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The Eminent Tribunal

Sat, 01 Aug 1998 00:00:00 -0400

It is commonplace in pro-life circles to compare the U.S. Supreme Court’s decision in Roe v. Wade (1973) to the Court’s historic decision in 1857 in Dred Scott v. Sandford . In both cases, pro-life advocates claim, the Court denied essential constitutional protections to whole classes of people. Defenders of Roe deny the connection: Dred Scott denied black people’s right to freedom, they say, while Roe extended women’s freedom by allowing them to choose whether or not to carry a fetus to term. There are, of course, differences between the cases, but I would argue that it is their similarities that are most significant. Indeed, one can trace a long, slow, uneven path from Dred Scott to Roe ”and even beyond Roe to the present day.

The structural similarities between the cases are clear enough. Each concerned a growingly contentious issue in politics, each sought to take it out of politics by deciding it judicially on constitutional grounds, and each did so by basing the decision on the due process clause of the Constitution. Or, to be precise, the due process clauses, for there are two.

One of them is in the Fifth Amendment, which provides that “no person . . . shall be deprived of life, liberty, or property without due process of law.” This clause is a restraint only on the powers of the federal government and was the only due process clause in the Constitution at the time of the Dred Scott case. The other one was included in section 1 of the Fourteenth Amendment after the Civil War: “No state shall . . . deprive any person of life, liberty, or property without due process of law,” to which was added, “nor deny to any person within its jurisdiction the equal protection of the laws.”

The most important argument used by Chief Justice Roger Taney in denying Dred Scott his freedom was a due process one. Scott’s master, a military surgeon, had taken him for an extended period of time to an Army fort in the Wisconsin Territory, where federal law at that time forbade slavery. On his return to Missouri, Scott sued for his freedom in that state’s courts on the ground that his residence on free soil had freed him. But Taney held that Congress had no power to deprive a slaveowner of his property in his slave without due process of law. For, he argued, “An Act of Congress which deprives a citizen of the United States of his liberty or property merely because he came himself or brought his property into a particular territory of the United States, and who had committed no offense against the laws, could hardly be dignified with the name of due process of law.”

This decision was handed down in the midst of a political debate over the power of Congress to ban slavery in the territories. The stakes in the controversy were high because the South saw the congressional power as leading to a Northern majority in the Senate that could eventually endanger the South’s “peculiar institution” when the non-slaveholding territories became states.

Taney’s application of the due process clause to the power of Congress was not entirely a new one; it had recently been used by both sides in the political debate. Constitutional historians Alfred H. Kelly and Winifred A. Harbison (writing nearly twenty years before Roe v. Wade ) pointed out that the first Republican national convention in 1856 had appealed to the Fifth Amendment’s due process clause, and so did Southern spokesmen:

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Letting Go How We Die

Wed, 01 Jun 1994 00:00:00 -0400

A professor of constitutional law and a doctor write about dying and death from their respective points of view. Melvin Urofsky is on the faculty of Virginia Commonwealth University; Sherwin Nuland teaches surgery and the history of medicine at Yale University. Each of them, however, addresses the same problem: What should the individual do, and society permit, when the phenomenal advances in the medical profession’s ability to sustain life reach the point where efforts to prolong it become, in Dr. Nuland’s words, “well-meant exercises in futility” and cause continued suffering rather than relief and cure?

Each book is a readable survey of its field because it is enlivened by numerous stories of real cases in law and medicine, and discusses the issues they raise in relation to real people. Urofsky gives us the current state of the law in regard to “the right to die,” suicide and assisted suicide, mercy killings, the right of condemned criminals to be executed if that is what they want, letting deformed babies die by refusal of care, and “living wills.”

Like everyone else, of course, he writes from a particular point of view. A dust-jacket blurb written by the president of the American Civil Liberties Union puts it well: “While Urofsky objectively describes competing moral concerns and legal arguments, his humane concept of the ’right to life’ comes shining through: a concept that respects the autonomy and dignity of competent adults, and accordingly embraces their right to determine if and when their lives are no longer worth living.”

That he honestly tries to be objective and accurate is certainly true, and to a large extent he succeeds. But sometimes he is in over his depth. Thus, he quotes Daniel Maguire as declaring that “the morality of terminating life, innocent or not, is an open question although it is widely treated as a closed one.” But Professor Maguire is hardly an authoritative voice in Catholic moral theology, and the question is not open merely because he says so. Nor does Urofsky really know what he is talking about in saying: “When medicine could not alleviate pain, Catholic moral theologians termed pain a means by which God purified man of sin.” The Crucifixion as the supreme atonement for mankind’s sins is central to the Christian religion, but not because the authors of the New Testament didn’t foresee the wonders that modern medicine would achieve.

Nonetheless, allowances made for the biases and gaps in knowledge that afflict us all, Urofsky’s book is well worth reading as an account of what the law is at this time in regard to letting go of life. He summarizes it in these terms: “First, it is now well established that both the common law and the Constitution support a right to die, that is, a right to terminate medical treatment, including the cessation of nutrition and hydration.” Once it is established that a patient is competent and has voluntarily chosen the cessation of a treatment, the doctor and the hospital must obey. If the patient is not incompetent, ”the law recognizes the right of a surrogate to make the necessary decisions.”

Dr. Nuland’s title, How We Die , aptly describes the content of his book. In language that the medical layman can easily understand, he unflinchingly, unsparingly, and in detail describes the process by which diseases such as heart failure, Alzheimer’s, and cancer will eventually kill us all, and, if they do not, old age surely will. Not all of us die of disease, however; murder, accidents, suicide, and euthanasia are alternative ways of dying, and he describes how and why they, too, bring about death.

It is not a pleasant book to read but it is a fascinating one. It can be recommended to all who want to see life steadily and see it whole, including its inevitable end in death. Others may feel like the schoolgirl who was assigned to write a review of a book on penguins, and did it in one sentence: “This book tells me more about penguins than I really wanted to know.” I myself could have lived comfortably without knowing quite so much as Dr. Nuland has told me about the process of aging that is inexorably moving what I had thought was my healthy body toward its final disintegration.

Still, ignorance is not always bliss. As Dr. Nuland says, “Good health is a guarantee of nothing.” Even the healthiest body must eventually wear out and die, not often at a time that we can predict. Nuland tells us this, not to shock or dismay us, but to enable us better to accept reality.

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The Popes and the Economy

Tue, 01 Oct 1991 00:00:00 -0400

Papal doctrine on political economy has long been misunderstood as well as mistrusted among those economic liberals who in the United States have the curious habit of calling themselves conservatives. The recent publication of John Paul II’s Centesimus Annus, commemorating as it does the centennial of Rerum Novarum, seems to me to provide a particularly appropriate occasion to examine this doctrine in the fullness of its articulation over the past century—not so much in order to defend it as to bring at least some clarity about what it is and what it is not.

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