Sunday, November 27, 2005

Judge Friendly's pre-Roe Draft Opinion

For anyone who has not heard about this Judge Randolph speech at the last Fed Soc Lawyers Convention this November, he spoke about a never-published 1970 opinion by Judge Friendly on the first abortion case brought in a federal court.

His analysis is hostile to both the reasoning and the outcome in Roe.

Randolph argues that there is no "harm principle" in the Constitution; legislatures can regulate behavior without a requirement that that behavior be directly harmful to others. I wonder, natural rights folks, if the 9th Amendment might mean that Randolph is wrong?


Sarah Kohrs said...

I consider myself to be one of the "natural rights" people, and am also opposed to constitutionalizing Mill's harm principle. (Sorry Misha.) I think a better way to understand natural rights is in light of Lincoln's statement that "There is no right to do a wrong." When the focus is on the state having an affirmative obligation to stop "wrong" instead of "harm," and an individual's natural rights are limited only to those that are morally acceptable, there is ample room for legislatures to make decisions based on the moral beliefs of a majority of the population in perfect compliance with the natural rights that were written into the 9th Amendment.

The question is always, "Who decides what is wrong?" and on issues of morality, I prefer the judgement of the political branches to that of the judiciary.

Misha Tseytlin said...

To paraprahs an Ayn Rand quote- it does not matter so much who decides, it matters who is right. Sarah made the prediction that she would "prefer" the judgment of the political branches. I guess from that she means that the political branches are more likely to be right. This is an imperical judgment that it difficult to prove or disprove. Notice it is very different from the judgment made by those like Scalia that it doesnt matter who is more likely to be right, but that the legislature's decision should stand on democratic principle.

As for me, I am not sure who is going to be right more often- so i prefer a dialogue between the three branches on what the constitution and natural rights it was mean to safegaurd require. I have several ideas on how this could be done, but the Randolph/Friendly/New Deal juripridence is nowhere near what I would prefer.

(now that I think about it, I guess I should have given Sarah a Randy Barnett book instead of a Hadley Arkes book.... although i think should would have come to the same conclusions anyway :))

Charles Iragui said...


Interesting. Do you think this is imposed by the Constitution? Given that the 9th Amendment was written at a time when many of the same laws were in force that Randolph mentions at the time of the ratification of the 14th Amendment, your argument might be consistent with Professor Barnett's thinking on the natural rights 9th.

Sarah Kohrs said...

Your book certainly was the inspiration for my thoughts on this issue. So I think you must be a good teacher to have a student that disagrees!

I am actually wary of saying that the democratic process gets it right more often, and I do agree that "getting it right" should be the goal. My preference for the political branches stems from the fact that it's easier to change their decisions if they do happen to "get it wrong" than it is to change the decisions of the judiciary. I agree with your idea of dialogue, but think the judicial branches should have a less rigorous role in that dialogue.

It seems I will be reading Barnett over break! On first blush, I think the laws that Randolph mentions in the article are certainly consistent with the 9th Amendment. "Liberty" defined by the "oh sweet mystery of life" passage is unworkable, silly and (I believe) harmful. But I'll have to read the Barnett book before I can say for sure!