In 1997, Supreme Court Chief Justice William H. Rehnquist proclaimed in the Court’s Washington v. Glucksberg majority opinion that
“[t]he Court’s established method of substantive-due-process analysis has two primary features: First, … the Clause specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition. Second, the Court has required a careful description of the asserted fundamental liberty interest.”[1]
That is to say, whether or not a right is fundamentally protected by the Fourteenth Amendment is contingent both on a clear, undeniable historical recognition of the right in addition to a complete and careful understanding of the nature of the right being considered. The second of these criteria seems to require little justification; one naturally ought to carefully describe the rights they wish to defend. But far less obvious is the rationale and method by which a liberty interest ought to be objectively assessed against a “Nation’s history and tradition,” raising such questions as where to begin and end in history, or what qualifies a right as “deeply rooted.”[2] Regardless of the answers to these questions, Chief Justice Rehnquist’s assertion makes it amply clear that there exists a unique interest in and essential relationship with history in the Court, especially in the case of substantive due process.
Consequently, the Court’s fundamental reliance on history as a means of examining a liberty interest’s legitimacy necessarily calls for a fundamental understanding of not only what history says but what history is. Without such an understanding, the Court risks failing to achieve a satisfactory model of history to draw upon, effectively extinguishing any possibility of the substantive due process analysis Chief Justice Rehnquist outlines. In this paper, I will argue through an examination of Washington v. Glucksberg and its employment of the “deep roots test” of history and tradition that when taking a Glucksberg-style approach to substantive-due-process, the Court has the potential to operate not only as an interpreter of history for the sake of judicial review but also as a uniquely positioned writer and reviser of history itself.
Background
In 1979, the Washington state legislature passed the Natural Death Act, enshrining the right of any terminally ill patient the right to “withhold or withdraw life-sustaining treatment” at any time.[3] For instance, a terminally ill patient heavily reliant on a respiratory device to breathe may elect at any time to withdraw such a device. At first glance, the Natural Death Act may superficially appear to fundamentally protect a terminally ill patient’s right to ending their own life through the assistance of a physician. This, however, is not the case. The Act is carefully constructed as not to permit a physician’s active assistance in terminating the life of a similarly terminally ill patient; a physician may only act in such a way as to permit “the natural processes of dying.”[4] Put simply, the Natural Death Act of 1979 permits terminally ill patients to elect for a natural death by declining or requesting the withdrawal of existing treatment but not to elect for an expedited death through medical or physician intervention.
In 1994, physician Harold Glucksberg, three other physicians and three terminally ill patients in partnership with the organization Compassion In Dying filed suit in federal district court challenging the prohibition of physician-assisted suicide for mentally competent terminally ill adults, arguing that it violated a legitimate liberty interest of terminally ill patients as protected by the Fourteenth Amendment.[5] The case, Compassion in Dying v. State of Washington, was heard by District Judge Barbara Rothstein. Relying heavily on Justice O’Connor, Kennedy and Souter’s joint Planned Parenthood v. Casey opinion that “choices central to personal dignity and autonomy are central to the liberty protected by the Fourteenth Amendment,”[6] Rothstein held that The Natural Death Act of 1979’s prohibition of physician-assisted suicide did in fact violate “a protected Fourteenth Amendment liberty interest by terminally ill, mentally competent adults acting knowingly and voluntarily, without undue influence from third parties, who wish to commit physician-assisted suicide.”[7] Judge Rothstein additionally referred to Cruzan v. Director, Missouri Department of Health, most notably the claim in Chief Justice Rehnquist’s opinion that “[t]he principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions.”[8] With this inference in mind, Judge Rothstein posits that there is no difference between the refusal of treatment and physician-assisted suicide “for purposes of finding a Fourteenth Amendment liberty interest,” as each employs a decision central to the personal dignity and autonomy mentioned previously.[9]
The case was promptly escalated to the Ninth Circuit Court in 1995, where Judge Rothstein’s ruling was subsequently reversed. In his opinion, Judge John Noonan critiques the district court’s opinion that the terminally ill hold a unique legitimate liberty interest to assisted suicide to be naive: “The attempt to restrict such rights to the terminally ill is illusory. If such liberty exists in this context, as Casey asserted in the context of reproductive rights, every man and woman in the United States must enjoy it.”[10] In essence, Judge Noonan argues that presenting the right to assisted suicide as one born out of personal autonomy necessarily extends that right not only to the terminally ill but to all mentally competent adults. However, Judge Noonan rejects this notion outright, claiming instead that a liberty interest’s legitimacy ought not in this case to be considered on the basis of personal autonomy but on “foundation in recent precedent” and “the traditions of our nation.”[11] Judge Noonan held that neither featured protections for assisted suicide.
However, in 1996 Judge Noonan’s decision was vacated en banc by the Ninth Circuit, the panel opting to rehear the case because of its “extraordinary importance.”[12] In an 8-3 decision, the panel reinstated and upheld Judge Rothstein’s initial ruling. The majority opinion authored by Judge Stephen Reinhardt declared Judge Rothstein’s identification of assisted suicide as a choice of personal autonomy to be of notable importance, and Judge Noonan’s strict consultation of precedent and tradition to be unsatisfactory. In fact, Judge Reinhardt outlines numerous historical instances where suicide and assisted suicide are not categorically condemned, including references to Greek and Roman Law, stating “[t]he relevant historical record is far more checkered than the majority would have us believe.”[13] But while Judge Noonan’s decision may have been vacated, it was hardly rendered unimportant. Rather his decision played an instrumental role in introducing a test of history into the case’s discourse, a test that would prove pivotal in the future ruling of the Supreme Court of the United States.
Washington v. Glucksberg
In 1997, Washington v. Glucksberg was finally heard by the Supreme Court. The Court unanimously ruling that “Washington’s prohibition against ‘caus[ing]’” or “‘aid[ing]’” a suicide does not violate the Due Process Clause.[14] Chief Justice William H. Rehnquist began his delivery of the Court’s opinion with the simple observation that “[i]t has always been a crime to assist a suicide in the State of Washington,” signalling the opinion’s return to the historically founded rationale Judge Noonan employed prior to the vacation of his ruling.[15] “We begin,” Rehnquist writes, “as we do in all due process cases, by examining our Nation’s history, legal traditions, and practices.”[16] He continues with a historical survey of the legal treatment of assisted suicide, noting various instances of its condemnation in Anglo-American common law, noting that “an examination of our Nation’s history… demonstrates that Anglo-American common law has punished or… disapproved of… assisting suicide for over 700 years.”[17] Recalling Chief Justice Rehnquist’s stipulation that the Fourteenth Amendment protects liberty interests “deeply rooted in this Nation’s history and tradition,”[18] the Court’s assessment of assisted suicide to be categorically excluded from the United States’ history and tradition renders the liberty interest in assisted suicide to be invalid, and by extension, invalidates a claim to Fourteenth Amendment protection.
Against the arguments of personal autonomy as presented through Judge Rothstein’s appeal to Cruzan, the Court’s opinion is similarly focused primarily on how deeply rooted in US history and tradition the liberty interest is. The rights protected in Cruzan were “not simply deduced from abstract concepts of personal autonomy,” as Judge Rothstein and the Ninth Circuit’s en banc panel suggest, “but [were] instead grounded in the Nation’s history and traditions.”[19] Thus, the Court’s opinions distinguishes the right to reject or withdraw treatment from the right to physician-assisted suicide in that while the former is deeply rooted in the Nation’s history and tradition, the latter is not. Through the reduction of each argument to a simple deep roots test of history and tradition, Rehnquist effectively established a formal method for gauging a liberty interest’s legitimacy by assessing it through the lens of history and tradition. This Glucksberg-style approach to substantive-due-process continues to be used in Court proceedings to this day.
Of course it must be noted that the aforementioned arguments hardly cover each argument and rationale presented in Washington v. Glucksberg’s majority and concurring opinions; arguments involving Washington’s legitimate interest in protecting human life, the Equal Protection clause, medical ethics, and physician unreliability appeared in various opinions. However these arguments, regardless of validity, are not applicable to a discussion of the Court as Historian and will not be discussed here.
The Court as Historian
While Washington v. Glucksberg formalized the use of a “deep roots” history and tradition test, it is far from the first instance the Court consulted history in its rulings. In fact, satisfactory judicial review would seem to require to at least some degree a historical consultation of the Constitution. “The Supreme Court has always used history,” writes Constitutional Historian Alfred H. Kelly.[20] However the manner in which history has been used in courts has widely varied. In early cases, the court’s use of history was primarily directed at deciphering the original intended meaning of the Constitution. Understanding the Constitution to be a static document, it was imperative that judiciaries rely on concrete historical facts to avoid deviation from the original objectives of the Constitutional Convention. As standard practice of judicial review developed over the following decades, a new style of appeal to history emerged: deference to precedent. Through its seemingly stepping-stone procedure, appeals to legal precedent offered a natural tool for historical evaluation; if the facts of a legal case mirrored those of an existing ruling, the existing ruling offers an excellent historical reference. But over time, Kelly identified a new mode of using history that began to emerge he calls “law-office history,” history that is often selective, adversarial, and largely outcome‑driven rather than exploratory or open‑ended.[21] In instances like these, ‘history’ is simply a means to an end, and the quality of the historical research suffers. In many of the cases Kelly explores, “justices wrote history essentially for political reasons,” and often “very bad history indeed.”[22] In fact, Kelly observes that “[m]uch of the history that the recent Court has produced is of the law-office variety. It fails to stand up under the most superficial scrutiny.”[23]
Kelly’s observations of such uses of history consequently raises the question: what constitutes good history? Unfortunately, an answer to such a question is not so simple. One might intuitively believe good history to be factually accurate history, a theory of history known as “positivism.” To the positivist, a good history is one founded solely on verifiable evidence, with little narrative input from the historian. Michel-Rolph Trouillot, one historian who has written extensively on the nature of historical production, notes that “positivism has dominated Western scholarship enough to influence the vision of history among historians and philosophers who did not necessarily see themselves as positivists.”[24] Positivism has been so dominant it often occurs to people to be the only proper conception of how history should be done. In contrast, a ‘constructivist’ view of history, as Trouillot suggests, is the understanding of history to be “one among many types of narratives with no particular distinction except for its pretense of truth,” that “the historical is one fiction among others.”[25]
To Trouillot, neither of these conceptions will suffice. Each represents an extreme end of the spectrum of historical writing,with one end being ‘what happened’ and the other ‘what was said to have happened.’ Good history, Trouillot finds, lies somewhere between “the dichotomies that these positions suggest and reproduce.”[26] There often exists too little empirical evidence to construct complete, objectively accurate historical narratives. However, there similarly exists a degree of factual backing required for a narrative to be considered sufficiently historical. Consequently, effective historical narratives must necessarily employ a combination of empirical analysis and narrative construction.
Returning to Kelly’s analysis of the Court’s use of history, we see that both extremes appear to be represented. Of the positivist viewpoint, the Court’s common deference to precedent presents a strong example. The relative recency and detailed recording of Court cases in the United States provides ample evidence on which Courts can confidently construct objective historical narratives. On the constructivist end lies “law-office history,” as Kelly refers to it, in which history is employed in cases with the express purpose of producing a desired outcome. Whether or not the history employed is accurate simply doesn’t matter; as Trouillot asserts, each is just “one fiction among others.”[27] Naturally, the law-office histories of a constructivist Court fail to qualify as ‘good history’ as Trouillot outlines, lacking the factual backing to be legitimately useful. The flaws of a positivist Court are less obvious but become clear when a case lacks precedent to rely on. Without the neatly presented facts and evidence a preceding court case, a positivist Court stands to encounter the same deficiencies in irrefutable historical evidence academic historians do; there’s simply not enough irrefutable evidence to construct a historical narrative void of outside construction.
It’s at this point that it must be recognized much like Trouillot’s observation that a purely positivist or constructivist approach to academic history is insufficient, so too are they insufficient for judicial history. A purely constructivist Court is undesirable on the basis of its inherently unjust nature. A purely positivist Court, while desirable in theory, is simply not possible; irrefutable historical fact is not always readily available for the Court to draw upon. Thus, an effective Court as Historian must necessarily operate on a methodology that falls between the positivist and constructivist extremes.
To this end, further consultation of Trouillot’s framework for the construction of history will prove instructive. “Between the mechanically ‘realist’ and naively ‘constructivist’ extremes,” Trouillot observes, “there is the more serious task of determining not what history is … but how history works.”[28] In order to make this determination, Trouillot suggests not to focus on what makes ‘good history,’ but to focus on what causes historical narratives to skew too far to either end of the positivist-constructivist spectrum. Trouillot refers to these instances of narrative decay as “silences,” pointing out their tendency to suppress, or silence, certain aspects of a historical narrative while allowing others to remain.[29] According to Trouillot, these silences have the potential to invade historical narratives at four different points during historical production: “the moment of fact creation (the making of sources); the moment of fact assembly (the making of archives); the moment of fact retrieval (the making of narratives); and the moment of retrospective significance (the making of history in the final instance).”[30]
In each of these moments particularly, inaccuracies and omissions are most likely to appear. As facts and evidence are collected into sources and archives, then retrieved and analyzed in the future, the risk of factual omission or narrative inaccuracy becomes increasingly probable. Whether intentional or not, these potential silences must not be ignored by the historian.
But is such a framework applicable to the Court as Historian? In the context of judicial review, the third and fourth moments mentioned above (the moment of fact retrieval and the moment of retrospective significance) seem to be natural fits. In order to discern their relative efficacy, we can return to the case of substantive-due-process in Washington v. Glucksberg. Recalling again Chief Justice Rehnquist’s assertion that the Due Process Clause specially “protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition,”[31] the emphasis on a liberty interest objectively rooted in this Nations’ history and tradition makes the Court’s positivist attitude clear. But without concrete precedent to defer to, the Court is faced with the positivist challenge of retrieving substantial factual evidence for a claim. When the Court “begin[s] … by examining our Nation’s history, legal traditions, and practices,”[32] it signals a moment of fact retrieval, the third moment outlined by Trouillot. In the case of Glucksberg, the Court’s majority opinion opted specifically to survey Anglo-American common law in their examination, concluding that over the 700 years of history surveyed assisted suicide was consistently condemned.
Whether or not the Court’s fact retrieval in this historical survey actually serves as a silencing moment of fact retrieval is difficult to say. The majority opinion delivered by Chief Justice Rehnquist is admittedly comprehensive, featuring a lengthy and detailed analysis of assisted suicides legal status from early English common law through recent American legislation[33] and very well might constitute a satisfactory historical narrative. But regardless of if the deep roots test employed in Washington can be considered good or bad history, it’s imperative to recognize that the employment of the test itself necessarily exposes the narrative to the possibility of incorporating silences. In each instance the Court chooses to present a statute from English common law or a piece of early American legislation, the Court simultaneously risks leaving other, less prominent facts out of the historical narrative they construct. Even if the Court were to comprehensively survey all applicable historical facts, it cannot ensure that the archives they draw upon have not already allowed silences in their creation. In the words of Trouillot, “an overall sketch of world historical production through time suggests that professional historians alone do not set the narrative framework into which their stories fit. Most often, someone else has already entered the scene and set the cycle of silences.”[34] At best, a Glucksberg-style approach to substantive-due-process creates the potential for the Court to inadvertently silence the past. At worst, it offers the Court a chance to rewrite it.
The Repercussions of the Court as Historian
This revisionary power is what sets the Court apart as a unique type of historian; while academic historians may have the power to present alternative and sometimes radical narratives, few to none have the power to install these narratives into a Nation’s legal identity. For the Court, this power stems from the fourth silencing moment Trouillot identifies, “the moment of retrospective significance,”[35] or more plainly put, the moment a certain narrative is deemed more significant than others. One potential instance of this is the positivist Court’s reliance on precedent, as discussed before. When the Court defers to precedent, it effectively retrospectively treats the preceding case with a particular significance, enough so that the Court models its ruling after it. But where this moment becomes particularly powerful is where concrete precedent is absent, and the positivist attitude fails. In this case, the Court is afforded the unique opportunity of both selecting the historical facts in the moment of fact retrieval as well as enshrining the resultant narrative with each of its potential silences into legal memory. It’s through this process that the Court moves beyond consulting history as a means of judicial review — it becomes a writer of history itself.
In this way, the Court’s role as a historian is not merely one of passive interpretation; it is an active and creative process. By determining what liberty interests are and are not “deeply rooted in the Nation’s history” through Glucksberg-style tests, the Court essentially has the authority to define what traditions and practices are integral to the nation’s legal identity, and by extension what is excluded. As Trouillot critique of positivism and constructivism points out, historical narratives are not neutral. They are shaped by those who tell them, and in the case of the Court, this shaping has repercussions far greater than those of an academic historian. The true import of Washington v Glucksberg lies not in whether or not the Court did or did not admit silences into historical review but in the recognition that its methodology is a process that uniquely situates it to be vulnerable to such silences. The silences that emerge from this process, whether intended or not, not only reflect the biases of the moment but also shape the trajectory of constitutional law. Thus, the Court must be understood to be more than a simple historian. It is a historian with the power to enshrine its version of history into the fabric of the United States.
[1] Washington v. Glucksberg, 521 U.S. 702, 703 (1997) (internal quotations omitted)
[2] Id.
[3] Natural Death Act, Ch. 70.122 RCW (1979).
[4] Id.
[5] Compassion in Dying v. State of Washington, 850 F.Supp. 1454 (W.D. Wash. 1994).
[6] Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 851 (1992)
[7] Compassion in Dying, 850 F.Supp. at 1467.
[8] Cruzan v. Director, Missouri Dep’t of Health, 497 U.S. 261, 278 (1990).
[9] Compassion in Dying, 850 F.Supp. at 1461.
[10] Compassion in Dying v. State of Washington, 49 F.3d 586, 591 (9th Cir. 1995)
[11] Id.
[12] Compassion in Dying v. State of Washington, 79 F.3d 790, 798 (9th Cir. 1996).
[13] Id. at 806.
[14] Glucksberg, 521 U.S. at 705-6.
[15] Id. at 706.
[16] Id. at 702.
[17] Id. at 711.
[18] Id. at 703.
[19] Id. at 703, 725.
[20] Alfred H. Kelly, Clio and the Court, 1965 SUP. CT. REV. 119, 121 (1965).
[21] Id. at 113.
[22] Id. at 126.
[23] Id. at 132.
[24] MICHEAL-ROLPH TROUILLOT, SILENCING THE PAST: POWER AND THE PRODUCTION OF HISTORY5 (1995).
[25] Id. at 6.
[26] Id. at 4.
[27] Id. at 6.
[28] Id. at 25.
[29] Id. at 26.
[30] Id.
[31] Glucksberg, 521 U.S. at 703.
[32] Id. at 710.
[33] Id. at 710-723.
[34] TROUILLOT, supra at26.
[35] Id. at 26.