A Stitch in Haste

"Death will be different for each of us. For many, the last days will be spent in physical pain and perhaps the despair that accompanies physical deterioration and a loss of control of basic bodily and mental functions. Some will seek medication to alleviate that pain and other symptoms. ... The parties and amici agree that in these States a patient who is suffering from a terminal illness and who is experiencing great pain has no legal barriers to obtaining medication, from qualified physicians, to alleviate that suffering, even to the point of causing unconsciousness and hastening death."
--Washington v. Glucksberg, (O'Connor, J., concurring)

One of my favorite legal sayings, I forget where I first heard it, is that simply because Article I mentions only "Armies and a Navy," it does not follow that the Air Force is unconstitutional.

The question of how a document crafted at the end of the Eighteenth Century is to apply to a nation in the Nineteenth, then Twentieth, then Twenty-First Century (and, hopefully, more centuries to come) is a question even high school students confront, let alone lawyers and judges.

Which is why I should probably add Washington v. Glucksberg, 521 U.S. 702 (1997), to my list of the Worst Supreme Court Cases.

Glucksberg stands for the proposition that courts should not "create new rights." The test is learned by every law school student:

[T]he Due Process Clause specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation's history and tradition and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.

The "Glucksberg test" for whether a right is "fundamental" (and therefore subject to strict scrutiny protection against government abrogation) has, in practice, stopped the evolution of constitutional interpretation dead in its tracks. A right that is not "deeply rooted" (i.e., did not exist is 1789) cannot exist today. Even a right that could not have existed in 1789 (e.g., because the technologies or processes at issue did not exist in 1789) cannot exist today.

The pesky detail, meanwhile, that all individual rights are "deeply rooted in this Nation's history and tradition and implicit in the concept of ordered liberty" -- in the Ninth Amendment, the Privileges & Immunities Clauses of Article IV and the Fourteenth Amendment, and elsewhere -- is insolently ignored both by the Glucksberg opinion itself and the jurisprudence it has spawned. Case law is littered with opinions turning away challenges to oppressive or discriminatory laws with a brusque "fails Glucksberg" dismissal.

(One of the worst victims of Glucksberg has been gay rights -- which of course did not exist in 1789, so they of course can't exist today, right?)

Did I mention that Glucksberg was a (failed) right-to-die case? And that it has now metastasized into a (failed) right-to-live case?

In a ruling that will now be appealed to the Supreme Court, the D.C. Circuit Court on Tuesday refused to recognize a new constitutional right for dying patients to have access to experimental drugs not yet cleared by the government for general public use. The en banc, 8-2 decision exposed a deep rift within the Circuit Court on how to define a newly claimed constitutional right. The majority treated the issue as a narrow claim to a right to have access to experimental drugs not yet found to be safe, while the dissenters argued that nothing less than "a right to save one's life" was at stake.

In denying a "new" constitutional right for a competent consenting adult, who is going to die anyway, the ability to choose for herself whether to take a potentially life-saving drug, the majority cited to Glucksberg 23 times. The words "Ninth Amendment" appear nowhere.

Condemning at least some people to a premature death, or to unnecessary pain and suffering, is now apparently "deeply rooted in this Nation's history and tradition and implicit in the concept of ordered liberty."

In their quest to kill the Ninth Amendment, some jurists seem perfectly willing to kill people as well.

Madness. Sheer madness.

The case is Abigail Alliance v. Eschenbach, No. 04-5350 (D.C. Cir., August 7, 2007) (PDF - 65 pages). More thoughts at Cato@Liberty, Liberty Papers.