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Friday, March 25, 2005

Proper due-process vs. substantive due-process

I told my mom a couple of weeks ago that I thought the conflict over the Schiavo case stemmed less from the different opinions of left and right than from distrust between left and right. Democrats (and even libertarians) were somehow seeing this as a right-to-die case, rather than what seemed to me to be an obvious case of the wrong person (an estranged husband) being allowed to decide who dies. But the left does not trust the right. The presumption on the left is that the right wants to interfere because it doesn't believe that people who can be saved should be allowed to die, and there may indeed be a small number of people on the right who believe that the right to life is incompatible with a right to die.

Personally, I am not only pro-right-to-die, but I think that government needs to get out of the business of subsidizing the costs of dying (through Medicare) so that the dying will be forced to come to grips with the question of how much of their children's inheritance they want to spend on dying. Subsidization passes the cost on to everyone else's children so that no one feels too bad about a half million dollar death bill. People would feel a little differently if the cost of dying were to take that big a bite out of what they had hoped to pass on to their own children. But I don't share left wing distrust of conservatives. Thus I don't see the Schiavo case as indicative of larger right-to-life issues. The straight-forward due-process issue is enough. The Constitution charges Congress with making sure that life not be deprived without due process of law. Letting a husband pull the plug on his estranged wife who left no “living will,” when she seems to want to live, and when she has parents who are willing to care for her, does not seem to meet necessary minimum due process standards.

A handy way to disentangle the due-process issue from the larger right-to-life issue is to distinguish due-process proper from the controversial jurisprudence of “substantive due process.” According to the Fifth Amendment: “No person shall be … deprived of life, liberty, or property, without due process of law.” This would not seem to place any limits on the purposes for which people may be deprived of life, liberty or property, so long as laws are duly passed and the process of law duly followed. Under the doctrine of “substantive due process,” however, the due process clause was used to place limits on the purposes for which due process could be used to deprive life, liberty or property.

There is pretty broad agreement now that "substantive due process" was a mistake. The proper place to locate unenumerated liberty rights is in the Ninth Amendment’s assertion that unenumerated rights “retained by the people” do exist. (At a minimum, the Ninth would seem to compel recognition of the rights to life, liberty and the pursuit of happiness asserted in the Declaration of Independence.) They cannot be found in process per se. Due process can insure that people's interests be properly weighed, but that is all.

So long as Congresses due-process interest in the Schiavo case is limited to due-process proper (making sure that Terri Schiavo’s interests are properly represented in the legal process) then broader right-to-life issues are kept off the table. Right-to-life issues are not about the fairness of the legal process itself. They place limits on the purposes and outcomes that the legal process is directed towards. If they are pushed under the due-process rubric they constitute “substantive due process,” which ought to be eschewed. Thus the distrust between left and right might be bridged if Congress would specify that its only interest in the Schiavo case is in due-process proper, not in any larger "substantive due-process."

Yeah, I know. Jay Leno could do a funny “man in the street” bit asking people what they think “substantive due process” means. Or maybe people would be so oblivious that it wouldn’t even be funny. Still, poll results indicate that people basically get the distinction. Last year a Fox News poll found fifty percent thinking that a spouse should be the one to decide whether a persistently vegetative person lives or dies, a third said the person’s parents should decide, and two percent said government should decide. Wednesday’s CBS poll found that 9% think the federal government should decide life-support cases, 13% think state governments should decide, and 75% think government should stay out. By “stay out,” nobody can think that there should not be a legal process. In the Schiavo case, there is no option for the government to stay out. The question is how to honor the competent Terri Schiavo’s wishes when she is no longer competent to speak for herself. That is what an inquiry into due-process per se would focus on: making sure that Terri Schiavo’s interests are represented.

As for federalism issues, they are the same here as in any other Bill-of-Rights case. Under the doctrine of incorporation (where thanks to the Fourteenth Amendment, the Bill of Rights now restricts state as well as federal government), the federal government is charged with setting minimum standards of protection that the states can meet however they wish. So long as the states satisfy the general requirements of “ordered liberty,” present Constitutional interpretation does not require that the states all employ the same means to that end. States can and must have leeway to sort out due process requirements for themselves, so long as they do not fail to achieve a necessary minimum of protection.

Federalism does not free the states from their obligations to satisfy due process requirement in medical-termination decisions any more than in death penalty cases or voting rights cases, and this is good. No advocate of keeping government out of private decisions should want to see unbounded federalism. Due process proper will require that a patient's wishes be accounted. With unbounded federalism, states could trample patient's wishes however they want.

UPDATE: To wrap up my point about the left-right divide being more about distrust than about substantive differences of opinion, note the broad agreement in the polling that end-of-life medical decisions should not be determined by government. Only 2% in the Fox poll think government should tell people what to do in these situations. Yet the left somehow thinks that conservatives want government in these decisions. The clear implication of the polling is that what conservatives want is to repair what seems to be deficient due-process. They want Terri’s wishes to be honored, but do not believe that Michael Schiavo is a reliable spokesman for her wishes, and the Florida courts have dismissed enough contrary evidence to make it plausible that they may be biased against Terri’s continued existence.

Maybe this is the nub of the issue. SHOULD the courts be biased against Terri's continued existence? SHOULD society’s scarce resources go to maintaining the life of someone who no longer has any capacity to make a contribution and who has little capacity to even enjoy life? If it were public money being spent on Terri’s maintenance, this would be a relevant question, and one which I would answer in the negative. What public money is spent on those who cannot pay for their own medical care should be allocated to those procedures that have the highest medical benefit per dollar spent. Terri Schiavo's care falls near the bottom of that list. But there is no issue of public money here. Terri's parents want to care for her. Still, left and right will view this differently. The left believes that everyone’s money is public money and there is no firm distinction to be made between what is efficient for society and what should be allowed for individuals. Conservatives believe that if you want to spend your money caring for a brain damaged daughter, that is your own business.

Is this what the distrust is ultimately about? Is it about collectivism vs. individuality? Is that why the left seems blasé about Terri’s rights being blatantly trampled? Are they more horrified at the waste of keeping her alive? If so, they should focus instead on getting government to stop subsidizing death costs through Medicare and Medicaid. For those whose concern is for society (which should be all of us) the goal should be to get rid of socialism. Socialism is what produces social inefficiency. Individual choice, whether informed by religious or by secular understanding, is not the problem.

UPDATE II: Patterico (who is an L.A. prosecutor) has weighed in with what looks to be the definitive analysis of the federal due process rights at stake in the Schiavo case that can be secured on established precedent.

(I think my post on the analogy between "actual innocence" and "actual consciousness" is a sound one, but the headway that has been made on using actual innocence as a grounds for review has so far come mostly through legislation, not the courts. There are strong due process arguments to be made here, but they are for the most part not yet supported by precedent.)

Patterico focuses on Claim Eight of the Schindler's Second Amended Verified Complaint which holds that:
89. The United States Supreme Court, in CRUZAN v. DIRECTOR, MDH, 497 U.S. 261 (1990), 497 U.S. 261 (1990), determined that the Due Process Clause of the Fourteenth Amendment requires that decisions to remove hydration and nutrition from an incapacitated person must be supported by clear and convincing evidence that the incapacitated person would have made the same decision.
Patterico notes that Judge Whittemore dismissed this claim via clearly fallacious reasoning. The Court in Cruzan held that the "clear and convincing evidence" standard was sufficient to satisfy federal due process requirements. Whittemore "deduced" from this that application of the "clear and convincing" standard was not a necessary condition for satisfying federal due process requirements, an obvious non-sequitur. Patterico next goes on to show how the Court in Cruzan virtually asserted that, had the issue of necessity been at issue in Cruzan, it would have ruled that the "clear and convincing evidence" standard is necessary to satisfy due process.

Patterico then nails the case by citing Jackson v. Virginia, 443 U.S. 307 (1979), where the Court asserted that, when federal rights are at stake, the federal courts are not just to see to it that the state courts apply the correct federal standards, but that they apply them satisfactorily:
A doctrine establishing so fundamental a substantive constitutional standard must also require that the factfinder will rationally apply that standard to the facts in evidence. . . . A federal court has a duty to assess the historic facts when it is called upon to apply a constitutional standard to a conviction obtained in a state court.
In sum, Patterico shows that the Shindler's had a strong due process claim that should have been reviewed by the federal courts, both on the law and the facts. It looks to me like he has an airtight case. He also addresses the distinction I make above between substantive and procedural due-process. Well worth reading.

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