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Friedman on Liberty, Privacy, & the Political Question Doctrine

By Lawrence Solum

Lawrence Friedman (New England School of Law) has posted Liberty and Privacy Interests through the Political Question Lens (Temple Political & Civil Rights Law Review, Vol. 19, p. 189, 2009) on SSRN. Here is the abstract:

That liberty and privacy cases - in particular those touching upon such issues as a woman?s right to choose and sexual freedom - are controversial is something of an understatement. As some commentators have suggested, abortion may be the issue that has defined our understanding of the modern Supreme Court and the selection of Justices to the Court over the past few decades. Given the controversy that attaches to cases decided under the rubric of substantive due process, it is worth investigating whether a court would be willing to entertain an argument that it should decline to consider a privacy-based challenge to a regulation of abortion - or, indeed, to any regulation touching upon so-called morality issues - because these challenges present essentially political questions. In this article, I apply the judicial understanding of the political question doctrine to these cases and conclude that they do not present political questions.

I also examine the contention that liberty and privacy claims involve the same potential for unprincipled judicial decision-making that motivates the Court to step aside in true political question cases. I conclude that the liberty and privacy cases fall outside even the spirit of the political question doctrine and lie soundly within the purview of the judiciary. Application - even by analogy - of the political question doctrine in matters related to liberty and privacy would undermine the Court?s constitutional role in protecting individual rights against government intrusion. Finally, I address an alternative jurisprudential approach that endorses a judicial role in individual rights cases, but in a way that leaves open the possibility for democratic contribution to and embellishment of the judicial declaration of rights. This approach represents another path by which a court may seek to mitigate the worst effects associated with the judicial resolution of constitutional disputes involving governmental regulations in the areas of liberty and privacy.

Full post as published by Legal Theory Blog on December 23, 2009 (boomark / email).