February 21, 2016

"It would not make much sense to say that one may not kill oneself by walking into the sea, but may sit on the beach until submerged by the incoming tide..."

"... or that one may not intentionally lock oneself into a cold storage locker, but may refrain from coming indoors when the temperature drops below freezing."

Wrote Justice Scalia, concurring in the 1990 case Cruzan by Cruzan v. Director, Missouri Department of Health. The case is about whether the Due Process Clause protects a liberty interest in assisted suicide, and that sentence comes as he rejects a distinction between action and inaction.

I'm reading the opinion this morning not because I want to see what Scalia had to say about death but because it contains what I have found to be his most essential sentence: "Our salvation is the Equal Protection Clause, which requires the democratic majority to accept for themselves and their loved ones what they impose on you and me."
To raise up a constitutional right here, we would have to create out of nothing (for it exists neither in text nor tradition) some constitutional principle whereby, although the State may insist that an individual come in out of the cold and eat food, it may not insist that he take medicine; and although it may pump his stomach empty of poison he has ingested, it may not fill his stomach with food he has failed to ingest. Are there, then, no reasonable and humane limits that ought not to be exceeded in requiring an individual to preserve his own life? There obviously are, but they are not set forth in the Due Process Clause. What assures us that those limits will not be exceeded is the same constitutional guarantee that is the source of most of our protection -- what protects us, for example, from being assessed a tax of 100% of our income above the subsistence level, from being forbidden to drive cars, or from being required to send our children to school for 10 hours a day, none of which horribles is categorically prohibited by the Constitution. Our salvation is the Equal Protection Clause, which requires the democratic majority to accept for themselves and their loved ones what they impose on you and me. This Court need not, and has no authority to, inject itself into every field of human activity where irrationality and oppression may theoretically occur, and if it tries to do so, it will destroy itself.

26 comments:

tim in vermont said...

Equal protection does not apply to taxation, and all government power is now derived from the power to tax. They could even tax abortion, were they of a mind. Plus the "love wins" clause, I forgot about that one.

traditionalguy said...

Scalia sounds like a Jacksonian Democracy proponent. No wonder Trump pledged that as President he will appoint a Scalia type Justice.

Equal protection is the first argument of equal men who see themselves the way Calvinist Protestants like Trump see themselves. The men who expect their betters to rule are called Episcopalians.

David Begley said...

Scalia was correct!

And when properly applied, the Equal Protection clause denied Democrat vote thieves on the ground and the Florida courts from stealing the election for Al Gore.

Think about it. Gore president on 9-11. Bin Laden would be King of Saudi Arabia today.

PB said...

What did the other justices say in the matter? I think a comparison would be highly enlightening.

Hagar said...

Also called "turnabout is fair play;" a core Republican pinciple and anathema to Democrats.

Ann Althouse said...

"What did the other justices say in the matter? I think a comparison would be highly enlightening."

What's also enlightening is that although the opinion is linked and you can easily read what Rehnquist, O'Connor, Brennan, and Stevens wrote in their opinions, you are choosing not to.

Mostly, for the others, the case has to do with the inability of Cruzan to express an opinion about whether she'd like to refuse treatment. She's in a permanent vegetative state. Missouri required "clear and convincing evidence" that she'd choose to die rather than continue to live in the condition that leaves her without any opinions at all.

MayBee said...

When I read or Scalia's thinking about the law, I wonder how people could disagree or how his thinking was so "new" to the court. Even if/when I don't like the outcome of his decisions.

mccullough said...

The elite exempt themselves from the law the rest of us must live under. The law is not enforced against Hillary Clinton.

The elite also exempt themselves from the morals they believe the rest of us should live under. So Al Gore owns several houses and flies around the world in private jets. His carbon footprint is the size of Paul Bunyan's.

But it's impossible to hold the elite to the law through our legal system.

It's quaint that Scalia believed we all lived under the same laws. It wasn't true in 1990. It's even more obviously untrue nowadays.

Michael K said...

Everyone knows that Congress and our rulers in general need not subject themselves to the treatment they arrange for those of us who pay the taxes they impose. How many members of Congress and their staffs are subject to the pleasures of Obamacare ?

Gahrie said...

Our salvation is the Equal Protection Clause, which requires the democratic majority to accept for themselves and their loved ones what they impose on you and me.

This isn't really true. The elite support government run public schools, but send their kids to private school. The elite support government run healthcare, but have private health care for themselves. The elite support no fault divorce, but sign pre-nups. They support gun control, but hire private bodyguards. They support high taxes, and hire accountants to find exemptions.

Jack Wayne said...

Inasmuch as the equal protection clause applies to the STATES and NOT to the federal government, any lawyer could drive a Mack truck through Scalia's assertion. And it wouldn't take long to demolish "originalism" either. Spare us the encomiums to Scalia.

SeanF said...

But the question is about [b]assisted[/b] suicide, not suicide, meaning it requires the action of another person. It's not a question of action or inaction on the part of the patient, but on the part of the doctor.

Therefore, his dismissal of a distinction between action and inaction would seem to be making the argument that not taking action to save someone's life is equivalent to straight up murdering them.

Fernandinande said...

Gahrie said...
"Our salvation is the Equal Protection Clause ..."

This isn't really true.


Your examples mostly involve money, which Equal Protection (under the law) doesn't address.

Beside the fact that Billaries and Holders get away with major crimes, I'd say that official government-mandated racism, everywhere and at all levels of government, is the main issue which proves Scalia was just parroting nonsense. It affects everybody, if not directly, then indirectly though higher costs.

mccullough said...

It's encomia

Fernandinande said...

SeanF said...
Therefore, his dismissal of a distinction between action and inaction would seem to be making the argument that not taking action to save someone's life is equivalent to straight up murdering them.


The funny thing is that nearly everyone in the world was not taking care of this unfortunate person. I can barely stand to read bombastic lawyerly drivel, but if Scalia thinks anyone has an obligation to take care of someone else under these circumstance, he should do it himself.

Chuck said...

Professor Althouse, are you still hacked off about Justice Scalia's dissent in Lawrence v Texas? Are you seeking to criticize and diminish that dissent? Would you like to see legal recognition of public disopprobrium with homosexuality die with Justice Scalia? (For the uninitiated, in Lawrence, a 5-4 majority led exclusively as usual by Justice Kennedy struck down a Texas law against homosexual sodomy, and in his remarkable dissent, Justice Scalia basically said that it was laughable to think that the Fourteenth Amendment guaranteed a Constitutional right to homosexual sodomy.)

Because here's a quotation from the Scalia separate concurrence in Cruzan that you didn't supply:

While I agree with the Court's analysis today, and therefore join in its opinion, I would have preferred that we announce, clearly and promptly, that the federal courts have no business in this field; that American law has always accorded the State the power to prevent, by force if necessary, suicide...

Substitute "homosexual conduct/marriage" for "suicide."

Chuck said...

Professor Althouse; I have an unrelated and entirely personal question for you.

What do you think of comments threads like this, about subjects where (I'd be the first to agree) you are an expert? Because you and I both know that many of the emotionalist and politicized answers seen here wouldn't stand for thirty seconds in one of your classes, and would earn a failing mark on an exam.

You surely aren't looking for law school responses. At the same time, I'm not sure what sorts of responses you were looking for, on the subject of Due Process theory (which is complicated enough for Con Law students), and indeed the consistency in such theory over the course of 10 or 20 or 50 years.

Chuck said...

I do want to add, on the general subject of Justice Scalia and current-candidate Donald Trump... (Repeating a point I've made previously...)

The very notion that Trump is now cloaking himself in anything related to Justice Scalia is to me a really laughable, ugly irony. In December, the Court took up oral arguments in the case of Fisher v University of Texas, an affirmative action case in which the University was trying to preserve an affirmative action program that had been repeatedly questioned and struck down in prior federal decisions, including another Supreme Court decision in the same case.

Several of the amicus briefs in the case had raised what has been called "Mismatch Theory" in affirmative action literature. "Mismatch Theory" shares its name with an unrelated principle of evolutionary biology, so be careful about which one you are looking up. Wikipedia likes to call the affirmative action theory "Mismatching." In affirmative action studies, "Mismatch theory" says that blacks who are admitted under affirmative action programs to more competitive institutions that they would not have independently earned admission on a purely competitive basis are generally hurt, in that they have higher fail and dropout rates than they might otherwise have experienced as a group.

Since the theory had been raised in the amicus briefs, Justice Scalia asked about it in the course of oral arguments. Immediately after the morning of those arguments, the left-leaning media tore into Justice Scalia personally, alleging that Justice Scalia somehow held or represented a view that blacks are undeserving or incapable of competing at elite schools. It was a bad farce, but consistent with much of the mainstream press coverage of Scalia.

So, enter Donald Trump, to make a bad case even worse and more muddled.

Trump -- no doubt having consumed the MSM news on Scalia in the Fisher argument -- intoned, "I don't like what he [Scalia] said... He was very, very tough on the African-American community."

http://dailycaller.com/2015/12/13/donald-trump-hits-scalia-over-affirmative-action-remarks-video/

It was a remarkable demonstration of Trump's uniquely reckless, shoot-from-the-hip style. But in this case, Trump was objectively wrong (it doesn't even matter if you like or hate "Mismatch Theory), because Scalia wasn't espousing an opinion at all.

But more than anything, it just shows how lacking in principles Trump is; there is no one too great or too respected to become Trump's verbal roadkill whenever it suits Trump.

If, on this weekend of his funeral, you are thinking of Justice Scalia and mourning our loss of this great jurist, you have to just hate Donald Trump.

eddie willers said...

you have to just hate Donald Trump.

I think you started with this and then worked your way back.

Mark said...

Our salvation is the Equal Protection Clause, which requires the democratic majority to accept for themselves and their loved ones what they impose on you and me.

The flaw in that Mr. Justice -- and it's Golden Rule idea -- is that it presumes that what people want is what is good.

However, if the democratic majority (or more likely the powerful elite who create law and impose it on an unwilling and powerless public) has embraced nihilism (and they have), their desire for self-destruction will lead to our destruction as well.

Mark said...

As for the historical case itself, it should be noted that, as part of the nihilistic despair and culture of death that have infested our society, after he pushed for being able to hasten the death of his daughter, Nancy Cruzan's father fell into a deep depression and killed himself.

Jupiter said...

Mark said...

"However, if the democratic majority (or more likely the powerful elite who create law and impose it on an unwilling and powerless public) has embraced nihilism (and they have), their desire for self-destruction will lead to our destruction as well."

So, it turns out the Constitution *is* a suicide pact, after all?

Jupiter said...

I'm not so sure about your "unwilling and powerless public". It sounds as if our hostess may be beginning to see her mistake, but I think these stupid assholes would stop killing their own children long enough to go to the polls and reelect Barack Obama if they could. This is what they like. This and news about Kardashians.

But I'm not sure I share your pessimism. You have to wonder about the long-term prospects of a political movement that promises its adherents free birth control, promiscuous sodomy and cheap abortions. It appears that modern liberals are not conservatives, precisely because they have looked at their own lives and see nothing worth conserving. I think that's a rather harsh verdict, but it's their genetic material. They should know what, if anything, it's good for. I won't miss 'em.

Jupiter said...

You're right about the "nihilism", for sure. I first realized this during the dispute over the proposed law that would have required a woman to view a sonogram of her baby before she killed it. The Feminazis were enraged by that law. They hated the idea that some young woman would look at a sonogram of her own baby, and decide that being a mother is more important than whatever pointless, sterile "career" the Femis think she should waste her fertile years pursuing. This would be a "choice", of course, made by a woman. Indeed, the point of the law was to make it an informed choice. But the Femis are not pro-choice. They do not support a woman's right to choose. They are pro-abortion.

That's when it hit me, they want dead babies. They see a pregnant woman, they see a potential abortion. And they want that abortion, so bad they'd like to crush that little baby's skull themselves. They get spitting angry at anyone who tries to come between them and killing that woman's baby. I mean, Sick and Wrong, is what these women are. They are one twisted sisterhood.

Jonathan Graehl said...

Perhaps pop Cruzan died happy knowing his daughter had a dignified end at last.

Unknown said...

"...the subject of Due Process theory (which is complicated enough for Con Law students), and indeed the consistency in such theory over the course of 10 or 20 or 50 years."

In strictly this uninformed layman's obvious view, the problem with the Living Constitution is there is no consistency. I think of the Constitution as a contract. If the terms of the contract get to be changed arbitrarily and unilaterally, the contract loses meaning.