This is a new essay of mine, which should be coming out in April 2007 in the Harvard Law Review. The article, lean and trim (by my standards) at 30 pages, is available from this page. In the meantime, here's the Abstract:
Three women lie in adjoining hospital rooms. A fourth lives a block away. All are in deadly peril.
Alice is seven months pregnant, and the pregnancy threatens her life. Her fetus has long been viable, so she no longer has the Roe/Casey right to abortion on demand. But because her life is in danger, she has a constitutional right to save her life by hiring a doctor to abort the viable fetus. She would even have such a right if the pregnancy were only posing a serious threat to her health, rather than threatening her life.
Katherine lives nearby. A person breaks into her home and seems about to try to kill her (or perhaps seriously injure, rape, or kidnap her). Just as Alice may protect her life by killing the fetus, Katherine may protect hers by killing the attacker, even if the attacker isn’t morally culpable, for instance if he is insane. And Katherine has a right to self-defense even though recognizing the right may let some people use false claims of self-defense to get away with killing the innocent.
Ellen, back in the hospital, is terminally ill. No proven therapies offer help. An experimental therapy seems safe, because it has passed Phase I FDA testing, yet federal law bars its use outside clinical trials because it hasn’t been demonstrated to be effective (and further checked for safety) through Phase II testing. Nonetheless, under Abigail Alliance for Better Access to Developmental Drugs v. Eschenbach, decided in 2006 by the D.C. Circuit, Ellen has a constitutional right to try to save her life by hiring a doctor to administer the therapy.
Olivia is dying of kidney failure in the room next to Alice’s and Ellen’s. A kidney transplant would likely save her life, just as an abortion would save Alice’s, lethal self-defense may save Katherine’s, and an experimental treatment may save Ellen’s.
But the federal ban on payment for organs sharply limits the availability of kidneys, so Olivia will likely die if she must wait for a donated kidney. Barring compensation for goods or services makes them scarce. Alice and Ellen would be in jeopardy if doctors were only allowed to perform abortions or experimental treatments for free. Katherine likely wouldn’t be able to defend herself with a gun or knife if weapons could only be donated. If organ providers or their heirs could be compensated, many more organs would be available, and Olivia would be much likelier to get the life-saving kidney. But federal law bans organ sales, and thus frustrates Olivia’s ability to protect her life.
My claim is that all four cases involve the exercise of a person’s presumptive right to self-defense — lethal self-defense in Katherine’s case, and what I call medical self-defense in the others.
This is a constitutional right: I will argue in Part II that Roe and Casey secure not just a pre-viability right to abortion as reproductive choice, but also a separate post-viability right to abortion as medical self-defense when pregnancy threatens a woman’s life. And given that Alice has such a right to defend herself by getting an abortion, Ellen and Olivia should have the same right to defend themselves through other medical procedures. Alice is free to have surgery in which a doctor inserts devices into her body to excise a fetus that, tragically, threatens her life. Ellen should likewise be free to have a procedure in which a doctor inserts chemicals into her body to destroy a tumor that threatens her life. And the government should not place substantial obstacles in the way of Olivia’s having a procedure in which a doctor inserts an organ into her body to replace a failing organ that threatens her life. It can’t be that a woman has a constitutional right to protect her life using medical procedures, but only when doing so kills a viable fetus.
I will also argue, in Part III, that the right to medical self-defense is supported by the long-recognized right to lethal self-defense: the right to protect your life against attack even if it means killing the attacker. The right has constitutional foundations, in substantive due process, state constitutional rights to defend life and to bear arms, and maybe the Second Amendment. But even if it’s treated as just a common-law and statutory right, our accepting it should lead us to accept a similar common-law or statutory right to defend one’s life against medical threats as well as against human or animal threats. Even if the Court stops recognizing unenumerated constitutional rights, legislatures should presumptively protect people’s medical self-defense rights just as they protect people’s lethal self-defense rights, and as the public overwhelmingly supports women’s abortion-as-self-defense rights. While a legislature need not fund people’s self-defense, it generally ought not substantially burden people’s right to defend themselves.
In Parts IV and V, I’ll apply the abortion-as-self-defense and lethal self-defense analogies in more detail to experimental drugs and to compensation for organs. I’ll argue that the right of medical self-defense offers an extra foundation for the Abigail Alliance holding that there is a constitutional right to use experimental therapies to protect one’s life. And I’ll argue that the right makes the organ sales ban presumptively improper and unconstitutional when the organs are needed to protect people’s lives; some concerns about organ markets may justify regulations of such markets, but not prohibition.
I will also argue that, while this presumption is potentially rebuttable, it should take much to rebut it. Recognizing the right to medical self-defense as a constitutional right or a moral right means that the government should have a very good reason to substantially burden the right, and that the restriction should be as narrow as possible.
In particular, while the right may be regulated in some ways — for instance, to prevent the killing of people by organ robbers — such regulations can and should be far less burdensome than a total ban on organ sales would be. We respect and value self-defense rights enough that we allow lethal self-defense, even given the risk that false claims of self-defense can be used as a cloak for murder: Rather than prophylactically banning all use of lethal force, we make certain uses illegal and rely on case-by-case decisionmaking to discover these improper uses and to deter them. The same should apply to payments for organ transplants.
Finally, in Part VI, I’ll argue that a right to medical self-defense is not only logically supportable, but also potentially successful both in political debate and in the judicial process. Both liberal and conservative judges and voters should be potentially open to it; and I hope that the analogies I offer in this Essay can be used to help persuade them.
All Related Posts (on one page) | Some Related Posts:
- Professor Robert Nagel Criticizes My Medical Self-Defense Article,
- Be Careful Believing Your Own Metaphors:
- Does Donating a Kidney Increase Susceptibility to Serious Kidney Disease That Would Itself Require a Transplant?...
- Lethal Self-Defense and What It Tells Us About Medical Self-Defense:
- The Two Abortion Rights, and Therapeutic Abortions as Medical Self-Defense:
- Medical Self-Defense, Prohibited Experimental Therapies, and Payment for Organs:
I'm in sympathy with your argument, but I'm not sure I agree with it. Suppose a poor fellow in a housing complex would like to purchase a gun for self-defense but cannot afford one because the government taxes gun sales highly. Are these taxes on gun sales thus unconstitutional because they prevent some people from exercising the right to self defense? I think not.
So while I agree with your argument as a policy matter that one should be able to purchase organs, I don't find it to be a constitutional right. I also don't believe that if there is a constitutional right to generalized self-defense that such a right necessary precludes the government from enacting a law against payment for organs.
I'm a hardcore conservative, but color me skeptical on this one. I do think it's a very interesting topic, however.
On an un-serious note, take a look at the Google ads that your abstract triggers. Discussing kidney sales, experimental therapy, self-defense, and abortion triggers a string of adoption ads.
Your analysis applies the right at issue as "a right to an abortion," or "a right to a dead fetus." Some have suggested that the right is better termed as "the right to terminate a pregnancy." If she has the right to no-longer-be-pregnant, that can be achieved, in theory, by forcing early delivery of the premature baby, who is viable. If the medical condition is such that only a true abortion will work, that's one thing. But if the medical condition is such that she simply needs the baby OUT, and the pregnancy over, then why not force early delivery? True, we have no legal structures in place (I don't think) to then cover whether the baby is hers, still, or whether she chooses to place for adoption, or whether someone must somehow forfeit the baby to become a ward of the state. Perhaps that last category makes no sense if there is a medical need, but that last category might make sense if there is a non-medical, on-demand abortion post-viability. (As to the latter, keep in mind that Roe may not mandate on-demand post-viability abortion, but some State's have NO legal limit on post-viability, so the only limit is how far you can get a dcotor to go.)
But in any case, I'm not convinced yet either way as to whether the Roe right is about ending pregnancy, or about having a dead fetus. Pre-viability, there's no difference. But post-viability is a big difference.
I think it somewhat tracks the idea of using lethal vs. non-lethal force in self-defense. I can use lethal force when I have no options. But if I get lucky, get the drop on the attacker, and tie him up, so that I have total control, I can't then proceed to shoot him in the head. If I have total control over the fetus, so that a non-lethal solution IS possible, while still exercising my medical rights, then why do I need to impose death?
But if there's a law that bans all payment for guns, and allows people to own guns only if someone charitable gives them one, then of course that would be a substantial burden on the right to bear arms -- as a law that bans all payment for private education, for abortion, or for criminal defense would be a substantial and presumptively unconstitutional burden on those rights.
Do you disagree? Do you think that such total bans on payment for guns, private schooling, abortions, or criminal defense lawyers would be constitutional -- in spite of their vast interference with people's actual ability to exercise their rights -- on the theory that you can still theoretically exercise your rights, so long as you can find someone charitable enough to provide the needed goods or services?
At least some states require people to "retreat" if they can, and only use deadly force if they can't escape the attacker. So would a state requiring the woman to give birth if possible be equivalent to a state requiring retreat if possible?
Finally, if we have "a right to control our own bodies" granted to us by Roe, by what grounds does the government get to forbid us from selling our body parts? Where's our "privacy right" when we need it?
Would high taxes on paper or printing equipment that prevent people from exercising their 1st amendment rights be constitutional? How about high taxes on lawyer fees? (Suppose we enact a 150% tax private defense representation, perhaps for the good cause of funding public defenders.)
Or, are guns special?
I am allowed to kill someone to save my life. Why does this right not extend to committing murder to obtain a kidney? And if I can kill to save my life surely I can steal to do so. So is "I needed the money to buy a kidney" a defense to robbery?
Likewise, the intent of shooting in self defense is to stop the assault and protect the victim from harm; once an assailant is no longer a threat, the general societal consensus is that he/she is entitled to emergency medical care.
You are allowed to kill someone to save your life if they have placed your life in jeopardy by aggressing against you. There is no blanket right to kill random individuals in order to save your own life. They must have first committed an act of aggression against you.
I think you could make the converse kind of case as well-- if you know that the person who is threatening you is not morally culpable for the threat (i.e., is insane or under extreme duress) you might have moral duties to that person that you wouldn't have to a culpable agressor. But as a pragmatic matter we don't want to second-guess people's state of mind about the culpability of their attackers.
I think Denzel Washington gave the definitive answer to this question.
More seriously, the defense of necessity is always available, but your fate is in the hands of the jury.
It's morally defensible to rob a bank to pay for a kidney? But ultimately there is some trade off between money and life. For every extra dollar the government spends on road safety or medical care means less people die. At some point the government has to say 'no more' this amount of life extension isn't worth spending this amount of money.
In terms of stealing money the matter is even worse. Not only do you have the general trade off between money and life but all the harmful effects of robbery. Thus it is very unlikely it will be morally justified at all. Of course in some extreme cases it may be but not in general.
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Eugene, I really like this line of reasoning. I've been belaboring the point that the rights from Roe/Lawrence and similar matters extend far beyond what is generally recognized. In particular that it should invalidate all sorts of FDA rules.
However I have a question with your analysis. Is it established that the right to self defense is a constitutional as opposed to common law right? Maybe I didn't use the right terms but would a state law taking away significant components of the right to self defense be struck down?
I'm skeptical because states have all passed laws that any killing in the commission of a felony doesn't deserve self defense. So what exactly could the constitutional rule be that guarantees a right of self defense?
In particular imagine that a state passes a law saying no discharge of a rocket launcher shall be considered valid self defense. Could the state not pass a law even if some private citizens had rocket launchers in their houses (some sort of civilian defense force)? If it wanted to be tricky couldn't it just make 'firing a rocket launcher not in time of war' a felony thus making the self defense killing a death in commission of a felony and thus avoiding the self-defense loophole?
I mean it seems kinda odd that the state could not deem certain weapons so dangerous or harmful that it needs to discourage their use in self-defense. Yet once you grant this point can't the state just argue (I think incorrectly but it is reasonable) that an organ market is a similar sort of harm?
OK. I misunderstood the "lack of culpability" issue somewhat. It does still seem a touch murky though. I will try to figure out why.
Do you think this extends to non-lethal matters of health, say using pot to deal with glaucoma?
If so does it apply to serious psychological suffering? So if the government denied me access to pain medication would I have a self-defense argument as I would if I was in danger of being tortured but not killed?
But if you grant that point then shouldn't this require the legalization of recreational drugs. One is feeling very bad at some point in time (say you are near death) and don't want to suffer. Recreational drugs have serious mood boosting effects not shared by easily medically availible compounds (think ecstasy here). So do I have a self-defense right to consume E during my last week of terminal illness?
I very much like this result and thought it should be implied by Roe (control over brain chemistry seems more central to personal autonomy than control over baby production to me) but I don't think it would have widespread support.
I've made the same argument, with a slightly different twist, at CEI's Open Market Blog, in discussing the D.C. Circuit's recent Abigail Alliance panel decision.
Volokh's argument provides an alternative, broader basis for the decision issued by the D.C. Circuit panel, which held that the FDA will have to put forth a compelling reason for denying terminally ill people access to potentially life-saving drugs that have passed the first stage of FDA review.
If anything, this is an easier case than the abortion cases, since here there is no competing (fetal) claim.
Or sometimes in the hands of the Queen.
[For those who have never been 1Ls, feel free to google or wiki "dudley stephens".]
Anyway, on the general point: I'm intrigued by the right to pay for the things you need, and think it probably would apply to something like guns, but I think it might be a tough "sell" (sorry) in this context because of the special rules we have against selling our bodies (in various ways). Although I personally think those special rules are unwarranted to at least some degree, I think most people will view it as a sufficiently distinguishing factor from guns and such.
But I guess I now understand why Professor Volokh wanted our thoughts on prostitution.
One of my previous idle thoughts on this subject is that the strong norms against "commodifying" our bodies may be based, at least in part, on just some very intuitive fears of violence. In other words, the fact that money can be exchanged for our car means that our car is more likely to be stolen, but it is only our car. But no one wants to wake up in a bathtub full of ice with a note telling us to call 911.
But why should the criminal enforcement apparatus of the state choose the life of the fetus over the life of the mother? It is a terrible situation, but perhaps it makes sense for the criminal arm of the state to simply stay out of it.
By the way, I assumed you were talking about "Alice".
(If you define value such that nobody would sell an organ unless they valued the money more than the organ, you end up with a "value" for money that doesn't behave very much like we normally expect values to behave.)
I'm not sure I understand. How are you defining the "value to them" of something like sexual services or an organ, and how are you measuring it such that you know the money that they are getting is less than this value?
I would prefer that we use the organs of executed convicts before we go this route. We should also bring back debtors prisons instead of bankruptcy.
Should you also be able to pledge your extra organs as collateral?
How would a regulation that greatly raised the price of guns fare under this analysis? Congress passed such a regulation in 1968, and it's still in effect. This act banned "Saturday night specials", which everyone knew meant "cheap guns used by Negroes." Complicating challenges to it is that it's ostensibly a safety regulation; throw in a little Congressional "factfinding" that carefully avoided mentioning race, and at least one gun model banned by the act that was indeed likely to blow up in your face, and it easily passes rational purpose scrutiny...
There's another difference here. Someone with a serious medical condition can be fairly sure that they will die without the proper treatment. Very few housing complex residents know they'll be killed if they aren't armed - especially after you exclude those who aren't allowed to own guns because of their prior criminal records. Even fewer wouldn't be able to find something to pawn for enough to buy a gun even at artificially high prices if they thought it likely rather than just possible that it would save their life. Courts don't take theoretical cases, you'd have to find an actual client who fit this profile, or argue the much weaker case that a higher than average but still small chance of falling victim to random violence was enough to claim, "My life is in danger."
And if there was a law-abiding poor man who knew a gang was coming to kill him soon but genuinely couldn't pay for a gun, and if he somehow found a pro-bono lawyer to file suit, by the time the case got to a hearing, it would be moot. Either the guy would be dead or it would have proven to be a false alarm. In a medical case, some patients would survive long enough to litigate at least through the lower courts, and if they died before it reached the Supreme Court, for a case this sympathetic the SC might be willing to consider it as if it hadn't become moot, on the argument that this was an important issue deserving of their consideration but no case would reach them under normal rules. (One precedent for ruling on a moot case is Roe vs. Wade!) I can't see a majority of the present court making such an exception for a poor man.
We don’t need criminal enforcement. We would just prohibit doctors from killing a viable baby under the threat of losing their license. Moreover it’s not always a matter of choosing the life of the mother over the life of the baby. A “serious threat to her health” is sufficient reason to hire a doctor to kill a viable infant.
“It is a terrible situation, but perhaps it makes sense for the criminal arm of the state to simply stay out of it.”
You wouldn’t feel that way if your life were being threatened. Of course it’s a hard choice, but we make those hard choices in triage situations. My basic question is why do we automatically choose the life of the mother over the life of the baby? Suppose it’s doubtful the mother will survive anyway, and the viable infant has an excellent chance of surviving the birth? Do we deny a whole lifetime to someone in order to extend someone else’s life a short time? That seems to be a position the law takes, I think that’s too inflexible.
As an aside, I don't think it matters if you use the civil law rather than the criminal law to punish the doctor.
Anyway, you state, "My basic question is why do we automatically choose the life of the mother over the life of the baby?"
Who is the "we" in question? If "we" is the government, then in fact the government doesn't choose either the mother or the fetus--it chooses not to get involved at all.
Now, of course as a matter of fact, the mother's choice likely will be determinative of the outcome, because she is in a position of power over the fetus. But the mother's de facto power over the fetus is not something the government has chosen to bestow on the mother--rather, it arises from the nature of the situation.
Finally, if I imagine myself in the position of the fetus, I may well want the government to become involved simply in order to save myself. But if I imagine myself in the position of the mother, I likely would not want the government to become involved. So, I'm not sure how this helps us. Again, even assuming that both the mother and the fetus have legitimate interests, that assumption does not imply that the government should get involved.
but this shows (yet again), why roe is based on flawed logic (even though I am prochoice, i think roe's penumbras and emanations are rubbish).
there is no right in the US, to do what you want with your body (let alone a fetus) ***IN THE CONSTITUTION***
can i take whatever drugs i want? no.
Can i sell my body/sexual acts for prostitution (well, except for a county in Nevada, I'm not aware of anywhere else that i can)
constantly, when i hear pro-choice arguments (and i am pro-choice) there is this constant mantra of what a woman and a dr. decide is right for her body is some sort of sacrosanct right.
except it isn't.
a dr can't prescribe me various drugs for various reasons, except in relatively narrow dosage range, for what is deemed as "medically necessary" usually, and that is a highly politicized topic in and of itself.
i think there are excellent arguments put forth in this article, but trying to glom onto roe, while opportunistic, ignores the reality that there is no constitutional right (although maybe there should be) to use your body, drugs, or medical procedures as you (the owner of your own body- theoretically) sees fit.
With respect to the experimental treatment case, why do we have an approval process for drugs at all? Presumably because--if the process has any merit--it reduces certain risks and allows doctors and patients to make safer choices about treatment. If we don't value the life and health preserving capacity of that review, why do we continue it at all? Perhaps what we need is not a brand new "right" to access medical treatments, but revisions to the process that make it easier for patients in desperate situations to assume higher risks to gain access to a treatment.
In the organ sale case, the argument seems to rest on the assumption that organ sales would make organ access easier, and thus no impediment to such access (prohibiting sales) should be imposed by the government. However, it's not obvious that the sale of organs really would improve access, in several respects: overall availability might rise and fall in response to pricing, some patients could be priced out of access, and important medical considerations about urgency of a patient's case or suitability of the patient would no longer improve access. The ethical concerns resulting only from this question of access may be sufficient to outweigh the initial concerns that a sales ban makes access more difficult. This is before we get into further ethical considerations that might add counterbalancing weight: the future effects on donors, or other commodifications of the body, or medical decision making in related areas, to name just a few.
In both cases, it seems that benefits and harms to the particular patients in question are being weighed to determine policy. This is not true in the abortion and self-defense cases. We don't suspect that a policy allowing abortion will create health risks for the mother; the whole point is to eliminate them if this is justifiable. We don't suspect that allowing self-defense killing will lead to increased risks for the victim--if so, we'd be having an argument about gun control and whether victims are more likely to get hurt during the act of intended self-defense.
The government is involved. It licenses physicians and mandates standards of practice. As a practical matter, safely aborting a viable baby requires a doctor and medical facilities, all licensed, regulated, subsidized and sometimes paid for by the government. Paying for something certainly requires a choice by someone. This kind of late term abortion is not something one goes off and does as a private act. So it’s not true that the government chooses not to get involved. It’s very much involved. Moreover choosing not to do something is a real choice, one with real consequences in this case. It seems to me that this is a matter that requires more thought and debate, at least as much as that given to killing baby seals.
Simple, you ask them, "are you getting good value for your organ". If they answer "no", they're not. (Since this is a hypothetical, we can assume that they're not lying.)
Alternatively, you can observe that a lot of people would normally never sell either organs or sexual services at any price short of, say, a million dollars, but if they were starving to death, they might sell them for much less money. Things which are worth more to the possessor thasn the price they will fetch on the market are normally never sold, except by desperate people.
Again, you could "save" the argument by claiming that dying of starvation makes your organs worth less, or makes money worth more. Choosing to define value that way is as arbitrary as any other way. But it ends up not resembling much what we normally think of as value.
And how on earth do you get the idea that there is a constitutional right to use deadly force to defend yourself with a firearm or that even if such a right exists, the government can't impose reasonable safety standards for firearms, even if those standards raise the cost of a firearm.
But every sort of state involvement you mention had nothing in particular to do with abortion, and does not require the government to make a specific choice between the mother and the fetus. And while I agree that "choosing not to do something is a real choice," I just don't think that is a choice to favor the mother, as you seem to suggest. Again, it is a choice to not get involved, and it is the facts of the situation that end up giving the mother power over the fetus.
So, I don't disagree that this is a choice that should be made thoughtfully. But I think the thoughtful choice may be that since there is no clear reason to favor either the mother or the fetus, the government simply should not make such a choice.
By the way, I think if you want to be taken seriously, you can't use something like the baby seal analogy to analyze the "Alice" hypothetical, because in the baby seal case there is no contrary life at risk. So, while I appreciate that you want people to take the possible interests of the fetus seriously, I don't think it helps your cause to implicitly eliminate the mother from consideration.
Ken,
OK, so what if they answer "yes"?
Also, you originally used the term "value to them". Now you seem to be shifting to some sort "value to the normal person" standard. And I'm not sure that really resembles our conventional sense of "value" either, because for many things, we recognize that value is subjective not objective.
Additionally, I'm not sure what assumptions you are making about market prices in the hypothetical organ market (which as yet does not exist). Demand might end up quite high, and so might prices (I'm sure quite a few people already could afford $1M or more for an organ they needed to survive, and many others might take out insurance for that contingency). So, I'm not sure how you can warrant the assumption that organ prices would be so low that only the starving would consider them.
Finally, with respect to prostitution, we know that it does not in fact take starvation to drive people to prostitution, and many nonstarving people are willing to sell sexual services at much lower prices than $1M. So, I don't think your model applies to prostitution.
No doubt there are situations in which the absence of a slave to care of one results in life-threatening consequences. But the constitutionalization of a right to own a slave would ignore the needs of those unable to, or prevented from, appearing in court. After all, John Calhoun pointed out that the only argument against slavery there can possibly is that some people feel it's sinful and mmoral, and society shouldn't legislate morality, should it?
Our society has had such a long history of willfully refusing to look at what's going on in background that endless repetitions of John Calhoun's argument sometimes wear a little thin.
There is a huge difference, in the law (as well as common sense) between somebody Not doing X, and your death results, and somebody doing something that will cause your death.
If I am walking down the street, and you are lying there with a knife in your chest, I (at least as a private citizen) would have no duty to call 911. I have no duty to do ANYTHING. And you have no legal right to kill me, or use deadly force to steal my phone.
Otoh, if I have a knife and I am about to stab you, you have EVERY right to use deadly force to protect yourself.
as for deadly force to defend myself with a firearm... i live in WA state.
here's what the constitution says:
SECTION 24 RIGHT TO BEAR ARMS.
The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this Section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men.
"So I suppose if you can't afford a life-saving operation, you would be perfectly justified in buying a gun and threatening the life of a doctor if he doesn't perform it. It is after all his "fault" that the operation is so expensive. Likewise, lifesaving drug prices should be set based on what people can afford pay. After all, denying drugs to people just because they can't afford them is denying them the right to self defense.
And how on earth do you get the idea that there is a constitutional right to use deadly force to defend yourself with a firearm or that even if such a right exists, the government can't impose reasonable safety standards for firearms, even if those standards raise the cost of a firearm."
By your logic, we should deny a person who needs $500 more than they need a kidney (because without $500, they will starve to death, and hence their kidney will be of little comparative value) the option to make this trade. So they die, and someone for whom a kidney was worth more than $500 won't get a kidney, and they may also die.
Now, you might say that we should never allow to be in such need that they would prefer to trade their organs for money. But that is much better dealt with by fighting poverty (use the methodology of your choice) than by denying people the ability to make trades that they feel are beneficial to them.
Well, the government certainly "gets involved" in other killings of innocent people, even if the killer ultimately prevails on a defense of duress or necessity.
Obviously, a distinction between the various cases he enumerated can be made and logically defended. For example, we refrain from punishing someone who kills someone who is not morally culpable in only when we think it was reasonable for the killer to believe that the person was a genuine threat. Is a random individual who refuses to give you their organs or property a genuine threat? No.
Should the various logical distinctions one could make between these cases in fact be made in a judicial proceeding? Well, it depends on whether you think of organ sales as a policy matter and whether you think the judiciary is the best institution for imposing that policy. If you think there is something coercive about organ sales, you probably would not buy Volokh's proposal for judicial activism.
Here is a thought. How about another case. If through cloning, it became possible to create organs in a human shell, and we had the technology to prevent the establishment of a human brain while growing such organs (perhaps through the use of an animal brain to control basic functions necessary to keep the shell alive), wouldn't one have a constitutional right to create and harvest such a shell, if it would prolong your life? Call it medical self-defense...
Why Volokh might argue that this would be a stretch, I am afraid it is no more of a stretch than his proposed constitutional right for rich people to buy organs from poor people.
Whatever the case, anyone who buys Volokh's argument here has no right to criticize judicial activism, because his idea is about as activist as you can get. If you buy this and are principled, your stuck with criticizing cases only as good or bad policy.
"By your logic, we should deny a person who needs $500 more than they need a kidney (because without $500, they will starve to death, and hence their kidney will be of little comparative value) the option to make this trade. So they die, and someone for whom a kidney was worth more than $500 won't get a kidney, and they may also die."
I have a better idea. Why don't we tax people and redistribute those funds to prevent starvation, thus the kidney is still useful to the person who would otherwise starve. The situation you suggest, where we allow one person to benefit from the starvation of another person to harvest their organs is simply sick. That is plainly coercion.
Personally, I'm with Hugo Black in denying the validity of both procedural as well as substantive due process. But even justices like Scalia who disagree with me (by supporting procedural due process) should not have their words twisted to make it seem like they support more than they actually do support.
Anyway, it sounds like Professor Volokh wants to remove difficult issues concerning the law of self defense from the legislative branch to the judicial branch, and from the states to the federal government. Can't we trust the people and their elected representatives to keep self-defense legal?
In the end, I think we should all be free to trade our organs. Surely you would agree that there is an amount of money sufficient to make a non-lethal medical procedure removing one of your kidneys a worthwhile trade, right? I mean, if Bill Gates offered you $1B for one of your kidneys, surely you'd accept, and put the money to whatever highest value use you could think of? I'd argue that it would be immoral to decline in that case, given the huge ability you would have to improve the welfare of the suffering with your newfound riches.
So, clearly there is an amount of money which is more valuable than your organs. Now, why do you get to be the paternalistic cop who tells other willing parties to transactions that their preferences are "incorrect"?
Why would the right to have a jury consider self-defense evidence be fundamental, while the right to have a jury consider evidence of voluntary intoxication not be fundamental? Only because, as a substantive matter, the legislature may not abolish the self-defense defense -- which is to say that you have a substantive right to self-defense -- while it may abolish the voluntary intoxication defense.
Recall that, procedurally, there is a right to have a jury consider all substantively recognized defenses, so long as one reasonable view of the facts implicates the defense. (The controversy in Martin, the case that Justice Scalia was just discussing, was over whether the state may require the defendant to bear the burden of proving the defense.) If Montana had provided a voluntary intoxication defense, then indeed a defendant would be entitled to have the jury consider the defense, if there was indeed evidence of voluntary intoxication. Likewise, there can be no controversy that a jury is free to consider self-defense, assuming the defense is recognized by state law (and some adequate factual evidence of self-defense is presented).
When Scalia says that the right to have the jury consider self-defense may be fundamental, he's thus suggesting that the jury may have a categorical right to consider self-defense, regardless of whether the state legislature chooses to recognize the right -- which is to say that the state legislature may not abolish the self-defense defense.
One problem here: the Court has little respect for this rule of logic. They don't apply it to campaign finance law, for example. Political speech is free, but the law may keep one from broadcasting one's speech. The government may restrict speech by restricting the conditions necessary for free and open exchange of ideas.
It might be that any philosophy based upon Pragmatism, as most modern jurisprudence is, is based upon a denial of legal logic. Pragmatism's basic premise is that reasonable people never (or perhaps seldom) follow an argument to its logical conclusion--that's "extremism" the great bugaboo.
For similar reasons, you cannot harvest organs from Death Row. It's just a tiny step down that slippery slope from harvesting organs from condemned criminals to condeming criminals to make their organs available.
This entire thesis needs a lot more work.
By making murdering people for their organs illegal maybe? Oh, wait a minute, we already did that.
Generally, providing a legal way to acquire a commodity tends to decrease the need for a black market. If you can just buy someone's kidney, why run the risk of spending the rest of your life in prison? Wouldn't it be less risky to steal the money and pay someone for their organ (given that the theft would be less likely to be prosecuted, and also carry a lower penalty than the murder)?
the #1 self imposed health problem among the lowest two income quintiles is OBESITY
geeez. get with the times. the poor USED to be skinny. that was called "the depression"
now, they are fatter than the higher income classes
"I have a better idea. Why don't we tax people and redistribute those funds to prevent starvation, thus the kidney is still useful to the person who would otherwise starve. The situation you suggest, where we allow one person to benefit from the starvation of another person to harvest their organs is simply sick. That is plainly coercion."
However, it's important to note that starvation might be rare in the U.S., but that doesn't make it rare worldwide. A hell of a lot of people face hunger on a regular basis. Just because you don't see poor, skinny people walking down your street doesn't mean there aren't a lot of them. And such people probably do represent a large group of likely sellers in an organ trading market.
i guess i'm geocentric
Or so I assume. I am aware that the US uses its muscle to affect law elsewhere. I'm not really up on which countries, if any, are friendly to ethical organ markets. I have some extra organs i'm willing to trade for enough gold. I live in the usa, so the transaction can't happen here, but a plane ticket can be part of the deal.
Medical tourism is going to be an increasingly important aspect of globalization and medical policy. It's no longer, if my HMO doesn't cover this, I'll die; it's if my HMO doesn't cover this I'll fly to India for the weekend and get the work done at 1/10 the price + cost of plane fare.
Similarly, for many years I've been philosophically opposed to the US ban on the sale of blood. There's some good evidence it kills some 3-4K people a year. But I don't actually have good data on how this plays out in other countries. There are counterarguments that legalizing blood sales would increase risk from hiv, hepatitus, cancer, etc.
Can anybody point me to the relevant literature?
The fact that even if we allowed people to recieve money for donating an organ what kind of market would it be? a mostly-free market? heavily regulate? government price fixing?
Unless allowing people to "sell" an organ comes close to helping the "supply" meet the "demand", we could create a case where ability to pay, not need or benefit to society would control these situations.
"Donna is dying from a blood disorder that affects 100,000 americans a year. A drug company has come up with a treatment but due to the limits of the technology can only produce enough for 25,000 people to get treatment."
How would we want this treatment to be distributed? (The company only wants to sell its treatment to its stockholders in decending order of ownership percentage and at an exorbitant price, which they can get from the 25,000 richest suffrers of the disease.)
In the Martin case (480 U.S. 228 (1987)), the defendant "had the opportunity under state law ... to justify the killing and show herself to be blameless by proving that she acted in self-defense." That was a bedrock fact in Martin, and it was also a bedrock assumption in the hypothetical that the Court raised in Martin ("It would be quite different if the jury had been instructed...."). The only question raised in the Court’s hypothetical in Martin was whether (or to what extent) the defendant could introduce evidence of self-defense to the jury, given that self-defense was already a defense under state law.
In the Egelhoff case (518 U.S. 37 (1996)), Scalia merely speculated that there might be a fundamental due process right "to have a jury consider self defense evidence." Nowhere does Scalia remotely question Martin's bedrock assumption that state law provides for a self-defense defense.
Professor Volokh, you ask: "Why would the right to have a jury consider self-defense evidence be fundamental, while the right to have a jury consider evidence of voluntary intoxication not be fundamental?" There are many possible reasons. As Scalia wrote in Egelhoff, "the proposition that the Due Process Clause guarantees the right to introduce all relevant evidence is simply indefensible. As we have said: ‘The accused does not have an unfettered right to offer [evidence] that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence.'" Thus, sometimes the right to introduce evidence depends upon the substantive offense, or depends upon the type of affirmative defense that is provided by law. If the right to introduce evidence of self-defense is fundamental, then the legislature would not be able to limit the right to introduce evidence as much as the legislature would be able to do otherwise.
I see no trace, in Scalia’s Egelhoff opinion, of a suggestion that the jury may have a categorical right to consider self-defense regardless of whether the state legislature chooses to recognize that right.
Additionally, even if every conservative jurist in the country did acknowledge that there is a right of self-defense when a person is physically attacked by a homicidal maniac, you are abstracting a general right to defend one’s self in all kinds of very different medical situations. I could just as easily go further and abstract a general right to be treated “fairly” by “good” laws. Then the judiciary could strike down all of the laws that it doesn’t think are “good” or “fair," and the take-over of our government by judges would be complete.
More to the point, the whole notion of substantive due process is patently absurd. If the Due Process Clause has so much unfathomable content, then why did the Framers of the Fifth Amendment manifestly believe that it did not forbid the return of fugitive slaves? Why did they allow the states to reject the Eighth Amendment while ratifying Amendments 1-4 and 6-7? The whole notion of SDP is nonsense that is flagrantly opposed by the plain text of the Constitution.
And as far as natural law is concerned, surely a legislature is completely entitled to bar a self-defense as an affirmative defense if, for example the people who are attacking you are doing so unintentionally and there are a lot more of them than there are of you, or if your own negligence has placed you in a situation where someone is unintentionally attacking you.
You write, "Well, the government certainly 'gets involved' in other killings of innocent people, even if the killer ultimately prevails on a defense of duress or necessity."
But to make the analogy complete, you need a hypothetical where for the government to save one innocent life, it must sacrifice another innocent life. I'm not sure what you have in mind, but I imagine it may be a case in which intervention by the state can save BOTH lives. Unfortunately, that is not the "Alice" hypothetical.
But perhaps you can clarify what you have in mind.
I've written a book that deals with many of the issues raised in this thread, though not from a jurisprudential point of view. The book emphasizes the wide range of variation seen in existing gift-based systems, examines the increasing lack of fit between the logistical organization of the supply and the exchange relations that are supposed to govern it, and looks at the prospect of market-type alternatives. A main goal is to break down the dichotomy between giving and selling that dominates policy and ethical discussion of this issue. Here is a review.
It seems that some people are just wigged out by organ transplants and organ sales and make vague claims of terrible harm. They should be required to specify the exact nature of the risk and how it would be worse than what we have now. I don't think any of these scare stories will come close to plausibility or significance.
First of all, we know that "The Framers" are not a unitary entity. There is no one view that represents "The Framers".
Madison had many disagreements over Constitutional meaning with Hamilton, going so far as to call him a Monarchist sympathizer. If Madison and Hamilton, the two biggest supporters of ratification in the two key states and the two main authors of the Federalist couldn't agree on what the text meant in certain cases, then there's no way the rest of the framers all agreed either. So the idea that we just have to determine the framers' understanding is quite naive.
Madison, Jefferson and Randolph vehemently disagreed with Hamilton and Washington on so fundamental a notion as the Commerce Clause, the Lay and Collect taxes clause, the neccessary and proper clause and the 10th amendment.
The northern framers and southern framers disagreed on many issues, as evidenced in just one example as Charles Pinckney of South Carolina explicitly stating that the Constitution's needful regulations clause in no way gave the power for the Missouri Compromise and that he and his southern framer friends were all in agreement and never would have ratified the text if it had done so.
I could go on and on about how the framers themselves had differing interpretations and understandings about various clauses. So to say that the framers felt the 5th amendment meant X isn't true at all.
Some undoubtedly thought it meant X, some probably thought it meant Y, others thought it meant Z, and others still probably didn't give it much thought at all.
Furthermore, any provision of the Constitution dealing with slavery has to be understood to be in a sense extratextual and as separate from the rest of the text. The truth is that certain compromises were needed to get the southern states to ratify and not every framer believed in them but went along because the alternative was not acceptable.
It's certainly possible that many framers thought that the DP clause DID preclude the fugitive slave clause, but put it in there in blatant and open opposition anyway. Also, the 5th amendment came AFTER the FSC by about two years and the northern ratifiers and even some southern ratifiers may have thought the new amendment made the FSC inoperable. If you read the multitude of opinoins in Prigg and other similar cases, you'll see thta the issue wasn't so open and shut.
In any event, even under the most narrow reading of the due process clause from Coke, Kent, Story, Hamilton and others, the due process clause may well overrule the FSC.
After all, according to the FSC, the only prerequisite was that someone say John Doe escaped and the Govt would be obligated to deliver him up. I'm sure there were many free blacks who were delivered in to slavery simply because some white guy said they escaped and they had no way of contesting it.
There was no indictment or presentment by a grand jury or by "honorable men", no chance to contest the charge, no trial of any sort, certainly no trial by jury.
So, that leads one to conclude that the either the FSC was unconstitutional and made obsolete by the 5th amendment, that the 5th amendment didn't apply to blacks/slaves because they weren't persons, that the FSC was unconstitutional for other reasons, or as was most likely the case, the FSC, along with the 3/5 compromise and the 20 year exemption for banning foreign slave trade was part of a compromise with the Sout that existed apart from the rest of the text.
Also, your argument about states separately ratifying amendments doesn't really mean anything either.
I don't think Eugene is saying the DP incorporates the other 8 amendments. Of what relevance to the issue at hand is whether or not the states could ratify the 8th but not the 2nd, or the 4th but not the 6th or whatever.
If you look at the history of the Bill of Rights, they were added because the states wanted them, not because the Congress did. It's highly unlikely that after demanding a Bill of Rights and even suggesting what it should include based on their own Bills of Rights that the states would reject some of the first 10 amendments while ratifying others. After all, it was the states that wanted as many protections as possible. Since all of the Bill of Rights only limited the federal govt and had no effect on state law, why would the states even bother rejecting any of them? They wouldn't gain anything by it.
I mean, why would a state reject, say, the 6th amendment? or the 8th? What state interest was protected by doing so? ALl of the amendments limited the power of the federal govt, which was what the states wanted. By rejecting any of them, the states would have implicitly conceded the powers in them to the federal govt and expanded federal power. It just doesn't make any sense.
Also, look at Amendment 6 that states that in all prosecutions, there needs to be indictment/presentment of the charge(s) and a trial by jury. Since all persons already had the right of due process, the 6th is somewhat redundant in that due process already included trial by jury and indictment/presentment of the charges, even under the more narrow Coke/Hamilton/Kent due process meaning.
Also, Art III already stated that all crimes shall be by jury. So, what was the point of the 6th amendment saying that the accused has the right to a trial by jury. He already had it from Art III. Another redundancy and seeming carelessness or inattention to deatil by the framers.
What was the point in the 8th amendmet of saying that excessive bail shall not be required? That doesn't change anything. Of course excessive abil isn't required, but it doesn't say that excessive bail can't be ordered if the govt chooses to. It's a wholly ineffectual clause. It has no point or purpose. Why would the framers waste space and put it in there?
There are plenty of other examples of seeming inconsistenceis or carelessness by the framers.
Further, the right of self defense is certainly a very good candidate, perhaps as good as any, for one those rights "retained by the people" through the 9th amendment.
It was a common law right with a long heritage back to Blackstone as one of the fundamental rights of Englishmen and recognized as such by Story, Kent, Tucker and other leading scholars.
Justice Scalia just this term wrote for the majority that the accused has the right to the lawyer of his choice, even when the state tries to interfere. He wrote that the assistance of counsel, implies the counsel of choice(if affordable) and the effective assistance of counsel. Surely, if one has the constitutional right to counsel, he has the constitutional right to offer whatever defense he chooses. If you give someone the right to counsel but then you can limit what his counsel can argue or claim, then the right to counsel is meaningless. I doubt that was the intent of the framers. There's also a 1st amendment issue in that denying the right to claim self defense is a denial of free speech.
Now, the jury doesn't have to accept that defense, but he has a right to make it. And I dare say that there is not a Judge or Court in the country who would uphold the conviction of someone convicted of murder because he or she was denied the opportunity to offer evidence that it was in self defense. In fact, I don't think most juries would convict someone who killed someone in self defense either.
The point that Eugene was making wasn't that you can kill anyone you want and then claim it was self defense and you have a constitutional right to acquittal. It was that you have a constiutional right to offer self defense as a defense. Even under narrow due process you have the right to contest the charges.
In the abortion context, I think Roe and Casey were both wrongly decided. I think the 10th amendment makes abortion a state issue, as one of the powers not delegated t othe feds nor prohibited to the states. It falls under the "police power". That's why I think the federal PBA ban is unconstitutional as it applies to the states. It's why I also think, though, that Stenberg should be overruled and if NE wants to ban partial birth abortion, they should be able to. But if NY wants to allow it, the feds shouldn't be able to bar them from doing so. To uphold the federal PBA ban is just the flip side of Roe v Wade. Instead of legalizing abortion nationwide, you're criminalizing it nationwide. Instead of the feds invlaidating all the state laws agaisnt abortion, they'd be invalidating all the state laws that allow abortion. The right always said taht all they wanted was for abortion to go back to the states where it belongs and that's what the right decision should be. It's hard to trust them when they pass laws like this that fly in the face of their supposed federalism.
If the SC upholds a federal PBA ban, there's no reason why they wouldn't uphold a federal abortion ban, other than hypocrisy and inconsistency.
Scalia once said that he would in good conscience vote to strike any law that attempted to ban abortion on a federal level becuase the Constitution gives the federal govt no power over it. It'll be interesting to see if he lives up to his ideals or lets his persoanl views take over.
Same with Thomas. He's very strong on federalism and the commerce clause, and has said that states may allow abortion if they want. In Raich he stood up for the power of states to allow medical marijuana. Will his personal opposition to abortion get in the way of upholding his federalist ideals from cases like Lopez and Raich? We'll see.
I think the result of the cases this week should be to strike the federal ban as violative of the tenth amendment and beyond Congress' commerce power while at the same time overruling Stenberg v Carhart and allowing states to legislate on partial birth abortion.
It would be interesting if the decision is 9-0 with Scalia and Thomas(and possibly Alito and Roberts) concurring on federalist grounds.
If only for the sake of its own preservation, the Court should return this matter to the people–where the Constitution, by its silence on the subject, left it–and let them decide, STATE BY STATE(emph added), whether this practice should be allowed.
The federal ban doesn't let people decide state by state. It takes power from the people and gives it to the federal govt, in direct opposition to the 10th amendment.
It'll be interesting to see if Nino still thinks that the people should be allowed to decide, "state by state" whether PBA should be allowed, or whether he now thinks that the fed gov should decide for them.
And if a state were to permit abortion on demand, I would and could in good conscience vote against an attempt to invalidate that law(ie the federal PBA ban), for the same reason that I vote against invalidation of laws that contradict Roe v. Wade; namely, simply because the Constitution gives the federal government and, hence, me NO POWER(emph added) over the matter.
Thomas' dissent in Stenberg says pretty much the same thing. He says a state MAY permit pba but is not REQUIRED to do so. He goes on to say that Stenberg overturns the laws of 30 states and is a huge federal power grab and violation of state prerogatives on abortion.
Well, if 30 states had laws banning it, that means 20 states had laws allowing it.
Forcing 30 states to allow pba or forcing 20 states to ban it are but two sides of the same coin.
It'll be interesting to see if these two stay true to form. I doubt it, but I'd have a greater measure of respect for them if they do. It could also go far to show that conservatives believe in the rule of law and will vote for things that conflict wit their policy choices(both of them are very pro life).
If not, I look forward to seeing how they manage to cop out. Mosy likely they'll say that no one raised the 10th amendment or commerce clause issue. But when both of them are on record as saying that states may allow abortion on demand and that the federal govt has no power over the issue, one way or the other, that'd be pretty lame as far as I'm concerned.
Omar, you say that, "I could go on and on about how the framers themselves had differing interpretations and understandings about various clauses." Is that supposed to mean that five justices are now entitled to interpret those clauses precisely how they wish those clauses had been written?
You don’t provide the slightest shred of evidence that ANY of the framers or ratifiers believed that the Due Process Clause overturned the Fugitive Slave Clause.
A "theory that declared slavery to be a violation of the due process clause of the Fifth Amendment.... requires nothing more than a suspension of reason concerning the origin, intent, and past interpretation of the clause." Robert Cover, Justice Accused 157 (Yale Univ. Press 1975).
Until the Thirteenth Amendment, it was "scarcely questioned" that the Constitution "was intended by those who made it, for the reclaiming of what we call fugitive slaves; and the intention of the law-giver is the law." A. Lincoln, First Inaugural Address (Mar. 4, 1861).
When the New York ratification convention first proposed the "due process" language on July 26, 1788
for inclusion in the Bill of Rights, that convention explicitly confirmed that their proposals would be "consistent with" the original Constitution.
The whole Constitution is one big bundle of compromises, but that does not in the least justify your approach of picking and choosing parts of it to be deemed "extratextual."
When the Due Process Clause was adopted in 1789, the meaning of the term "due process of law" was already well-established by the highest courts in England. Alexander Hamilton proclaimed to the New York state legsilature in 178 that the words due process have a "precise technical import." In 1704, the Queen’s Bench had held as follows, in the case of Regina v. Paty, 92 Eng. Rep. 232, 234:
Chief Justice Holt dissented, but only because he believed that the commitment at issue had not in fact been by a legal authority; Holt argued that the House of Commons had attempted to legislate unilaterally without requisite approval of the House of Lords. The decision of the Queen’s Bench in this case upheld the imprisonment of John Paty (he was ultimately freed by the intervention of Queen Anne).
Due process means process that is due according to the law of the land. That’s all. Any knowledgeable person in 1789 knew that, on the authority of Lord Coke and others, and they also knew that the Constitution and federal statutes pursuant thereto would be the supreme law of the land, per the Supremacy Clause.
It doesn’t take a genius to put two and two together. Due process did not mean process that is owed according to judicially ascertained principles of liberty and justice, it meant process that is owed according to the law of the land.
Throughout British history, many treatises (including those of Lord Coke) asserted that various requirements were part of "due process" or part of the "law of the land", but that was merely because of what the actual existing law happened to be, rather than because of any intrinsic requirement. As the U.S. Supreme Court explained in Hurtado v. California, it was not intended to assert that a requirement "was essential to the idea of due process of law in the prosecution and punishment of crimes, but was only mentioned as an example and illustration of due process of law as it actually existed in cases in which it was customarily used."
You’re correct that, regarding fugitive slaves, there was no indictment or presentment by a grand jury, no chance to contest the charge, no trial of any sort, certainly no trial by jury. But then again, the fugitive was not being accused of any crime, nor being threatened with federal prison, so the specific provisions of the Bill of Rights to which you refer were inapplicable. Thank God the Thirteenth Amendment was ultimately adopted.
Omar, you also say that my argument about states separately ratifying amendments "doesn't really mean anything." You ask what relevance it has to the issue at hand. The Eighth Amendment was deeply rooted in English law, and was part of the celebrated English Bill of Rights. If the framers didn’t intend for it to be part of "due process," then it’s impossible to believe that the framers intended for various other substantive requirements to be part of “due process.”
You say it’s “highly unlikely that after demanding a Bill of Rights and even suggesting what it should include based on their own Bills of Rights that the states would reject some of the first 10 amendments while ratifying others.” In point of fact, the states did reject two of the twelve amendments proposed to them. James Madison stated the obvious: that the rights in the Bill of Rights were "classed according to their affinity to each other" instead of being submitted to the states "as a single act to be adopted or rejected in the gross." Roger Sherman also stated the obvious: that each amendment "may be passed upon distinctly by the States, and any one that is adopted by three fourths of the legislatures may become a part of the Constitution." It is a form of high comedy to suggest that, if the states had ratified amendments 1-7 but rejected amendment 8, then the content of amendment 8 nevertheless would have become part of the Constitution.
There were in fact serious arguments made in Congress against the 8th. See here.
You’re correct that there is a right of jury trial in both the 6th Amendment and in Article III. But Article III had already been ratified when the 6th was up for ratification. Rejection of the 6th would have merely meant that they were leaving Article III unamended.
In contrast, it’s ludicrous to suppose that if opponents of the 8th (such as Congressman Livermore) had prevailed in defeating that amendment, then the content of the 8th would still have snuck into the Constitution via the 5th Amendment.
Incidentally, I don’t know whereon Earth you get the idea that the Excessive Bail Clause of the 8th Amendment is “a wholly ineffectual clause.” As the Court said in Salerno, “If the only asserted interest is to guarantee that the accused will stand trial and submit to sentence if found guilty, then bail must be set by a court at a sum designed to ensure that goal, and no more.”
You say that “the right of self defense is certainly a very good candidate, perhaps as good as any, for one of those rights ‘retained by the people’ through the 9th amendment.” Sure, drag out that old standby of judicial activists. The Ninth Amendment negates any expansion of governmental power caused by the enumeration of rights in the Constitution, but it manifestly does not further limit governmental power. See here for conclusive evidence on the point.
You say, “there's also a 1st amendment issue in that denying the right to claim self defense is a denial of free speech.” Sure, whatever you say.
As for all of your comments about Roe and Stenberg and Casey, we’ll see how it goes. Surely the commerce clause does allow SOME regulation of interstate commercial activities pertaining to abortion. And surely all of the remarks you quoted by Scalia and Thomas about abortion predated enactment of the PBA statute. And surely the commerce clause argument cannot easily be addressed by the Court if neither of the parties raises it. But, I do sympathize with the notion that the matter should be left to the states.
The excessive bail clause is pointless. It says that excessive bail shall not be required.
Ok, here's a question, under the 8th amendment is there a limit to the bail a judge can set?
No, there isn't.
In the Duke Rape case for example, the Judge could have set bail at 1 Billion dollars. That's excessive, but there's nothing in the 8th to prevent it. By contrast, excessive fines shall not be imposed. They are prevented.
Compare with Cruel and Unusual punishments. It doesn't say that they shall not be required, it says they shall not be inflicted. If it said Cruel and Unusual punishments shall not be required, then it wouldn't protect anything. It'd be pointless. As is the excessive fines clause. Basically, it's a reccomendation, not a right or limitation on the feds.
Same with the Just Compensation clause. It doesn't have a public use requirement. It just says that just compensation is required when private property is taken for public use. If it said, "nor shall private property be required to be taken for public use", it wouldn't be a limitation at all. It's the same if it said "Private property taken for public use shall require just compensation" or "When Congress takes private property for public use, just compensation shall be payed". It doesn't say anything about private property being taken for non public use, or even if that's possible(as some have argued that ALL govt takings are by definition public use). Hence, I think textually Kelo was correctly decided.
The text means something. My point was that the text is also full of redundancies and inconsistencies and has been perverted by both sides and you can't just say "well, the framers have all the answers" or "the framers are perfect and if we just look to them they'll set us free". Blind faith in the framers won't solve many problems.
As for the 9th amendment, you may be right , but there's also many scholars who have a different view of it, and have a plethora of evidence to support it and refute your view of it. I'll call it even and say I don't know what the real deal is, although I don't think it was meant to be some repository of unlimited rights. But it's not as open and shut as you make it out to be, either.
I agree with you, though, that there's no due process right to claim self defense. It could however be a privilege or immnunity of a US citizen. If you read Blackstone and see remarks made in the 39th Congress about him, his right of personal security was mentioned and surely protecting your life from imminent death is part of that.
That said, the issue is whether or not self defense is a constitutional right. I don't think it's a due process right, it could be a privilege or immunity, it could be necessarily implicated through the assistance of counel clause or compulsion of witnesses clause, or a few others. The question is can a state or the feds deny someone the chance to raise a self defense claim? I don't think so.
I don't think the jury has to accept it, but if a woman wants to raise it in the abortion context, I do think she has a Constitutional right to at least make the attempt and try. Do you? Can a state or the feds pass a law that bans a defendant from raising a claim of self defense or that excludes self defense as a mitigating factor? Regardless, I doubt any judge would uphold such a law on appeal.
Of course, this whole thing is silly because no abortion law even contemplates charging the woman, which I think is a violation of equal protection, but that's a whole nother kettle of fish.
As for your abortion commenta, I don't see why the fact that the FPBA ban passed after Stenberg or Scalia's speech in 2002 matters. It had passed COngress twice prior to that only to be wetoed by Clinton and both of their comments explicitly contemplated just such a federal ban. They explicitly state that the federal govt has "no power" over the issue and that it should be decided on a "state by state" basis. The commerce clause argument is weak at best. Read Thomas' Lopez concurrence. If the commerce clause allows the feds to ban abortion, it allows for just about anything. Also, if the feds can ban PBA, they can ban non-PBA or D and E abortion.
Do you think the commerce clause, or any other clause for that matter allows the feds to enact a general abortion ban of the type they did in SD? I sure don't. I don't think Scalia or Thomas does either(at least if they're honest with themselves and intellectually consistent), although how they'd rule on it is up for debate.
As an aside, do you know if the court could Uphold the 8th and 9th circuits strike of the ban but overrule Stenberg in the process? Is stenberg even on the table in this case? Or is the Court only able to deal with the case at issue?
You suggest that a right of self defense could be a privilege or immunity of a US citizen, under the 14th Amendment. But Omar, the PI Clause of the 14th Amendment manifestly does not limit the federal government, and instead only limits the states. And, self defense cannot be a privilege or immunity "of a citizen of the United States" if the federal government is allowed to violate it. In other words, the PI Clause of the 14th Amendment only applies against the states certain rights that ALREADY restrain the federal government. You can't use that Clause against the states unless you've already found some other clause that compels the feds to respect the right in question.
And, no, I don't think that defendants can make up whatever affirmative defenses they want, and argue them to a jury. The defenses have to provided by law. If a defendant wants to go on Oprah and argue those extra-legal affirmative defenses, then go ahead, but just don't waste a judge's and jury's time.
And regarding abortion, if money changes hands, then there may well be congressional power. It's hard to say. I haven't studied it enough to give a definite opinion. For sure, Congress can pass a statute like the PBA statute if it's applicable to Washington DC, because Congress has exclusive legislative power in the District of Columbia.
My inheritors probably don't value my liver very highly. However, since the recipient does, why shouldn't the recipient pay my estate something?
> How would we want this treatment to be distributed?
If our goal is to make that treatment available at a low price to lots of people, the correct answer is "to the 25k people who will pay the most".
Technology gets cheap and readily available when it is extremely profitable.
If people are willing to become prostitutes who are not starving (or in other desperate circumstances), that would again disprove the idea that they are not getting good value for their services. It's more of a gray area than organ donation because there certainly are some prostitutes who do fit into this category. However, there are also a lot who don't--certainly more than, for instance, lawyers.
I'll ask another hypothetical: should we allow starving people to sell themselves into slavery? The same arguments can be made as for organ donation. Would anyone sell his freedom for an amount of money if he did not believe he was getting good value? Would it really be better to deny someone who needs $500 the ability to sell himself into slavery, and force him to die of starvation instead? Wouldn't banning slavery lead to black markets in slaves? Why should we worry about people being kidnapped for use as slaves, since kidnapping is already a crime?
I'm not sure who said this, but it has a simple answer. People don't sell things that are worth more to them than market value. If that is the case, then by definition they can't find a buyer willing to give them a trade they'll accept.
First off, I would like to emphasize that I don't think we should tolerate a level of poverty so high that anyone would actually have to make that choice. I would like to see the end of hunger, so I don't think that should ever be the goal of an economic system.
That being said, if you think about it, it's a harder question than you might realize. You have posited that, absent this transaction, the other person really will starve, right? That by definition there is no state mechanism or charitable way that he will get through this -- after all, he is choosing between slavery and starvation.
In that case, it seems to me like it really is in the starving person's interest to become a slave. After all, most of us would probably choose slavery over starving to death.
Now, there is a virtue ethics argument on the other side here, which would run that we don't want to inculcate the kind of values in our citizens that would flow from actually standing in an ownership relationship with another human being. There is also the problem that, historically, selling oneself into slavery also constituted selling one's children, which I think has no possible economic justification. There is thus the imposed externality that one's children will now have to be raised by the state.
So, I guess my answer is that, as a last resort, I would rather have people live and be slaves than starve to death, if that is a choice they would prefer to make.
However, I would greatly disapprove of any society that tolerated such a high level of hunger that such transactions were occur