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George Will: The Abortion Argument We Missed
Washington Post Writers Group ^ | December 1, 2005 | George F. Will

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 ...


TOPICS: Constitution/Conservatism; Culture/Society; Editorial; Government; News/Current Events
KEYWORDS: abortion; alito; friendly; georgefwill; georgewill; henryfriendly; homosexualagenda; judgealito; judgefriendly; libertarians; roe; roevwade; samalito; samuelalito; scotus; will
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To: wideawake
Of course, the usual argument by many conservatives that abortion should be left up to the states is completely specious and immoral.

Wrong. The Constitution clearly leaves such matters to the states, as has been pointed out many times to you and you refuse to acknowledge - just as murder is a state matter. Your way would replace one form of judicial activism with another, and therefore leave the Roe backdoor available to be used again once political winds change.

21 posted on 12/01/2005 8:41:09 AM PST by dirtboy (Drool overflowed my buffer...)
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To: LWalk18
If New York wants to maintain legalized abortion, the federal goverment has no right to force them to prohibit abortion.

It certainly does have the authority to do so. The unconstitutional NY statute deprives the people of the state of NY of their fundamental right to life.

This is not a right that can be legislated away at any level of government.

By your logic, the state of NY could pass a law banning the private ownership of land and all sorts of other ridiculous, unconstitutional garbage.

22 posted on 12/01/2005 8:45:41 AM PST by wideawake
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To: dirtboy
The Constitution clearly leaves such matters to the states

Again, either the Tenth Amendment guarantees the people of the United States their fundamental rights or it's just meaningless marks on an old piece of paper.

In other words, you're arguing that originalism is judicial activism. Sorry, that doesn't fly.

23 posted on 12/01/2005 8:47:44 AM PST by wideawake
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To: wideawake
Again, either the Tenth Amendment guarantees the people of the United States their fundamental rights or it's just meaningless marks on an old piece of paper.

It does no such thing - but you are just as fond of finding penumbras, apparently, as the majority was in Roe.

In other words, you're arguing that originalism is judicial activism. Sorry, that doesn't fly.

Please point out a single SCOTUS decision on abortion prior to Roe. As the article indicated, there was no such decision.

24 posted on 12/01/2005 8:49:18 AM PST by dirtboy (Drool overflowed my buffer...)
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To: wideawake
Whether or not innocent people live or die is not a matter for the polls.

Yup. Let's all just stop slaughtering babies, 'kay?

25 posted on 12/01/2005 8:51:50 AM PST by Aquinasfan (Isaiah 22:22, Rev 3:7, Mat 16:19)
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To: dirtboy; All
Very interesting discussion here. I'll present a scenario and ask everyone on this thread to post comments -- particularly those who think abortion ought to be a state matter.

Suppose a state were to pass a law under which different classes of people were "protected" to different degrees in the state's statutes dealing with theft and robbery. For example . . . someone who stole a car from a white person would face 5 years in prison, someone who stole a car from an Asian would face up to 3 years, a car theft involving a black victim would get the culprit 1-2 years, etc.

Does anyone here think this would -- or SHOULD -- pass Constitutional muster?

I would make a case that this kind of law would never meet standards under the U.S. Constitution. Once it is determined that a "person" is involved, then it would seem that the equal protection clause of the 14th Amendment would clearly make this law unconstitutional.

Someone correctly pointed out that different states have different definitions of "murder" when it comes to defining murder, manslaughter, legitimate acts of self-defense, etc. But these clearly involve different criminal laws based on the activity in question, not different laws based on the people in question.

26 posted on 12/01/2005 8:53:25 AM PST by Alberta's Child (What it all boils down to is that no one's really got it figured out just yet.)
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To: Alberta's Child
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.

Can you point me to that clause in the Constitution?

27 posted on 12/01/2005 8:53:52 AM PST by Ditto ( No trees were killed in sending this message, but billions of electrons were inconvenienced.)
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To: dirtboy
It does no such thing - but you are just as fond of finding penumbras, apparently, as the majority was in Roe.

In other words, you consider the 10th Amendment meaningless.

The people have no rights other than those specifically enumerated in the Constitution and the Framers were smoking crack or something when they imagined that there were rights other than those enumerated that were retained by the people.

Please point out a single SCOTUS decision on abortion prior to Roe.

What has that got to do with originalism?

Legalizing the murder of unborn children was never even contemplated by the framers as a rational possibility.

28 posted on 12/01/2005 8:55:00 AM PST by wideawake
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To: Ditto

The 13th and 14th Amendments of the U.S. Constitution would clearly apply in this case, even though neither one of them uses the term "black Americans" in its text.


29 posted on 12/01/2005 8:55:14 AM PST by Alberta's Child (What it all boils down to is that no one's really got it figured out just yet.)
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To: ModelBreaker
That kind of thinking is what got us in the mess we have now...

No, it was a mistake on the part of the Framers that put us where we are now. The Constitution has no effective check on the judicial branch. It is too far removed from the consent of the governed.

The conservative strategy of trying to put a different kind of judge on the courts is a losing one. One the one hand, it has clearly been hit and miss trying to guess the judicial philosophy of candidates. On the other, all it takes is a few mistakes to give us an abomination like Roe.

30 posted on 12/01/2005 8:56:36 AM PST by edsheppa
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To: dirtboy
The Constitution clearly leaves such matters to the states

If the Constitution allows states to legalize murder, then to hell with the Constitution!

But of course, it does no such thing. The Preamble to the Constitution states that the purpose of the Constitution is to promote "the general welfare" for ourselves and "our posterity," which includes the unborn.

31 posted on 12/01/2005 8:56:48 AM PST by Aquinasfan (Isaiah 22:22, Rev 3:7, Mat 16:19)
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To: edsheppa
The Constitution has no effective check on the judicial branch.

Sure it does. The judicial branch -- particularly in this day and age when most judges are limp-wristed mediocrities -- has no power to enforce its own decisions.

If you have any doubts about that, just ask yourself how Osama bin Laden would react to a bench warrant served by a U.S. judge.

32 posted on 12/01/2005 8:59:10 AM PST by Alberta's Child (What it all boils down to is that no one's really got it figured out just yet.)
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To: wideawake
What an idiotic claim. The states cannot decriminalize murder.

Of course they can, but what an idiotic law that murder is not a crime. Would you want to live in a state where murder is legal? Of course not. Nevertheless, in the Constitution of the US, the subject of murder is left to the States or the People.

33 posted on 12/01/2005 8:59:41 AM PST by elbucko
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To: Aquinasfan
The Preamble to the Constitution states that the purpose of the Constitution is to promote "the general welfare" for ourselves and "our posterity," which includes the unborn.

General welfare is a clause used to justify all kinds of federal government expansionism.

One can oppose abortion at the state level just fine without trying to use the tools of liberals and statists.

34 posted on 12/01/2005 9:00:16 AM PST by dirtboy (Drool overflowed my buffer...)
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To: MeanWestTexan
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.

It was Plessey v Ferguson decided by the SC over 30 years after the Civil War that legitimized the Jim Crow laws on the books in the South.

Dred Scott was issued in 1857, and it denied any rights to blacks (slave or free) as citizens. Scott became moot with the passage of the 13th and 14th immediately following the Civil War.

Like Roe v Wade, the Supreme Court completely ignored the letter and the intent of the Constitution in deciding both Scott and Ferguson and instead acted as legislatures to "settle" a major social issue of the day. The lesson is that bad things happen when courts overstep their authority and usurp the legislative process necessary in a Democracy.

35 posted on 12/01/2005 9:03:08 AM PST by Ditto ( No trees were killed in sending this message, but billions of electrons were inconvenienced.)
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To: wideawake
In other words, you consider the 10th Amendment meaningless.

Uh, no, I don't. I believe it to have a meaning exactly as written:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

And, since the Constitution is silent on giving the federal government a say in abortion law, that matter resides with the states under the 10th. But, just as the crafters of Roe found a right where none existed, you are seeking meaning in the 10th where no such meaning exists. So all you wish to do is take the usurpist club and use it for your own agenda. I seek to destroy that club so it cannot be used by liberals again.

What has that got to do with originalism?

Uh, gee, maybe the fact that, since it was never a matter for SCOTUS prior to Roe, that under an originalist reading, that would clearly indicate that abortion was not a federal matter according to the Founders, since no abortion rulings made it to SCOTUS?

Your world is upside down. You find a justification for federal power in an amendment that limits federal power. And you claim originalism when there are no court cases supporting your position.

Which means further debate is pointless, because I can throw facts and logic and history and reason at you all day long and it apparently won't faze you. You cannot use logic and reason to talk someone away from a position which they did not enter without using such.

36 posted on 12/01/2005 9:05:52 AM PST by dirtboy (Drool overflowed my buffer...)
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To: wideawake

"But it is an enormous jump from debating the merits of particular cases to asserting a carte blanche "right" to murder unborn children."

Ah, but while virtually anybody you ask would consider shooting a clerk to death during a robbery murder, there's a fair percentage of people who do NOT consider an abortion, particularly in the early weeks, murder at all. So you either have to convince these people that it IS murder, or you have to convince enough legislators to say it's murder no matter what others believe.


37 posted on 12/01/2005 9:06:33 AM PST by Gone GF
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To: RWR8189
Which is what the Supreme Court did in 1973.

I never thought I'd see George Will using sentence fragments.

38 posted on 12/01/2005 9:07:56 AM PST by NotJustAnotherPrettyFace
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To: Alberta's Child
The 13th and 14th Amendments of the U.S. Constitution would clearly apply in this case, even though neither one of them uses the term "black Americans" in its text.

The 13th and 14th were added 80 years after the Founders drafted the constitution. The constitution of 1787 made absolutly no mention of race although it did recognize the institution of slavery. Not until the 14th amendment was race mentioned in the Constitution.

39 posted on 12/01/2005 9:07:57 AM PST by Ditto ( No trees were killed in sending this message, but billions of electrons were inconvenienced.)
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To: Ditto
Scott became moot with the passage of the 13th and 14th immediately following the Civil War.

Actually, Dred Scott is still the law of the land to this day. The 13th and 14th Amendments changed the manner in which it could be applied, but the court's basic premise in Dred Scott -- that non-persons have no rights under the U.S. Constitution -- was absolutely correct. Even in today's irrational legal climate a dog or an oak tree can't file suit in Federal court.

40 posted on 12/01/2005 9:10:58 AM PST by Alberta's Child (What it all boils down to is that no one's really got it figured out just yet.)
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