The Magazine

Conservative Judicial Activism?

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

Feb 5, 2007, Vol. 12, No. 20 • By ROBERT F. NAGEL
Widget tooltip
Single Page Print Larger Text Smaller Text Alerts

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.