Robert Alt’s post gives me an opportunity for a long overdue confession of error that I forgot to deal with right after the Schiavo controversy. To wit, I made a mistake back then in agreeing with Robert and others that what I was pressing for in the Schiavo case was “substantive due process.” See, e.g., here, where I stated: “Is this substantive due process? Of course it is.” That was dumb.

My principal argument was that Terri’s rights were being violated because she was subjected to death based on judicial findings made under the civil standard of proof, preponderance of the evidence. (The findings were on the issues of whether she was in a persistent vegetative state (PVS) and whether she had evinced a choice to die).

My contention was, and remains, that this was insufficient – that when government-ordered death is involved, the Constitution requires predicate conclusions to satisfy the “beyond a reasonable doubt” standard. That is, Terri, an innocent victim, was entitled to the same procedural protections under the U.S. Constitution that states must afford to convicted murderers in the sentencing phase of their capital cases. (See, e.g., Title 18 U.S.C. Section 3593(c)). (The Constitution permits most sentencing findings to be made on the civil standard of proof; but not when death is at stake.)

I was not happy about, but could not dispute, the fact that the Supreme Court has permitted states to allow a surrogate to deny nutrition to a person actually in a PVS who has truly chosen to die if ever in such a state. For policy reasons, I personally think that is a terrible outcome. But I respect the system and don’t pretend that things are illegal just because I happen to think they are bad policy.

Instead, my contention throughout was that there had not been a reliable determination that Terri fit into the category established by the Supreme Court’s jurisprudence. I was not contending (and do not contend) that governing law would not permit her to be killed if she were reliably found to be in that category.

It’s fair enough to argue that I am wrong about this – as most people did. But the question of what standard of proof due process required was not a substantive due process inquiry. It was run-of-the-mill procedural due process. See, e.g., the Supreme Court’s opinions in Matthews v. Eldgridge (1976) and Morrissey v. Brewer (1972) (“due process is flexible and calls for such procedural protections as the particular situation demands) (emphasis added).

If I had been arguing that due process vested Terri’s parents with the right to prevent the removal of nutrition without their consent, that would have been substantive due process. But a contention, such as the one I made, that Terri’s procedural rights were violated by the application of a lax burden of proof was not substantive due process. It was procedural.

The substantive due process concession I foolishly made was not central to my argument (and I hope I would have thought about it more carefully if it had been). But I still shouldn’t have made it.

With due respect to Robert (for whom I have enormous respect), there is no comparison between the substantive rights claimed by the parents in the recent 9th Circuit case and the procedural protection I argued that Terri Schiavo should have received before she was put to death. The two are as different as night and day.