So, life imitates economics: All important debates are at the margin. Same goes for constitutional rights law, as two stories in today’s papers remind us. A New York Times front-page story has advocates of assisted suicide spinning the conviction of Dr. Jack Kevorkian for murder in Michigan as actually helpful to their cause. How? Because assisted suicide, which keeps final control of the decision to die literally in the patient’s hands, can be favorably distinguished from a lethal injection by a doctor as in the Kevorkian case.
There’s something to this, as the more the power rests in someone other than the patient, the more danger there is of mistake, coercion, or abuse. (See Ian McEwan’s recent novel Amsterdam for high satire on this point.) There is also the problem of damage to the image of the doctor as healer if he comes at you with that final syringe. The Supreme Court has done similar line-drawing at another margin in the right-to-die debate: It has said that we have some kind of right to remove unwanted life support, rooted in the common-law notion that we can protect our bodies from battery, but that we do not have any such right to have a doctor supply a lethal dose of medication. (Only Oregon at the moment guarantees such a right for the terminally ill.) Framed as an issue of private choice about when to accelerate death, all of these scenarios look the same, and the technique that’s used seems beside the point. But the strong intuition reflected in the Kevorkian article and the cautious common-law constitutionalism of the court both suggest that factual variation at the margin makes all the difference.
In a second story revolving around legal analogies, the Supreme Court has just agreed to decide whether conservative Christian students at a public university have a First Amendment right not to pay a public university a mandatory student activity fee to the extent it supports environmental, feminist, or gay-rights student groups. Now, none of us has a conscientious-objection right not to pay our taxes, even to the extent they pay for things we think ideological anathema. We even have to pay taxes to keep the streets and parks open for parades and demonstrations we abhor. So why do these students think they have a case? Because for decades the Supreme Court has held that folks may not be forced to support union political activities or bar-association political activities that stick in their craws, even if they can be made to pay such organizations the costs of collective bargaining or lawyer discipline. So the legal issue is whether student activities at a public university are more like parades in the park or the ideological frolic and detour of an organization that’s only entitled to exact fees for its central mission. No student could claim a rebate for the portion of tuition that went to support a class on evolution or civil rights law he or she found offensive, so the university’s best bet is to argue that student activities are an extension of the university’s educational mission.
Politically, of course, the issue in the student-fee case is whether conservative activists will be able to shut down liberal activists on campus by making their organizations too expensive as an accounting matter. Which brings us back to our exchange about sweatshop demonstrations, and a chance to see what tomorrow’s news may bring.