Gale Encyclopedia Of American Law 3Rd Edition Volume 10 P34 pptx

1783 Treaty of Paris signed, ending Revolutionary War 1775–83 American Revolution 1793 Neutrality Proclamation issued 1794 Sent out militia to quell the Whiskey Rebellion 1795 Jay Treaty

Warren himself believed that his most important contribution to the law came in the area of legislative reapportionment Most state legislatures had not apportioned their seats since the early 1900s The allocation of seats was based on geographic areas and favored rural districts with small populations over growing urban and suburban areas Political change was almost impossible because rural-dominated legislatures prevented reapportionment Until the 1960s the Supreme Court had refused to intervene, concluding that cases challenging

APPORTIONMENTwerePOLITICAL QUESTIONSbeyond the Court’s jurisdiction

InBAKER V.CARR, 369 U.S 186, 82 S Ct 691,

7 L Ed 2d 663 (1962), the Court held that it did have jurisdiction, and two years later, in

REYNOLDS V SIMS, 377 U.S 533, 84 S Ct 1362,

12 L Ed 2d 506 (1964), Warren wrote the opinion that has come to be known as theONE PERSON,ONE VOTEdecision Reynolds and a series

of cases that followed forced state legislatures to

be apportioned equally on the basis of popula-tion rather than geographic areas Warren noted that“citizens, not history or economic interests cast votes,” and that “legislators represent people, not acres or trees.” Reapportionment based on population resulted in a shift of political power away from sparsely populated rural areas to metropolitan areas

Warren also reshaped U.S CRIMINAL PROCE-DURE, in the process drawing protest from law enforcement officials and those citizens who believed the Court was tipping the balance in favor of criminals Many cases of this era limited police SEARCHES AND SEIZURES and the use of confessions and extended the RIGHT TO COUNSELto poor persons accused of felonies

InGIDEON V.WAINWRIGHT, 372 U.S 335, 83 S

Ct 792, 9 L Ed 2d 799 (1963), the Court held that the SIXTH AMENDMENTright to legal counsel encompassed state as well as federal criminal proceedings Therefore, the state was required

to appoint an attorney to represent an indigent person charged with a crime In MIRANDA V

ARIZONA, 384 U.S 436, 86 S Ct 1602, 16 L Ed

2d 694 (1966), the Court required what has come to be known as the Miranda warning: the police must inform arrested persons that they need not answer questions and that they may have an attorney present during questioning

Warren sought to ensure that suspects who are not sophisticated in law or who are not able to

afford ready counsel are not disadvantaged Nevertheless, rising crime convinced many citizens that the Court gave away too much of the government’s authority in Miranda The Warren Court also recognized the constitutional right of privacy in GRISWOLD V

CONNECTICUT, 381 U.S 479, 85 S Ct 1678, 14 L

Ed 2d 510 (1965) Griswold struck down a Connecticut statute that prohibited the dissem-ination of BIRTH CONTROL information In declaring the right of privacy, the Court laid the groundwork for the post–Warren Court decision inROE V.WADE, 410 U.S 113, 93 S Ct

705, 35 L Ed 2d 147 (1973), which gave women the right to have anABORTION

In 1963 President LYNDON B JOHNSON per-suaded Warren to head a commission investi-gating the ASSASSINATION of President JOHN F

KENNEDY Warren reluctantly agreed to the request but was uncomfortable participating in this extrajudicial activity The 1964 WARREN COMMISSION report has remained controversial Critics have attacked its conclusions that Lee Harvey Oswald was the lone assassin and that there was noCONSPIRACYto kill the president Warren and the Court weathered a firestorm

of criticism for the 1962 decision in Engel v Vitale, which outlawed mandatory school prayer However, Warren and his fellow justices believed strongly in the Bill of Rights, as the Court proved repeatedly in numerous decisions that applied the national standard outlined by those rights to individual states In 1965 in Griswold v Connecticut, the Court set forth a constitutionally protected right to privacy

Warren informed President Johnson in June

1968 of his intent to retire but left the date

of his resignation open When Republicans blocked Johnson’s nomination of Justice ABE FORTAS in the fall of 1968, Warren agreed to serve until the next president took office in

1969, leaving the bench in July 1969 President

RICHARD M.NIXONappointedWARREN E.BURGERas Warren’s successor

Many commentators have praised Warren’s tenure as chief justice, but critics have charged that his judicial activism was outside the proper role of the Court and that many of the decisions were based on his personal values rather than the Constitution or other legal sources Both Chief Justice Burger and his successor, Chief Justice WILLIAM H REHNQUIST, have eschewed

IN CIVILIZED LIFE,LAW

FLOATS IN A SEA OF

ETHICS EACH IS

INDISPENSABLE TO

CIVILIZATION

WITHOUT LAW,WE

SHOULD BE AT THE

MERCY OF THE LEAST

SCRUPULOUS;

WITHOUT ETHICS,

LAW COULD

NOT EXIST

—E ARL W ARREN

318 WARREN, EARL

Warren’s approach, applying more conservative

principles Warren died on July 9, 1974, in

Washington, D.C

FURTHER READINGS

Cray, Ed 1997 Chief Justice: A Biography of Earl Warren.

New York: Simon & Schuster.

Schwartz, Bernard, ed 1996 The Warren Court: A

Retrospective New York: Oxford Univ Press.

CROSS REFERENCES

Japanese American Evacuation Cases; Judicial Review;

School Desegregation; Warren Court.

WASH SALE

The buying and selling of the same or a similar

asset within a short period of time

A fictitious type of arrangement whereby aBROKER,

upon receiving an order from one individual to

purchase and an order from another individual to

sell a certain amount of a particular stock or

commodity, transfers it from one principal to the

other and retains the difference in value

For the purposes ofINCOME TAX, losses on a

WASH SALE of stock may not be recognized as

capital losses if stock of equal value is obtained

within 30 days prior or subsequent to the date

of sale The rule is meant to discourage sales at a

loss only in order to take a tax advantage The

loss from the earlier sale is not recognized but

is instead added to the basis of the newly

purchased security

Various stock exchanges disallow this

prac-tice because the orders to buy and sell should be

executed separately to the advantage of each of

the broker’s clients

vWASHINGTON, BOOKER

TALIAFERRO

Booker Taliaferro Washington was born into

SLAVERY, but grew up to become one of

the nation’s most prominent leaders and

educators While various groups both supported

and opposed his views, no one denied that

Washington’s accomplishments were notable

He remained, until his death, an influential

proponent of race relations and African

American self-sufficiency

Booker Taliaferro was born on April 5,

1856, in Franklin County, Virginia His mother

was a slave; his father a white man whose

identity remains unknown When Booker was

a child, his mother married a slave named

Washington Ferguson Booker took his

step-father’s first name and became known as

Booker T Washington After the U.S.CIVIL WAR

ended, Washington and his family moved to Malden, West Virginia At age nine, Washing-ton began work in the local salt mines He then labored as a coal miner before going to work as

a houseboy for the wife of Lewis Ruffner, the mine owner, while attending a poorly equipped school that could only give him the bare rudiments of an education

Possessed of a quick and lively intelligence, Washington was fascinated by the books he saw

at the Ruffners’ house and, with Mrs Ruffner’s encouragement, became determined to get a higher education When Washington was 16, he made a long trek on foot to attend the Hampton Agricultural Institute in Virginia The institute had been founded in 1868 by Samuel Arm-strong, a former Union Army general who had led African American troops during the Civil War Armstrong believed strongly that freed slaves must be educated but also must learn to provide for themselves by receiving training in manual skills An ardent proponent of the virtues of good hygiene and strong morals as well as self-discipline, Armstrong became a mentor to Washington

Washington graduated from Hampton In-stitute in 1875 and returned to Malden where

Booker T.

Washington.

LIBRARY OF CONGRESS

IHAVE LEARNED THAT SUCCESS IS TO BE MEASURED NOT SO MUCH BY THE POSITION THAT ONE HAS REACHED IN LIFE AS BY THE OBSTACLES WHICH

HE HAS OVERCOME WHILE TRYING

TO SUCCEED

—B OOKER

T W ASHINGTON

he worked as a teacher Washington later taught

at Hampton When a new school, the Tuskegee Negro Normal Institute, was opened in Alabama on July 4, 1881, Washington, on Armstrong’s recommendation, was placed in charge of it Following the Hampton Institute model, Tuskegee Institute had an academic regimen but placed an emphasis on learning such practical trades as farming, carpentry, brickmaking, shoemaking, and printing

Washington traveled the country to raise funds for his school, speaking to both whites and African Americans His speeches eventually began to earn him a national reputation In

1895 Washington spoke at the opening of the Cotton States Exposition in Atlanta, Georgia In that speech Washington emphasized the need for African Americans to become economically self-sufficient before pressing for political rights

Washington’s speech, called the “Atlanta Com-promise,” was well-received by numerous politicians and white citizens in the South who were proponents of JIM CROW LAWS, legislation which mandated SEGREGATION and political disenfranchisement

Washington’s conservative views were de-nounced by W E B DuBois and other African American, as well as white, leaders who felt that

CIVIL RIGHTScould not be compromised and that Washington’s emphasis on a vocational educa-tion was an affront to those who wished to become professionals Opposition to Washing-ton’s views helped to create the Niagara Movement, which was started in 1905 and served as the forerunner of the National Association for the Advancement of Colored People (NAACP), established in 1909

Undaunted by criticism from both liberals and conservatives, Washington continued to write, lecture, and disseminate his personal philosophy of non-agitation In addition, his influence expanded He served as advisor to Presidents THEODORE ROOSEVELT and WILLIAM HOWARD TAFT, on the subject of political appointments of African Americans and issues concerning race relations He also was instru-mental in securing funds for African-American institutions from such millionaire industrial leaders as Andrew Carnegie and John D Rockefeller

When Washington died on November 14,

1915, Tuskegee Institute had more than 1,500 students enrolled, and approximately two hundred faculty members Its endowment was larger than that of any other African American institution Washington was able to add a considerable amount to Tuskegee funds through the sale of his popular and ground-breaking autobiography, Up from Slavery, which was published in 1901

Beginning in 1903 with the publication of

Du Bois’s The Souls of Black Folk, and continu-ing for the rest of his life, Washcontinu-ington was criticized for his failure to be more publicly aggressive in fighting the deterioration of race relations in the United States, for his avoidance

of direct public support for civil rights legisla-tion, and for his single-minded emphasis on industrial education as opposed to academic training for a “talented tenth” of the race Washington, however, was adept at outmaneu-vering his critics, even resorting to the use of spies to infiltrate organizations critical of his leadership, such as the Niagara Movement, led

Booker Taliaferro Washington 1856–1915

1856 Born, Franklin

County, Va

1857 Dred Scott v.

Sandford decision

denied citizenship

to African Americans

1865 Thirteenth Amendment ratified, abolished slavery

1870 Fifteenth Amendment ratified, established right of all male citizens to vote

1872–75 Attended Hampton Agricultural Institute

1868 Fourteenth Amendment ratified, gave citizenship rights to former slaves

1875 Graduated from Hampton

1881 Became head of Tuskegee Negro Normal Institute in Alabama

1895 Gave “Atlanta Compromise”

speech at Cotton States Exposition

in Atlanta

1896 Plessy v Ferguson

decision upheld “separate but equal” racial segregation

1901 Up from

Slavery published

1915 Died, Tuskegee, Ala.

320 WASHINGTON, BOOKER TALIAFERRO

by Du Bois His intimate friends called

Washington “the Wizard” for his mastery of

political intrigue and his exercise of power

Booker T Washington was both praised and

reviled for practicing the“politics of

accommo-dation.” To some he was a hero who advocated

for moral development and economic

self-reliance for African Americans who had to

forge a life after being freed from the bonds of

slavery To others he was supportive of

segregation and a compatriot of whites who

attempted to suppress equal rights for African

Americans Regardless of these views,

Washing-ton was a pivotal figure in American race

relations after the Civil War

FURTHER READINGS

Harlan, Louis R 1986 Booker T Washington: The Wizard of

Tuskegee, 1901–1915 New York: Oxford Univ Press.

——— 1975 Booker T Washington: The Making of a Black

Leader, 1856–1901 New York: Oxford Univ Press.

Washington, Booker T 1901 Up from Slavery, an

Autobiography Reprint, New York: Gramercy Books,

1993.

vWASHINGTON, BUSHROD

Bushrod Washington served on the U.S

Supreme Court as an associate justice from

1798 to 1829 A strong Federalist and able jurist,

Washington was tolerant and well-liked by

other members of the bar His reputation,

though respectable, might shine more brightly

today if it was not overshadowed by that of his

contemporary and friend, Chief Justice JOHN

MARSHALL Washington concurred with

Mar-shall’s opinions so often that jokes were made

about them being one justice Although he

wrote a handful of significant opinions on

contract law, Washington is remembered

pri-marily as a stalwart supporter of the chief

justice

Born on June 5, 1762, in Westmoreland County, Virginia, Washington enjoyed the benefits of an aristocratic life He was a nephew

of GEORGE WASHINGTON, the nation’s first presi-dent, and the two were close He inherited the president’s estate at Mount Vernon

Tutored at home in his childhood, Washington later attended the College of William and Mary, graduating in 1778 He studied law privately until 1781 and then served in the Revolutionary War In 1784 he was admitted to the Virginia bar

Washington first practiced law in Alexan-dria, Virginia, where he also became involved in politics In these early years of the young lawyer’s life, he specialized in chancery cases—

typical lawsuits under the now-antiquated system ofEQUITYlaw Yet he had an eager mind and kept expanding the range of his experience

He became a keen supporter of FEDERALISM,

Bushrod Washington 1762–1829

❖

1762 Born,

Westmoreland County, Va.

1778 Graduated from William and Mary College

1790 Admitted

to Va bar

1775–83 American Revolution

1778–83 Served in Continental Army 1787 Served in Va.

House of Delegates

1798–1829 Served as associate justice of U.S.

Supreme Court

1812–14 War of 1812

1829 Died, Washington, D.C.

◆

◆

Bushrod Washington.

PHOTOGRAPH BY HARRIS & EWING COLLECTION OF THE SUPREME COURT OF THE UNITED STATES.

WASHINGTON, BUSHROD 321

embracing its belief in strong federal govern-ment, and in 1787 won election to the Virginia House of Delegates In 1788, as the nation was preparing to ratify the Constitution, he served as

a delegate to Virginia’s ratifying convention By the late 1790s, Washington had established his own practice in Richmond, trained numerous lawyers, and written two enormous volumes of reports on cases as a recorder for the state’s court

of appeals His legal and political experience prompted PresidentJOHN ADAMSto appoint him

to the Supreme Court in 1798

On the Court, Washington almost always followed the lead of Chief Justice Marshall The two had been friends since their student days and shared political sympathies Marshall, widely viewed as the greatest leader of the Court in history, was also an ardent judicial Federalist Only three times did Washington vote differently from Marshall, and only once did he attach a concurring opinion to the chief justice’s opinion This was inDARTMOUTH COLLEGE

V.WOODWARD, 17 U.S (4 Wheat.) 518, 4 L Ed

629 (1819), a landmark case that upheld the inviolability of contracts Washington’s cautious concurrence sought to limit the implications of the decision

If the two men differed philosophically, it was only by degree Washington wished to avoid conflicts with STATES’ RIGHTS whenever possible

He dissented only twice during 31 years on the Court In fact, as a trusted supporter of the chief justice during the early tumultuous years of Marshall’s tenure, he even went so far as to discourage his colleagues from writing dissents when ordinary issues were involved

Washington also made independent contri-butions to the Court He wrote the first part of the decision in Ogden v Saunders, 25 U.S (12 Wheat.) 213, 6 L Ed 606 (1827), which stated that any law passed before the execution of a contract is a valid part of that contract He was noted for his fairness while “circuit riding”—

traveling and performing the duties of a circuit judge, a routine though difficult task for Supreme Court justices in the early nineteenth century

Washington died in Philadelphia on November

26, 1829

FURTHER READINGS Abraham, Henry J 1992 Justices and Presidents: A Political History of Appointments to the Supreme Court New York: Oxford Univ Press.

Faber, David A 1999 “Justice Bushrod Washington and the Age of Discovery in American Law ” West Virginia Law Review 102 (summer).

Hall, Kermit, ed 2005 The Oxford Companion to the Supreme Court of the United States New York: Oxford Univ Press.

vWASHINGTON, GEORGE George Washington was a U.S military leader, statesperson, and the first president of the United States from 1789 to 1797 A leader of mythic proportion in U.S history, Washing-ton’s leadership from the American Revolution (WAR OF INDEPENDENCE) to the end of his presidential administrations proved crucial to winning independence from Great Britain and establishing a national union of states based on the U.S Constitution

Washington was born on February 22, 1732,

in Westmoreland County, Virginia, the first son

of Augustine Washington and his second wife, Mary Ball Washington Born into the colonial aristocracy, Washington attended local schools and supplemented his formal education by reading widely As a young man he became a surveyor, and in 1749 he was appointed county surveyor for Culpeper County, Virginia In 1752,

at the age of 20 Washington inherited the family estate at Mount Vernon and embarked on a military career

During the French and Indian War, Washington gained his first military experience The war was fought to determine whether France or Great Britain would rule North America In 1753 Washington requested and received the assignment of delivering an ulti-matum to the French, ordering them to retreat from the Ohio Valley The French refused, and Washington led troops against them Although Washington won an initial victory in 1754, the French counterattacked in force and Washing-ton had to surrender his camp at Fort Necessity, Pennsylvania He resigned his commission, but

in May 1755 Washington became an unpaid volunteer, serving as aide-de-camp to the British general Edward Braddock Braddock was ambushed and killed later that year near Fort Duquesne, and Washington himself nar-rowly escaped In August 1755 Washington was promoted to colonel and given command of the Virginia MILITIA, which defended the western frontier of the colony During the remainder of the war, Washington successfully protected the frontier

IT IS BUT A DECENT

RESPECT DUE TO THE

WISDOM,THE

INTEGRITY,AND THE

PATRIOTISM OF THE

LEGISLATIVE BODY,

BY WHICH ANY LAW IS

PASSED,TO PRESUME

IN FAVOR OF ITS

VALIDITY,UNTIL ITS

VIOLATION OF THE

CONSTITUTION IS

PROVED BEYOND ALL

REASONABLE DOUBT

—B USHROD

W ASHINGTON

322 WASHINGTON, GEORGE

In 1759 Washington returned to Mount

Vernon, where he married Martha Custes, a

young widow with a large estate The marriage

made Washington one of the wealthiest men in

Virginia He was elected to the Virginia House

of Burgesses in 1759, serving until 1774 During

this period, colonial anger at British taxation

and control began to steadily build Great

Britain believed that the taxes were justified to

help repay the war debt and recognize British

efforts to successfully remove France from

North America Washington, like many other

colonial leaders, joined the protest against

British interference and in 1774 endorsed the

Fairfax Resolves, which called for a stringent

boycott of British imports In 1774 and 1775 he

attended the first and second CONTINENTAL

CONGRESSESas a delegate from Virginia

In 1775, as the Revolutionary War was

imminent, the Congress appointed Washington

commander in chief of the American forces,

which were known as the Continental Army It

was hoped that Washington’s appointment

would promote unity between Virginia and

New England

Washington’s years as commander in chief

were a mix of defeats and victories In March

1776 he successfully forced the British out of

Boston, but in August the British defeated his

forces at New York City Washington then

sought safety in New Jersey and emerged

victorious again with his surprise attack on

Trenton on December 25, 1776 On January 3,

1777, Washington’s troops defeated the British

at Princeton, New Jersey The two victories were

critical to maintaining colonial morale, and

by the spring of 1777, more than 8,000 new

soldiers had joined the Continental Army

The tide turned, however, in September

1777, when Washington unsuccessfully tried to stop British forces from advancing on Philadel-phia at the battle of Brandywine Creek After the British occupied Philadelphia, Washington made a futile attack at nearby Germantown

During the winter of 1777 and 1778, Washing-ton’s troops stayed at Valley Forge, west of Philadelphia The conditions were adverse, requiring all of Washington’s leadership skills

to hold his army together During the winter his actions aroused DISSENT in Congress, and his critics sought to have General Horatio Gates replace Washington as commander in chief

Several congressmen and military officers backed Gates, but the public rallied behind Washington

George Washington.

LIBRARY OF CONGRESS

George Washington 1732–1799

◆

◆

◆

◆

◆

◆

❖

1732 Born,

Westmoreland County, Va.

1752 Inherited family estate at Mount Vernon, Va.; began military career

1754–63 French and Indian War

1759–74 Served in the Va.

House of Burgesses

1775 Attended Second Continental Congress; appointed commander in chief of the Continental Army

1774 Attended First Continental Congress

1781 British General Cornwallis surrendered

at the Battle

of Yorktown

1799 Died, Mount Vernon, Va.

1783 Treaty of Paris signed, ending Revolutionary War

1775–83 American Revolution

1793 Neutrality Proclamation issued

1794 Sent out militia to quell the Whiskey Rebellion

1795 Jay Treaty settled commerce and navigation rights with Great Britain

1789–97 Served as first president of the United States

WASHINGTON, GEORGE 323

In June 1778 Washington attacked the British at Monmouth, New Jersey, but again was defeated He then shifted his military strategy, keeping his troops encamped around British forces in Connecticut, New York, and New Jersey In 1781 Washington defeated General Charles Cornwallis at the Battle of Yorktown in Virginia The surrender of Corn-wallis marked the end of major military actions

in the Revolutionary War The signing of the

TREATY OF PARIS in 1783 officially ended the conflict, with Great Britain recognizing the independence of the thirteen colonies and the geographic boundaries of the new nation

After the war Washington returned to Mount Vernon, but he was soon drawn back into politics The ARTICLES OF CONFEDERATION proved ineffective for governing the national affairs of the 13 states SHAYS’S REBELLION, named after its leader Daniel Shays, was an armed insurrection

in Massachusetts in 1787 and 1788 that con-vinced U.S political leaders that a strong national government was needed Washington agreed and consented to serve as president at the Constitu-tional Convention of 1787 in Philadelphia

Though he played no part in the drafting of the Constitution and did not participate in behind-the-scenes political discussions, Washington’s presence lent legitimacy to the effort to craft a new government

As the leading national figure, Washington was the logical choice to become the first president of the United States His election in

1788 helped shape the EXECUTIVE BRANCH of federal government Washington decided to surround himself with a group of national leaders as his advisors and administrators

Though the presidential cabinet is not discussed

in the Constitution, Washington’s use of it made it a traditional part of a president’s administration

The first cabinet included THOMAS JEFFERSON

asSECRETARY OF STATEandALEXANDER HAMILTONas secretary of the treasury Washington was sympathetic to Hamilton’s belief that a strong national government was needed, including the establishment of a national bank In contrast, Jefferson believed that the states should con-tinue to be dominant, with the national government confined to the enumerated powers contained in the Constitution The conflict between Hamilton and Jefferson dominated Washington’s administration

Jefferson supported the French Revolution, whereas Hamilton favored British efforts to organize a coalition to topple the new regime through warfare As events unfolded, Washington announced in the Neutrality Proclamation of

1793 that the United States favored neutrality

in the war between France and the British coalition U.S neutrality clearly favored the British When the French emissary Edmond-Charles Genet tried to recruit U.S soldiers

to serve as volunteers for the French cause, Washington had Genet recalled and repudiated the 1778 treaty with France Jefferson opposed Washington’s actions and resigned as secretary

of state, causing a rift in the REPUBLICAN PARTY

and precipitating the formation of theFEDERALIST PARTY, with Hamilton as its leader

Reelected in 1792, Washington faced do-mestic problems in 1794 with the WHISKEY REBELLION in Pennsylvania Organized as a protest against a federal liquor tax, the Penn-sylvania uprising was quelled when Washington ordered the militia to maintain peace

In 1795 Washington faced opposition to the Jay Treaty with Great Britain, which JOHN JAY

had negotiated to settle commerce and naviga-tion rights One secnaviga-tion of the treaty permitted the British to search U.S ships The treaty was adopted because of Washington’s popularity, but both the president and the treaty were severely criticized

The ELECTORAL COLLEGEunanimously elected Washington in 1789 and 1792; he is the only president to date to be unanimously elected Washington did not seek reelection in 1796 In his celebrated “Farewell Address,” he advised against “entangling alliances” with European nations He returned to Mount Vernon, where

he spent the rest of his years managing his estate

Washington died on December 14, 1799, at Mount Vernon

FURTHER READINGS Marshall, John 2000 The Life of George Washington Indianapolis: Liberty Fund.

Rozell, Mark J., William D Pederson, and Frank J Williams, eds 2000 George Washington and the Origins of the American Presidency Westport, Conn: Praeger Shogan, Colleen J 2001 “The Moralist and the Cavalier: The Political Rhetoric of Washington and Jefferson.” Northern Kentucky Law Review 28 (summer) Zall, Paul M., ed 2003 Washington on Washington Lexington: Univ Press of Kentucky.

LIBERTY,WHEN IT

BEGINS TO TAKE

ROOT,IS A PLANT OF

RAPID GROWTH

—G EORGE

W ASHINGTON

324 WASHINGTON, GEORGE

CROSS REFERENCES

“Farewell Address” (Appendix, Primary Document); War of

Independence.

WASHINGTON V GLUCKSBERG

In Washington v Glucksberg, 521 U.S 702, 117

S Ct 2258, 138 L Ed 2d 772 (1997), the U.S

Supreme Court was asked to review the

constitutionality of a Washington state statute

prohibiting physician-assisted suicide By

up-holding the statute and denying mentally

competent, terminally ill patients a

constitu-tional right to hasten their death through lethal

doses of self-administered, doctor-prescribed

medication, the Supreme Court returned this

controversial issue to the states where it

continues to be debated among residents,

legislators, and judges In handing down its

decision, the Court was careful to point out that

it was not foreclosing reconsideration of the

issue at some later time

The case arose in January 1994 when four

Washington physicians, three gravely ill

patients, and a nonprofit organization that

counsels people considering doctor-assisted

suicide filed a lawsuit in the U.S District Court

for the Western District of Washington The

lawsuit challenged the constitutionality of

Washington Revised Code Section 9A.36.060,

which makes it a crime to knowingly assist, aid,

or cause the suicide of another person The

district court ruled the statute unconstitutional

on the ground that it violated the liberty interest

protected by theDUE PROCESS CLAUSEof theFIFTH

andFOURTEENTH AMENDMENTSto the U.S

Consti-tution (Compassion in Dying v Washington, 850

F Supp 1454)

The case was then appealed to the U.S

Court of Appeals for the Ninth Circuit, where a

panel of judges reversed the district court’s

ruling and reinstated the Washington statute In

a 2–1 decision, the court of appeals emphasized

that no right to assisted suicide has ever been

recognized by a court of final jurisdiction

anywhere in the United States (Compassion in

Dying v Washington, 49 F.3d 586 (1995)

Agreeing to rehear the case en banc (before 11

judges on the ninth circuit), the court of appeals

reversed the panel’s decision and affirmed the

district court’s ruling, which had invalidated the

Washington statute (Compassion in Dying v

Washington, 79 F.3d 790 (1996) In an 8–3

decision, the appellate court said that “the

Constitution encompasses aDUE PROCESS liberty interest in controlling the time and manner of one’s death,” including the liberty interest of certain patients to hasten their deaths by taking deadly amounts of medication prescribed by their physicians

When the case reached the Supreme Court, Chief JusticeWILLIAM H.REHNQUISTcast the issue

in a slightly different light In an opinion joined

by JusticesSANDRA DAY O’CONNOR,ANTONIN SCALIA,

ANTHONY M KENNEDY, and CLARENCE THOMAS, Rehnquist said that the case turned on whether the Due Process Clause protects the right to commit suicide with another’s assistance

According to the Court, three reasons sup-ported its decision to reject such a constitu-tional claim

First, the Court observed that suicide and assisted suicide have been disapproved by Anglo-Saxon law for more than seven hundred years From thirteenth-century England through nineteenth-century America, the Court said, the COMMON LAW has consistently autho-rized the punishment of those who have attempted to kill themselves or assisted others

in doing so Second, the Court pointed to the overwhelming majority of states that currently prohibit physician-assisted suicide Only Ore-gon expressly allows doctors to help their patients hasten their demise through lethal doses of prescribed medication, and the law that allows this practice is constantly being challenged in court Third, the Court found that the history of the Due Process Clause does not support the asserted right to assisted suicide

Although the Due Process Clause protects certain fundamental rights, the Court wrote, the asserted right to physician-assisted suicide does not rise to this level of importance Before a right may be deemed fundamental in nature, it must be deeply rooted in the nation’s LEGAL HISTORY Because the Court found the asserted right to physician-assisted suicide to be contrary

to U.S history, tradition, and practice, it concluded that it was not a fundamental right

This conclusion meant that the Court would not apply the STRICT SCRUTINY standard of

JUDICIAL REVIEW that is required when a piece

of legislation affects a highly valued liberty or freedom

Instead, the Court applied a minimal standard of judicial scrutiny Known as the rational relationship test, this standard of

WASHINGTON V GLUCKSBERG 325

judicial scrutiny requires courts to uphold laws that are reasonably related to some legitimate government interest In this case the Court said that the state of Washington had a legitimate interest in preserving life, preventing suicide, protecting the integrity and ethics of the medical profession, and safeguarding vulnerable members of society, such as the poor, elderly, and disabled, from friends and relatives who see physician-assisted suicide as a way to end the heartache and burden that often accompany the protracted illness of a loved one

On the same day that the Court released its decision in Glucksberg, it announced its decision

in a companion case, Vacco v Quill, 521 U.S

793, 117 S Ct 2293, 138 L Ed 2d 834 (1997)

Vacco differed from Glucksberg in that the plaintiffs in Vacco (three doctors and three terminally ill patients) challenged a New York law prohibiting physician-assisted suicide on the ground that it violated theEQUAL PROTECTION CLAUSE of the Fourteenth Amendment to the U.S Constitution New York Penal Law Section 125.15 makes it a crime to intentionally help another person commit suicide However, pursuant to the Supreme Court’s decision in Cruzan v Director, Missouri Department of Health, 497 U.S 261, 110 S Ct 2841, 111 L

Ed 2d 224 (1990), New York permits compe-tent adult patients to terminate life-sustaining treatment, such as artificial hydration, nutrition, and respiration

The Equal Protection Clause requires the government to provide equal treatment to all similarly situated people The Fourteenth Amendment prohibits the government from denying legal rights to one group of persons when those same rights are afforded to another group confronted by indistinguishable circum-stances The plaintiffs argued that the withdrawal of life-sustaining treatment is tanta-mount to suicide, because by definition its withdrawal typically ends life by ceasing to sustain it The plaintiffs in Vacco contended that, in allowing some patients to hasten their death by terminating life-sustaining measures but not allowing other patients to hasten their deaths by taking lethal doses of prescribed medication, New York had denied patients equal protection of the laws

The Supreme Court disagreed A funda-mental distinction exists between letting a patient die and killing her, Chief Justice

Rehnquist wrote in the majority opinion that was again joined by Justices O’Connor, Scalia, Kennedy, and Thomas In one instance, the patient is allowed to die by natural causes when life-sustaining treatment is withdrawn The patient’s cause of death in that instance, the Court said, is the underlying illness In the other instance, the Court continued, death is inten-tionally inflicted by the joint effort of doctor and patient The cause of death in that instance, the Court emphasized, is not the underlying illness, but human action

The Court also pointed out that the Cruzan decision was based on the ancient common-law tradition of protecting patients from unwanted medical treatment Under the common law, it is considered a BATTERY (an intentional TORT that makes any unwanted touching actionable) for a physician to force a competent adult to undergo life-sustaining treatment over a clearly voiced objection Based in part on this common-law tradition, the Court in Cruzan recognized a limited constitutional right of a competent, adult patient to disconnect hydration, nutrition, and respiration equipment, even if exercising this right would necessarily result in the patient’s death However, the Court in Vacco noted that a right to physician-assisted suicide has never been approved by the common law but has been historically discouraged by both common-law and statutory schemes throughout the United States Thus, the Court concluded that physician-assisted suicide is not substantially similar to refusing medical treatment and that the legal systems of New York and other states may treat each practice differently without running afoul of the Equal Protection Clause Although the decisions in Glucksberg and Vacco were both unanimous, a number of justices wrote concurring opinions that were applicable to both cases In a concurring opinion by Justice O’Connor, which was joined

by Justice RUTH BADER GINSBURG, O’Connor stressed that the states remain free to establish

a right to physician-assisted suicide or to otherwise strike a proper balance between the interests of terminally ill patients and the interests of society State legislatures, O’Connor suggested, are a more appropriate forum for making such difficult decisions because their members are accountable to the electorate at the ballot box By contrast, the federal judiciary is often insulated from public opinion because

326 WASHINGTON V GLUCKSBERG

their members are appointed to the bench

for life Relying on several studies undertaken

by the states to evaluate the problem of

physician-assisted suicide, O’Connor said that

the right to die must first be grappled with

at the local level before entangling federal courts

in the controversy

JusticeJOHN PAUL STEVENS’s concurring

opin-ion also underscored the need for further

national debate on the propriety of

physician-assisted suicide, but in a different vein

Although the states’ interests may have been

adequately served in Glucksberg and Vacco,

Stevens cautioned, the Court’s holding in these

two cases does not foreclose the possibility that

other circumstances might arise in which such

statutes would infringe on a constitutionally

protected area There will be times, Stevens

wrote, when a patient’s interests in hastening his

death will outweigh the state’s countervailing

interests in preserving his life Although Stevens

did not speculate about the circumstances in

which a patient might successfully assert a

right-to-die claim, Justice STEPHEN BREYER took the

opportunity to do so in his concurring opinion

Breyer suggested that the right to die should

be renamed “the right-to-die with dignity.”

Once recognized by the Court, Breyer said, the

right to die with dignity would include a

competent patient’s right to control the manner

of her death, the quality and degree of

professional care and intervention, and the

amount of physical pain and suffering

Accord-ing to Breyer, a statute that would prevent

patients from obtaining access to certain

pallia-tive care aimed at reducing pain and suffering

might infringe on the right to die with dignity

Competent, terminally ill adult patients, Breyer

intimated, may enjoy a constitutional right to

prescription medication that will minimize the

agony that often tortures the final days of their

existence

JusticeDAVID H.SOUTERarticulated a different

method of analysis for evaluating right-to-die

cases Souter argued that the so-called right to

die is a species of SUBSTANTIVE DUE PROCESS

Substantive due process, Souter reminded the

Court, is a doctrine under which a judge

evaluates the substantive merits of a statute, as

opposed to the procedure by which it is

implemented or administered Under the rubric

of substantive due process, the Court has

recognized an individual’s interest in dignity,

autonomy, and privacy, among other things, over the course of the last century The right to refuse unwanted medical treatment recognized

by the Court in Cruzan, for example, was designed in part to serve these three interests

Souter contended that the doctrine of substantive due process protects individuals from “arbitrary impositions” and “purposeless restraints” created by the government Souter advocated viewing substantive due process claims on a continuum of liberty in which the level of judicial scrutiny would increase in direct proportion to the level of government restraint

or imposition First enunciated by Justice JOHN MARSHALL HARLANin his dissenting opinion in Poe

v Ullman, 367 U.S 497, 81 S Ct 1752, 6 L Ed

2d 989 (1961), this approach to substantive due process would require courts to carefully balance the competing interests presented by the litigants in each right-to-die case

Souter contrasted this simpler approach with the more complicated analysis presently employed by the Court, an analysis that involves multiple tiers of judicial scrutiny, ranging from strict to minimal scrutiny, different categories of constitutional rights, ranging from fundamental

to non-fundamental rights, and different classes

of protected status into which a plaintiff may fall, ranging from suspect to non-suspect classes A BALANCING approach such as the one articulated in Poe, Souter maintained, would allow for the gradual evolution of a constitu-tional right to die, instead of the complicated all-or-nothing approach that the Court has effectively adopted

FURTHER READINGS Cantor, Norman L 2001 “Glucksberg, the Putative Right to Adequate Pain Relief, and Death with Dignity ” Journal

of Health Law 34 (summer).

Cohen-Almagor, Raphael 2001 The Right to Die with Dignity: An Argument in Ethics, Medicine, and Law New Brunswick, NJ: Rutgers Univ Press.

Gunther, Gerald, and Gerhard Casper, eds 1998 Washing-ton v Glucksberg Bethesda, MD: Univ Publications of America.

Hanafin, Patrick 2003 “Surviving Law: Death Community Culture ” Studies in Law, Politics, and Society 28 (spring).

“Supreme Court Unanimously Upholds State Laws against Criminally Assisted Suicide ” 1997 United States Law Week (July 1).

CROSS REFERENCES Death and Dying; Euthanasia; Living Will; Quinlan, In re.

WASHINGTON V GLUCKSBERG 327