Richard L Epstein

by Critical Thinking (3rd Edition) (pdf)

  slide into a morass of value judgments. 8 If it is more important for society to

  stop drunken driving than for the suspected driver to be free from unreasonable

  search of his blood veins and seizure of his blood, then might it not be argued

  that it is more important for elected officials and sports heroes to get organ

  transplants than mere working stiffs? 9

  If rights can be weighed against societal imperatives, what next? 10 Our

  rights against self incrimination? 11 Freedom of religion? 12 Speech? 13

  Fair trial? 14 The vote? 15

  Having personally experienced the heavy hand of tyranny, the Founding

  Fathers wrote: "The right of the people to be secure in their persons, houses,

  papers, and effects, against unreasonable searches and seizures, shall not be

  violated, and no Warrants shall issue, but upon probable cause, supported by

  Examples of Analysis 231

  Oath or affirmation, and particularly describing the place to be searched, and the

  person or things to be seized." 16

  Rather than slug it out in the courts, we would hope that our various police

  forces would give a second thought or more before resorting to constitutionally

  questionable exercises. 17 What difference is there between a hypodermic

  needle and a battering ram? 18

  If we vigilantly guard and revere the rights of individuals, society in general

  will be better off. 19

  Conclusion: Police should not be allowed to use reasonable force to obtain

  blood samples from first-time drunken driving suspects who refuse to take a

  breath test.

  Premises: 1. This is just stating the background. The editor uses a

  downplayer in putting quotes around "reasonable force."

  2. I suppose tnis is true. It shows that someone other than the editors think

  there's a problem. But so what?

  3. Gives the other side. Counterargument.

  4. Big deal. So one nut said that. Doesn't really contribute to the argument.

  He'd have to show that a lot of people thought that. Otherwise it's probably a

  strawman.

  5. "Chip away" is a slanter. Dysphemism. Anyway, he hasn't shown that

  this law goes against the Fourth Amendment. Apparently the lawmakers didn't

  think so. If it does, it'll be declared unconstitutional, and that's that. Doesn't

  really help his conclusion. Waving the flag, sort of.

  6. Sets out his position. Sort of a counterargument to the supporters of the

  bill. Shows he's not unreasonable. Giving a bit to the other side, I guess.

  Doesn't seem to help get to his conclusion.

  7. "Hard-won" is there without proof. Perhaps it was hard-won. Possibly

  adds to the argument by adding a premise: "Whatever is hard-won should not be

  given up." But that's false. "Flippantly squandered" is a dysphemism, and he

  hasn't shown that they are flippantly squandered. But worst is when he talks

  about rights, protections, etc. It's not clear what "right" he is talking about. If it's

  the one in the Fourth Amendment, he's got to prove that this law is giving that

  up, which he hasn't. Otherwise he's just waving the flag.

  8. He's got to prove this. It's crucial to his argument.

  9. This is supposedly support for 8, but it doesn't work. I think the answer is

  "No." He's got to show it's "Yes." And 10 is just a question, not a claim.

  11 - 1 5 . These are rhetorical questions, too. As premises they seem very

  dubious. Altogether they're a slippery slope.

  16. The first part is just there like "hard-won" was before. Quoting the

  Fourth Amendment doesn't make it clear to me that this law violates it.

  232 COMPLEX ARGUMENTS

  17. "Slug it out in the courts" is a dysphemism. He hasn't shown that the

  law is constitutionally questionable.

  18. Another rhetorical question with a stupid comparison. My answer is

  "Plenty." He's got to convince me that there's no difference. The old slippery

  slope again.

  19. Vague and unproved. Can't be support for the conclusion, and it's not

  the conclusion, either. Does nothing.

  It's a bad argument. Too many slanters, and there's really no support for the

  conclusion.

  Very, very good. Only you need to expand on why it's a bad argument. What

  exactly are the claims that have any vaCue in getting the conclusion?

  First, in 1 it's not a downplayer. It's a quote. It might also show that he

  doesn't believe the words have a clear meaning.

  All that 2 elicits is "So?" We can't guess what the missing premise is that

  could save this support. He doesn't knock off 3 (perhaps 4 is intended to do that,

  sort of reducing to the absurd?). The support for 8 is a worthless slippery slope

  (9-15), plus one person's comments that we'd have to take to be exemplary of lots of

  people (there's a missing premise: "If one person said this on television, then lots of

  people believe it," which is very dubious). Number l6 is crucial, but he hasn't

  shown that 7 follows from it. That's the heart of the argument that he's left out (as

  you noted): He's got to show that this law really violates the fourth Amendment

  and, for 19, that it isn't a good trade-off of personal rights vs. society's rights. So

  there's really no support for his conclusion. That's why it's bad. The use of slanters

  is bad, but it doesn't make the argument bad. 'We can eliminate them and then see

  what's wrong. I'dgive 13+/A- for this. Incorporate this discussion inyour

  presentation to the class and you'll get an A.

  Complex Arguments for Analysis 233

  Complex Arguments for Analysis

  1. Reply to Betsy Hart by Bonnie Erbe (from the same article on pp. 226-227 above)

  Bonnie Erbe: Before my colleague takes off on such wild tangents, she needs to define

  affirmative action. The term has come to mean different things to different people,

  ranging from strict, unbending quotas to mild incentive programs.

  My definition of affirmative action is as follows: institutions and corporations that

  have extremely small percentages of women and/or minority group members among

  their ranks should take gender and race into account, along with a panoply of other

  factors (i.e., intelligence, job or grade performance, geographic distribution, economic

  disadvantage) when recruiting new talent.

  Using that definition, affirmative action will undoubtedly be outmoded in some

  institutions, but decidedly necessary in others.

  For example, there's clearly no need to pay special attention to admit more Chinese-

  or Japanese-Americans to the University of California at Berkeley.

  But blacks and Hispanics are still underrepresented on some campuses in the

  University of California system.

  Similarly, some federal agencies-most notably the FBI, the CIA and the State

  Department-are woefully short on women agents and diplomats. Yet the Justice Depart-

  ment's No. 1 and No. 2 lawyers (Janet Reno and Jamie Gorelick) are women. Hence,

  affirmative action for women is unneeded in some federal agencies, while not in others.

  Besides, if we are going to eliminate affirmative action entirely, we ought to

  eliminate all preferences throughout society.

  No more special admissions to Harvard for the young man with a B minus average

  just because his grandfather's name is on a Harvard dorm.


  Fathers should no longer be able to hire sons (or sons-in-law) to help run the family

  company simply because they're related.

  I'm being hyperbolic, but my point is this: Preferences (based on who you know and

  how much money you have) are still rampant in society. If we eliminate one, in fairness

  we should eliminate them all.

  If we actually, really eliminated preferences—all forms of affirmative action—

  upper-class white children would be much more thoroughly vitiated than lower-class

  minority children.

  2. Howard Stern's investment in tobacco/cigarette industry stocks

  (brought in by a student who said he heard it on the Howard Stern show)

  Caller: Howard, how can you invest in killing people?

  Stern: What do you mean? I made a good business investment.

  Caller: You invested in killing kids.

  Stem: Listen, buddy, there are laws that say you have to be eighteen to buy cigarettes.

  If store owners sell to underage kids, that's their own greedy fault; that's not

  my fault or the fault of the tobacco company.

  Caller: But you invested in the tobacco company that lies to the government, and

  cigarettes kill.

  234 COMPLEX ARGUMENTS

  Stern: What's this lie to the government? . . . I don't care—everybody lies—you lie.

  If someone is so stupid they want to smoke, that's their problem, we all know

  it's bad to smoke. That's why I don't smoke, I'm not stupid. But if someone

  else wants to smoke, that's his right, he has the right to be stupid, and I have

  the right to invest my money in a company that will make me money.

  Caller: Howard, it's not right, next thing you know you'll be investing in AIDS.

  Stern: You idiot, you can't invest in disease. I invested in a company. You don't

  know what you're talking about, get off my phone line, you jerk. (Hangs up)

  3. Pascal's wager

  (Pascal was a 17th Century mathematician and philosopher who had a religious

  conversion late in his life. His argument is roughly as follows.)

  We have the choice to believe in God or not to believe in God. If God does not exist,

  you lose nothing by believing in Him. But if He exists, and you believe in Him, you

  have the possibility of eternal life, joyous in the presence of God. If you don't believe in

  Him, you are definitely precluded from having everlasting life. Therefore, a prudent

  gambler will bet on God existing. That is, it is better to believe that God exists, since

  you lose nothing by doing so, but could gain everlasting life.

  4. Proof that God does not exist

  (Several philosophers have become famous for their proofs that God exists. All those

  proofs have been theoretical. Here is a practical proof supplied by Dr. E that God does

  not exist. It can be repeated—try it yourself!)

  I go into the Sahara Hotel and Casino in Las Vegas, Nevada. I go up to the Megabucks

  slot machine at which you can win at least five million dollars on a $3 bet if you hit the

  jackpot. I put in three $1 coins. I pull the handle. I win nothing, or just a little, and

  when I continue, I lose that, too. Therefore, God does not exist.

  5. On the plans being made to move some of the nearly extinct condors that have been

  bred in captivity to a wild area in the south of Utah

  Letter to the editor:

  I do not know why we do not leave things alone. Probably environmentalists must have

  something to show for their reason to exist; often as stupid as wilderness laws by

  government to make us think they care, for what? Easy money? Now they intend to

  move condors to Utah. Our over-taxed taxpayers should be getting weary of financing

  so much for the amusement of idiots.

  As long as I can remember, the wolves, elk and now the condor and other nonhuman

  species have been pawns on the environmental checkerboard for no reason except the

  whim of a loon to change the order of the universe. I would think all creatures have the

  instinct to move if they so desired without any help. I am sure the place of their choice

  would be better for them if not made by us. Let us grow up and leave the elk, wolves

  and condors alone and mind our own business.

  Kenneth S. Frandsen, The Spectrum, March, 1996

  Complex Arguments for Analysis 235

  6. Ban trapping in New Mexico

  Eight states (Washington, California, Massachusetts, Colorado, Arizona, New Jersey,

  Florida, and Rhode Island) have banned the use of leg-hold traps. It is unconscionable

  that less than 1 percent of the population uses traps, and approximately 75 percent of the

  population opposes trapping, yet this barbarism is still legal in New Mexico.

  The only justification for trapping animals is to skin them, process the skin and them

  make them into coats and stoles for narcissistic little twits to wear when they go out on

  Saturday night. All of the fur coats in the world are not worth the bone-wrenching

  screams of a single animal caught in these mindless traps. Many trappers admittedly

  don't trap for the money because it isn't a money-making business. They do it for fun.

  They capture, mangle, mutilate, kill and skin animals for fun!

  The National Trappers Association is trying to defend the insidious activity of

  trapping on public land and it is lobbying various state agencies to allow this to go on.

  Trappers like to lump themselves in with hunters because they know that without the

  hunters, they cannot win.

  But hunting is fundamentally different from trapping. The hunter must be present

  throughout the stalk. The trapper can be home drinking beer while the trap is destroying

  the heart and soul of a helpless animal.

  It is illegal for hunters to sell the meat of the animals they kill. The purpose of

  trapping is the sale of the skin.

  It is illegal for hunters to use a scent-attractant to get an unfair advantage over their

  prey. Trappers use these to attract the animals to their traps.

  Hunters have bag limits. Trappers can kill and kill and kill without a limit of any

  kind on any species.

  Hunters, if they are ethical, will identify their target and take careful aim to insure

  [sic]a quick and clean death. Trapping is indiscriminate and anything but quick and

  clean. A helpless animal, in excruciating pain will get his skull bashed in, usually with a

  pipe or shovel. Then the trapper stands on his chest to be sure he is dead.

  The New Mexico Department of Game and Fish thinks this is a suitable activity for

  children and gives them a bargain on a license fee if they are between the ages of 12 and

  17. If this is considered family values by our government agencies, we are in trouble.

  In states where leg-hold traps are illegal, it became illegal because of ballot

  initiatives. Unfortunately, in New Mexico we don't have ballot initiatives because our

  legislators don't want the citizens to get in the way of the special issue groups that

  parasitize us. If we had ballot initiatives, leg-hold traps would be banned as well as the

  other anti-American, satanic sport, cockfighting, which is opposed by approximately 80

  percent of New Mexicans.

  However, we do have ballot initiatives. We vote on the first Tuesday in November

  and we can choose to not elect politicians who are too cowardly to oppose trapping (and

  cockfighting).

  Ask the candidates
running for the legislature in your district whether or not they

  support abject animal cruelty in the form of trapping or cockfighting. Make them go on

  record. If they don't have the courage to declare how they stand, then vote for the other

  person. Ask them if they would support a constitutional amendment to give the people

  236 COMPLEX ARGUMENTS

  of New Mexico the right to have ballot initiatives, as they should. We have to get rid of

  these barbaric, anti-Christian and bloodthirsty activities in New Mexico.

  Richard "Bugman" Fagerlund and Holly Kern, Corrales, El Defensor Chieftain,

  August 25, 2004

  7. No to ballot initiatives (reply to Argument 6 above)

  I have to respond to the anti-trapping, anti-cockfighting, pro-California-ballot-initiative

  letter sent by two residents of Corrales.

  They described cockfighting and trapping as "barbaric, anti-Christian and

  bloodthirsty." I know several people who participate in both activities and they are some

  of the finest people there are and certainly are not "anti-American" or "satanic."

  Holly and "Bugman's" idea of forcing ballot initiatives on us by threatening our

  candidates is scary. In their letter, they list states that allow ballot initiatives, where if

  you can get enough signatures you can force a vote on anything. Why have an elected

  government at all? If ballot initiatives are such a good idea, why didn't Jefferson and

  Mason include them in the U.S. Constitution?

  The Corrales couple should just come out and say what they really want: a meatless,

  petless, non-hunting, non-ranching society. A country where people like them make the

  decisions as to how the rest of us live our lives.

  Jim Nance, El Defensor Chieftain, August 28, 2004

  8. Other side of trapping (reply to Argument 6 above)

  Mr. Fagerlund and Ms. Kern, I admire your passion for wildlife, but do believe you're

  only looking at half of the debated matter.

  When I was a little boy, my grandfather, who was a trapper, told me that "there are

  two sides to all matters." I would like to tell my side of this heavily debated matter.

  Let us start with New Jersey, one of the eight states you mention that have banned

  trapping. New Jersey was the first to ban the trapping of all fur-bearing animals and the

  hunting of bears in 1994, which gave the bear population ample time to overpopulate.