American Democracy in Context. Joseph A. Pika

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СКАЧАТЬ protection clause prohibits same-sex couples from being treated differently than opposite-sex couples in the eyes of the law. By the time of the Obergefell decision, eighteen other countries (starting with the Netherlands in 2001) already recognized same-sex marriage. By 2019, twenty-seven countries sanctioned same-sex marriage, but consensual homosexual conduct remained illegal in over seventy countries.¹⁰⁸

      The Right to Die

      Courts have long recognized a common-law right of individuals to refuse most unwanted medical procedures. But does the right of privacy also extend a broader constitutional right—one that includes a right to die? May patients refuse invasive procedures that would extend their lives, such as the use of an artificial respirator, on privacy grounds? The issue is complicated because such patients are often incapacitated and are not able to express their wishes. Moreover, they may have left no written instructions, such as a living will. Can the patient’s guardian make a substituted judgment for the patient in such a situation? This question is especially controversial because refusal of treatment under these circumstances often leads directly to the death of the patient.

      Guardians sometimes argue that their loved one would not want to be kept alive with no hope of meaningful recovery—if, for example, the patient were brain dead. They offer the legal argument that forcing artificial life support on patients violates a fundamental right of privacy. But others argue that decisions to withdraw life support violate the patient’s right to life and may even constitute murder.

      The Supreme Court first confronted the right to die issue in Cruzan v. Director, Missouri Department of Health (1990).¹⁰⁹ As in Roe v. Wade, the Court balanced competing interests. The majority noted that patients have a constitutionally protected right to refuse medical treatment but argued that such a right must be balanced against the interests of states (such as their interest in protecting life). Thus, the Court upheld a Missouri law requiring “clear and convincing” evidence that a patient would want life support refused before granting a guardian’s request to discontinue it. Seven years later, the Court ruled that a patient’s privacy right does not include a constitutional right to commit suicide. Individual states are the ultimate arbiters of such decisions. By January 2019, seven states plus the District of Columbia chose to allow doctor-assisted suicide, either through legislation or court ruling.¹¹⁰ Assisted suicide is legal in Germany and Switzerland, but some countries go even further. Active euthanasia is legal in Belgium, Canada, Colombia, Luxembourg, and the Netherlands.¹¹¹

      The Rights of Criminal Defendants

      Article I of the Constitution contains several specific rights of the criminally accused. For example, it provides for the writ of habeas corpus, a court order that allows a judge to release a prisoner who is being detained illegally. It also prohibits bills of attainder (laws that allow someone to be punished without a trial) and ex post facto laws (laws that make an action illegal retroactively). But most of the rights that we associate with the criminally accused are found in the Bill of Rights. Originally, of course, guarantees contained in the Bill of Rights applied only to federal criminal prosecutions. Incorporation made most of these guarantees applicable to the states as well, which, since most criminal trials take place at the state level, has had a profound effect on our criminal justice system.

      Due Process Rights of the Accused

      We spoke earlier in this chapter about the concept of procedural due process: the idea that the government must follow fair proceedings before taking away a person’s life, liberty, or property. The due process clause of the Fifth Amendment limits the actions of the federal government (“No person shall be … deprived of life, liberty, or property, without due process of law”). The Fourteenth Amendment added another due process clause that specifically limits state action (“[No] State shall … deprive any person of life, liberty, or property, without due process of law”).

      The Bill of Rights contains other specific guarantees that deal with the rights of criminal defendants. For example, the Fourth Amendment protects against “unreasonable searches and seizures.” The Fifth Amendment requires grand jury indictment in capital or otherwise infamous crimes and protects against double jeopardy (being tried twice in the same court for the same crime) and self-incrimination. The Sixth Amendment guarantees the right to a speedy and public trial by an impartial jury in which the accused has the opportunity to confront witnesses against him or her and has the right to a lawyer. The Eighth Amendment protects against “cruel and unusual punishment” as well as “excessive bail” and “excessive fines.”

      Can the Fourteenth Amendment’s guarantee of due process be met without incorporating these specific guarantees? Until the middle of the twentieth century, the Supreme Court often said yes. Most of the provisions of the Bill of Rights dealing with criminal defendants have only recently been incorporated, the majority of them in the 1960s and the prohibition of excessive fines as recently as 2019. Even today, some provisions—such as the Fifth Amendment right to grand jury indictment and the Eighth Amendment right against excessive bail—have not been incorporated. (See Table 4.2 on page 81.)

      Before incorporation, states merely had to apply due process, and the Supreme Court often upheld convictions in cases where states did not follow other specific guarantees in the Bill of Rights—for example, convictions in cases where defendants were tried twice for the same crime or denied the right against self-incrimination.¹¹² As long as the overall criminal process seemed to be fair, a procedural error based on one of the specific guarantees of the Bill of Rights typically was not deemed serious enough to overturn a state court conviction.

      Even after incorporation, the Supreme Court continues to recognize that there may be more than one way for states to prosecute accused criminals while still protecting their rights. Only those specific guarantees of the Bill of Rights that the Court has deemed “fundamental” have been incorporated. This has been done through the process of selective incorporation discussed earlier in this chapter. But some of the incorporated provisions are ambiguous, allowing the Court to give states some flexibility in the way they apply even some of the incorporated provisions.

      writ of habeas corpus A judicial order requiring that a prisoner be brought before a judge to determine whether there is a lawful justification for incarceration.

      A good example is the Sixth Amendment right to trial by jury in criminal cases. The Supreme Court incorporated that right in 1968.¹¹³ But what exactly does a right to trial by jury mean? The Sixth Amendment says nothing about the specific size of the jury or whether the verdict must be unanimous. Nonetheless, all federal juries consist of 12 people and federal criminal cases require a unanimous verdict to convict. Does incorporation of the Sixth Amendment bind the states to juries of 12 people and unanimous jury verdicts? The Supreme Court has said no.¹¹⁴ Nonetheless, the Court has held that juries that are too small (which it defines as any made up of fewer than six people) violate due process.¹¹⁵ Likewise, it held that verdicts that are not unanimous may violate due process if the jury is too small: It ruled that even though 11–1 and 10–2 verdicts are constitutional, a 5–1 verdict violates due process.¹¹⁶

      Picture Yourself …

      As a Prospective Juror in Japan

      Throughout Japan, groups of people gathered to participate in more than 500 mock trials. Some took part in play-reading sessions of Twelve Angry Men, a 1954 television play about tense jury deliberations that became a classic 1957 movie. All of these events were staged in order to prepare citizens for a radical change in Japan’s criminal justice system: the adoption of a system of trial by jury in 2009.

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