Democrats And The War

Notwithstanding my concerns about billy bob and my continuing skepticism that we are doing any good in Iraq, I was pleased that the "Senate Reject[ed] Democrats’ Call to Pull Troops" yesterday.

For one thing, I am very cynical about the Democrats' motives in this. They have always known there was no chance such a resolution would ever actually go into effect, since it has always been clear that there is not enough support to overcome a filibuster much less a veto. Moreover, even if by some chance it did become effective, it would spark a Constitutional crisis of historic proportions, for there is no question Bush would ignore it. So what is the point?

Perhaps one could argue that even if the effort was obviously futile from the outset, it is important to make a statement as to one's beliefs. Well, maybe. But I am hard pressed to see why votes are required for this purpose. Coming on top of the non-binding resolution passed by House last month, one can't help but feel that the Democrats' real purpose has less to do with matters of conscience than it does with forcing the Republicans (as well as some Democrats) to again and again cast votes that the Democrats will be able to portray as "pro-war" two years from now.

These tactics no doubt serve to fire-up the bases on both sides. But elections are won and lost in the middle. And if I am any indication of how that middle feels about these antics, the Democrats are making a huge mistake playing politics with this war.

No one sensate is in favor of this war. The question is what to do about it. Like it or not, so long as Bush is President, the answer to that question is up to Bush. As an institution at least, Congress' choices come down to this: sit down shut up for the next two years and hope for the best or take responsibility and either cut off funding or impeach Bush.

Judge Friendly On Abortion

The WSJ's online "Opinion Journal" has a side-bar on it with links to other articles that bear (at least in the editors' minds) some relationship to the subject matter of the essay to which it is attached. In today's "Opinion Journal" was a review of two new books about the Supreme Court. For reasons that are not entirely clear, the sidebar contained, among others, a link to this: Before Roe v. Wade: Judge Friendly's Draft Abortion Opinion.

Judge Friendly is one of the two or three most famous American jurist never to sit on the Supreme Court and the idea that he had written an abortion decision prior to Roe v. Wade was both surprising and of considerable interest.

The article -- it reads more like a speech -- is by Judge Raymond Randolph who is now a judge on the DC Circuit Court of Appeals but who, in 1970, was a clerk for Judge Friendly. Apparently, Judge Friendly was a member of a three judge panel that considered a challenge to the New York abortion law three years before Roe v. Wade. Judge Friendly wrote a draft opinion, but it was never published because the case was dismissed as moot when the New York legislature repealed the statute being challenged.

Judge Friendly concluded (at least in his draft opinion) that abortion was not a constitutional right, and Randolph uses this and Judge Friendly's reasoning, as a kick-off to a much longer argument of his own as to why much of the Supreme Cort's "privacy" decisions over the last 40 years have been fundamentally misguided.

Randolph gets carried away in the end, I think, but Friendly's opinion is a thoughtful -- and thought provoking -- essay on the respective roles of courts and legislatures and on the tensions between the interests of individuals in personal liberty/autonomy/freedom of action and the interests of the State in legislating against matters considered by the majority to be immoral.

This tension is a matter of considerable interest to me (witness THIS, and THIS, and THIS for example), and I want to eventually write more about it. But for the moment, I will leave you with Judge Friendly's thoughts:

[The heart of the plaintiffs' argument is]that a person has a constitutionally protected right to do as he pleases with his--in this instance, her--own body so long as no harm is done to others. . . . [This] principle would have a disturbing sweep. Seemingly it would invalidate a great variety of criminal statutes which existed generally when the 14th Amendment was adopted and the validity of which has long been assumed, whatever debate there has been about their wisdom. Examples are statutes against attempted suicide, homosexual conduct ..., bestiality, and drunkenness unaccompanied by threatened breach of the peace. Much legislation against the use of drugs might also come under the ban.

Plaintiffs' position is quite reminiscent of the famous statement of J. S. Mill. This has given rise to a spirited debate in England in recent years. We are not required to umpire that dispute, which concerns what a legislature should do--not what it may do." . . . [Y]ears ago, when courts with considerable freedom struck down statutes that they strongly disapproved, Mr. Justice Holmes declared in a celebrated dissent that the Fourteenth Amendment did not enact Herbert Spencer's Social Statics. No more did it enact J. S. Mill's views on the proper limits of law-making.

[The evidence in the case dealt with] the hardship to a woman who is carrying and ultimately bearing an unwanted child ... [,] the plight of the unmarried mother, the problems of poverty, fear of abnormality of the child, the horror of conception resulting from incest or rape. These and other factors may transform a hardship into austere tragedy. Yet, even if we were to take plaintiffs' legal position that the legislature cannot constitutionally interfere with a woman's right to do as she will with her own body so long as no harm is done to others, the argument does not support the conclusion plaintiffs would have us draw from it. For we cannot say the New York legislature lacked a rational basis for considering that abortion causes such harm. Even if we should put aside the interests of the father, negligible indeed in the many cases when he has abandoned the prospective mother but not in all, the legislature could permissibly consider the fetus itself to deserve protection. Historically such concern may have rested on theological grounds, and there was much discussion concerning when 'animation' occurred. We shall not take part in that debate or attempt to determine just when a fetus becomes a 'human being.' It is enough that the legislature was not required to accept plaintiffs' demeaning characterizations of it. Modern biology instructs that the genetic code that will dictate the entire future of the fetus is formed as early as the--day after conception; the fetus is thus something more than inert matter. The rules of property and of tort have come increasingly to recognize its rights. While we are a long way from saying that such decisions compel the legislature to extend to the fetus the same protection against destruction that it does after birth, it would be incongruous ... for us to hold that a legislature went beyond constitutional bounds in protecting the fetus, as New York has done, save when its continued existence endangered the life of the mother. . . .

We would not wish our refusal to declare New York's abortion law unconstitutional as in any way approving or 'legitimating' it. The arguments for repeal are strong; those for substantial modification are stronger still.... But the decision what to do about abortion is for the elected representatives of the people, not for three, or even nine, appointed judges.

An undertone of plaintiffs' argument is that legislative reform is hopeless, because of the determined opposition of one of the country's great religious faiths. Experience elsewhere, notably Hawaii's recent repeal of its abortion law, [30] would argue otherwise. But even if plaintiffs' premise were correct, the conclusion would not follow. The contest on this, as on other issues where there is determined opposition, must be fought out through the democratic process, not by utilizing the courts as a way of overcoming the opposition[,] ... clearing the decks, [and] thereby enabl[ing] legislators to evade their proper responsibilities. Judicial assumption of any such role, however popular at the moment with many high-minded people, would ultimately bring the courts into the deserved disfavor to which they came dangerously near in the 1920's and 1930's. However we might feel as legislators, we simply cannot find in the vague contours of the Fourteenth Amendment anything to prohibit New York from doing what it has done here."

In a note to his clerk attached to the draft opinion, Judge Friendly suggested, presciently, that the arguments supporting a constitutional right to abortion would if accepted make it difficult to deny a right as well to assisted suicide:

If a woman has an absolute right to the destruction of a fetus, incapable of making a decision for itself it would be hard to see why a man or woman does not have an absolute right to have his body destroyed. The discomfort of pregnancy and the pain of childbirth are surely not [more] than what often attends years of invalidism without hope of cure. The economic burden of an added child--readily avoidable if the parents wish--are not of the same order or magnitude as the costs of many 'terminal' illnesses, which may consume or exceed the savings of a lifetime and entail misery for a surviving spouse.

The irony in all of this, of course, is that Friendly's rejection of Spencer and Mill is gratuitous. As Judge Friendly himself noted, in abortion cases there is "another" that is being harmed, thus providing a basis for distinguishing abortion from all of the other examples Friendly cites. And therein lies my greatest frustration with this body of law: Of all the awful things that have flowed from the abortion decision, one of the worst is that it has given libertarianism a bad name.