Washington v. Glucksberg and Vacco v. Quill

[politicallefty]

Washington v. Glucksberg:

Due Process Clause does not protect the right to assistance in committing suicide.

Vacco v. Quill

States have a legitimate interest in outlawing assisted suicide; "liberty" defined in the 14th Amendment does not include the right to kill oneself, or assistance in doing so.

Both of these decisions were unanimous decisions against the right to die. As much as I agreed with and appreciated RBG, I think this shows how far the overton window had shifted from the Warren Court to the 1990s. The right to die is the ultimate progeny of many rights, particularly the right to one's own body and the recognized right to privacy. I would argue that the right to die with dignity is one of the highest rights of an individual. That said, I see no way the current composition of the Court would vote to overturn its past rulings.

[Donerail]

The right to die is the ultimate progeny of many rights, particularly the right to one's own body and the recognized right to privacy. I would argue that the right to die with dignity is one of the highest rights of an individual.

That is all well and good in theory, but you have to consider the effects of these "rights" in the context of a rapacious, profit-seeking health care-insurance complex. States have a legitimate interest in protecting individuals who would otherwise be subject to coercion from those, ahem, "market forces" to end their unprofitable stays in our healthcare facilities (especially vulnerable are people who would not be able to repay those bills).

[True Federalist (진정한 연방 주의자)]

The problem is how to prevent the "right to die" from becoming a "duty to die".

[𝕭𝖆𝖕𝖙𝖎𝖘𝖙𝖆 𝕸𝖎𝖓𝖔𝖑𝖆]

I am not at all a fan of substantive due process and I don't see how the Equal Protection Clause applies to the topic, so I agree with the decisions.

[Alcibiades]

Stephen Hawking made an interesting argument that outlawing assisted suicide is discriminatory against the disabled, as they cannot choose to take their own life, unlike able-bodied people, which I would tend to agree with.

[Vosem]

I believe these decisions were incorrect, as the Fourth Amendment right to "security in person" constitutes a right to bodily autonomy, and rights guaranteed in earlier amendments as privileges of American citizenship were extended to the states in Amendment XIV, Section 1, Clause 2.

[politicallefty]

That is all well and good in theory, but you have to consider the effects of these "rights" in the context of a rapacious, profit-seeking health care-insurance complex. States have a legitimate interest in protecting individuals who would otherwise be subject to coercion from those, ahem, "market forces" to end their unprofitable stays in our healthcare facilities (especially vulnerable are people who would not be able to repay those bills).

The problem is how to prevent the "right to die" from becoming a "duty to die".

I'll answer both of your posts together since they have the same basic premise. While I do think there is a right to die and a right to assist in someone's death, that doesn't mean the Constitution prohibits any regulation. The right to die is less about one's own actions. Obviously, a person cannot be tried for their own successful suicide. It is more about having the ability to exercise the right through medical assistance. That would encompass both assisted suicide (whereby the individual causes their own death, such as through the taking of a drug overdose) and euthanasia (whereby an individual causes the death of a consenting person, such as through a lethal injection).

I would argue that the right to die is an inherent liberty of the individual. However, there is nothing preventing regulation of that right so long as the right is not excessively proscribed (that's not a term I would use if I were writing a law or judicial opinion). Dr. Kevorkian thought there should be second and third opinions. The problem is that no one wanted to go out on a limb and work with him. The concept of a so-called "death panel" isn't a bad idea when it comes to assisted suicide and voluntary euthanasia. It needs to be clear that this is the right of an individual and it must be agreed to by that individual free of coercion. Family, friends, and doctors do not have that right over another person apart from the already-recognized right of "pulling the plug".

I am not at all a fan of substantive due process and I don't see how the Equal Protection Clause applies to the topic, so I agree with the decisions.

The Equal Protection Clause is not the issue here. It has to do with the rights granted by the Bill of Rights and the protections therein over what the states can do (i.e. Incorporation).

I believe these decisions were incorrect, as the Fourth Amendment right to "security in person" constitutes a right to bodily autonomy, and rights guaranteed in earlier amendments as privileges of American citizenship were extended to the states in Amendment XIV, Section 1, Clause 2.

I'm surprised to see a blue avatar agree with me on this, but I'm glad we agree. It would seem to me like the text of the Fourth Amendment is more agreeable to assisted suicide, but not necessarily euthanasia. It's similar to how they never successfully prosecuted Jack Kevorkian until he took part in voluntary euthanasia, which led to his absurd second-degree murder conviction.

[MarkD]

I believe these decisions were incorrect, as the Fourth Amendment right to "security in person" constitutes a right to bodily autonomy, and rights guaranteed in earlier amendments as privileges of American citizenship were extended to the states in Amendment XIV, Section 1, Clause 2.

I'm surprised to see a blue avatar agree with me on this, but I'm glad we agree. It would seem to me like the text of the Fourth Amendment is more agreeable to assisted suicide, but not necessarily euthanasia. It's similar to how they never successfully prosecuted Jack Kevorkian until he took part in voluntary euthanasia, which led to his absurd second-degree murder conviction.

I've had this discussion with Vosem before, and I'll say to you something pretty similar that I said to him: neither the text of the Fourth Amendment nor its history have anything to do with any substantive rights. The Fourth is entirely about procedure, not substance. The Fourth only regulates how to enforce laws, not which laws should not be enforced at all. The Fourth tells the judiciary to determine whether or not law enforcement methods were reasonable; it does not tell the judiciary to determine whether the laws made by legislatures, laws that regulate the behavior of civilians, are reasonable. Your and Vosem's interpretation of the Fourth is just as bad as the Court's own substantive due process doctrine, accomplishing the same thing as substantive due process, and just as far removed from the text and the originally understood meaning of the text (which are the same things). I strongly hope that the Supreme Court never adopts your misinterpretation of the Fourth Amendment. I doubt that there has ever been any Court majority that has interpreted the Fourth that way, just dissenting opinions have done so, AFAIK.

I am not at all a fan of substantive due process and I don't see how the Equal Protection Clause applies to the topic, so I agree with the decisions.

The Equal Protection Clause is not the issue here. It has to do with the rights granted by the Bill of Rights and the protections therein over what the states can do (i.e. Incorporation).

You did not address his first point, which is that there is something wrong with substantive due process, and not all of us agree with the Court's interpretation of the due process clauses.

As I was saying just above, the due process clauses only address how to enforce laws, not which laws should or should not be enforced. The due process clauses require the federal judiciary to apply fair procedures before it imposes a sentence on a person at the conclusion of a trial. Those clauses do not at all require the federal judiciary to determine which laws are not "due." The clauses say do not deprive any person of life, liberty, or property without due process of law. They do not say do not deprive any person of life, liberty, or property without due law.

It is a bit embarrasing to suggest that a text is informative "when so many, for so long, have found it to be only evocative," but there is simply no avoiding the fact that the word that follows the word "due" is "process." No evidence exists that "process" meant something different a century ago from what it does now ... and it should take more than occasional aberrational use to establish that those who ratified the Fourteenth Amendment had an eccentric definition in mind. Familiarity breeds inattention, and we apparently need periodic reminding that "substantive due process" is a contradiction in terms -- sort of like "green pastel redness."
(John Hart Ely, "Democracy and Distrust: A Theory of Judicial Review," published 1980, page 18. Citation ommitted.)

Now, as to the issue you address in your OP: the reason that the Supreme Court is not consistent about applying the right to privacy is because the justices are only human, and all human beings have inconsistencies when they try to apply subjective standards. The justices uphold "rights"/freedoms that they sympathize with, not ideas that they do not sympathize with.

In the early 20th Century, the so-called Lochner Era, the Court was dominated by conservative justices who liked to think that the due process clauses require all of the legislatures of America to observe laissez-faire economics -- the conservative version of Libertarianism -- and they struck down federal, state, and local laws that they thought were economically foolish. (Sometimes they were right about those laws being economically foolish, but that does not mean that their interpretation of the due process clauses was correct.) The Court famously struck down maximum-hour laws, minimum wage laws, and laws that protect the right of workers to unionize. The Court sometimes struck down laws that the justices believed interfered with the right of certain types of business owners to earn a nice profit; they struck down a law that regulated the price of theatre tickets sold by vendors, and a law that regulated the fees charged by employment agencies, but not a rent control law. The reason the Court would not consistently enforce the idea that all business owners have a right to earn a nice profit is because the justices did not consistently sympathize with all business owners. They sympathized with vendors who re-sell theatre tickets and with employment agencies, but the justices did not sympathize with landlords.

Likewise, now that we're in the Skinner Era (which started with Skinner v. Oklahoma, the first "personal autonomy" decision by the Court, the first left-wing version of Libertarianism; this is an era which is still ongoing, and has lasted far longer than the Lochner era did), the justices strike down laws that ban contraceptives, abortion, and "sodomy," just because the justices sympathize with people who wish to use contraceptives, who need to get an abortion, and who wish to engage in "sodomy." But none of the justices strike down laws banning suicide because none of the justices sympathize with anyone who wishes to commit suicide.

Subjective, inconsistent sympathies are the only things that guide anyone in determining what are the un-enumerated "rights" of people. The 1st Congress, when it drafted and proposed the first eight amendments, was merely using its subjective views about what are the most important rights of people that the federal government must not violate. They only set out to control the actions of the federal government when they drafted the Bill of Rights; see Barron v. Baltimore, 1833. They included the Ninth Amendment because they believed that "rights" and "powers" have a reciprocal relationship towards one another, and they wanted to make sure the federal government would only exercise its enumerated powers.

The Ninth Amendment, like its companion, the Tenth, which this Court held "states but a truism that all is retained which has not been surrendered," United States v. Darby, was framed by James Madison and adopted by the States simply to make clear that the adoption of the Bill of Rights did not alter the plan that the Federal Government was to be a government of express and limited powers, and that all rights and powers not delegated to it were retained by the people and the individual States. Until today, no member of this Court has ever suggested that the Ninth Amendment meant anything else, and the idea that a federal court could ever use the Ninth Amendment to annul a law passed by the elected representatives of the people of the State of Connecticut would have caused James Madison no little wonder.
(Justice Potter Stewart, dissenting opinion, Griswold v. Connecticut, 1965. See also Justice Hugo Black's dissenting opinion in the same case. Compare their arguments to that of Justice Arthur Goldberg's unpersuasive concurring opinion in that case.)

The received account of the Ninth Amendment ... goes like this. There was fear that the inclusion of a bill of rights in the Constitution would be taken to imply that federal power was not in fact limited to the authorities enumerated in Article I, Section 8, that instead it extended all the way up to the edge of the rights stated in the first eight amendments. (As in, "Obviously the federal government has authority to do everything except abridge freedom of speech and so forth.") The Ninth Amendment, the received version goes, was attached to the Bill of Rights simply to negate that inference, to reiterate that ours was a government of "few and defined powers."
(Ely, "Democracy and Distrust: A Theory of Judicial Review," page 34.)

If and when the Court invokes the Ninth Amendment as a reason for striking down a federal law, the duty of the justices will be to objectively expound on the powers delegated to Congress by the U.S. Constitution, not to subjectively decide which "rights" the federal government ought not to violate.

In determining whether state governments are violating state constitutions -- because the state legislature is trying to exercise a power that is not delegated to it by its state constitution -- federal courts have no jurisdiction. Federal courts ought not to be "enforcing" the Ninth Amendment against state and local governments via "incorporation" into the Fourteenth Amendment.

I intend to clear this all up with my proposal to rewrite the Fourteenth Amendment.

[politicallefty]

I've had this discussion with Vosem before, and I'll say to you something pretty similar that I said to him: neither the text of the Fourth Amendment nor its history have anything to do with any substantive rights. The Fourth is entirely about procedure, not substance. The Fourth only regulates how to enforce laws, not which laws should not be enforced at all. The Fourth tells the judiciary to determine whether or not law enforcement methods were reasonable; it does not tell the judiciary to determine whether the laws made by legislatures, laws that regulate the behavior of civilians, are reasonable. Your and Vosem's interpretation of the Fourth is just as bad as the Court's own substantive due process doctrine, accomplishing the same thing as substantive due process, and just as far removed from the text and the originally understood meaning of the text (which are the same things). I strongly hope that the Supreme Court never adopts your misinterpretation of the Fourth Amendment. I doubt that there has ever been any Court majority that has interpreted the Fourth that way, just dissenting opinions have done so, AFAIK.

I have to respectfully disagree with your interpretation of the Fourth Amendment. A reading of the Fourth Amendment like that strips almost all meaning of the words. Substantive due process gives meaning to the words. Without substantive due process, the Bill of Rights may well have been written in chalk on pavement.

I would argue that the Exclusionary Rule is derived from substantive due process and without it the Fourth Amendment loses much of its meaning.

You did not address his first point, which is that there is something wrong with substantive due process, and not all of us agree with the Court's interpretation of the due process clauses.

As I was saying just above, the due process clauses only address how to enforce laws, not which laws should or should not be enforced. The due process clauses require the federal judiciary to apply fair procedures before it imposes a sentence on a person at the conclusion of a trial. Those clauses do not at all require the federal judiciary to determine which laws are not "due." The clauses say do not deprive any person of life, liberty, or property without due process of law. They do not say do not deprive any person of life, liberty, or property without due law.

He brought up the Fourteenth Amendment. I didn't feel this warranted debate on that amendment apart from Incorporation.

Now, as to the issue you address in your OP: the reason that the Supreme Court is not consistent about applying the right to privacy is because the justices are only human, and all human beings have inconsistencies when they try to apply subjective standards. The justices uphold "rights"/freedoms that they sympathize with, not ideas that they do not sympathize with.

In the early 20th Century, the so-called Lochner Era, the Court was dominated by conservative justices who liked to think that the due process clauses require all of the legislatures of America to observe laissez-faire economics -- the conservative version of Libertarianism -- and they struck down federal, state, and local laws that they thought were economically foolish. (Sometimes they were right about those laws being economically foolish, but that does not mean that their interpretation of the due process clauses was correct.) The Court famously struck down maximum-hour laws, minimum wage laws, and laws that protect the right of workers to unionize. The Court sometimes struck down laws that the justices believed interfered with the right of certain types of business owners to earn a nice profit; they struck down a law that regulated the price of theatre tickets sold by vendors, and a law that regulated the fees charged by employment agencies, but not a rent control law. The reason the Court would not consistently enforce the idea that all business owners have a right to earn a nice profit is because the justices did not consistently sympathize with all business owners. They sympathized with vendors who re-sell theatre tickets and with employment agencies, but the justices did not sympathize with landlords.

Likewise, now that we're in the Skinner Era (which started with Skinner v. Oklahoma, the first "personal autonomy" decision by the Court, the first left-wing version of Libertarianism; this is an era which is still ongoing, and has lasted far longer than the Lochner era did), the justices strike down laws that ban contraceptives, abortion, and "sodomy," just because the justices sympathize with people who wish to use contraceptives, who need to get an abortion, and who wish to engage in "sodomy." But none of the justices strike down laws banning suicide because none of the justices sympathize with anyone who wishes to commit suicide.

Subjective, inconsistent sympathies are the only things that guide anyone in determining what are the un-enumerated "rights" of people. The 1st Congress, when it drafted and proposed the first eight amendments, was merely using its subjective views about what are the most important rights of people that the federal government must not violate. They only set out to control the actions of the federal government when they drafted the Bill of Rights; see Barron v. Baltimore, 1833. They included the Ninth Amendment because they believed that "rights" and "powers" have a reciprocal relationship towards one another, and they wanted to make sure the federal government would only exercise its enumerated powers.

You bring up the Lochner Era. I'm quite aware of it. It has no basis in the Constitution because the text already conceived of economic regulations.

As for Barron v. Baltimore, I think it was wrongly decided. I would agree that prior to the Fourteenth Amendment that the First Amendment did not apply to the states. That is plain in the text. I do not feel that is true with the other amendments.

If and when the Court invokes the Ninth Amendment as a reason for striking down a federal law, the duty of the justices will be to objectively expound on the powers delegated to Congress by the U.S. Constitution, not to subjectively decide which "rights" the federal government ought not to violate.

In determining whether state governments are violating state constitutions -- because the state legislature is trying to exercise a power that is not delegated to it by its state constitution -- federal courts have no jurisdiction. Federal courts ought not to be "enforcing" the Ninth Amendment against state and local governments via "incorporation" into the Fourteenth Amendment.

I intend to clear this all up with my proposal to rewrite the Fourteenth Amendment.

I have never invoked the Ninth Amendment, despite those that believe it is an inkblot.

[MarkD]

I have to respectfully disagree with your interpretation of the Fourth Amendment. A reading of the Fourth Amendment like that strips almost all meaning of the words. Substantive due process gives meaning to the words. Without substantive due process, the Bill of Rights may well have been written in chalk on pavement.

I would argue that the Exclusionary Rule is derived from substantive due process and without it the Fourth Amendment loses much of its meaning.

Unless the Fourth Amendment protects both substantive rights as well as procedural rights, it means almost nothing at all? That would mean that the procedural right that is actually protected by the Fourth is virtually worthless. Were decisions such as Mapp v. Ohio, Chimel v. California, and Winston v. Lee virtually worthless rulings? These decisions did not protect any substantive rights, but they did protect the right to privacy in the procedural sense, which was and still is quite meaningful.

As I said before, substantive due process is not at all consistent with the text of the due process clause itself and it substantive due process is beyond what the clause was intended to mean. As I quoted above,

It is a bit embarrasing to suggest that a text is informative "when so many, for so long, have found it to be only evocative," but there is simply no avoiding the fact that the word that follows the word "due" is "process." No evidence exists that "process" meant something different a century ago from what it does now ... and it should take more than occasional aberrational use to establish that those who ratified the Fourteenth Amendment had an eccentric definition in mind. Familiarity breeds inattention, and we apparently need periodic reminding that "substantive due process" is a contradiction in terms -- sort of like "green pastel redness." (John Hart Ely, "Democracy and Distrust: A Theory of Judicial Review," published 1980, page 18. Citation ommitted.)

"Giv[ing]" the due process clause a substantive meaning in addition to a procedural one is a quintessential example of writing new law from the bench. The Court has been doing that countless times, but it is never the right thing to do just because the Court keeps doing it. And yes, we certainly can have a meaningfull Bill of Rights without substantive due process.

The Exclusionary Rule can simply be inferred from the Fourth Amendment's procedural meaning. Substantive due process has absolutely nothing to do with the Exclusionary Rule. If police search the home of a suspected murderer in a manner similar to that in the case of Mapp v. Ohio,, and the trial court excludes the evidence that the police discovered, that certainly does not mean that the suspect had a right to commit murder. Substantive due process -- an inaccurate interpretation of the Constitution -- means that people have a right to do what a legislature has prohibited. The Fourth Amendment and the due process clauses only mean that law enforcement officials and judicial officials have to follow certain rules when they are enforcing rules that legislatures have created for civilians to obey. The fact that they do have to follow those rules is very meaningful, but these procedural guarantees were not intended to govern what laws legislatures may make.

I have never invoked the Ninth Amendment, despite those that believe it is an inkblot.

I know you didn't address the Ninth. I brought it up on my own, because I studied the Ninth a lot when I was young, and I brought it up because some people who like to argue for substantive due process like to justify that doctrine with the Ninth Amendment, and I anticipated that you might do so as well.

[politicallefty]

Unless the Fourth Amendment protects both substantive rights as well as procedural rights, it means almost nothing at all? That would mean that the procedural right that is actually protected by the Fourth is virtually worthless. Were decisions such as Mapp v. Ohio, Chimel v. California, and Winston v. Lee virtually worthless rulings? These decisions did not protect any substantive rights, but they did protect the right to privacy in the procedural sense, which was and still is quite meaningful.

As I said before, substantive due process is not at all consistent with the text of the due process clause itself and it substantive due process is beyond what the clause was intended to mean. As I quoted above,

It is a bit embarrasing to suggest that a text is informative "when so many, for so long, have found it to be only evocative," but there is simply no avoiding the fact that the word that follows the word "due" is "process." No evidence exists that "process" meant something different a century ago from what it does now ... and it should take more than occasional aberrational use to establish that those who ratified the Fourteenth Amendment had an eccentric definition in mind. Familiarity breeds inattention, and we apparently need periodic reminding that "substantive due process" is a contradiction in terms -- sort of like "green pastel redness." (John Hart Ely, "Democracy and Distrust: A Theory of Judicial Review," published 1980, page 18. Citation ommitted.)

"Giv[ing]" the due process clause a substantive meaning in addition to a procedural one is a quintessential example of writing new law from the bench. The Court has been doing that countless times, but it is never the right thing to do just because the Court keeps doing it. And yes, we certainly can have a meaningfull Bill of Rights without substantive due process.

The Exclusionary Rule can simply be inferred from the Fourth Amendment's procedural meaning. Substantive due process has absolutely nothing to do with the Exclusionary Rule. If police search the home of a suspected murderer in a manner similar to that in the case of Mapp v. Ohio,, and the trial court excludes the evidence that the police discovered, that certainly does not mean that the suspect had a right to commit murder. Substantive due process -- an inaccurate interpretation of the Constitution -- means that people have a right to do what a legislature has prohibited. The Fourth Amendment and the due process clauses only mean that law enforcement officials and judicial officials have to follow certain rules when they are enforcing rules that legislatures have created for civilians to obey. The fact that they do have to follow those rules is very meaningful, but these procedural guarantees were not intended to govern what laws legislatures may make.

I'm very well aware of the difference between procedural due process and substantive due process. I don't agree that the Exclusionary Rule is found solely from procedural due process though and it mostly certainly is not from an originalist viewpoint. The very fact that that rule was not interpreted as a protection of the people until the 20th century helps support that point. As much as people point to the Warren Court as some radical new interpretation of the Constitution, many of the protections found were those recognized. The difference is that the Warren Court applied them to the states through Incorporation.

Perhaps the Exclusionary Rule was a bad example, although many originalists (including Justice Scalia) were still opposed. I would argue that a right that bleeds over between substantive due process and procedural due process is Gideon v. Wainwright. The Sixth Amendment does not explicitly say that the government should provide counsel to indigent criminal defendants. Staunch originalists maintain that the right to counsel is merely the right to be represented in a Court of Law and that the government does not have to provide an individual with a lawyer. Without that fundamental right to the people though, the power of the state over the individual becomes that much stronger.

I have never invoked the Ninth Amendment, despite those that believe it is an inkblot.

I know you didn't address the Ninth. I brought it up on my own, because I studied the Ninth a lot when I was young, and I brought it up because some people who like to argue for substantive due process like to justify that doctrine with the Ninth Amendment, and I anticipated that you might do so as well.

Just because I didn't bring it up here doesn't mean I don't think it doesn't have meaning. How would you interpret the Constitution differently if the Ninth Amendment were not present or would it make no difference to you?

[MarkD]

^^^

If the Ninth Amendment were not in the Constitution, it would still be a truism that the federal government is limited to its enumerated powers and is (supposed to be) prohibited from exercising un-enumerated powers.

[politicallefty]

^^^

If the Ninth Amendment were not in the Constitution, it would still be a truism that the federal government is limited to its enumerated powers and is (supposed to be) prohibited from exercising un-enumerated powers.

I think the Ninth Amendment is the method through which the Bill of Rights should be interpreted (and expanded upon through the Fourteenth Amendment). I won't back down on my viewpoint here. The Bill of Rights created one of the most profound and consequential enumeration of rights and liberties for the people the world has ever known. In the terms of Constitution, there is technically no right to die. The liberties granted by the Bill of Rights prevents the government from prohibiting an individual from dying. Assistance for a liberty granted by the Constitution cannot be prosecuted.