Analysis

This case is activist because the judges invoked notions of living constitutionalism, broadly interpreting constitutional terms divorced from any textual or originalist moorings, thereby making them empty vessels into which they can pour any policy preferences they desire.  When a claimed right has never been recognized under the law, such as the “right to die” claimed in this case, the activist judges simply declare that it is protected under the word “liberty” in the Due Process Clause of the Fourteenth Amendment.  With no evidence to support the notion that the Founders envisioned this as a constitutionally protected right, the judges are essentially creating a right from whole cloth. 

The Due Process Clause was simply meant to protect the citizens from government abuse by ensuring that no one be deprived of life, liberty, or property except by a fair process.  The fact that the Court has used the word “substantive” to describe a clause that is clearly about process creates an anachronism that defies both language and logic.  A right to hasten one’s own death is not protected by this clause or any other clause of the Federal Constitution.  In declaring it to be so, the judges have thereby improperly removed it from the democratic process where it rightly belongs.  As Judge Kleinfeld says in his dissent, “People of varying views, including people with terrible illnesses and their relatives, physicians, and clergy, can, through democratic institutions, obtain enlightened compromises of the complex and conflicting considerations. They can do so at least as well as we judges can, and nothing in the Constitution prevents them from making the law.”