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Sunday, February 6, 2011

Passion returning

It's nearly 4:AM, I guess technically Sunday morning. It is not all that unusual for me to be up this latearly because of my weird-ass schedule this semester. It's cool, though, because I get to sleep in 5 days a week. Oh the luxury, you say. Yes, yes, but remember, I am up until 4. I don't really sleep any more than you do. Ok, not much more. Maybe a little.

Actually, I usually go to bed sometime in the hour of 2:AM, but this evening I started to get excited reading one of my cases, and then I took it upon myself to post about the case on my online class discussion board (for which I do get participation incentive, but I didn't have to force myself to do it, that's the point; I was actually passionate for once). If you are curious, it was a Supreme Court constitutional case about whether there is a fundamental right to physician-assisted suicide (short answer: no). The thing that excited me about the case was actually a concurring opinion, in which the concept of substantive due process in constitutional law became clearer to me at last.

[Warning, I'm about to geek out for a couple paragraphs; you may be in danger of your eyes glazing over]: Substantive due process is about identifying the types of liberty, property, and life interests that the government is not supposed to deprive you of without due process of law, per the 5th and 14th amendments. The court characterizes your interests as either "fundamental" or not. If fundamental, the court applies a strict scrutiny analysis to any state or federal regulation that impinges upon that interest. When they do strict scrutiny, the governmental regulation usually fails as unconstitutional because it is a high standard to meet (must be a compelling state interest and the regulation must be narrowly tailored toward furthering that interest). If not fundamental, the court applies a rational basis balancing test, weighing your interest against the state's interest in regulating, and all the state has to have is some rational basis connecting its interest to the means it uses to further that interest, and the law is constitutional. That is an easy standard for the state to meet.

Anyway, the caselaw on substantive due process (usually fun issues like abortion, birth control, sodomy, contraceptives, etc., [I just noticed that I listed both birth control AND contraceptives, so don't go pointing it out to me]) usually focuses on trying to identify these fundamental rights, as if there is some abstract fruit tree hanging over our heads with all the fundamental rights dangling down, and we need only pluck them and call them out by name. But in this concurring opinion (Justice Souter in Washington v. Glucksberg, if anyone is interested) Souter characterizes substantive due process as more of the court deciding which issues are properly decided by the courts, and which issues are better left to legislatures and the political process. The backdrop for making this decision is a consideration of our nation's "history and traditions", which is also nebulous and certainly constantly changing, and therefore not that helpful. But to me, that is a much more honest expression of what these kinds of cases are really about than labeling something as a fundamental right. The truth of the matter is that the outcome of a case can easily turn on how the court chooses to characterize the right that is purportedly fundamental. Do you call physician-assisted suicide the right to have someone help you die, or the right to personal autonomy/dignity/bodily integrity? The answer is really that it depends on what our society feels about the subject. If there is a lot of heavy debate, the court will generally let the legislatures and political process duke it out. If things seem pretty settled, the court will call it a fundamental right and suddenly any law going against that is unconstitutional unless it is narrowly tailored to a compelling state interest. We hide behind words and tests and pretenses that there is some absolute right out there that is codified in our constitution. The reality is that what is right today might not have been right yesterday and may not be right tomorrow. I appreciate that the substantive due process theory allows for a kind of flexibility to be applied to the constitutional analyses the court undertakes. I don't think Scalia or Thomas would agree with that sentiment, but that's alright.

So it's really great to feel excited about the law again. I thought for sure it was gone, all the interest I once had. Last semester it seemed like I had dreamed the whole thing up. But no, it was just the shitty classes that sucked my soul and enjoyment away. I really wasn't intending to make this whole post about substantive due process, but I just got excited about it because I feel a little like I see the man behind the curtain suddenly. It's pretty fun to feel that way after feeling so lost for so long.



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1 comment:

sovknight said...

I'm thinking that now you really need to see that Sundance movie I recommended. I didn't get to see it myself, but it is on the list. I think it deals with some of the things you are talking about directly.

So I admit that I got lost a couple of times whilst reading through your post. I need to focus more. I shall read it again later after I've slept maybe. Given that, I'm very happy that you're rediscovering your passion for law, and that you're getting excited about it again. That's proof that you are on the correct path in life, methinks. I am immensely happy for you (and envious.) :)

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