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 ...
The way it stands now, a fetus is a person legally IF IT WAS WANTED by the woman carrying it. And it is NOT a person if it was not wanted. This is proven by the case of Connor Peterson, RIP, and the fact that people still obtain 2nd trimester abortions any day of the week.
We need a definition of person that stands up. Under their definition, most of the homeless do not constitute persons. No one is saying we should put them to death because they aren't "wanted" by anyone.
There is an equal protection argument there - however, that argument has seldom been used by SCOTUS (and wrongly used, IMO, in Bush v. Gore.
I see what you are saying - but IMO if abortion was returned to the states, we can win the battle there for good except for a couple of states such as NY and Massachussets, as well as striking a blow for federalism, which would also help to reduce the fedgov.
Trying to simply reverse the role of federal usurped power leaves that weapon available for liberals should they re-gain control of SCOTUS at a later date.
Actually, you don't. You simply need a basic determination -- either through scientific means or through cultural acceptance -- that an unborn child is a person. That's exactly why the Federal government would have the power -- actually the obligation -- to outlaw abortion under the 14th Amendment.
Then it is the "Slaughterhouse" cases. Like I said, don't recall the exact name.
Consider the legal and cultural framework in which slavery survived for years in the South. The basic premise of slavery -- reaffirmed in the Dred Scott decision -- was that slaves were basically no different than animals or property and therefore had no standing in Federal court and no legal protection under the U.S. Constitution. And yet many (if not most) of these states in the South had laws on the books that made it a crime to teach slaves to read and write -- laws which only had any meaning if slaves were, in fact, capable of learning to read and write -- i.e., persons and not animals or pieces of property.
Logical thought and rational legal principles are utterly meaningless to people or special interest groups who are hell-bent on legalizing and promoting morally reprehensible ideas.
So you support the Court creating a right merely based on science? I would argue that is for the legislature and state to do via Constitional Amendment.
Plessy v. Fergeson (cited above by Ditto) is what I was thinking of.
Basically, judicially activism defeating the clear intent of the Constitution.
Fundamental rights are not a matter of public opinion.
Every law has some basis in "science" whether we recognize it or not. The mere fact that a medical examiner is needed to determine the time or manner of death in a murder case makes this obvious.
Aside from the phrase "Indians not taxed" (which was included in the Constitution of 1787 as well), race is never mention in the 14th amendment.
They wouldn't be creating a new right, but rather using science to determine whether an existing right applied to a given group.
There is an ongoing project at a number of US law schools to devise a way to give individual great apes and dolphins legal standing in American courts.
I wish I was kidding.
Predictably, they are predicating their arguments on the fact that severely disabled human beings (sometimes) have standing in American courts.
It's a synonym for "common good," which is the first principle of government.
Then who defines the common good? To Lenin, people existed for the common good of the state. Liberals aren't much different.
So is it better to rely on nebulous terms? Or instead look at clearly enumerated powers? If you rely on "general welfare" or "common good" for your guideance, then we might as well throw out the rest of the Constitution - which is what basically has been done over the last sixty years, because of notions of the common good.
The notion has a long history in philosophy and law.
This is the best essay that I've ever read regarding philosophy of government. It's wonderfully brief considering the nature of the subject.
Amendment XV
Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.
Ping
This is a non sequitur. I said there is no effective check which I think is historically obvious. Prove me wrong. Show me how the court's lack of enforcement power has checked Roe.
"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."
See my post 44.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.