About a week ago the United States Court of Appeals for the DC Circuit told a lower court that it was wrong to dismiss out of hand and must reconsider a claim "whether the Due Process Clause [of the U.S. Constitution] protects the right of terminally ill patients to decide, without FDA interference, to assume the risks of using potentially life-saving investigational new drugs that the FDA has yet to approve . . ." See Abigail Alliance for Better Access to Developmental Drugs v. FDA. The opinion is filled with qualifiers, as it must be given the state of constitutional law in this area, but it is instructive for just that reason and nonetheless remarkable.

Since roughly the Progressive Era, the principle of liberty has been under direct attack by those who have largely succeeded in gutting the Constitution's due process clauses. Previously, the U.S. Supreme Court understood the Constitution's guarantee of "due process" to protect individuals against legislative acts that were not enacted in furtherance of legitimate governmental purposes, but were mere acts of force wielded at the behest of majority vote. In the 1874 case of Loan Association v. Topeka, for instance, the Court wrote that:

"[T]here are...rights in every free government beyond the control of the State."

"There are limitations on such power which grow out of the essential nature of all free governments....No court, for instance, would hesitate to declare void a statute which enacted that A. and B. who were husband and wife to each other should be so no longer, but that A. should thereafter be the husband of C., and B. the wife of D. Or which should enact that the homestead now owned by A. should no longer be his, but should henceforth be the property of B...."

"To lay with one hand the power of the government on the property of the citizen, and with the other to bestow it upon favored individuals to aid private enterprises and build up private fortunes, is none the less a robbery because it is done under the forms of law.... This is not legislation. It is a decree under legislative forms."

The legal doctrine of "substantive due process" embodied the idea that laws violating certain pre-political, moral rights, which establish the purposes of government, may not be upheld, regardless of whether they were enacted with all the right procedures in place. . . .

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