It's more than a little ironic that the first part of Judge Randolph's talk emphasizes keeping judge's personal views out of constitutional jurisprudence, but at the end he makes it clear that his distaste for Lawrence, and SDP in general, is in good part a product of his own anti-libertarian sentiments.

Also, what's up with the claim that Griswold wasn't enforced? You couldn't open a birth control clinic like Planned Parenthood in Connecticut because of it.

So sad, that moral values creep into politics.

From the draft:

“The type of abortion the plaintiffs particularly wish to protect against governmental sanction is the antithesis of privacy,” he wrote. “The woman consents to intervention in the uterus by a physician, with the usual retinue of assistants, nurses, and other paramedical personnel . . ..

This is a very disturbing view of medical privacy. Since a doctor and nurse know about a medical procedure, the patient cannot claim any privacy rights? It is one thing to argue that the state's interest in the preservation of life is greater than the patient's right of privacy, and quite another to argue that no right of medical privacy exists at all.

That was a rather funny speech. The logical conclusion seems to be that we should rip up the constitution and do anything that legislative majorities tell us to do. So much for protected rights...

1.If you want to see how quickly medical privacy vanishes, just apply for a life or health insurance policy. Here's the waiver for release of all medical records... Or file a personal injury case.

2. I found the speech interesting, in that I knew Roy Lucas before his death a few years ago. I knew he'd played a role in Roe v. Wade, he mentioned it, but didn't realize before this just how important a role (nor that he'd been a law prof. at one point).

Darn moral values. I hate it when they punish fraud or protect the weak from the strong.

LegalThoughts - I'm pretty sure that dk35's concise yet sarcastic comment is exactly what the folks who write and ratified the Constitution intended to happen. Lawmakers who are accountable directly to us and who represent us, create the laws we wish them to create.

That you call them "theoretically accountable" is no real concern of the Constitution's nor should it be the particular concern of any judge. That concern is fully ours. The remedy is to return accountability to the process, not turn over that very important duty to judges who are even less accountable to the citizens. The matter isn't necessarily protecting individual rights, but doing the will of the people, consistent with what the Constitution says. If we want there to be more Constitutional rights, we have a very clear and very usable mechanism to amend it.

I don't think that the release of the draft op is really making Judge Friendly look any smarter.

Money Runner 43, et. al.,

If it is up to lawmakers to protect rights why even have a written Constitution?

One must consider that our founders were knowledgeable of the British system and found it wanting.

One must also consider the origins of the IXth Amendment. If such unenumerated rights are unprotectable (the Bork School) why even have such an Amendment?

For instance is eating a right? Could the government declare that all nourishment must be delivered by IV? Or that walking is illegal but getting around on roller skates is not? Or that all procreation must be done by artificial insemination? etc.

Limited government. It still seems like a good idea.

BTW one must understand the difference between universal morality (murder, theft, robbery, fraud) and sectarian morality (abortion, doing business on the sabbath, etc.)

The drug laws are proof perfect that enforcing sectarian morality is a losing proposition. Once agreement on morality drops below 99% enforcement becomes very difficult. Expensive. And in many ways self defeating.

Interesting speech. Randolph sounds a little ranty at the end (particularly when he talks about certain cases not citing other cases), but it's very interesting to speculate about what effect Judge Friendly's opinion might have had, had it been released.

Maybe a lot, considering his stature.
Maybe very little, considering how easy of a target Griswold is for ridicule and counterarguments.

The speech seems to flow a bit without any natural dividing line. He starts off by saying "hey, J. Friendly wrote a very interesting opinion that was never released," and finishes by saying that the current court is out to write the theories of J.S. Mill and H. Spencer into the Constitution.

I wonder why it's only now that Friendly's papers are public, and I wonder how difficult Randolph and the other Friendly clerks have found it to keep quiet about the opinion.

"For instance is eating a right? Could the government declare that all nourishment must be delivered by IV? Or that walking is illegal but getting around on roller skates is not? Or that all procreation must be done by artificial insemination? etc."

Consider the possibility that our elected officials might be smart enough to avoid these silly extremes. Even (or perhaps especially) Kennedy would vote against that last proposal. Your parade of horribles leads to, for example, a fundamental right to play basketball, which a federal district court actually found in the penumbras several years ago, only to be reversed on appeal (thank goodness).

You should re-read Roe v. Wade, DK.

Laws "force views" on others all of the time. Laws with criminal sanctions against killing and stealing force the view on thieves and killers that killing and stealing are wrong and deserving of punishment.

2 of the Ten Commandments contain these prohibitions. Perhaps the entire criminal law system imposes religious views on people.

When your "personal bodily integrity" interferes with a fetus's "personal bodily integrity," someone has to make a call as to whether that's allowable or not. There's no scientific consensus on the question of "what is life," so all that is left is competing opinions. Some people's opinions are informed by religion, some from science ("it sure looks like a person after 12 weeks"), etc.

It makes more sense for a legislature to resolve these competing opinions than for a court to say "the opinions of five of us are all that matters"

If abortion had been illegal since 1973 how would the criminal justice system handle all the hundreds of thousands of extra criminals who would be here today?

If you are referring to the women who would have been penalized for getting abortions, probably some of them would have died during an unsafe (because illegal and thus unregulated and blackmarket) procedure, so that would be fewer to worry about. If you are referencing the theory that crime declined in part because of the decrease in unwanted pregnancies that were brought to term and raised in unloving and incapable homes, perhaps we would cut down on the drug war and resign ourselves to more pot use in return for not expending 10% of GDP on locking people up.

Not that I'm much smarter than dk35, because try as I might, I still can't wrap my head around how restricting abortion can be both (a) "tyranny of the majority" and (b) "outside the mainstream" at the same time. I mean, like, "majority" = "mainstream", right? Assuming that we do count all human adults who are citizens of the USA

Remember that abortion is regulated on a state-by-state level. At the time of Roe, Texas banned abortion completely (and it continues to be a plank of the TX GOP to prohibit abortion with no exceptions even for rape or incest), but California permitted it in most circumstances. Therefore there can be a tyranny of the state majority that is outside the national (all human adults who are citizens of the USA) mainstream. If abortion loses its status as a constitutionally protected right, a minority of states will ban it completely.

This difference created by a federalist system is part of why the British legalized abortion and homosexual sex even as the Supreme Court felt obliged to enforce that on every state; a national Parliament can look at the majority and make its preference law. The Congress cannot do this unless it tries to expand its commerce clause power into areas that are normally for the states -- something the Court has not permitted lately.

Note also that laws that are considered to be enforcing morality can be very difficult to strike from the books, even when a majority of people in the state don't support them. Before Lawrence, Virginia and Georgia both technically prohibited heterosexual oral sex. Does anyone sincerely believe that majorities of adults in those states had a deep-set opposition to such activity? On the other hand, does anyone sincerely believe that the average state legislator has the courage to stand up and become the "Let's Legalize Sodomy" politician?

How can you kill something that is not alive? Despite what fundamentalist judeo-christian superstitious followers believe, the constitution does not define a fetus as a person. If there truly were any originalists on the bench in terms of this issue, that part of the debate would be a non-starter.

Despite what fundamentalist judeo-christian superstitious followers believe, the constitution does not define a fetus as a person.

The Constitution does not define a fetus at all. What's your point? Has anyone said that abortion should be banned by the Supreme Court because fetuses are entitled to Constitutional rights? No. People disagree about whether the Constitution prevents the government from restricting a woman's right to abortion.

I don't think dk35 understands any of this debate at all.