Rienzi on the Constitutional Right Not to Kill

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

D.C. Settles Lawsuit over Passover Elections

The Legal Times reports that the District of Columbia has settled an action brought against it by Rabbi Shmuel Herzfeld of Ohev Shalom – The National Synagogue, alleging that the District violated the First and Fifth Amendments by scheduling a special election on the last day of Passover. Because observant Jews cannot sign their names or use electronic devices on that holiday, Herzfeld claimed, city officials were imposing an unconstitutional burden on them.

According to the settlement agreement, Mayor Vincent Gray will recommend that the D.C. Council adopt legislation providing a window of time, rather than a mandatory date, to hold special elections. Although adoption by the Council is not guaranteed, Herzfeld’s attorney, Steven Lieberman, remarked, “I can’t believe that any representative of the people of the District of Columbia would be opposed to legislation that would broaden participation in elections.”

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