The right to “life, liberty, and happiness”[1] is a concept as old as the Declaration of Independence and one that every American holds dear. However, the right to life does not exist within the law.
The Coronavirus has led many to question the efficacy of the Federal government’s response to the virus and further to question whether they are prioritizing life or economy. Many would assume that the government is under an obligation to protect their lives during this time. This article aims to debunk that theory, at least from a legal standpoint.
There is no Constitutional right to life. The Declaration of Independence is a document with no legal standing, and it cannot be used as the basis of a lawsuit for your rights. There is no right to life found in constitutional law that is enforceable against the United States Government. Beyond the Constitution, we may look to Federal law, a treatise that has been made part of the federal law by ratification and to customary international law.
The U.S. Constitution provides in the 5th and 14th Amendments, the due process clause, that neither the federal or state government may “deprive any person of life, liberty, or property, without due process of law.”. The Constitution puts an onus on the government to not take lives without due process but does not expressly put any burden on them to proactively save lives. The only obligation to save lives would appear to be a political or humanitarian one.
The right to life in international agreements is in the Universal Declaration of Human Rights (UDHR), which is;
‘a statement of principles … setting up a common standard of achievement for all peoples and all nations’ [2]
The statement of principles is an instrument that once again has no legal standing upon which to sue in U.S. courts. Rather, it is an instrument upon the ideals of which treaties are built, which have legal standing in the international community. However, UDHR the in and of itself it has no enforceability at home or in international law.
The right to life is also found in the International Covenant on Civil and Political Rights (ICCPR), 1976. One of the treaties that have been created based on the ideals established in the UDHR, the ICCPR states in Article 6:
“Every human being has the inherent right to life. This right shall be protected by law.”[3]
The Covenant has been signed and ratified by the United States. Ratification binds the United States in international law, however
“the United States ratified the Covenant on the express understanding that it was not self-executing and so did not itself create obligations enforceable in the federal courts”[4]
Since it was added in part to keep the document from being one on which a person could sue for their rights because the United States does not comply with all the Articles of the ICCPR. Therefore, the provision makes the ICCPR an unenforceable instrument. The ICCPR itself could be sued upon as an international law through the First Optional Protocol, which establishes an individual complaint mechanism to the Human Rights Committee. However, the U.S. has not agreed to this optional protocol, so there is no right to bring a suit in international law to enforce an individual’ ‘s right to life.
Article 4(2) of the ICCPR specifies that while some human rights may be derogated from in times of emergency by individual countries, there are several that may not be. The right to life is one of these.
A final search for the right to life brings us to customary international law, an unwritten body of rules that are enforceable against the U.S. by recognition in courts both national and international and by sanctions that other governments may try to impose. In the Restatement Third of U.S. Foreign Relations Law, some of the preeminent legal minds in the country have listed those things they consider to be part of the enforceable customary international law. Section 702[5] lists the abuses that are violations of customary international human rights law.
- Genocide
- Slavery or slave trade
- Murder or causing disappearance of individuals
- Torture or other cruel, inhumane, or degrading treatment or punishment
- Prolonged arbitrary detention
- Systematic racial discrimination
There is again nothing to be found here that guarantees the individual’s right to life. Consequently, there is no obligation on the federal government to protect the lives of U.S. citizens through binding customary international law.
The absence of an obligation to protect a right to life is reflected in the various steps that have been taken by the federal government and by the governors of the states during the COVID-19 crisis. Some have taken the burden to save lives very seriously, and others have favored a more economy-focused approach to the current crisis. For instance, the President has shown a willingness to reopen the economy despite warnings from Dr. Fauci that “little spikes”[6] might turn into fresh waves of the outbreak. However, the reopening of state economies is up to the state governors. Our leaders have expressed differing opinions. Texas Governor Greg Abbot sped the reopening of Texas to at least 25% capacity in restaurants and other entertainment venues over concerns that the number of cases continued to grow[7] in his state. Governor Andrew Cuomo of New York stated he would refuse an order to reopen from the President if it would endanger the public health.[8]
In Wisconsin, the tension between protecting the lives of citizens and reopening the economy reached a peak in the case of Wisconsin Legislature v Palm[9]. The court heard a case on whether the Governor’s stay-at-home order was valid under state law and found that the Stay-at-Home order did not comply with a process called rulemaking that would have required a lengthier time before enforcement and given the legislature a veto power. The Wisconsin Supreme Court, a mostly Republican body, voted along party lines except for one Republican Judge who dissented. The other two dissenters were Democrats. The decision reflects a growing divide in the ideological positions of the parties that are affecting a court that should be impartial to such interests.[10]
In the United States, the protection of life is not a legal issue but a political one. The federal government and the individual states are facing the political question of whether to prioritize the protection of life or the security of the economy. Considering this, we must all make our decisions on whom to elect or re-elect when the time comes because that is the only real way, we have of holding the U.S. government accountable for their decisions. Since there is no legal protection for the right to life, we as citizens must also take proactive responsibility for our own lives and the lives of those around us.
[1] Declaration of Independence: A Transcription | National Archives, https://www.archives.gov/founding-docs/declaration-transcript (last visited May 14, 2020)
[2] Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) Justia Law, https://supreme.justia.com/cases/federal/us/542/692/ (last visited May 14, 2020) quoting The International Protection of Human Rights 39, 50 (E. Luard ed. 1967) (Quoting Eleanor Roosevelt)
[3] 1. OHCHR | International Covenant on Civil and Political Rights, https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx (last visited May 14, 2020)
[4] Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) Justia Law, https://supreme.justia.com/cases/federal/us/542/692/ (last visited May 14, 2020)
[5] Daniel T. Murphy, The Restatement (Third)’s Human Rights Provisions: Nothing New, But Very Welcome, 24 Int’l L. 917 (1990)
[6] “Fauci Warns ‘little Spikes’ of Coronavirus Could Turn into Outbreaks If States Reopen Too Soon.” Accessed May 15, 2020. https://www.nbcnews.com/politics/congress/fauci-set-testify-congress-u-s-coronavirus-response-reopening-plans-n1205051.
[7] “Texas Reopening Plan: Greg Abbott Says Restaurants, Movies Can Open Friday | The Texas Tribune.” Accessed May 15, 2020. https://www.texastribune.org/2020/04/27/texas-reopening-coronavirus-greg-abbott/.
[8] “New York Governor Andrew Cuomo Says He Would Refuse and Challenge an Order from Trump to Reopen New York’s Economy If It Put Residents’ Health at Risk – CNNPolitics.” Accessed May 15, 2020. https://www.cnn.com/2020/04/14/politics/andrew-cuomo-donald-trump-reopen-new-york-economy-coronavirus-cnntv/index.html.
[9] “Wisconsin Legislature v. Palm :: 2020 :: Wisconsin Supreme Court Decisions :: Wisconsin Case Law :: Wisconsin Law :: US Law :: Justia.” Accessed May 15, 2020. https://law.justia.com/cases/wisconsin/supreme-court/2020/2020ap000765-oa.html.
[10] “Wisconsin Supreme Court Rules to Strike down Evers’ Stay-at-Home Order.” Accessed May 15, 2020. https://www.jsonline.com/story/news/politics/2020/05/13/wisconsin-supreme-court-strikes-down-tony-evers-coronavirus-orders/5179205002/.