Term Paper on Constitutional Right to Die

The existence of a constitutional right to die is currently under consideration by the United States Supreme Court on review of a decision by the Ninth Circuit that the Due Process Clause of the Fourteenth Amendment confers a substantive right to assisted suicide, Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir. 1996)(en banc), and the more careful decision by a panel of the Second Circuit that New York's distinction between refusals of treatment by the terminally ill (lawful) and assisted suicide (unlawful) violates the Equal Protection Clause of the Fourteenth Amendment, Quill v. Vacco, 80 F.3d 716 (2d Cir.1996). The issue may be considered as a special case of the general question of the scope of non-enumerated constitutional rights. As Justice Scalia has pointed out, Is There an Unwritten Constitution?, 12 Harvard Journal of Law & Public Policy 1,2 (Winter 1989), the three main alternative sources advanced for non-textual constitutional rights are history, a philosophy of the rights of man, and the evolving consensus of society. The Supreme Court has, as the composition of the Court has changed and the fashions of the time have shifted, turned to each of these sources. None supports a right to die.
 

Click Here To View Top 3 Term Paper Sites

History
It cannot be overstressed that the revolution which led to the formation of the United States was not a radical one but a self-consciously conservative act seeking to maintain for the colonists those rights, privileges, and immunities they believed to be theirs by prescription and under attack by innovating ministers of the Crown. In drafting a constitution, therefore, the Framers looked almost exclusively to the English experience. See M.E. Bradford, Original Intentions 17-33 (University of Georgia 1993). Accordingly, in judging the scope of non-enumerated constitutional rights, the Supreme Court has looked to history. In an early example, Hurtado v. California, 110 U.S. 516 (1884), the defendant, convicted of murder in a prosecution started by information and not indictment by grand jury, argued that he had been denied due process under the Fourteenth Amendment. Both the opinion of the Court by Justice Matthews, upholding the conviction, and the dissent by the first Justice Harlan are notable for their use of the history of procedure as it had existed in England in the attempt to define the content of the term "due process".

More recently, Justice White, writing for a 5-4 majority in Bowers v. Hardwick, 478 U.S. 186 (1986), and Justice Scalia, writing for a plurality in Michael H. v. Gerald D., 491 U.S. 110 (1989), appealed to history and little else in sustaining, respectively, Georgia's power to enact criminal laws against sodomy and California's power to create an irrefutable presumption that a married woman's husband is the father of her child. In the latter case Justice Scalia proposed the constitutional rule, 491 U.S. at 127, n.6, that the Court should recognize assertions of rights only if there is a tradition, at a specific level of abstraction, supporting such an assertion.

Justice Scalia has remarked that the rule of law is a law of rules, and his approach in Michael H. is consistent with that philosophy. Nontextual but accepted constitutional concepts, such as proof beyond a reasonable doubt in a criminal case, see In re Winship, 397 U.S. 358 (1970), are protected while innovations are easily rejected for novelty alone. Under the Michael H. approach, the assertion of a right to die is insupportable. The unbroken tradition of the philosophies that have been at the base of Anglo-American jurisprudence is strongly opposed to any assertion of a right to die. See Coleson, Contemporary Religious Viewpoints on Suicide, Physician-Assisted Suicide, and Voluntary Active Euthanasia, 35 Duquesne Law Review 43 (Fall 1996).

Where the Michael H. rationale is arguably incomplete is in addressing the claim of right that is novel, because it had hitherto been unnecessary to examine. For instance, in Buck v. Bell, 270 U.S. 200 (1927), the Supreme Court upheld a statute permitting the state to sterilize any mentally retarded patient if that patient's defect was hereditary and sterilization would be in the best interest of the patient and society. There being no recognized tradition defining surgical sterilization as an infringement on Carrie Buck's life, liberty, or property, the Michael H. rule would possibly permit the result that the Court reached in 1927.

Conclusion
In recent years the Court has increasingly based its pronouncements, liberal or conservative, concerning the content of constitutional rights on specific constitutional texts rather than on penumbras, emanations, and the fuzzy concept of substantive due process. On the subject of the use of excessive force by police, cf. Screws v. United States, 325 U.S. 91 (1945), with Graham v. Connor, 490 U.S. 386 (1989). In search and seizure law, cf. Rochin v. California, 342 U.S. 165 (1952), with Winston v. Lee, 470 U.S. 753 (1985). Even within the Court's abortion jurisprudence, which at first glance might seem to be an exception to this movement, constitutional support for abortion rights has been increasingly sought by appeal to equal protection rather than to an non-enumerated right to privacy.
Given that trend, it would be a shocking departure for the Supreme Court to affirm Judge Reinhardt's thesis in Compassion in Dying. Given the Court's institutional interests it would be at least a surprise for the Court to affirm Quill v. Vacco.