PRESERVING LIFE BY RANKING RIGHTS.

• Author: Draper, John William

Border walls, abortion, and the death penalty are the current battlegrounds of the right to life. (1) Events pertaining to any of these areas tend to be newsworthy. (2) All three issues pertain to the protection of life from at least one viewpoint. We will visit each topic and more in this Article, as we consider ranking groups of constitutional rights.

The enumerated rights of the Due Process Clauses of the Fifth and Fourteenth Amendments--life, liberty, and property--merit special attention. As a catchall series of largely exclusive categories of basic rights, (3) they can provide a systematic and just way to settle disputes involving conflicts between life and other rights. The result would prioritize and protect life, the most fundamental of rights. (4)

This would be akin to medicine's Hippocratic Oath (5): first, do no harm. (6) Like medicine, law should protect life, not take it.

Should interests in liberty outweigh the right to life? Should property interests do the same? American law and practice have arrived at varying answers to these questions. Each individual life merits more fairness, justice, and predictability than what our legal system currently provides. We need to change our laws and practices to help save lives.

Ranking life above liberty and property would constitute a new constitutional principle based on an ordered interpretation of current language. (7) The principle has deep historical roots. (8) Borrowing at least part of the historical interpretation would save innocent lives by focusing on cooperation rather than competition. Ranking life first would probably reduce both consumption and pollution, supporting a safer life for our descendants.

New global risks to life and health have rapidly developed, (9) and every day, we Americans--and all humans--enhance or reduce those risks with our behavior. To save American lives, we must account for risks that extend beyond our borders and change behavior that contributes to these risks. Prioritizing the constitutional right to life first helps us to understand, and to commit to, behavior that reduces the creation of significant risk. The benefits of this mindset are potentially manifold. First, it emphasizes respect for life and thus helps to save lives. Secondly, reducing significant risks to life and health for Americans also reduces risks for the entire planet. By implementing this change in our laws, the United States could increase its stature as a global role model for protecting human rights.

Part I of this Article considers the interests that are the precondition of our rights. Those interests have a hierarchy. They are not all equal or fungible. Some of those interests are basic and cannot be substituted or traded for others. Interests can justify rights. They can even justify institutions that come with their own rights. Those rights, whether based with the individual or the institution, are grounded by the duty to honor and protect those interests and their hierarchy.

Part II narrows the focus to the right to life. It explores the interests that are protected. Then, based on the hierarchy of interests, it considers what should happen when rights to life conflict with other rights. The right to life is not infinite. Some circumstances may not qualify for protection by the right to life. Some interests may be too tenuous to protect. Other interests in life may conflict with other important interests or duties.

Part III explores a deeper and richer history of "life, liberty, and property" long predating the eighteenth century drafting of the U.S. Bill of Rights. Surprisingly, the earlier interpretation of these rights offers a more nuanced and helpful approach to resolving conflicts between different categories of rights. As we shall see, Juan de Lugo, one of the Late Scholastics, sixteenth- and seventeenth-century Hispanic economic moral theorists, hit upon ranking those rights. (10) In part, ranking was designed to help the innocent save their lives. (11) Importantly, as a slight refinement of Thomistic legal thought, it is consistent with the roots of Western law that predate the Reformation. (12) Thus, placing life above liberty and property is consistent with our cultural foundation in Christian religion as well. (13)

Part IV looks at the origin of special protections for "life, liberty, and property" in U.S. law. The identity and order of Lugo's interests matches the appearance of those same rights in the Due Process Clauses of the Fifth and Fourteenth Amendments. (14) Lugo's interpretation, ranking life first, enables a new, safer constitutional interpretation of John Locke's and James Madison's words. (15) In particular, we each have an interest in life, and we need to feel confident that our interest is actually a protected constitutional right--and that others will honor their duties. Our history of common law helps here, but substantive due process and regulatory law may be problematic.

Part V considers and rejects the positions of many proponents of neo-classical economic or utilitarian theory who advocate an equality or equal ranking of basic or fundamental rights. (16) This position invites risk to human life by giving liberty and property rights the same moral and legal value as life. (17) In the interest of justice, neither liberty nor property (including maximization of profit, income, or wealth) should be of prime importance. Other rights and interests should not be placed on par with life itself.

Part VI provides examples of inversions, which occur when lower-ranked rights, such as liberty or property, are permitted to outrank life, (18) the most fundamental right. Unfortunately, inversions involving life turn out to be deadly. (19) Through the implementation of the value of statistical life (VSL) (20) in governmental cost-benefit analysis, (21) risks of statistical death and significant adverse health impacts turn out to be imposed to some degree on all of humanity. (22)

Our activities and their consequences are part of a greater problem. Global risk to life is both foreseeable and significant.

This Article focuses only on ranking life first, over both liberty and property. It is a more modest and more easily defensible claim than the complications of ranking liberty interests over property interests. Ranking life first is also more important--and urgent.

Part VII discusses the implementation of the ranking with the protection of life as the ultimate, fundamental right in U.S. constitutional law. Not all risks to life require special treatment in the law; only those that impose significant risks to life require ranking. The emphasis here is on protection from inversions. Life needs to be protected first--from all significant risks to life and health. This way, life would be protected from the liberty and property interests of others, but only when those interests pose a significant risk to life or health. This ranking, implemented in U.S. law, would support human rights and promote safer lives for our descendants.

It may help for us to recognize that there is a global emergency with our planet's life support system (23) and that we need to rank life first as an appropriate and necessary measure to protect humanity. However, requiring an emergency to engage the ranking is unnecessary and places too many lives at risk. (24) Instead, we should focus not only on significant local and national risks, but on significant international risks to the lives and health of U.S. citizens, individually and collectively. Such significant risks largely represent a blind spot in our current system of risk regulation. (25)

By using conceptual partitioning between life and other rights, we can solve difficult problems of incommensurability, (26) provide a more-just legal system, and more effectively support a safer world for ourselves and our descendants. Conceptual partitioning for persistence is part of a decision procedure that uses ordered sequencing. (27) The procedure provides a systematic approach to dealing with certain categories of problems in the law--such as incommensurability of rights. (28) Operationally, ranking rights would be an ordered sequencing analysis that would employ conceptual partitioning between differently-ranked rights. (29)

This ranking would create an ordered substantive due process interpretation of basic rights, causing our legal system to protect lives in being from significant risks originating with rights or interests in liberty or property. If we can employ the principle of ranking life first, all Americans--and ultimately all of humanity--would be better protected from the seemingly random risks (30) to statistical lives (31) produced by current American legal and regulatory systems.

We do need a way for the theory to deal with extreme cases. For instance, when facing questions of extending a life, we cannot place an infinite value on that life and have it override all property rights. Consider a trillion dollars. No one can afford such a large amount of money. The expenditure becomes extremely questionable when it prolongs one life only briefly. In extreme cases like this, whether one life or a thousand, whether extending life for five minutes or five years, we will need to draw the line at what is both technologically and economically feasible. We can make these decisions using feasible risk reduction analysis. (32)

Should interests in liberty outweigh the right to life? Should property interests do the same? Life, liberty, and property are all "rights." How can one right count any differently from others? Let us begin by exploring the connection between interests and rights and the importance of those rights, especially when it comes to the duties they impose.

1. INTERESTS AND RIGHTS

   Naturally, we each have an interest in sustaining our lives. To properly discuss how the modern American legal framework considers this interest, we will need to graduate from considering interests...