Fwd: Re: Schiavo: Comment and Question

[Bob Sheridan]

"I'm sure I am missing something, but I have no idea what it might be."

***
Could it be the Constitutional right to eat food, drink water, and 
breathe air, implicit in the concept, ordered or not, of life and liberty? 

In my world, I think those are rights to which I should not be deprived, 
absent a capital murder conviction, and probably not even then.

I think we're onto something.  Maybe the Supreme Court needs to come up, 
maybe for the first time, and not only guarantee this right, but impose 
it on the states as a matter of 14th Amendment due process, as an 
affirmative duty to provide, whether originalists are comfortable with 
it or not.  Otherwise we might not have it.  If there's a right to bear 
arms, then surely there's a right to breathe air, eat food, and drink water.

***


Howard Schweber wrote:

>> I am increasingly baffled by this conversation.  Of course there are 
>> negative rights to air, water, and food; that is, if the state wants 
>> to deprive me of any of those things, due process considerations are 
>> triggered.  But in what version of the world has a Supreme Court ever 
>> recognized an affirmative right to any of these things?  Let alone an 
>> affirmative right once removed from state actors?  That is, where has 
>> there ever been recognized a right to /require/ the state to /compel 
>> /private parties to supply food, water, air, or anything else to 
>> other private parties?  States may or may not be allowed to intervene 
>> in the case of Christian Scientist parents who decline to obtain 
>> medical care for their terminally ill children, but has any court in 
>> American history ever held that states are required to do so?  That 
>> is what would have to be asserted in this case to create a colorable 
>> claim of the kind being discussed here, wouldn't it?  I'm sure I am 
>> missing something, but I have no idea what it might be.
>>
>> Howard Schweber
>>
>>
>>
>> At 08:24 PM 3/21/2005 -0800, you wrote:
>>
>>> To make the point in class on substantive due process/liberty (and 
>>> now 'life') that not all rights are expressed in the text, such as 
>>> privacy/abortion, I've noted that some rights must have been 
>>> implicit and would have gone without saying in 1787, such as the 
>>> right to breathe air and eat food.  To which I will now add 'drink 
>>> water.'  Using absurdity to make a point, I thought.  Suddenly it's 
>>> no joke.
>>>
>>> What would an originalist have to say about these non-textual 
>>> rights, I wonder.
>>>
>>> ***
>>>
>>>
>>>
>>> Douglas Laycock wrote:
>>>
>>>>  
>>>>  
>>>>
>>>> ------------------------------------------------------------------------
>>>> *Edward Hartnett wrote:*
>>>>
>>>> Do you disagree that, under Cruzan, a person has a federal 
>>>> constitutional right to choose to accept food as well as federal 
>>>> constitutional right to choose to reject food?
>>>>  
>>>>  Comment:
>>>>    I assume there is such a right, although its contours are 
>>>> ill-defined, in part because there has been no need to litigate it 
>>>> before now, and in part because I also assume that there is no 
>>>> federal constitutional right to have someone else pay for such long 
>>>> term care.  But to repeat, the parents have not alleged any such 
>>>> right in federal court.  They have pleaded procedural due process, 
>>>> equal protection, RLUIPA, and free exercise.
>>>>  
>>>> Question:
>>>>      The husband's lawyer is quoted on CNN.com as saying three of 
>>>> Terry Schiavo's relatives, other than him, have said that she said 
>>>> she would not want to be kept alive under such conditions.  Does 
>>>> anyone know whether these relatives testified in state court?  
>>>>  
>>>> Douglas Laycock
>>>> University of Texas Law School
>>>> 727 E. Dean Keeton St.
>>>> Austin, TX  78705
>>>> 512-232-1341
>>>> 512-471-6988 (fax)
>>>>
>>>> ------------------------------------------------------------------------
>>>>
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>>>
>>>
>>>
>>> _______________________________________________
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>>
>------------------------------------------------------------------------
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