We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
The right to life, then, is indeed a "fundamental" right, recognized as such at the nation's birth. Our founding document states that government exists to secure this right, and that any government that becomes destructive to this right is illegitimate. You can't get much more "fundamental" than that.
When you consider the issue of whether a terminally ill patient has the right to try an experimental lifesaving drug in light of the Declaration's statement of American political principles, the idea, put forth by the majority, that the issue should be whether this specific right is "deeply rooted in this Nation's history and tradition" strikes me as farfetched. Justice Scalia and his allies argue that the Declaration has nothing to say about Constitutional law, but if we are looking for evidence that a right is "deeply rooted" in America's history and tradition, I don't see how we can do better than look to the Declaration. I don't think that clever wordplay can transform the right to self-preservation, to life, into a narrower, historically anachronistic right (how could there be a deeply rooted right to use experimental drugs when life-saving drugs didn't exist until the 20th century?)
If the U.S. government decided to kill terminally ill people by lethal injection because they use up too many medical resources, would the D.C. Circuit hold that there is no right deeply rooted in America's history and tradition not be killed by a lethal combination of toxic drugs injected into the forearm?
UPDATE: A quick response to Orin's post, above, along with some of the commenters. First, what "life" means is pretty clear, at least in this context. No one sensible is going to deny that a terminally ill patient's life is potentially at stake when he is denied the right to use experimental drugs. What separates "liberty" from "license", much less what constitutes the legitimate "pursuit of happiness," (beyond, perhaps, some notion that the government must protect some minimum of property rights) is far more obscure, and the Declaration isn't much help there, in the absence of a strong consensus on what constitutes liberty and the pursuit of happiness.
Second, I didn't say that the Declaration mandates any particular constitutional result. What I did say is that I think it's absurd, when the right to try to preserves one's life is at issue, to define the right as narrowly as possible, indeed in an anachronistic way that makes it literally impossible for the right to be found to exist (another example: there is no historically rooted right to airplane travel, is there? But it would be absurd to define a right to use airplanes that narrowly, as opposed to the right to travel, the right to locomotion, etc.), and ignore the foundational principles of the republic.
Third, to say the right to life is "fundamental" doesn't mean that the government can't regulate it, it just has to show a sufficiently compelling interest to rebut a strong presumption against it. If, for example, the government was preventing the dying from being defrauded, as with laetrile, that would, it seems to me, clearly justify government regulation. (Such regulations would clearly be a function of the police power. The Federal Government isn't supposed to have a general police power, but that's an entirely separate can of worms.) But I'm arguing here that the right is fundamental, not that the government can never, ever, justify regulations that impinge on that right.
Fourth, the Declaration of Independence is actually right at the beginning of the U.S. Code, providing further evidence that it's always been considered part of our LEGAL heritage.
Finally, I'm not expressing any strong opinion as to whether the D.C. Circuit's opinion is consistent with Supreme Court precedent (though I see how my post could be read that way; my best guess is that it's consistent with, but not mandated by, Supreme Court precedent). Rather, I'm attacking the theoretical premise of the opinion, whether or not it's rooted in USSC precedent, that defining the right at issue as "the right to access experimental and unproven drugs in an attempt to save one's life" makes any sense as a matter of first principles, even if one accepts that premise that only rights firmly rooted in American tradition deserve the protection of the Due Process Clause.
One more update: I'm sympathetic to the argument that adopting my position would make the judiciary responsible for more than it's capable of doing, or at least doing well. If that was the court's argument, so be it. The Supreme Court argued in the 1930s that all legislation must be for the general welfare, but it would not police that provision because it was better left to the political branches. Legislation not for the general welfare is still unconstitutional, even if no one is enforcing it. Similarly, if the courts don't feel competent to enforce the right to life, it's still Congress's and the FDA's obligation to only make rules consistent with that right. Denying that the right exists, however, by defining the right at stake in an incoherently narrow and anachronistic manner, strikes me as a lawyerly dodge, a way of saying "we don't want to deal with the problems attendant to enforcing these rights, so instead of honestly acknowledging that, we're simply going to define them out of existence."
Related Posts (on one page):
- Abigail Alliance, Fundamental Rights, and the Declaration of Independence:
- Abigail Alliance and the Declaration of Independence: