The Future of Assisted Suicide and Euthanasia

By Neil M. Gorsuch | Go to book overview

3

The Debate over History

THE RELEVANCE of history to the constitutional debate over assisted suicide and euthanasia is the subject of much dispute. Some (like former Chief Justice Rehnquist) see an analysis of historical legal rules and rights as critical to any substantive due process analysis. Others (such as Justice Souter) think it bears little or no relevance. Others still have questioned the practice of relying upon the preferences of past majorities to interpret the Fourteenth Amendment, which was added to the Constitution in the aftermath of the Civil War with special concern for promoting the advancement of minority rights.1 But the history test has proven powerfully attractive to federal courts faced with substantive due process disputes. In contrast to the competing test focused on the demands of “personal autonomy” and dependent on “reasoned judgment” (which we shall explore in greater detail later), the history test is perceived by its advocates as offering a comparatively objective approach to due process adjudication. As Justice Powell once put it, “an approach grounded in history imposes limits on the judiciary that are more meaningful than any based on the abstract formula…suggested as an alternative.”2

One of the earliest cases to synthesize the history test into a coherent means for deciding substantive due process fundamental liberty questions was Snyder v. Massachusetts. There, in 1934, the Court faced an appeal from a murder conviction. The victim was shot to death during the course of an attempted robbery by three men at a gasoline station in Somerville, Massachusetts, and the jury found “abundant evidence” of the defendants' guilt.3 One defendant claimed, however, that the trial judge's refusal to permit him to be present at a jury view of the gas station constituted a denial of due process. Justice Cardozo rejected the notion that judges should resolve such due process questions by reference to their unbounded “reasoned judgment” and held that government policy “does not run foul of the Fourteenth Amendment because another method may seem to our thinking to be fairer or wiser or to give a surer promise of protection to” the individual right-claimaint.4 Instead, Justice Cardozo held, states are free to regulate their courts as they wish so long as they do not “offend[] some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.”5 The right proffered by the defendant in

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