Constitutional Law Class Notes 4/8/04


More on Glucksberg


We’re going to look at the Glucksberg-related list.  What if you refuse, while conscious, to be hooked up to artificial respiration?  Do you have a constitutionally protected right to be hooked up in that sense?  Yes!  It’s just the same as refusing food and water.  But where does that constitutional right come from?  If you had to write a brief on this, what would you point to that shows that this right exists?  You could cite to Cruzan.  In that decision, we assumed that the United States Constitution would grant a constitutionally protected right to refuse life-saving hydration and nutrition.  That case might not explicitly reference artificial respiration, but you can certainly draw the parallel.  But there isn’t going to be anything on the face on the Constitution that says that there is any such right.  This is a substantive due process right.  Cruzan is a Supreme Court precedent that acknowledges this right.  But the Supreme Court hedges on Cruzan slightly.  After Glucksberg, though, the assumption is pretty strong.


What gives the Supreme Court the power to say that substantive due process provides for this specific right?  They point to history and tradition.  The Court finds that tradition shows a recognized right to personal physical integrity.  For example, the common law tort of battery shows that it is considered a wrong to touch someone in any way without their position.  Then again, a battery statute could be passed to exclude doctors protecting life.  The Court suggests, however, that this statute may be unconstitutional under substantive due process.  A common law idea that has been around from time immemorial may take on constitutional status!  Wow…


Why should tradition and history be a guide in answering substantive due process questions?  What is important about history and tradition?  Slavery is part of our history and traditions!  Dred Scott was the first substantive due process case!  The Due Process Clause of the Fifth Amendment was used to say that Congress had no right to disallow slavery in the new territories.  A slaveholder claimed that slavery was protected by the Constitution under the Due Process Clause!  So should tradition really be the benchmark for evaluating substantive due process claims???  Maybe it can be argued that the good parts of our country come from innovation rather than looking backwards.


Recall that the Cruzan case represented a situation where the patient was in a coma and she hadn’t given any advance directive.  There was a debate over what her wishes and intentions were.  If you’re unconscious and injured, emergency medical personnel will default to helping you out if they have no information to the contrary.


Scalia would say that if you could find the existence of a tradition at the most specific way you could articulate it, that was the tradition that the Court was bound to follow, even if you could articulate a more general tradition.  The reason to adopt this approach would be to make justices more objective and less dependent on their own preferences.  If they could choose to look at their judgments more broadly, it would be easier to find a tradition that fits your particular preferences.


Justice Brennan says that the right level of tradition shouldn’t be found just in terms of specifics, but in terms of the general idea that the Constitution is supposed to protect liberty and protect minorities against the majority.  Thus, it would be argued, that we should look at the spirit and purpose of the Constitution when searching for tradition.  Therefore, don’t worry about the narrow historical record.


Casey rejects the notion of searching for tradition at the narrow level and instead says that the Court’s cases aren’t consistent with that.  With respect to the right to marry, in Loving v. Virginia, involving interracial marriage, the Court said that if we look at tradition narrowly, American history supported a narrow conception of marriage and allowed the states to punish interracial marriages and make them crimes and that that tradition existed for long periods of time after even the Civil War and the Fourteenth Amendment.  But in Loving, the Court didn’t look at tradition narrowly, but rather it adopted a more expansive view of tradition, allowing a broader understanding of reproductive freedom.


Scalia’s rejoinder on Loving would be to say that it was true that the Court relied in part on substantive due process, but the Court could have relied just on Equal Protection Clause and the fact that racial discrimination is unconstitutional.  Scalia would deny that substantive due process was necessary to reach the decision!  Therefore, he would say that you shouldn’t use that precedent to justify a more expansive interpretation.


The Constitution expresses sets of competing values!  The liberal justices argue that the Constitution is a document that advocates for liberty on its face.  Souter, in particular, argues for a more philosophical and a less history or tradition-oriented approach.  The “exercise of human reason”, it is claimed, can identify objectively right answers to these questions.  The use of human reason can discern when liberty should be protected in a fundamental way.  Justice Harlan talked about the use of “reasoned judgment”.  But the Glucksberg majority rejects this approach.  Several leading American moral philosophers wrote an amicus brief in Glucksberg.  John Rawls, Ronald Dworkin, and some other leading philosophers advocated the view that reason shows that physician-assisted suicide is no different morally than refusing treatment, as in Cruzan.  The majority opinion in Glucksberg emphatically rejects the pure philosophical approach to substantive due process.  They say that it doesn’t matter what the philosophers say, because they can’t use the concept of due process to override the judgment of legislatures.  There is a great tension between the approach the Court takes in Glucksberg versus the approach the Court has taken in the abortion cases so far.


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