The existence of a constitutional right to die is currently under consideration by the United States Supreme Court on review of a decision by the Ninth Circuit that the Due Process Clause of the Fourteenth Amendment confers a substantive right to assisted suicide, Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir. 1996)(en banc), and the more careful decision by a panel of the Second Circuit that New York's distinction between refusals of treatment by the terminally ill (lawful) and assisted suicide (unlawful) violates the Equal Protection Clause of the Fourteenth Amendment, Quill v. Vacco, 80 F.3d 716 (2d Cir.1996). The issue may be considered as a special case of the general question of the scope of unenumerated constitutional rights. As Justice Scalia has pointed out, Is There an Unwritten Constitution?, 12 Harvard Journal of Law & Public Policy 1,2 (Winter 1989), the three main alternative sources advanced for nontextual constitutional rights are history, a philosophy of the rights of man, and the evolving consensus of society. The Supreme Court has, as the composition of the Court has changed and the fashions of the time have shifted, turned to each of these sources. None supports a right to die.

History

It cannot be overstressed that the revolution which led to the formation of the United States was not a radical one but a self-consciously conservative act seeking to maintain for the colonists those rights, privileges, and immunities they believed to be theirs by prescription and under attack by innovating ministers of the Crown. In drafting a constitution, therefore, the Framers looked almost exclusively to the English experience. See M.E. Bradford, Original Intentions 17-33 (University of Georgia 1993). Accordingly, in judging the scope of unenumerated constitutional rights, the Supreme Court has looked to history. In an early example, Hurtado v. California, 110 U.S. 516 (1884), the defendant, convicted of murder in a prosecution started by information and not indictment by grand jury, argued that he had been denied due process under the Fourteenth Amendment. Both the opinion of the Court by Justice Matthews, upholding the conviction, and the dissent by the first Justice Harlan are notable for their use of the history of procedure as it had existed in England in the attempt to define the content of the term "due process".

More recently, Justice White, writing for a 5-4 majority in Bowers v. Hardwick, 478 U.S. 186 (1986), and Justice Scalia, writing for a plurality in Michael H. v. Gerald D., 491 U.S. 110 (1989), appealed to history and little else in sustaining, respectively, Georgia's power to enact criminal laws against sodomy and California's power to create an irrebuttable presumption that a married woman's husband is the father of her child. In the latter case Justice Scalia proposed the constitutional rule, 491 U.S. at 127, n.6, that the Court should recognize assertions of rights only if there is a tradition, at a specific level of abstraction, supporting such an assertion.

Justice Scalia has remarked that the rule of law is a law of rules, and his approach in Michael H. is consistent with that philosophy. Nontextual but accepted constitutional concepts, such as proof beyond a reasonable doubt in a criminal case, see In re Winship, 397 U.S. 358 (1970), are protected while innovations are easily rejected for novelty alone.

Under the Michael H. approach, the assertion of a right to die is insupportable. The unbroken tradition of the philosophies that have been at the base of Anglo-American jurisprudence is strongly opposed to any assertion of a right to die. See Coleson, Contemporary Religious Viewpoints on Suicide, Physician-Assisted Suicide, and Voluntary Active Euthanasia, 35 Duquesne Law Review 43 (Fall 1996).

Where the Michael H. rationale is arguably incomplete is in addressing the claim of right that is novel, because it had hitherto been unnecessary to examine. For instance, in Buck v. Bell, 270 U.S. 200 (1927), the Supreme Court upheld a statute permitting the state to sterilize any mentally retarded patient if that patient's defect was hereditary and sterilization would be in the best interest of the patient and society. There being no recognized tradition defining surgical sterilization as an infringement on Carrie Buck's life, liberty, or property, the Michael H. rule would possibly permit the result that the Court reached in 1927.

Philosophy

One would expect that the Supreme Court, dominated through its history by lawyers who had been practicing politicians, would not be the source of a coherent philosophy of individual rights. That expectation has been more than fulfilled in the modern era. Scholastic philosophers held that it is the end of civil society to promote the virtue of its citizens. Madison, in keeping with the more agnostic tenor of his time, proposed that the end of the state is to promote justice. A plurality of the Supreme Court have given us, in Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992), the famous "mystery of life" passage:

At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under the compulsion of the State.

It is the end of the state, say the plurality, to do one's own [values] thing. Even were the plurality's playboy philosophy intended by the Framers or the key to Representative Bingham's floor remarks in debating the Fourteenth Amendment, see Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding, 2 Stanford Law Review 5, 24-37 (December 1949), it is difficult to construct a respectable right to die from it.

The definition of the mystery of human life held by one racked with great pain or facing a terminal illness was presumably held by that individual, "formed under no compulsion of the State," before his decision to seek to die was reached. During that time he participated in the polity, and took part in forming its laws against suicide or assisted suicide. As Socrates observed in the Apology and Crito, he is not, even by reason of his pain or illness, given license to cast that away. Unless the Court, like Judge Reinhardt in Compassion in Dying, resurrects Buck v. Bell's principle that there are lives not worthy of life, the mystery of life passage in Planned Parenthood v. Casey cannot be taken as a philosophical basis to give the terminally ill veto power over laws prohibiting suicide and assisted suicide without granting every individual veto power over laws prohibiting assisted suicide, and for that matter over any law infringing on one's concept of unfettered personhood as well. It is doubtful that the Court is prepared to go so far.

Consensus

"[E]volving standards of decency" should form the content of constitutional rights, according to one respected school of thought. Trop v. Dulles 356 U.S. 86, 101 (plurality opinion of Warren, C.J.). In fact, according to some scholars, this is the only sure guide to the Supreme Court's actions over time. See e.g. Dahl, Decisionmaking in a Democracy, 6 Journal of Pub. L. 279 (1957). With the right to die, it is unfortunately impossible to determine the point in evolution which we have reached and whether it is progress or the reverse by any objective measure, and the Supreme Court frequently is riven over just whose consensus has evolved. See e.g. Romer v. Evans 134 L. Ed. 2d 855, 877-79 (1996)(Scalia, J., dissenting).

Historically speaking, the Supreme Court's bold departures in announcing constitutional rights come only when there is a powerful bloc of states or of interest groups outside the Court supporting the Court's action. See e.g. Dred Scott v. Sanford 60 U.S. 393 (1856), Brown v. Board of Education, 347 U.S. 483 (1954), Furman v. Georgia, 408 U.S. 238 (1972); Roe v. Wade, 410 U.S. 613 (1973). The lack of any significant organized support for a right to die would alone ensure that the Court will reject the right to die announced by the Ninth Circuit in Compassion in Dying v. Washington and the equal protection analysis of the Second Circuit in Quill v. Vacco.

Conclusion

In recent years the Court has increasingly based its pronouncements, liberal or conservative, concerning the content of constitutional rights on specific constitutional texts rather than on penumbras, emanations, and the fuzzy concept of substantive due process. On the subject of the use of excessive force by police, cf. Screws v. United States, 325 U.S. 91 (1945), with Graham v. Connor, 490 U.S. 386 (1989). In search and seizure law, cf. Rochin v. California, 342 U.S. 165 (1952), with Winston v. Lee, 470 U.S. 753 (1985). Even within the Court's abortion jurisprudence, which at first glance might seem to be an exception to this movement, constitutional support for abortion rights has been increasingly sought by appeal to equal protection rather than to an unenumerated right to privacy. Given that trend, it would be a shocking departure for the Supreme Court to affirm Judge Reinhardt's thesis in Compassion in Dying. Given the Court's institutional interests it would be at least a surprise for the Court to affirm Quill v. Vacco.

*Keith A. Pesto is a United States Magistrate Judge, United States District Court, Western District of Pennsylvania.