A New Life for “Dr. Death”Thane Rosenbaum in Legal As She Is Spoke, November 02, 2010
More than just a controversial figure who helped over 130 terminally ill patients end their lives in the mid-1990s, Dr. Jack Kevorkian is also a respected pathologist, an accomplished jazz musician, a talented artist, a whimsical poet, and a dilettante in the classics. So we learn from his HBO biopic “You Don’t Know Jack,” which opened the Fordham Law Film Festival, where Dr. Kevorkian was the guest of honor on Oct. 15. He said that the movie starring Al Pacino still “brings tears to my eyes – and I lived through it.”
Dr. Kevorkian’s wide range of knowledge may ultimately have gotten the best of him, as the film reveals. Having escaped imprisonment after four lawsuits challenged his assisted suicide activities, the Detroit area native, who once appeared in court in a powdered wig and buckle shoes in protest of antiquated common law practices, believed he could take on the justice system solo. But knowledge of a few basic legal principles does not a qualified attorney make, and an Oakland County (Mich.) Circuit Court found him guilty of second-degree murder and delivery of a controlled substance in 1999.
He spent eight years and two months in prison.
Why does he believe he was so demonized?
“They gotta create the enemy, so they made me the enemy,” he said to the rapt audience at the law school. “The more dangerous you are, the more they make you the enemy.”
“They,” being the religious right (“Why do we have religion? We don’t know what’s coming … so we invent this mythology”) and the “political hacks who call themselves doctors” in the American Medical Association.
Although he has legally sworn off helping to end lives as a condition of his parole, the man known as “Dr. Death” is crusading on in the three years since his release, which included a run for Congress on an independent ticket in 2008. Dressed in a gray suit over his trademark Columbia blue sweater, the slight, bespectacled 82-year-old informed a packed audience of his new mission.
Dr. Kevorkian is preaching the gospel of the Ninth Amendment.
“Twenty-one words!” he exclaimed to moderator Thane Rosenbaum, the director of Fordham’s Forum on Law, Culture and Society, in a conversation littered with allusions to Schopenhauer, Handel, and the ancient Greeks.
A bulging white binder the size of the Oxford English Dictionary sat on his lap the whole time. It may have contained the entire mass of research about the Ninth Amendment that he had accumulated in the past decade. But he never opened it for anyone to find out.
Instead, he proceeded to recite the somewhat obscure provision verbatim:
“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
The sentence is crystal clear to him: “We retain any right that’s not listed in the Constitution,” he said, meaning rights over which the government cannot pass laws. And that includes the “right to die.”
“The Ninth Amendment has never been used,” said Dr. Kevorkian, who self-published a book on the topic from his jail cell in 2005. “It opens doors to the peoples’ power. It takes power away from the Supreme Court, which is corrupt. The Supreme Court is dictatorial. … It even overrules the President.”
Is Dr. Kevorkian correct, that all our Constitutional controversies over individual rights would be solved by invoking the Ninth Amendment?
Written by James Madison and ratified in 1791, the Ninth Amendment came about as the ultimate compromise of the Bill of Rights, allaying the fears of those who believed that explicitly listing the peoples’ civil liberties in the Constitution would by default give the government power over anything not specified. The Ninth Amendment was created so that the government didn’t overstep its bounds, opening the door, potentially, to other individual rights.
Perhaps because the Ninth Amendment was intended more as a check on federal power than an expansion of the rights of the people, it has not been invoked in court much in the twenty-two decades since. When it has been, the courts have made clear that the Amendment is not a credit card for the exercise of any rights to which people could stake a claim, as Dr. Kevorkian might suppose.
Most commonly, the Ninth Amendment has been used to expand rights already implied in other amendments. In the hallmark 1965 case of Griswold v. Connecticut, the court allowed couples contraceptive counseling under the basis of marital privacy – a right not explicitly enumerated in the Constitution, but implied through language in the First, Third, and Fourth Amendments. The Ninth Amendment was the vehicle that allowed the court to read between the lines.
Justice Arthur Goldberg, in a concurring opinion in this decision, wrote that ”the Ninth Amendment shows a belief of the Constitution’s authors that fundamental rights exist that are not expressly enumerated in the first eight amendments [of the Bill of Rights] and an intent that the list of rights included there not be deemed exhaustive.” (The idea was stated even more succinctly in Justice William O. Douglas’ concurring opinion for Doe v. Bolton (1973): “The Ninth Amendment obviously does not create federally enforceable rights.”)
If “right to privacy” is implied in the context of contraception, is it also implied in other contexts? Possibly. It was based on such a right to privacy that a lower court originally legalized abortion, although the Supreme Court in Roe v. Wade (1973) ultimately legalized it on other grounds (due process). So while an argument can be made that physician-assisted suicide is supported under the implied Constitutional right to privacy, that argument is not airtight.
For now, Dr. Kevorkian will have to content himself with another power of the Ninth Amendment, which allows rights enumerated in individual state laws – that may not yet have been interpreted as included in the U.S. Constitution – to stand against unjust interference from federal authorities. And a few states, including Oregon, have created laws enabling physician assisted suicide. The Ninth Amendment may not be as broad in scope as Dr. Kevorkian believes, but perhaps it has merit in at least furthering debate about whether his controversial practices should be prescribed, or proscribed.
Dr. Kevorkian also sees the glimmers of justification in the modern Hippocratic Oath, which includes the phrase, “… it may be in my power to take a life.”
“This is an ethical practice, period,” he said. “So you can’t practice law against it.”