Posted on 04/22/2002 7:28:24 AM PDT by humbletheFiend
The reference in the 5th Amendment applies only to the federal government and its courts and agencies. The reference in the 14th Amendment extends protection of due process to all state governments, agencies, and courts.Constitutional Topic: Due Process
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.To say that someone has a "right" to physicisn-assisted suicide is to use the same convoluted logic that went into the Roe v. Wade decision.
It is true that there was a debate about who was affected by the Bill of Rights, but it is not true that it "was considered to only be [a] limit on the power and authority of the Federal Government." If I may rearrange the words so that it is more accurate, "Many people considered it to only be a limit on the power and authority of the Federal Government, so Congress acted to close any argument on the matter by the state and federal courts, as well as the state legislatures, not necessarily because they agreed with the assessment."
Perhaps the best way to make the case against assisted suicide is to convince the people and their representatives.
To say that someone has a "right" to physicisn-assisted suicide is to use the same convoluted logic that went into the Roe v. Wade decision.
I hear you, but just remember that it was the Federal Government (acting through its Supreme Court in Roe v. Wade) that determined that the Constitution did not allow for individual states to write their own abortion laws. In Roe, the state of Texas was arguing that it should be allowed to decide for itself its own abortion laws. In this case, the state of Oregon would like to do the same thing in the area of assisted suicide.
Oh really. Suggest you check out Holland's slide down the euthanasia slope.
Oh really. Suggest you check out Holland's slide down the euthanasia slope.
Yes really. I've seen many irresponsible people post a lot of hype about Holland, but no facts of abuse & 'murder'.
Oregon & Holland have murder law, and anyone can be charged. - None have.
Before you speak, I know what you're going to say.... something about "incorporation," which no court prior to 1947 had recognized, but suddenly found hidden in the fourteenth. In Waltz v. Tax Commission (1970), the justices even admitted that Everson v. Board of Education invented the incorporation clause out of whole cloth. Although it was speaking specifically to the Establishment clause, the ruling (Waltz v. Tax Commission) had a similar meaning for all the other amendments. It said, The Establishment Clause was not incorporated in the Fourteenth Amendment until Everson v. Board of Education was decided in 1947... The meaning of the Establishment Clause and the Free Exercise Clause [has been] made applicable to the States for only a few decades at best. (emphasis mine)
The fifth didn't need to be incorporated, because it promised protection for all people, regardless of the antagonist. Chief Justice John Marshall disagreed, and said so in the 1833 decision of Barron v. Baltimore, that the Bill of Rights only applied to the federal government. One thing I find quite interesting about that is that there wouldn't have been a need to make such a decision unless there had been a conflict in the first place, and thus serves as proof to my point that it hadn't been "considered," but legislated by the high court. Here is the linked article's conclusion:
Barron was wrongly decided, and needs to be overturned. Federal courts should not accept jurisdiction of state civil rights cases unless or until all recourse within the state courts has been exhausted, but it should accept jurisdiction over appropriate cases involving any of the rights recognized in the Bill of Rights after that has occurred, and extend all of those protections to cases between a citizen and his state. Especially important are the protections of the Second Amendment, the right to a grand jury of the Fifth, and the right not to have state officials or their agents exercise undelegated powers. (emphasis added)
Also, do not forget the Blaine amendment, submitted during the framing of the fourteenth amendment, which of all things, made an attempt to apply the first amendment to the states. It, as well as five similar amendments, were voted down. If the framers didn't intend for the fourteenth to apply the first amendment to the states, why do you think that similar proposals weren't made to incorporate the fifth, if your claim is true? Could it be that the framers thought the fifth amendment already applied to the states? There were certainly those who did, in spite of John Marshall's assertion. Here's another interesting tidbit of the above linked article regarding incorporation:
What is interesting about this, however, has been that the Supreme Court has not extended the protection of all the provisions of the Bill of Rights to the states, but has followed a doctrine of "selective incorporation", enforcing all or parts of the First, Fourth, Fifth, Sixth and Eighth Amendments, but not the Second, Third, Seventh, Ninth, or Tenth Amendments, or part of the Fifth. The inconsistency of this selection is grammatically indefensible, and is a continuing source of constitutional difficulty.
I could go on, but why bother? You've already demonstrated a willingness to comment on my competence without having the slightest knowledge as to what research I may or may not have done, thereby reducing your arguments to ad hominem attacks. In addition, your inability or unwillingness to acknowledge the grammatically correct reading of the Bill of Rights leads me to doubt we could produce any good fruit through this debate.
Good luck and happy research.
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
To say that someone has a "right" to physicisn-assisted suicide is to use the same convoluted logic that went into the Roe v. Wade decision.
There is no 'convoluted logic', save in your mind. -- If a specific act of abortion, - or assisted suicide, -- is deemed to be murder, a prosecutor can get an indictment, and so charge.
Roe v Wade did not change that state power, nor does Oregons new law.
Roe v Wade said that states cannot make laws claiming that abortion in the first trimester is presumptive murder. -- They said that the viabilty of the baby/person to be is not yet established, - thus, -- there can be no murder, as the mother to be has a perfect right to remove part of her own body.
No one likes this legal solution to a moral dilemma, but fanatical cries of 'baby killing' offer nothing better.
Thomas Jefferson, in the Kentucky Resolutions, 1798:
... the Constitution of the United States, having delegated to Congress a power to punish treason, counterfeiting the securities and current coin of the United States, piracies, and felonies committed on the high seas, and offenses against the law of nations, and no other crimes whatsoever; and it being true as a general principle, and one of the amendments to the Constitution having also declared, that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people," therefore the act of Congress, passed on the 14th day of July, 1798, and intituled "An Act in addition to the act intituled An Act for the punishment of certain crimes against the United States," as also the act passed by them on the -- day of June, 1798, intituled "An Act to punish frauds committed on the bank of the United States," (and all their other acts which assume to create, define, or punish crimes, other than those so enumerated in the Constitution,) are altogether void, and of no force; and that the power to create, define, and punish such other crimes is reserved, and, of right, appertains solely and exclusively to the respective States, each within its own territory.Jefferson would seem to agree with my contention that the Federal Government has no Authority to outlaw Physician assisted suicide. Even if you find scholars willing to apply the bill of rights to State action you have not attempted to show how it is legitimately applied to the actions of individuals, which was my original contention before the debate was sidetracked.
Is self-defense a violation of the Fifth Amendment unless due process of law is provided before any action is taken that results in death? I dont think so because the Fifth Amendment applies only to official Government action that deprives someone of life, liberty or property without first giving the individual due process. While I might be convinced that there is some validity in applying that right to State action even before the Fourteenth Amendment was passed it really has no bearing on the question of action taken by an individual to end his own life.
"If a specific act of abortion, - or assisted suicide, -- is deemed to be murder, a prosecutor can get an indictment, and so charge."
Abortion was deemed to be murder but Roe v. Wade essentially changed the definition and gave women a "right" that had not been in existence in the majority of states.
I guess it all depends on what your definition of "person" is. You seem to be asserting that states would first have to pass a law recognizing the "personhood" of the unborn child before they could outlaw abortion. The convoluted logic behind Roe v. Wade is that it basically denied the personhood of the unborn child , something most states took for granted. That's why abortion is "constitutional" in the eyes of many Americans.
According to the Supreme Court in Roe v. Wade, "If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life is then guaranteed specifically by the [14th] Amendment..."
It is an interesting point you offered, because the Kentucky Resolutions were brought about in direct response to the Alien and Sedition Acts, an act of the federal Congress which Jefferson, in the same resolution, called upon the authority of the federal Constitution to verify its invalidity. In addition to citing the tenth, he also cited the first when he said, And that in addition to this general principle and express declaration, another and more special provision has been made by one of the amendments to the Constitution, which expressly declares, that 'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press': thereby guarding in the same sentence, and under the same words, the freedom of religion, of speech, and of the press: insomuch, that whatever violated either, throws down the sanctuary which covers the others, arid that libels, falsehood, and defamation, equally with heresy and false religion, are withheld from the cognizance of federal tribunals. That, therefore, the act of Congress of the United States, passed on the 14th day of July, 1798, intituled 'An Act in addition to the act intituled An Act for the punishment of certain crimes against the United States,' which does abridge the freedom of the press, is not law, but is altogether void, and of no force."
That being said, we must recognize that we're talking about two different animals. There is a vast difference between insisting the federal government has no authority to abridge the freedom of the press while supporting the argument by the Constitution, and claiming that murder is prohibited by the Constitution. It cannot be said with any credibility that because a person supports one claim that he must support the other. They are not that closely related, given the context of the Resolution and what is happening in Oregon and the Justice Department. You'll get no argument from me that Jefferson would be most displeased at the power the federal government has usurped since his day (Chief Justice John Marshall, the perpetrator of the Barron case, was Jefferson's chief antagonist, perhaps even moreso than Alexander Hamilton), and I would agree with him. That doesn't mean, however, that he would necessarily support your claim any more than it means that because he wrote the Declaration of Independence or that he didn't like Marshall that he would support mine. Unless either of us can find direct statements from Jefferson to the effect of whether or not murder was prohibited under the Constitution and simply ceded to the states, as they were considered the entities most capable of the task, he must be considered effectively neutral on the particular issue, while we still may be able to cite his words for relevant subpoints.
It seems, instead, your argument must be either be against the constitutionality of the Controlled Substance Act (provisions of which I may agree with you if you did), which seems to cede some judgement to those charged with enforcing it, or the definition of "due process," both of which I'd be happy to debate. However, I should point out that the Attorney General's basis for his actions do not in fact prevent all assisted suicide, only that which requires the use of controlled substances to kill another human being. I shall provide an amendment to that basis in a moment.
Even if you find scholars willing to apply the bill of rights to State action you have not attempted to show how it is legitimately applied to the actions of individuals, which was my original contention before the debate was sidetracked.
I actually have attempted it, but if you'll forgive me, I'm not certain that those attempts were directed at you. It really comes in two points. First, as was argued in the Barron case, the amendment concerns the life and liberty of the citizen, not those who would deprive the citizen of those rights -- states, federal government, corporations, or individuals. There was no need for the federal government at the time to interfere as there were no state laws, to my knowledge (and if you could find one allowed to stand that would surely bolster your case), that allowed physician-assisted suicide, and murder was universally forbidden and adequately punished by the state governments. It wasn't that assisted suicide never happened, but that common law was already strictly against it, and even had quite harsh penalties for not only the one assisting, but for the person committing suicide. The latter penalties were withdrawn by the colonies because they thought it unfair to punish the family of the person committing suicide.
Yes really. I've seen many irresponsible people post a lot of hype about Holland, but no facts of abuse & 'murder'.
Try the following.
Euthanasia in the Netherlands: Evidence of the Slippery Slope
From Voluntary Euthanasia for the Terminally Ill...
1973
A Dutch criminal court sentenced a physician to one week in jail when she was found guilty of euthanizing her terminally ill mother. The brevity of the sentence and the fact that it was later suspended indicated the court's acceptance of euthanasia for reasons of unbearable suffering produced by terminal illness.
1981
A Dutch court convicted a layperson of helping a terminally ill person to commit suicide. However, the court's decision outlined nine guidelines which, if followed, would justify the practice of assisted suicide. The defendant was found guilty of the crime only because he was not a physician.
to Voluntary Euthanasia for the Chronically Ill...
1982
The Dutch court at Alkmaar acquitted a physician who euthanized an elderly woman. Though not terminally ill, the patient was in deteriorating health and "...experienced life as unbearable." In 1984, the Alkmaar case went to the Supreme Court, which held that physicians performing euthanasia for reasons of chronic illness can use the argument of "irresistible compulsion or necessity" as justification for their actions.
1986
A doctor who euthanized a 73-year-old chronically ill woman in the advanced stages of multiple sclerosis was found guilty by the district court but received no punishment. The appellate court declared a guilty verdict as well, but imposed a sentence of two months and two years probation which was later suspended. The Supreme Court referred the case to a lower court for a decision consistent with its opinion - - that is, that euthanasia could be justified for non-terminal patients if the patient was experiencing unbearable suffering and if the doctor was acting out of necessity.
to Non-Voluntary Euthanasia...
1985
The State Commission on Euthanasia reported that euthanasia should be restricted to cases in which a patient who is "suffering unbearably" expresses a voluntary wish for death. However, the report also suggested that the euthanasia of a patient in a vegetative state could be justified.
1987
Four nurses admitted that they had euthanized several unconscious patients at Free University Hospital in Amsterdam. Supported by the hospital's Employees' Council, the nurses were released from custody on the grounds that their actions had stemmed from humane considerations.
1989
A physician objected to being prosecuted for euthananizing a newborn baby with Down syndrome and an intestinal atresia even though the latter problem could have been easily fixed by surgery. The Supreme Court decided that because the baby would have suffered following surgery, the doctor's actions would probably be justified by the necessity defense if the case went to court. Therefore, his objection to prosecution was accepted.
to Euthanasia for Psychological and Social Reasons...
1991
At a forum in Toronto, Jeane Tromp-Meesters, coordinator of the Members Aid Service of the Dutch Society for Voluntary Euthanasia, acknowledged that patients "most likely" have to be physically ill in order to request euthanasia but advocated making such a rule more lenient. She explained that many older people, though not in physical pain, might have "age-related ailments'" which would make their lives unbearable.
1991
The Court of Almelo dismissed charges against a physician who had assisted in the suicide of a mentally ill patient. The doctor, who had provided suicide drugs to a 25-year-old woman who had been suffering from anorexia for 16 years, objected to being prosecuted. Because the woman had been suffering unbearably with no prospect of improvement, the court accepted his objection.
1993
The Court of Appeal of The Hague reaffirmed the decision of the Court at Rotterdam to acquit a physician for assisting in the suicide of a 50-year-old woman suffering from depression and drug abuse. The defendant maintained that he had experienced a conflict in duties between his attempt to relieve the suffering of the patient and the law against assisting suicide. This justification, called force majeure, has been used in several cases of assisted suicide and euthanasia brought before the court.
1993
The Dutch Society for Voluntary Euthanasia issued a proposal in which it suggested that assisted suicide and euthanasia should be permitted for elderly persons who feel as if their lives have already been completed or are no longer meaningful.
1994
The Supreme Court justified ending the life of an individual not suffering from any kind of physical pain by acknowledging that physicians who find themselves in a state of necessity are forced to choose the relief of "unbearable suffering" over the effort to preserve life. The case involved Boudewijn Chabot, a Dutch psychiatrist who helped a depressed but otherwise healthy woman to commit suicide in 1991. Chabot, who was found guilty merely because he had not sought an authentic second opinion, received no punishment. The doctor defended his decision to give his patient 20 sleeping pills and a poison mixture to end her life by contending that "intolerable psychological suffering is no different from intolerable physical suffering." The Supreme Court agreed, claiming that a doctor may use the force majeure justification if the patient's suffering does not result from terminal illness or somatic disease.
1999
Dutch government proposes law codifying and expanding euthanasia practices. Includes provision allowing children as young as 12 to be killed against their parents' wishes.
From Pregnant Pause
A case study, related to me by a friend who is a doctor: He went to visit a patient in a nursing home. The director of the nursing home told him that a couple had recently come to visit their mother at the home, and told him that they wanted him to euthanize her. They frankly told him, 'We just can't make it without grandma's inheritance', and they were getting impatient waiting for her to die on her own. The nursing home director threw them out. The next time my doctor friend visited, the director told him that the couple had transferred grandma to another nursing home. Two weeks later, she was dead.
"Another case study, related by a Dutch doctor: He diagnosed a woman with cancer. He checked her into the hospital on a Thursday and began treatment. The treatment was quite successful. By Saturday she was showing definite signs of improvement. On Sunday he was quite hopeful she would fully recover. On Monday he came to visit and there was a different patient in her bed. He asked the hospital staff where they had moved her. 'Oh', a resident replied, 'we needed the bed, so we gave her the injection last night'. He meant a lethal injection, of course.
"I have heard anecdotal stories that elderly people in the Netherlands are now afraid to check into hospitals, for fear that they will be killed. According to Rita Marker of the International Anti-Euthanasia Task Force, euthanasia now accounts for 15% of the deaths in the Netherlands.
"A few years ago Governor Richard Lamm of Colorado said that the 'terminally ill elderly have a duty to die and get out of the way'. ['Elderlys' Duty to Die', New York Times, 29 March 1984]
"Note that we have already made the transition from discussing 'a right to die' to 'a duty to die'.
"What does it say about our society, when we say that we will stop caring for a person because he is 'unproductive' or 'surplus'? I do not believe that the value of a human life can be measured by how many machine parts this person can make or how much he can be expected to pay in taxes. We must engage in economic activities to live, but this is not why we live. The purpose of economics is to sustain human life; the purpose of human life is not to sustain economics. A crippled person, a mentally retarded person, or an old person is no less valuable than a young and healthy person. The fact that they contribute less to the economy (even if true -- some are as productive as you and me) has nothing to do with their value as human beings.
There is no 'convoluted logic', save in your mind. -- If a specific act of abortion, - or assisted suicide, -- is deemed to be murder, a prosecutor can get an indictment, and so charge.
Roe v Wade did not change that state power, nor does Oregons new law.
Roe v Wade said that states cannot make laws claiming that abortion in the first trimester is presumptive murder. -- They said that the viabilty of the baby/person to be is not yet established, - thus, -- there can be no murder, as the mother to be has a perfect right to remove part of her own body.
No one likes this legal solution to a moral dilemma, but fanatical cries of 'baby killing' offer nothing better.
190 posted by tpaine
I guess it all depends on what your definition of "due process" is. If due process can be defined as having a doctor write a prescription for poison, then physician-assisted suicide would be constitutionally protected.
Nonsense bafflegab language, - 'due process' is a non-issue, -- and many drugs are poisionous. So what?
The fact remains that people of a state can write law protecting assisted suicide from being considered as murder. -- That right IS constitutionaly protected in the 9th & 10th amendments.
-------------------------
"If a specific act of abortion, - or assisted suicide, -- is deemed to be murder, a prosecutor can get an indictment, and so charge."
Abortion was deemed to be murder but Roe v. Wade essentially changed the definition and gave women a "right" that had not been in existence in the majority of states.
Abortion of a viable fetus has always been, and is now, chargeable as murder. R-v-W did not change that.
I guess it all depends on what your definition of "person" is. You seem to be asserting that states would first have to pass a law recognizing the "personhood" of the unborn child before they could outlaw abortion. The convoluted logic behind Roe v. Wade is that it basically denied the personhood of the unborn child , something most states took for granted. That's why abortion is "constitutional" in the eyes of many Americans.
According to the Supreme Court in Roe v. Wade, "If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life is then guaranteed specifically by the [14th] Amendment..."
Exactly. -- You make my case by quoting the court. -- The point being that NO ONE has established that a first trimester non viable fetus is a person under the law.
-- And never will, imo. ---
The constitutional system works, if we let it. -- Big brother Ashcroft need not fret. - Or try bureaucratic, authoritarian methods to change it to suit HIS moral standards.
Perhaps I shouldn't have interjected, because I was using the term "abuse" to conform with your opinion, whereas I hold that any sort of physician-assisted suicide is an abuse of life. That being clarified, your point was that there was no abuse in Holland, or that it couldn't be verified, and now that abuse has been cited, you claim that the offenders would be punished, when in fact the same sources that have been cited show that there has been no or very minor punishment leveled against those conducting the abuse.
The constitutional system works, if we let it. -- Big brother Ashcroft need not fret. - Or try bureaucratic, authoritarian methods to change it to suit HIS moral standards.
Perhaps I shouldn't have interjected, because I was using the term "abuse" to conform with your opinion, whereas I hold that any sort of physician-assisted suicide is an abuse of life.
Thats a fine moral holding, but I hope you agree that it cannot be a basis for constitutional law. Do you?
That being clarified, your point was that there was no abuse in Holland, or that it couldn't be verified, and now that abuse has been cited, you claim that the offenders would be punished, when in fact the same sources that have been cited show that there has been no or very minor punishment leveled against those conducting the abuse.
-- Yep. That seems to be the way the people in Holland want to run their own lives, or deaths..
Do you object legally to their right to do so, and what principle do you believe in that gives you that right?
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