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Putting Substantive Due Process Back in The Box



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I am very pleased to read Andy’s post stating that he does not endorse expanding substantive due process to address matters like Schiavo. While I still have doubts based in large measure on the lack of precedent concerning extending the protections of criminal law (or habeas proceedings applying criminal law standards of proof) to civil law determinations of appropriate medical decision makers—even where such determinations will likely or inevitably lead to the restriction of life sustaining procedures—procedural due process is the proper grounds for making such a determination.

I would only add in response to Andy’s last sentence that I certainly did not intend to make any qualitative rights comparison concerning the rights at issue in Schiavo and the rights of the California parents. The only definitive commonality is that some have appealed to the amorphous grab bag that is substantive due process (SDP) in each of those respective cases to obtain constitutional protection for preferred policies. In that way, you can categorize those rights with various and sundry privacy rights recognized in SDP jurisprudence—that is, as policy claims for constitutional protection via substantive due process–even if the claimed rights are indeed very different.



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