
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It matters to those that insist it is a "life choice" that they believe sinful and condemnable. To the extent they need the "born that way" explanation, so be it.

I understand the temptation to point out to the "other side" that they are wrong. And I understand the use of it as a tactic. But there are a lot of inclinations that people are "born with" that are not desirable.

Wally

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Author: albaby1 Big gold star, 5000 posts Top Favorite Fools Feste Award Nominee! Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 1844682 of 1954918
Subject: Re: Scalia the Sophist Date: 12/13/2012 12:46 PM
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You're saying we need a theory of law to differentiate murder and marriage, i.e. whom the state prohibits you to kill and whom it prohibits you to marry.

No. Scalia's argument is that the legal standard under which the sodomoy cases were disposed of is one that applies to every action of government. All laws have to be able to pass a rational relationship test. So if you adopt a particular interpretation of rational relationship that is not dependent on something specific to the case - a general theory of rational relationship - then the impacts of that precedent are felt not only on cases involving marriage (or other taboos), but also widely disparate regulations like murder.

Albaby

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Author: albaby1 Big gold star, 5000 posts Top Favorite Fools Feste Award Nominee! Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 1844684 of 1954918
Subject: Re: Scalia the Sophist Date: 12/13/2012 12:52 PM
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Then why bring "murder" (and all the emotional "sinful" and otherwise religious connotations the word carries including the Ten Commandment prohibition) into the conversation? Why not "jaywalking"?

Why not a more relevant analogy like the laws against miscegenation?


Because he's not trying to make an analogy between marriage and murder. He's making the argument that the legal reasoning has important repurcussions in areas of the law that are enormously important and wholly unrelated to marriage or sex. You don't illustrate that by pointing to jaywalking or laws that were struck down decades ago - you point to laws that everyone will think are the height of absurdity if they were to get struck down. That's why this is an exercise reductio ad absurdum - the doctrine he specifically mentioned to the student in the exchange in the OP.

Albaby

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Author: xLife Big funky green star, 20000 posts Top Recommended Fools Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 1844685 of 1954918
Subject: Re: Scalia the Sophist Date: 12/13/2012 12:52 PM
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No. Scalia's argument is that the legal standard under which the sodomoy cases were disposed of is one that applies to every action of government. All laws have to be able to pass a rational relationship test. So if you adopt a particular interpretation of rational relationship that is not dependent on something specific to the case - a general theory of rational relationship - then the impacts of that precedent are felt not only on cases involving marriage (or other taboos), but also widely disparate regulations like murder.

Must be time for my afternoon cup of coffee. I didn't understand a word of that.

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Author: albaby1 Big gold star, 5000 posts Top Favorite Fools Feste Award Nominee! Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 1844689 of 1954918
Subject: Re: Scalia the Sophist Date: 12/13/2012 1:03 PM
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Must be time for my afternoon cup of coffee. I didn't understand a word of that.

Must be time for my afternoon cup as well, since I obviously didn't explain it very well!

Let's take a farcical example to illustrate. Suppose a city adopts an ordinance that says that no one is ever allowed to mention the word, "Kardashian" on a public sidewalk. The ordinance is challenged and makes its way to the SCOTUS. At the Court, two separate legal theories are advanced as to why the ordinance is struck down:

1) Saying the word "Kardashian" is speech protected under the First Amendment, and since sidewalks are public fora (even though they are owned by the City), it is a violation of the First Amendment to prohibit that speech.

2) Government is never allowed to tell people what to do.

Note that under either theory, the ordinance is struck down. But there are quite a lot of problems with the latter theory. And indeed, one legitimate criticism of the latter theory is that if it were adopted by the Court, even statutes prohibiting murder would have to be overturned.

Making that argument is not equating the act of saying the word Kardashian with the act of murder - or even suggesting that really have anything in common. If anything, the argument is powerful because the two actions have nothing in common - that's what makes it a critique of the breadth of the second legal theory.

That's the argument that Scalia made in his dissent in Lawrence and has been making ever since - that the majority's expansion of the traditionally deferential "rational relationship" test would, if applied consistently and honestly, undermine the basis for laws on a whole host of wildly disparate matters.

Albaby

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Author: AngelMay Big funky green star, 20000 posts Top Favorite Fools Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 1844695 of 1954918
Subject: Re: Scalia the Sophist Date: 12/13/2012 1:07 PM
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That's the argument that Scalia made in his dissent in Lawrence and has been making ever since - that the majority's expansion of the traditionally deferential "rational relationship" test would, if applied consistently and honestly, undermine the basis for laws on a whole host of wildly disparate matters.

Albaby





Could you name 3 "wildly disparate matters" that would be undermined if gays were allowed to marry?

AM

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Author: kenm47 Big funky green star, 20000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 1844705 of 1954918
Subject: Re: Scalia the Sophist Date: 12/13/2012 1:32 PM
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"But there are a lot of inclinations that people are "born with" that are not desirable."

OK. But when we're talking about merely sexual identity we're past, or IMO should be, a concept of a "desirable" genetic disposition.

Ken

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Author: WallyLock Big red star, 1000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 1844708 of 1954918
Subject: Re: Scalia the Sophist Date: 12/13/2012 1:44 PM
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OK. But when we're talking about merely sexual identity we're past, or IMO should be, a concept of a "desirable" genetic disposition.

But why the "merely"? What is it about sexual identity that puts in the the class of things that we should not impose our morals on through legislation? I agree that we shouldn't, but what is the reason, and what other behaviors are going to fall under that reason?

Wally

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Author: kenm47 Big funky green star, 20000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 1844712 of 1954918
Subject: Re: Scalia the Sophist Date: 12/13/2012 1:51 PM
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"No. Scalia's argument is that the legal standard under which the sodomoy cases were disposed of is one that applies to every action of government. All laws have to be able to pass a rational relationship test."

My problem with Scalia (and I admit I'm no Scalia study scholar) is he seems to fit the determination of rationality with a personal desired result, so he can decide to use a modern/current rational perspective or whatever era - he can pick and choose. After all, at one time it was "rational" to believe the Sun orbited the Earth. At one time it was "rational" to believe in the intrinsic inferiority of the female of the species. At one time it was "rational" to believe children grew up just fine despite the demands of factory jobs.

So what (or when) is his POV on same sex marriage and the rights of same sex couples?

Ken

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Author: albaby1 Big gold star, 5000 posts Top Favorite Fools Feste Award Nominee! Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 1844718 of 1954918
Subject: Re: Scalia the Sophist Date: 12/13/2012 2:03 PM
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My problem with Scalia (and I admit I'm no Scalia study scholar) is he seems to fit the determination of rationality with a personal desired result, so he can decide to use a modern/current rational perspective or whatever era - he can pick and choose. After all, at one time it was "rational" to believe the Sun orbited the Earth. At one time it was "rational" to believe in the intrinsic inferiority of the female of the species. At one time it was "rational" to believe children grew up just fine despite the demands of factory jobs.

So what (or when) is his POV on same sex marriage and the rights of same sex couples?


I have no idea on what his POV is on the substance of either of those. It's clear that he does not believe that the Constitution prohibits laws barring same-sex sodomy (which was presented in Lawrence), and his comments suggest that he shares O'Connor's view that ss marriage is similarly not required to comply with the Constitution - but that latter issue has not yet come before the court.

Rational is not applied in that context, BTW, in rational relation review. The Court does not engage in determining whether belief in a fact or policy is rational or not - a law allowing, or even requiring, childred to work in factory jobs would pass the rational relationship test even today.

Albaby

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Author: kenm47 Big funky green star, 20000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 1844743 of 1954918
Subject: Re: Scalia the Sophist Date: 12/13/2012 2:59 PM
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Then what rational interest of the State is served by denying ss couples "marriages" and marital rights enjoyed by non-ss couples? Particuarly where, as now, some states accord and recognize such rights while other states do not.

Ken

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Author: albaby1 Big gold star, 5000 posts Top Favorite Fools Feste Award Nominee! Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 1844748 of 1954918
Subject: Re: Scalia the Sophist Date: 12/13/2012 3:12 PM
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Then what rational interest of the State is served by denying ss couples "marriages" and marital rights enjoyed by non-ss couples? Particuarly where, as now, some states accord and recognize such rights while other states do not.

That is the core question. For Scalia, it would be simply that the State has a legitimate interest in enforcing the moral consensus of its populace - the same interest that is advanced by laws prohibiting women from going topless at the beach, for example. To quote from his dissent in Lawrence (discussing sodomy, not marriage):

I turn now to the ground on which the Court squarely rests its holding: the contention that there is no rational basis for the law here under attack. This proposition is so out of accord with our jurisprudence–indeed, with the jurisprudence of any society we know–that it requires little discussion.

The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are “immoral and unacceptable,” Bowers, supra, at 196–the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. Bowers held that this was a legitimate state interest. The Court today reaches the opposite conclusion. The Texas statute, it says, “furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual,” ante, at 18 (emphasis addded). The Court embraces instead Justice Stevens’ declaration in his Bowers dissent, that “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice,” ante, at 17. This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review.


Note that none of this is addressing whether the 'promotion of majoritarian sexual morality' might be limited by the rights of people involved. Scalia agrees at the top of the opinion that if gays have a right to engage in any particular activity, then that can certainly trump a legitimate state interest if the appropriate review criteria are satisfied.

Albaby

(Link to Lawrence: http://www.law.cornell.edu/supct/html/02-102.ZS.html

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Author: xLife Big funky green star, 20000 posts Top Recommended Fools Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 1844760 of 1954918
Subject: Re: Scalia the Sophist Date: 12/13/2012 4:12 PM
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For Scalia, it would be simply that the State has a legitimate interest in enforcing the moral consensus of its populace - the same interest that is advanced by laws prohibiting women from going topless at the beach, for example.

Stupid law* too, but at least the comparison isn't as facile as the one between gay marriage and murder.

Seems to me there's an obvious difference between laws that restrict public behavior with regard to community norms (prohibitions against nudity, for example) that affect others and laws that restrict contracts between two consenting adults.

There might be an argument that a law restricting women, but not men, from being topless in public is similar to a law restricting same-sex couples, but not opp-sex couples, from public expressions of affection, but good luck with that.


*How is a law prohibiting women from going topless at the beach any different, in principle, than a law requiring women wear a burka?

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Author: albaby1 Big gold star, 5000 posts Top Favorite Fools Feste Award Nominee! Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 1844766 of 1954918
Subject: Re: Scalia the Sophist Date: 12/13/2012 4:30 PM
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Stupid law* too, but at least the comparison isn't as facile as the one between gay marriage and murder.

Again, the point Scalia is making is not to compare them to draw any kind of similarities between the two. It's the opposite. Scalia's point is that the Lawrence theory is so broad that it affects the underpinnings of completely unrelated laws, like those relating to murder.

Seems to me there's an obvious difference between laws that restrict public behavior with regard to community norms (prohibitions against nudity, for example) that affect others and laws that restrict contracts between two consenting adults.

Of course there's a difference. But it doesn't matter, under the Lawrence analysis, which rejected the idea that community norms and morals could serve as a basis for regulation altogether. Plus, the Court has never held that the police power of the state only extends to things that 'affect others'. We might reach a consensus that that is a wise and beneficial place to stop regulating - but that is a policy decision, not an inherent limit on the legislative power. The state is perfectly free to impose regulations to keep you from harming yourself, even if it doesn't hurt anyone else, if it would like to.

Albaby

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Author: Hawkwin Big gold star, 5000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 1844770 of 1954918
Subject: Re: Scalia the Sophist Date: 12/13/2012 4:37 PM
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Good grief.

To quote Albaby WAY UP in this thread:

At bottom, Scalia posits, everything that legislatures legislate about rest on a conception of the Good - some moral judgment that some outcomes are better than other outcomes, or reaching the conclusion that society that looks one way is better than a society that looks another way.

You guys keep going around in circles while ignoring the basic truth - that moral judgements, regardless of whether you approve of them or not, are how we craft laws.

Look at any significant change in law over the last century and you can tie it to a change in the perception of morals.

Contracts between two adults (and even the definition of who is a consenting adult) is based on morals. Simple fact.

Why do we legally prohibit a sterile woman from marrying her son? They can't conceive. There is no risk of birth defects. This would not be a same sex marriage, yet as a society, we deam such illegal based on current morals. Decades ago, it was common for people to get married as young as 13 and start a family. Today, such behavior is generally illegal because of the change in morals.

You and everyone else is welcome to argue that the morals of any particular law are wrong, but the fact remains that such are how our laws are generally determined.

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Author: albaby1 Big gold star, 5000 posts Top Favorite Fools Feste Award Nominee! Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 1846095 of 1954918
Subject: Re: Scalia the Sophist Date: 12/17/2012 10:11 AM
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Could you name 3 "wildly disparate matters" that would be undermined if gays were allowed to marry?

Nope - but again, that's not the issue. Scalia is not criticizing the outcome of the case, but the legal reasoning behind the case - that community values and historical practice are not legitimate interests for government to pursue.

Three wildly disparate matters that are very suspect under that theory would be female toplessness (discussed above), historic preservation requirements for private buildings, and many landscaping codes. These are regulations not intended to prevent 'harm' to other people, but instead to promote some community-preferred morality or aesthetic or similar preference.

Albaby

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