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Professor Robert Nagel Criticizes My Medical Self-Defense Article,

in the Weekly Standard. I like the piece, and I'm delighted that Professor Nagel thought my work worthy of public disagreement.

Naturaly, I don't agree with the article, but that's because I don't share its minimalist view of judicial authority. (I say minimalist because Professor Nagel is criticizing not only unenumerated rights — apparently including a right to abortion as self-defense — but also enumerated ones: He criticizes, for instance, the Court's cases upholding protection for "vulgar speech" or for flag desecration.) As I noted in my article, those who do take such a view would understandably reject my constitutional position, though I hope they can still agree that legislatures ought to enact my proposals.

The Emperor (www):
I must say, Nagel lays out a pretty good case based on his minimalist view (but maybe I think that because I agree with him).
2.5.2007 3:37pm
dearieme:
That interpretation of the Constitution is best that calls upon the Federal Government to act least. Just a suggestion.
2.5.2007 3:40pm
Back seat driver (mail):
I do not find "flag desecration" to be an enumerated right. This makes sense, because something which by definition is profane -- a flag of a civil rather than religious authority -- cannot be desecrated because it is not sacred to begin with. I suppose that flags of communist states are arguably sacred because officially atheist states arrogate to themselves attributes of deity, but even that is a stretch. And it shouldn't apply to the U.S., should it?
2.5.2007 3:48pm
Logicide:
One person's modus ponens is another person's modus tollens.
2.5.2007 3:57pm
Zoe1 (mail):
A pretty good argument by Nagel, I think.
2.5.2007 4:11pm
Richard A. (mail):
It would be fun to see Nagel defend these far-reaching powers of the federal government against what Clarence Thomas might well argue is their nonexistence in the actual constitution.
2.5.2007 7:32pm
ReaderY:
Amen, Brother!
2.5.2007 8:28pm
The Emperor (www):
It would be fun to see Nagel defend these far-reaching powers of the federal government against what Clarence Thomas might well argue is their nonexistence in the actual constitution.

Are you sure Nagel believes in far-reaching powers for the federal government? He definitely believes in far-reaching powers for state and local governments, but he might very well limit federal power pretty significantly under this approach.
2.5.2007 9:35pm
Richard A. (mail):
"If accepted by the Court, this would mean that the government could not prevent a sick individual from using an experimental drug not yet deemed effective by the Food and Drug Administration."

Unless there's a state or local Food and Drug Administration, Nagel is endorsing federal powers that would have appalled the founders (peace be upon them).
2.5.2007 9:58pm