#3 Fall 1989
HIGHLIGHTS OF TAFOL PANEL PRESENTATION
AT THE JEFFERSON SCHOOL
Right to Counsel
Right to Privacy
l MANDATORY PRO BONO UPDATE
l TAFOL ACTIVITIES AT TJS AND
l IN BRIEF:
Right to Die
l A BETTER DECLARATION?
1989 page 1
HIGHLIGHTS OF TAFOL PANEL PRESENTATION AT THE JEFFERSON SCHOOL
During the 1989 session of The Jefferson School, The Association
For Objective Law presented a panel discussion of three law-related
indigents accused of crimes should be provided with free counsel
by the state;
* Whether a state should have the power to subpoena
* Whether there is a "right of privacy."
The panel topics were chosen because they were topics on which
Objectivists might very well disagree.
was comprised of TAFOL officers. Dr. Harry Binswanger acted as
moderator and "commentator-at-will." For
each topic, one panel member made a short presentation. Other
members and Dr. Binswanger then commented. Finally, questions and
opinions were solicited from the audience. Thirty minutes were
allotted for each topic. One disclaimer was made: members of the
panel did not profess to be experts, whether as lawyers or philosophers
of law, on the topics discussed. An additional disclaimer should
be made here: any particular opinion expressed by a panel member
may have been put forward for the sake of lively discussion, but
may not represent that person's actual view.
Right to Counsel
TAFOL's vice president, began with a discussion of the right
to counsel. His discussion focused upon
the right to counsel in present society, not in a fully free
society. Steve stated that under the Sixth Amendment to the United
States Constitution, "In all criminal prosecutions, the
accused shall enjoy the right . . . to have the assistance of
counsel for his defense." According to Steve, this provision
was never meant to require that counsel be provided to an indigent
criminal defendant at state expense. Its purpose was to ensure
that no federal court adopt the common law rule that a defendant
in a felony case could not hire a lawyer to represent him. The
United States Supreme Court held to this view of the purpose
of the amendment until 1938 when it ruled that a federal court
must provide such counsel. In 1940 the Court refused to apply
this rule to the states; but in 1963, in the famous case of Gideon
v. Wainwright, the Court ruled that the states must provide counsel
for a defendant in a felony case. The Court subsequently expanded
the application of this rule to any case that may result in incarceration.
Steve then began his argument in favor of providing counsel to
indigent criminal defendants by observing that the American system
of justice is an adversary system. That is, in any given case,
each side presents evidence and arguments favorable to its position,
and a judge or jury makes a decision based on the information presented.
The proper working of the system requires that each side be able
to present its position adequately. The rules of evidence and procedure
are necessarily technical; their use requires a specialist. In
most cases, a layman who seeks to defend himself will not be able
to present an adequate defense. To deprive a person of his life
or liberty without giving him a fair opportunity to defend himself
is to subvert the system.
Steve continued his argument in favor of the rule by stating that
the equal protection clause of the Fourteenth Amendment requires
that persons similarly situated be similarly treated. An unrepresented
defendant is more likely to be convicted than his represented counterpart;
and if convicted, the former is likely to receive a heavier sentence.
It is irrational and unfair for the criminal justice system to
treat two men differently on the basis that one has more money
than the other.
to Steve's argument were raised. Dee Tagliavia, TAFOL's treasurer,
asked Steve how he could reconcile his position
with TAFOL's opposition to mandatory pro bono. In both instances,
representation for indigents is secured by the initiation of
force by the state. In one instance, it is the taxpayer who is
forced to provide funds with which to pay for representation, and
in the other, attorneys are forced to forego payment for the representation
#3 Fall 1989 Page 2
Arline Mann, TAFOL's president, raised a similar objection,
stating that legal assistance should be a private service.
Why should the
government provide defendants with a private service at the
expense of others? Defendants have other options: they
can appear pro
se (for themselves, without a lawyer); they can hire their
they can, if they are poor, borrow money to pay an attorney's
fee, try to convince an attorney to volunteer to help them,
or use an
attorney provided by a charitable organization such as Legal
Dee also inquired whether a defendant might not receive a fair
trial even if he found himself in court without a lawyer. For example,
wouldn't it be possible for the judge to assist him? Steve responded
that the function of judging and the function of advocating a particular
position (or assisting a defendant) are incompatible. Steve, a
seasoned prosecutor, assured the assembly that it is all too easy
for an experienced prosecutor to take advantage of a non-lawyer
in criminal proceedings.
Dee and Arline also expressed concern as to how far the idea of
parity in representation would have to be carried. Must the public
defender have attended a law school as good as the prosecutor's?
Must the advocates have had equal years of experience? Must a private
investigator be provided to assist in the indigent's defense? Must
expert witnesses be hired on the indigent's behalf? Through how
many levels of appeals must parity in representation be maintained?
Arline stated that providing counsel to indigent criminal defendants
raises many other difficult questions. For example, should the
government also provide indigent civil defendants with counsel?
The proceeding may not have been brought by the government, but
the forum is provided and the result enforced by the government.
Will attorneys provided to criminal defendants by the government
really be competent? Do they face any conflicts by virtue of the
fact that their salaries are paid by the government?
Dr. Binswanger conducted a straw vote on the right to counsel.
Audience and panel opinion were both divided.
the discussion on the propriety of the subpoena power by explaining
that a subpoena is a command to appear at a
specified time and place to give testimony or to produce documents
or other things. It is
used to obtain testimony or materials from an unwilling
third party; that is, someone who is not the plaintiff or defendant
in the proceeding. Subpoenas are generally issued in connection
with a pending proceeding (a trial, arbitration or regulatory proceeding)
or in connection with pretrial discovery proceedings. The essential
point is that subpoenas have the power of the government behind
them. Through a subpoena, the government can haul a person into
court or force him to produce documents, on pain of contempt punishable
by fine or imprisonment.
Arline stated that, in her discussion of subpoenas, she would
focus upon a basic factual situation. She would assume that the
person to whom a subpoena is directed has highly relevant information,
and that he is the only one with that information. Further, she
would assume that the information is crucial to the prosecution
or defense of a murder trial; that is, that the person witnessed
a murder and knows that the defendant either did or did not commit
the crime. Finally, she would assume that the witness' appearance
at trial would impose only a minimal burden on him, that it would
present no danger to him and involve only minor inconvenience and
expense for which he would be reimbursed. Given these assumptions,
is it proper to force the person to testify at the trial through
the issuance of a subpoena?
Arline went on to explain that she and many other people have
an immediate emotional reaction that the subpoena power must be
proper. It seems wrong that someone who knows that a murderer may
be set free or that an innocent person may be convicted without
his testimony should be permitted to refuse to testify because
he doesn't feel like making the trip to the courthouse. But, Arline
argued, the law should not punish people for mere irrationality,
and if the subpoena represents the initiation of force by the government,
it should not be used.
Arline did not think that subpoenas are an instance of the initiation
of force by the government, but that they are a proper tool of
government. She propounded two theories
as to why this is so.
First, a refusal
to testify for the prosecution may amount to being an accessory
after the fact. It is similar to harboring
a criminal. In other words, it is the refusal to testify that is
a crime, and the subpoena that is self-defense. The same would
be true if the witness refused to testify for the defendant, although
this is a bit less clear. Such a refusal could be seen as aiding
a wrongful prosecution, and thus violating the rights of the defendant.
Arline said that she
thought, however, that this theory begs the question, in the
sense that it can only be a crime to refuse to testify if the government
or the defendant have a right to demand that the person testify.
that she was more comfortable with her second theory, although
it had its problems as well.
#3 Fall 1989
stated that Ayn Rand has said that when people live together,
they properly renounce force and delegate their right of self-defense
to the government. Arline thought that in practical terms, the
subpoena power is a necessary tool in uncovering and protecting
against violations of rights. She argued that one cannot both
the protection of the system but arbitrarily refuse to do what
is necessary for the system to work; or assert one's rights while
arbitrarily refusing to do what is necessary to protect the rights
of others. Thus, in the usual case, it is not appropriate for
the subpoenaed person to complain that his rights are being violated.
The principle is analogous to a classic tort principle. If a
is running from a murderer and is forced, in order to save his
life, to trespass on the land of another, the necessity of
his action is a defense to a charge of trespass. The principle is
that one cannot arbitrarily assert an empty right where to do
seriously harm an innocent person.
that there are problems with this theory. What constitutes necessity?
doesn't this mean that a person's rights may be
violated whenever someone else makes a convincing argument that
he will be injured unless they are? Isn't "necessity" dangerously
vague? Arline thought that although there are certain difficult
questions, and the rules must be narrowly drawn, there are important
distinctions between the run-of-the-mill situation and the situation
in which the testimony is truly important to the proceeding and
a truly empty "right" is asserted.
TAFOL's secretary, raised various issues in response to Arline's
defense of the subpoena power. First, Sandy indicated
a concern about those instances where the witness being subpoenaed
is inconvenienced, put in danger, or subjected to an economic forfeiture
of some sort. For example, she wondered whether the
subpoena power is appropriate in those instances where
business records of a proprietary nature are subpoenaed.
inquired why prospective witnesses shouldn't be paid rather than
to appear without compensation. In addition,
she asked what is the empty "right" that Arline stated
was asserted by a witness who refuses to give critical testimony.
that the questions Sandy raised are difficult questions. What
when testifying is an inconvenience or a danger
to the witness? Arline thought these problems can be solved by
having courts exercise much more control over subpoenas than they
do now, and by limiting the use of subpoenas to certain situations.
There might be a rule that subpoenas are issued only in criminal
cases, and only for trial or essential depositions, not for extensive
discovery proceedings. There might be a rule requiring a high degree
of materiality in the information the witness possesses. Arline
thought there should certainly be a requirement that parties must
apply to the court for an order that a subpoena be issued. Today,
in most instances, subpoenas can be issued by attorneys, and the
subpoenaed person is the one who must apply to the court if he
wants to resist the subpoena. Clearly, Arline said, the subpoenaed
person should be accommodated and compensated as much as possible
for any inconvenience or expense. Where there is a real burden
on the witness---where there is significant detriment that cannot
be avoided or compensated, or where there is danger (such as where
the witness has been threatened by those who do not wish him to
testify)---the court should review the situation, consider the
dangers and detriment to the witness as well as the seriousness
of the crime as to which he would testify and the materiality of
the information he possesses, and make a decision. In short, the
subpoena should be used only where it is necessary, and only where
refusal would in fact constitute an assertion of an empty "right."
to subpoena power among audience members focused on the issue
a subpoena represents the initiation of force
by the government. Some objected that the "necessity" theory
put forward would justify many types of invasions of rights, including
the draft, on the ground that such invasions of rights are "necessary" for
government to carry out its proper functions, such as national
defense. One member of the audience suggested that a person on
whom a subpoena was served should not be forced to comply, but
should face certain penalties if he refuses. (A witness who refuses
to comply would not be
fined or jailed, but might lose his rights to sue in court for
violations of his own rights, or to make use himself of the subpoena
power.) This, it was objected, merely provides for another type
of punishment, and is not an answer to the question of whether
any punishment is proper.
The straw vote on this issue indicated that the audience
favored the subpoena power.
Right to Privacy
discussion on the right to privacy by stating that we must distinguish
between the so-called constitutional right
to privacy as against the government, and the tort action involving
invasions of privacy by private parties. She stated that the panel
discussion would be limited to the former notion of the right to
privacy, which is generally viewed as having its genesis in an
#3 Fall 1989
Law Review article by Samuel D. Warren and Louis Brandeis. It also
has statutory, constitutional and case law foundations.
In addition, California, for example, specifically grants its
citizens a right to privacy.
by explaining that the constitutional bases for a right to privacy
the Fourth, Ninth and Fourteenth Amendments.
The Fourth Amendment involves the right to be free from unreasonable
searches and seizures, and the Fourteenth Amendment contains the
due process clause. The Ninth Amendment states: "The enumeration
in the Constitution of certain rights shall not be construed to
deny or disparage others retained by the people."
that the case law, attempting to carve out such a right "retained by the people," is
relatively young and revolves around privacy in family and sexual
matters. Four of the
well-known cases on the right to privacy are: (i) Griswold
the 1965 case in which the United States Supreme Court struck down
a law prohibiting the sale of contraceptives; (ii) Loving v.
the 1967 case where the Court struck down a law criminalizing interracial
marriage; (iii) Roe v. Wade, the 1973 case in which the Court legalized
abortion under certain circumstances; and (iv) Bowers v. Hardwick,
the 1986 case in which the Court let stand a state law that criminalized
Sandy said, these cases are pitifully devoid of guiding principles,
they do address an area of the law where there is clearly
a gap. The restrictive laws brought
into question in these cases had the power to dictate how
we conduct the most personal aspects of our daily lives. The Supreme
Court rested its decisions in those cases upon the right to privacy
in the absence of any other existing legal doctrine which would
prohibit such intrusions into private life by the government.
we lived in an Objectivist society with a proper philosophy of
thought there would be no such dilemma for the Supreme
Court---no need to invoke a right to privacy per se. As it is,
however, she stated, we can use Ayn Rand's views regarding individual
rights to make legitimate the stop-gap "corollary" right
to privacy in our current legal setting.
Sandy pointed out that we should not, of course, grant legitimacy
to the Supreme Court's erroneous decision in Hardwick, regardless
of the theory of rights employed. But she did not think the decision
in the Hardwick case requires us to dismiss the notion of a right
to privacy in a legal system which currently has no other basis
for striking down laws which intrude into such private areas as
family and sex.
that the right to privacy---the idea that the state cannot interfere
with private issues in citizens' lives
---sounds good; but, she stated, one has to wonder how in the world
we ended up with a decision as horrendous, as frightening, as Hardwick.
She thought the reason is that the United States Constitution has
been misread and twisted almost from the beginning, and that the
notion of a "right to privacy," one of the consequences
of that misreading, is actually a threat to rights.
From very early in constitutional history, Arline said, there
has been a failure to recognize several essential points about
the Constitution and rights: 1) the Constitution makes no effort
to, and does not, in fact, enumerate all rights; it limits government
power, not rights. It is not necessary for a person who has been
wronged to point to some particular right listed in the Constitution
or anywhere else in order for the wrong to be recompensed; and
2) rights are absolute; they cannot be overridden by the wishes
or needs of others. The proper view is that a person may do anything
he wishes so long as he does not initiate force and violate the
rights of others. The consequences of the failure to grasp the
true purpose of
the Constitution and the true nature of rights have been a progressive
wasting away of rights.
The "right to privacy," she
elaborated, represents nothing
more than a feeling on the part of some, particularly liberals,
that things have gone a little too far, that certain rights are
a little too important to let go. Indeed, the "right to privacy" is
formulated just that way in the cases: some rights are just too "fundamental" to
violate. This approach is apparent from the nature of privacy cases.
asked, do abortion or contraceptive use or homosexual
activity have to do with some prissy notion of "privacy"?
These cases deal very simply with freedom of action. But if this
were admitted, if it were acknowledged that no narrow "slot" need
be identified in the Constitution for such rights, that one can
do anything so long as nobody else's rights are violated, it would
be difficult to deny businesses, for example, the right to combine,
or private employers the right to hire and fire whomever they choose.
The "right to privacy" is a misguided attempt to save
some shreds of certain rights while retaining a way to eviscerate
thought, it is clear how the Supreme Court ended up with the
issued in Hardwick. Quite simply, the makeup
of the Court changed. This Court, a conservative Court, doesn't think that sexual activity between consenting males is a "fundamental" right.
Indeed, the Court commented that it could not be fundamental, since
it was contrary to prevailing moral views in America.
#3 Fall 1989
asked, is the correct view of such "privacy" issues
as abortion, sodomy, and so on? Arline suggested that there is
really nothing difficult about the central issues in the Supreme
Court cases. The proper result was clear in each; there should
have been no question as to whether the rights exist.
At the end of this discussion, the panel was adjourned.
A fourth issue, whether convicted criminals have any rights, was
scheduled for discussion, but was dropped for lack of time.
MANDATORY PRO BONO UPDATE
In the spring issue of this newsletter, we discussed the beginning
of the mandatory pro bono movement across the nation. Since that
time, we are sorry to report, the proponents have been progressing.
New York has
taken the lead. The Committee to Improve the Availability of
Legal Services was appointed by Chief
Justice Sol Wachtler to investigate the imposition of
mandatory pro bono. Based on an alleged "growing need for
legal services for the poor" and disappointingly low" percentage
of lawyers volunteering, it is urging the "modest" requirement
that every New York lawyer be required to devote at least 20 hours
a year to public service. Referring to the failure of previous
such plans to survive opposition, the head of the committee predicted
better success this time "in part because the man who commissioned
it has the power to put it in place." A series of public hearings
are scheduled to begin on October 19. One hearing will take place
in New York City; Arline Mann plans to attend.
contains some mitigating elements. The first is reminiscent of
in the early draft laws allowing a draftee to
hire an alternate. Members of small firms would be allowed to buy
out of the obligation at $50 per hour; members of large firms would
be allowed to "pool" their time so that senior partners
need not serve. (Some practitioners are complaining about the "unfairness" of
allowing the richer lawyers to buy out.)
mitigating element is the broad interpretation of the term "public service." It includes, for example, work "related
to improvement of the administration of justice."
the Supreme Court, at the instigation of the State Bar Association,
a "back-door" approach. It submitted
a new set of Disciplinary Rules of Professional Conduct to the
State Bar membership for referendum. Rule 6.01 provides: "A
lawyer shall not seek to avoid appointment by a tribunal to represent
a person except for good cause, such as . . . [a] likely . . .
violation of law or rules of professional conduct; . . . unreasonable
financial burden on the lawyer; or . . . [a client or cause] so
repugnant to the lawyer as to be likely to impair the client-lawyer
relationship or the lawyer's ability to represent the client." (Emphasis
added.) (One assumes a lawyer will not be allowed to avoid appointment
because he finds it repugnant to represent a client who regards
slavery as appropriate.) Under the present rules, a lawyer "should
not seek to be excused from undertaking the representation except
for compelling reasons. Compelling reasons do not include such
factors as the repugnance of the subject matter of the proceeding,
the identity or position of a person involved in the case, the
belief of a lawyer that a defendant in a criminal proceeding is
guilty, or the belief of the lawyer regarding the merits of the
civil case." (Emphasis added.)
In a letter to Texas
Lawyer, the state bar journal, TAFOL
member Michael Mazzone recommended a vote against the provision: "Only
a code of values that upholds the use of force and slavery as moral
could hold that every lawyer has a moral obligation to provide
legal services for those who cannot afford them." He received
in reply a letter from Steven D. Peterson, General Counsel for
the State Bar of Texas, interpreting Rule 6.01 as not requiring
that a lawyer undertake mandatory pro bono work. Mr. Peterson appears
to interpret the rule as limited to "those situations in which
a lawyer has been appointed by a court to represent an indigent
criminal defendant." In Mr. Peterson's view, this is not mandatory
pro bono because the lawyer is compensated. Of course it is. In
any event, the rule contains no limitation to criminal cases. The
official comments repeat the admonition of the former law that
a lawyer should not seek to decline appointment because of the
lawyer's "belief regarding the merits of a civil case." (Emphasis
go on to point out the altruistic motive behind mandatory pro
connection with a discussion of representation of
unpopular clients or causes, they state: "History is replete
with instances of distinguished and sacrificial services by lawyers
who have represented unpopular clients and causes. Regardless of
his personal feelings, a lawyer should not decline representation
because a client or cause is unpopular or community reaction is
adverse. Likewise, a lawyer should not reject tendered employment
because of the personal preference of a lawyer to avoid adversary
alignment against judges, other
#3 Fall 1989
public officials, or influential members of the community." I.e.,
a lawyer may be ordered to take on a client objectionable to himself
for no compensation. He must then be prepared to suffer ostracism
from members of the community.
On May 19, the lawyers of Texas voted to adopt the new rules.
are being made in North Dakota, Maryland, Massachusetts, Hawaii
and Illinois. TAFOL member Tom Bowden debated
the issue in an October event sponsored by a committee of the
Maryland State Bar Association.
In our spring
issue we noted that Tulane University Law School requires 20
hours work for indigents as a requirement for graduation.
The Ivy League refuses to be outdone: the University of Pennsylvania
requires 70 hours.
In both programs, the participants receive no course credit.
Although one cannot say that such a private university
requirement is "mandatory pro bono," note that each of
these institutions is trying to imitate the forcible method of
the states. This is done despite evidence that voluntary methods
would have the same effect. Student interest in
pro bono activity is sufficiently great that law firms are
using the promise of pro bono as a recruiting tool. A major international
law firm is offering to funnel $10,000,000 over a period of five
years to public interest law firms to pay the salaries of lawyers
who want to work for the poor.
In the spring
article, we noted that the United States Supreme Court has been
to interpret a statute allowing a court to request a lawyer to handle a case for an indigent litigant as requiring the attorney to accept the appointment. On May 1, the Court, in
a 5-4 decision, decided Mallard v. United States District Court.
It ruled that the statute did not authorize a federal court to
require an unwilling attorney to represent an indigent litigant
in a civil case. It (properly) interpreted the word "request" in
its ordinary meaning: "to express a desire that [the attorney
do something], even though he may not be generally disciplined
or sanctioned if he declines." It (again properly in the context
of the case) ignored the constitutional issues raised in the briefs.
the altruistic approach described above, one might think we "dodged the bullet." No. The majority went out
of its way to limit the application of the case: "We do not
mean to question, let alone denigrate, lawyers' ethical obligation
to assist those who are too poor to afford counsel, or to suggest
that requests made pursuant to [the statute involved] may lightly
be declined because they give rise to no ethical claim. On the
contrary, in a time when the need for legal services among the
poor is growing and public funding for such services has not kept
pace, lawyers' ethical obligation to volunteer their time and skills
pro bono publico is manifest. Nor do we express an opinion on the
question whether the federal courts possess inherent authority
to require lawyers to serve."
would have interpreted the statute as declaratory of an inherent
courts to impose their will on their "officers": "The
duties of the practitioner are
an amalgam of tradition, respect for the profession, the
inherent power of the judiciary, and the commands that are set
forth in canons of ethics, rules of court, and legislative enactments.
. . . [A] court's power to require a lawyer to render assistance
to the indigent is firmly rooted in the
authority to define the terms and conditions upon which
members are admitted to the bar . . . and to exercise those
powers necessary to protect the functioning of its own processes." The
only difference between the two camps is the willingness of the
dissent to stretch the language of a statute: "I attach no
particular significance to the difference, if any [!!!], between
the ordinary meaning of the word 'request' [on one hand] and 'assign'
and 'appoint' [on the other]."
think this issue affects only lawyers, consider the following
from the concurring
opinion of Justice Kennedy: "Lawyers,
like all those who practice a profession, have obligations to their
calling which exceed their obligations to the state." (Emphasis
The fight is still ahead.
TAFOL ACTIVITIES AT TJS AND
The 1989 session of The Jefferson School afforded TAFOL officers
and members the opportunity to meet, to be thoughtful, to be sociable
and to conduct business.
A party was hosted and a brief membership meeting convened by
TAFOL officers. Several individuals in attendance at TJS took advantage
of these events to become new TAFOL members.
TAFOL activities was a panel discussion moderated by Dr. Harry
Binswanger. (See the summary in this issue.) The activity
drew a good-sized crowd and there was a great deal of lively discussion
guided by Dr. Binswanger. In addition to provoking debate that
continued well after the panel discussion ended, the event generated
additional interest in membership.
#3 Fall 1989
later convened for an official board meeting with the objective
of establishing goals for the future. Among
established were: completing TAFOL's pro bono position paper,
filing an amicus brief,
continuing efforts to expand membership, and achieving tax-exempt
status as an organization to which deductible contributions
may be made.
the end of the 1989 TJS session, 25 new members had joined
TAFOL. TAFOL's membership list now consists of 39 lawyers, 9 students,
and 55 associate members for a total of 103. This is almost double
the number of members
of about six months ago.
The Pacific Legal Foundation, a conservative, California-based "public
interest" law foundation that espouses individual freedom
and opposes "over-regulation," filed suit late last
spring challenging an Oakland, California, initiative that declares
the city a "nuclear-free zone." The initiative, in
part, prohibits all work within the city even remotely related
to nuclear weapons, and requires that it be phased out over a
two-year period. All companies considered to be nuclear weapons
makers that are working within the city must prepare annual reports
to the city describing their activities and their efforts to
cease such activities. Those engaged in so-called nuclear weapons
work must post a sign visible to passersby with the legend, "Nuclear
Weapons Work Conducted Here."
of the absurdity of the initiative is the following. One of the
represented by PLF is an individual whose
company sold IBM typewriters to the city. Since, under the initiative,
IBM is a "nuclear weapons maker," his company is now
prohibited from selling the typewriters to the city. Also represented
by PLF is a plasma physicist who is a consultant with the United
States government for classified research on the Strategic Defense
Initiative. His residence and business are located in Oakland.
He is therefore required under the initiative to discontinue his
livelihood within two years, report on his progress of getting
out of business and post a sign obviously intended to make him
the object of opprobrium.
The PLF suit challenges the Oakland initiative on several constitutional
grounds. In mid-September we were advised by PLF staff that Oakland
had filed a motion for dismissal on the pleadings on various grounds---among
them that the case is not ripe for hearing. The judge assigned
to the case is expected to rule imminently.
the Department of Justice also recently filed suit. The suit,
which has been assigned to the same judge,
alleges similar grounds for declaring the initiative unconstitutional.
Right to Die
6,1 989, a Georgia Superior Court judge ruled that a quadriplegic
has the right to turn off his own ventilator so
that he can die. The quadriplegic, Larry James McAfee, was paralyzed
from the neck down in a
1985 motorcycle accident. An avid outdoorsman before his accident,
Mr. McAfee, whose mental lucidity was unaffected by the accident,
decided that his state of existence on a ventilator did not allow
him to lead a life worth living.
#3 Fall 1989
court should be commended for respecting McAfee's decision, despite
protestations by representatives of organizations
handicapped, some of which decry the ruling as "an ominous
state-sanctioned participation in ending a handicapped person's
life." Such protestations are clearly not made on behalf of
McAfee, who has emphatically stated his preference in the matter.
Moreover, in alleging that the state is participating in ending
McAfee's life, such organizations confuse "participation" with "inaction." In
fact, the state properly has no power to act---to stop McAfee.
Most "right-to-die" cases
involve patients who are incompetent to make their wishes known
to the court or who cannot act to terminate
their own lives. The United States Supreme Court, in July, 1989,
agreed to hear an appeal by the parents of a 31-year-old Missouri
woman who has been kept alive by medical technology despite devastating
brain injuries suffered in a car accident more than six years ago.
The woman's parents wish to terminate the artificial sustenance
of their daughter's life, saying their daughter would not wish
to be kept alive under such circumstances.
In the Georgia case, McAfee, a former civil engineer, helped a
friend design a timing device he could activate with his mouth
which would allow him to shut off his ventilator on his own. This
was apparently done to exculpate medical personnel from civil or
criminal liability. Clearly, where the individual is incapable
of acting on his own behalf, the problem is more difficult. One
must determine whether it is appropriate for another person to
make the decision to terminate the incompetent's life or to act
in his behalf. Further, if artificial life support is necessary
to sustain the incompetent's life, one must question whether anyone
has an affirmative legal obligation to provide such support and
thus, whether the failure to do so is or is not legally wrongful.
It will be interesting to see if the Supreme Court will address
aspects of the Missouri case, and if so, whether the Court
is willing to implicate and penalize persons acting on behalf
of incapacitated individuals, including medical personnel, for
acting in any manner to terminate life support.
A BETTER DECLARATION?
In the June 21, 1989, issue of The
New York Times, the following
remarkable statement appeared:
7, 1989, as demonstrators for democracy in China lay crushed
tanks in Tiananmen Square, Chinese
students rallied in Washington to organize the Alliance of Chinese
Patriots and to draft the following statement of principles:
. [W]e, Chinese Patriots, declare to the world the principles
that guide our
struggle for freedom:
" 1. Every individual is born with equal and inalienable
" 2. The basic right of every individual is the right to be
free, the right to plan and live his or her own life. This
right entails all other rights, including the rights of
speech, press, assembly, association, religion, property,
" 3. To secure these rights, individuals create government,
to which they give only as much power as is necessary
to secure their rights.
" 4. A government is legitimate only if it rests on the
consent of the governed.
" 5. The people retain the right to deny legitimacy to their
government by withdrawing their consent. . . ."
Copyright © 1989
The Association for Objective Law. All rights reserved. The Association
for Objective Law is a Missouri non-profit
corporation whose purpose is to advance Objectivism, the philosophy
of Ayn Rand, as the basis of a proper legal system.