The Magazine

Conservative Judicial Activism?

Inventing a constitutional right to "medical self-defense."

Feb 5, 2007, Vol. 12, No. 20 • By ROBERT F. NAGEL
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Do you have a bright idea (albeit a controversial one) that you would like to see implemented as national policy? Would you prefer to achieve this without the inconvenience of having to persuade Congress and the president, let alone the American people? Well, here's how to do it.

First, go to law school and afterwards clerk for a justice of the Supreme Court. Then become a professor at a leading law school. Earn the respect of other legal scholars by writing academic articles and books. Gain broader visibility by publishing op-ed pieces and operating a blog. Next, write up your bright idea as an article for an influential law review and get an important think tank to invite prominent legal scholars to discuss your article. Then, wait for some litigators to pick up your idea and hope the Supreme Court will eventually impose it as a requirement of constitutional law. It doesn't always work, but--at least as compared with the options available to most people--it is worth a shot.

This strategy has often been used by left-wing law professors and even by some conservatives. However, with the Court increasingly dominated by the likes of Antonin Scalia and John Roberts, who claim to be committed to judicial restraint, it might seem that clever constitutional arguments are no longer a likely way to influence national policies. UCLA's Eugene Volokh, one of the nation's most prolific and insightful young legal scholars, doesn't think so. And, sadly, he may be right.

Volokh's bright but controversial idea--which is soon to be published in the Harvard Law Review and was recently presented at the American Enterprise Institute--is that there is a constitutional right to what he terms "medical self-defense." The basic concept is that the government may not throw substantial obstacles in the path of medical treatments that might protect against death or serious harm. If accepted by the Court, this would mean that the government could not prevent a sick individual from using an experimental drug not yet deemed effective by the Food and Drug Administration. It would also invalidate the federal ban on payments for organ donations. And, of course, it could be applied in any number of other circumstances, limited only by the inventiveness of lawyers and the imagination of judges.

Volokh has a number of reasons for thinking that the Court might be inclined to go down this road. For one, the redoubtable Justice Scalia himself seems attracted to the idea that the right to self-defense (one of Volokh's sources for a right to medical self-defense) has constitutional status. For another, the prestigious Court of Appeals for the District of Columbia Circuit has already said that in some circumstances there is a constitutional right to use unapproved drugs. Among those voting for that decision was Judge Douglas Ginsburg, whose right-leaning credentials are attested to by the fact that President Reagan once tried to put him on the Supreme Court. Moreover, the litigation that led to the decision was "spearheaded" (as Volokh puts it) by the Washington Legal Foundation, whose advisory board includes such conservative luminaries as Ted Olson and Ken Starr.

Volokh's hopefulness is based on a deeper consideration as well. He thinks that conservative jurists object to the creation of new constitutional rights when those rights are based on general notions of individual autonomy or, as the Court phrased it in cases protecting abortion and homosexual sodomy, on the "right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." Volokh argues that the right to medical self-defense is based on much tighter considerations. Specifically, he points to the Court's decades-long recognition of the right of a woman to terminate her pregnancy, even after the fetus is viable, if her life or health would be endangered by giving birth. He also points to the widespread political acceptance of a right to use lethal self-defense against attackers.

Thus, the proposed right to medical self-defense is said to be based not on unmoored philosophical speculation, but on entrenched political traditions and the judicial precedents that recognize these traditions. Volokh's proposal, therefore, tests whether an increasingly conservative Court might be able to use constitutional interpretation in a creative but constrained and legally justifiable way. If activism is the judicial creation of new rights, Volokh's larger, but implicit, project is to demonstrate that there is a form of conservative activism that is legitimate.

Creative but justifiable conservative activism is an important possibility, embraced by a number of able lawyers and scholars. It deserves careful consideration. Unfortunately, upon examination, Volokh's constitutional argument doesn't look much different from the kinds of fancy shell games that over the years have allowed the Supreme Court to intervene in American politics almost at will.

Notice, first, the obvious: Neither of the legal authorities that Volokh relies on actually establishes a right to medical self-defense. In Roe v. Wade, the Court did not base the post-viability rights of women on any general right to defend one's life and health. That opinion did not characterize the fetus as a dangerous attacker or explain why a right against physical attack should be extended to protect against the risks of childbirth. Indeed, while the Court did conclude that a state may not prohibit abortion after viability if the life or health of the mother is at risk, the basis for this conclusion is obscure. In effect, the justices simply said that they were balancing the state's interest in protecting potential life against the woman's interest in her life and health. Obviously, in circumstances involving other medical treatments, both the individual's and the state's interests might be thought to be quite different. In short, a specific moral conclusion about the importance of the state's interest in regulating abortion does not necessarily imply a general principle about a right to obtain medical care.

Similarly, the widespread recognition that people should be able to use lethal force to protect against perceived attacks does not mean that American political traditions have protected any right to medical self-defense. Surely it is possible to think that protecting yourself from physical attack is different from protecting yourself from disease. And apparently Americans have recognized such a distinction, since conspicuously absent from Volokh's account of legislative protections for the right to self-defense is any sign that this right has been extended to medical treatment. The problem, in short, is that the only evidence for recognition of a right to medical self-defense as a deeply entrenched political tradition is a dubious Court of Appeals decision and Volokh's gloss on Roe v. Wade. Even if there were more substantial judicial support for a right to medical self-defense, judicial opinions are supposed to reflect political traditions, not create them.

Professor Volokh recognizes this and makes a number of interesting arguments about why, given what the courts and American political traditions have protected, it would make sense to protect something else, namely a right to medical self-defense. But these are the very kinds of arguments that have long been used to set the courts loose--in the name of what Americans have already decided to value--to force some new view of progress on the nation. If Americans, for example, have rejected seditious libel laws as antithetical to free speech, the Court announced that they must (somehow!) also have rejected the defamation laws that existed in every state. If Americans have a history of honoring the privacy of married couples, the justices decreed that they must also have honored the sexual privacy of the unmarried. And so on.

Volokh is astute enough to know that his arguments are essentially moral claims about what American political traditions should be. He recognizes, therefore, that they might appropriately be aimed at his fellow citizens and their political leaders rather than at judges. He acknowledges that "some" might think that the right to abortion should never have been constitutionalized and should not be extended by analogy. He also concedes that perhaps the right to lethal self-defense should remain what it is, a statutory or common law right, and not be made a constitutional right. Volokh's answer to these "plausible" arguments is simply that "the Court's process for recognizing unenumerated rights by analogy remains active, even for new rights that depart quite substantially from American legal tradition."

Now, this is just not an adequate answer. The fact that the Supreme Court permits, even invites, lawyers to substitute their argumentation for democratic deliberation does not justify the practice. It is not enough to say, "I did it because I could." Volokh and other proponents of judicial activism should face up to what is lost when lawyers, law professors, and judges take over public decision-making.

One thing that is lost, as can be seen in Volokh's article itself ("Medical Self-Defense, Prohibited Experimental Therapies, and Payment for Organs," Harvard Law Review, Vol. 120, April 2007) is a distinctive concept of law and the judicial function. This is partly because no one thinks that far-reaching new rights can be enforced without exception or qualification. Consequently, the standard judicial position is that the government can restrict rights if it has, as Volokh says, "a very good reason to substantially burden the right" and if the restriction is "as narrow as possible." These formulations, as familiar as they are to practicing lawyers, require that judges assess the importance of public purposes and the efficacy of various methods for achieving those purposes. That is, they require that judges make quintessentially legislative judgments.

The upshot is that Volokh's idea would result in what amounts to judicial regulation of the details of medical care and research. Volokh, for example, notes that a right to use experimental drugs might interfere with randomized drug studies because a potential subject could get the drug without entering any study. He admits that this might be a strong enough public concern to justify some limits on the right to medical self-defense but rather casually suggests that courts should permit this purpose to trump the right only when there is an inadequate number of experimental subjects for a specific study.

The Harvard article is littered with similar invitations for judges to make legislative judgments. Invalidation of the ban on compensation for organs might encourage the murder of people for their organs, but this risk would justify only rules concerning such matters as where extractions can take place and how consent is obtained. Similarly, the possibility that rich people would buy the available organs can be countered with a rule capping payments at the level that "all funders will pay." The danger that individuals might risk their health because of financial pressure to sell organs can be met, says Volokh, with measures like mandatory counseling and waiting periods. The reasonableness of all these rules would have to be assessed, of course, by judges. Those who think such judicial oversight would be beneficial should ask themselves whether it has been politically healthy for the Supreme Court to oversee all aspects of abortion policy for almost four decades now.

Needless to say, in modern times interventionist courts have not only supervised the details of public policy. They have also taken it upon themselves to make significant determinations about the moral climate of the nation and its various communities. Local governments may not, the Court has decreed repeatedly, restrict vulgar speech in an effort to maintain suitable standards of public discourse. Neither localities nor the Congress may seek to protect a minimal sense of nationhood by prohibiting flag desecration. Creating a society that respects human life is not important enough to justify restraints on abortion in the first two trimesters of pregnancy. It is possible either to agree or disagree with such judgments and still doubt that judges and lawyers, rather than the American people, should decide fundamental questions about the kind of society we should be.

It is on these grounds that the medical self-defense proposal is most disappointing. Volokh does recognize that serious thinkers, such as Leon Kass, have argued that compensation for body parts "is just inherently wrong" because the human body should not be made the subject of commercial transactions. Volokh dispenses with this argument in four brief paragraphs that descend quickly into sarcasm. He writes, "Leon Kass's soul rebels against payment for transplants. My soul rebels against price controls that . . . lead people to die needlessly." How to resolve the conflict between two such spiritual intuitions? Here is where the constitutional status of the right to medical self-defense is so useful as a trump. "Something more demonstrably compelling than Professor Kass's conclusory assertions must be required to substantially burden [a constitutional] right."

This is how lawyers have come to dominate moral debate in the United States. They elevate their preferences to constitutional rights and then claim that profound moral beliefs held by others are inadequate to justify restrictions on the newly created rights. You see, rights cannot be abridged except for highly convincing reasons, and judges (enlightened by the arguments of litigators and law professors) will decide what is convincing.

Creating a constitutional right to medical self-defense would be a definitive sign that the conservatives who sit on the Supreme Court are not serious about establishing a saner, less imperial role for the judiciary--indeed, that just about nobody in the legal profession is. This would be further evidence, if more is needed, that if non-lawyers want to retake control over public decision-making, they should not expect much help from members of the profession whose inordinate power is based on the modern conventions of constitutional argument.

Robert F. Nagel teaches law at the University of Colorado and is working on a book on the persistence of judicial imperialism.