Andrew McCarthy at NRO argues today that the Schindlers should file one more motion in federal court, this time based on the theory that the "due process in the United States requires proof beyond a reasonable doubt before a court may issue an order that results in the taking of life . . . ." Of course, there is only one way for him to get there: transform due process into substantive due process. He concedes that
[t]hose of us who believe government action — whether by U.S. or Florida authorities — must be taken to save Terri’s life should not shrink from the forthright admission that we are asking for her federal due-process rights under the Fifth and Fourteenth Amendments to be given substantive content.
His defense is less than stirring: "Is this substantive due process? Of course it is. But it already exists, it is irreversible, and it is so much a part of our legal tradition now that we don’t even think about it any longer." But, of course, that’s not quite true. Substantive due process, once the bastion of Earl Warren, is not exactly enjoying a heyday. Indeed, in at least one prominent case, DeShaney v. Winnebago Co. Soc. Svcs. Dept., the Supreme Court, to put it charitably, curbed the progress of the theory.
McCarthy’s argument is somewhat understandable--after all, there is this sense that conservatives must play by the Marquis of Queensbury rules, disavowing the use of any legal theory which we find erroneous despite the fact that the issue may be sufficiently well settled that there is no conceivable practical benefit in keeping to principle. But the breadth of substantive due process is not so well settled (indeed, as I note below in the update, there is no right to a beyond the reasonable doubt standard of review in civil cases) that I should feel comfortable with advancing its cause. The problem is that McCarthy appears to be reaching, as is evidenced by his clinging to one of the Lefts favorite phrases: "death is different." The notion is undisputable insofar as it suggests that the imposition of death has a greater finality than any other sentence, and therefore requires circumspection and review. That said, the Left generally uses that as the rallying cry to ignore the law or to simply reshape it to fit an outcome, and I fear that McCarthy may be using the phrase for essentially the same end.
UPDATE: Jonathan Adler seems to agree with my sentiment over at The Corner, and raises the issue that I slid past: proof beyond a reasonable doubt simply has not been required in civil cases, even where death may be a result.