Constitutional
Law Class Notes
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.