Mark Rienzi (Catholic U. of America, Columbus School of Law) has posted The Constitutional Right Not to Kill. The abstract follows.
Federal and state governments participate in and permit a variety of types of killings. These include military operations, capital punishment, assisted suicide, abortion and self-defense or defense of others. In a pluralistic society, it is no surprise that there will be some members of the population who refuse to participate in some or all of these types of killings.
The question of how governments should treat such refusals is older than the Republic itself. Since colonial times, the answer to this question has been driven largely by statutory protections, with the Constitution playing a smaller role, particularly since the Supreme Court’s 1990 decision in Employment Division v. Smith.
This Article offers a new answer to this very old question: a federal constitutional right not to kill, protected by the Due Process Clauses of the Fifth and Fourteenth Amendments.
The Court’s substantive due process cases suggest that certain unenumerated rights can qualify for constitutional protection when they are “deeply rooted in the Nation’s history and traditions.” Continue reading