Posted on 12/01/2005 5:59:58 AM PST by RWR8189
WASHINGTON -- Henry J. Friendly, who died in 1986, was perhaps the most distinguished American judge never to serve on the Supreme Court, and he almost spared the nation the poisonous consequences of that court's 1973 truncation of democratic debate about abortion policy. The story of that missed blessing was told recently by Judge A. Raymond Randolph of the U.S. Court of Appeals for the D.C. Circuit, in an address to the Federalist Society.
In 1970, Friendly, then on the Court of Appeals for the 2nd Circuit, was a member of a three-judge panel that heard the first abortion-rights case ever filed in a federal court, alleging the unconstitutionality of New York's abortion laws. Friendly wrote a preliminary opinion that was never issued because, in that pre-Roe era, democracy was allowed to function: New York's Legislature legalized abortion on demand during the first 24 weeks of pregnancy, causing the three-judge panel to dismiss the case as moot.
In 1965, the Supreme Court, citing a constitutional right to privacy, struck down a Connecticut law criminalizing the use of contraceptives. In 1968, a University of Alabama law professor, although acknowledging that legislative reforms of abortion laws were advancing nationwide, suggested a route to reform -- judicial fiat -- that would be quicker and easier than democratic persuasion. The tactic would be to get courts -- ideally, the Supreme Court -- to declare, building on the Connecticut case, that restrictions on abortions violate a privacy right that is a ``penumbral right emanating from values'' embodied in various provisions of the U.S. Constitution, as applied to the states through the 14th Amendment.
Which is what the Supreme Court did in 1973. But in 1970, when that argument reached Friendly, he warned in his preliminary opinion about the argument's ``disturbing sweep,'' and its invitation to
(Excerpt) Read more at realclearpolitics.com ...
Pro-life bump.
Will has trouble being clear, anymore.
Connecticut: Land Of Lawyers bump
Of course, the usual argument by many conservatives that abortion should be left up to the states is completely specious and immoral.
Whether or not innocent people live or die is not a matter for the polls.
The federal government, if it has any useful purpose at all, exists to defend the lives of the people who live in its sovereign territory from organized violence.
The "usual argument" does make sense to a certain extent, for it is the legal rationale for why the court's decision in Roe v. Wade didn't even meet the most basic requirements for legitimacy. The protection of the unborn is a valid application of the Due Process Clause and the 14th Amendment, and would probably have to be pursued under separate court actions. In other words, Step 1 has to come before Step 2.
I do agree with your general point, though. The notion that an innocent person could have his/her right to life legally enshrined under the laws of one state but could be legally killed under the laws of another state makes no sense at all.
Did the Founders intend to protect unborn children as "persons" who would be subject to Constitional protections? That would have to be answered before you could make that argument.
I don't think that would have to be answered at all -- for the same reason that issues like cloning and euthanasia could still be addressed in Constitutional terms even though the Founders had nothing to say about these issues. Modern medicine, science, and technology has introduced a whole array of issues into our national politics that never came up in the 18th century simply because they didn't exist back then.
Black Americans today are entitled to full Constitutional protections even though the Founders specifically did not intend to protect them as "persons" under the Constitution.
Of course they did.
Abortion was universally considered an abomination in the late 1700s.
Strong criminal penalties for such a vicious act were on the books in every state's legal system.
The burden is on the fools who would deny that the Founders intended such a protection.
Precisely.
That happened though a Constitutional amendment, not through a Supreme Court decision.
Technically, you are correct that the original Constitution did not give blacks (then slaves protections.
But, post-Civil War, there was an amendment to the Constitution specifically designed to protect blacks and a political US Supreme Court twisted the interpretation of the amendment in such a way as to unduly limit its protections to federal, and not individual state, actions.
Basically, the then-bigots of the US Supreme Courts took away the protections Congresss, the President, and 2/3 of the States gave blacks.
I believe this was the "Dred Scott" case, but I am no lawyer.
Yes, but even then it up to each state to pass laws against abortion. You want a national law prohibiting abortion like there is a national law allowing abortion instead of letting people choose. You have to show why abortion is up to the federal goverment instead of the state when other crimes such as murder are not.
No I don't.
The unborn are human beings like anyone else and like anyone else the Constitution was intended to promote their welfare and secure to them the liberties any other person enjoys.
The Constitution not only does not specifically outlaw the murder of the unborn but it does not specifically outlaw murder of any kind.
Are we to presume that any individual state can decriminalize all forms of murder?
Of course not.
The Tenth Amendment clearly states that rights not specifically enumerated in the Constitution shall not disparage rights generally retained by the people.
i would argue that the people generally retain the right not be murdered.
Yes. Your quote of the 10th amendment is highly selective. It reserves other rights to the STATES and the people--not just the people. The constitution enumerates the powers of the FEDERAL government--not the powers of the STATE governments (except in limited areas like the requirement that they have a republican form of government).
Your position is that anything YOU think is important is a constitutional right. That is no different than the far-left, living-constitution folks who think that anything THEY think is important is a constitutional right. In other words, you are a 'living-constitutionalist' but you want to control the Supreme Court so that it is YOUR living constitution, not the left's.
That kind of thinking is what got us in the mess we have now--not just in abortion law but many other areas of constitutional law. Under our constitutional scheme, the vast bulk of regulation and criminal law is left to the states exclusively.
While all states have laws against homicide, they vary in definition. A killing that is self-defense in one state may manslaughter or even murder in another. States decide the definitions and punishments for murder, why should abortion be different?
What an idiotic claim. The states cannot decriminalize murder.
Your position is that anything YOU think is important is a constitutional right.
Wrong.
My position is the same as the framers - namely that anything presumed to be a universal right by the American people prior to the drafting of the Constitution (the right to own property, the right to life, the right to educate one's children according to one's lights, etc.) is retained by the people after the ratification.
Not anything I personally consider important, but the rights considered basic and obvious by the people of the US before the Constitutional Convention.
hence the ridiculousness of your claim that a state can decriminalize murder.
Deeply, deeply flawed analogy.
There is no state that permits one person to kill another for personal advantage or on a whim.
States may quibble over the exact circumstances that constitute legitimate self-defense, but no state permits anyone to justify a murder by saying: "I didn't like him being around so I killed him."
One could also argue over abortion whether or not an abortionist was in a culpable state of mind, whether or not the pregnancy constituted a direct threat to the mother's life, etc. just as the legal ramifications of all other killings are debated in court and classified into murder, manslaughter, negligent homicide, justifiable homicide, etc.
But it is an enormous jump from debating the merits of particular cases to asserting a carte blanche "right" to murder unborn children.
I do not believe there is a "right" to murder unborn children. But I also don't believe that the federal government has any right to impose its views on abortion on the states without a Constitutional Amendment. If New York wants to maintain legalized abortion, the federal goverment has no right to force them to prohibit abortion.
"Dred Scott" was decided prior to the Civil War, IIRC.
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