Laboratory of Justice: The Supreme Court's 200-Year Struggle to Integrate Science and the Lawby David L. Faigman
From the American Revolution to the genetic revolution, the U.S. Supreme Court's uneasy attempts to weave science into the Constitution
Suppose that scientists identify a gene that predicts that a person is likely to commit a serious crime. Laws are then passed making genetic tests mandatory, and anyone displaying the gene is sent to a/b>/b>… See more details below
From the American Revolution to the genetic revolution, the U.S. Supreme Court's uneasy attempts to weave science into the Constitution
Suppose that scientists identify a gene that predicts that a person is likely to commit a serious crime. Laws are then passed making genetic tests mandatory, and anyone displaying the gene is sent to a treatment facility. Would the laws be constitutional?
In this illuminating history, legal scholar David L. Faigman reveals the tension between the conservative nature of the law and the swift evolution of scientific knowledge. The Supreme Court works by precedent, embedding the science of an earlier time into our laws. In the nineteenth century, biology helped settle the "race question" in the famous Dred Scott case; not until a century later would cutting-edge sociological data end segregation with Brown v. Board of Education. In 1973 Roe v. Wade set a standard for the viability of a fetus that modern medicine could render obsolete. And how does the Fourth Amendment apply in a world filled with high-tech surveillance devices?
To ensure our liberties, Faigman argues, the Court must embrace science, turning to the lab as well as to precedent.
"These are difficult questions... Faigman is convincing in his argument."The New York Sun
"Faigman ably illustrates how on some occasions the Court deftly applies scientific evidence and principle while on other occasions the Court's reasoning is nothing less than, in the words of Justice Souter, "a titanic surrender to the implausible."Harvard Law Review
"Faigman takes the Supreme Court to task for persistently failing to inquire into the merits of the scientific evidence in the cases before it." -Daniel J. Kevles, Legal Affairs
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Laboratory of Justice
1THE LESSON OF LEECHES
To the memory of the MAN, first in war, first in peace, and first in the hearts of his countrymen.
Thursday, December 12, 1799, George Washington awoke to an overcast and cold dawn. At ten that morning, he donned his greatcoat and set out to inspect his property. Snow, sleet, and, finally, a cold steady rain fell atop the great man’s shoulders. In his last diary entry, Washington wrote, “Morning snowing and about 3 inches deep. Wind at northeast and mercury at 30. Continuous snowing till 1 o’clock and about 4 it became perfectly clear.” By evening, his throat, which had begun bothering him earlier in the day, worsened considerably. His voice grew hoarse. A cold, it seemed, had settled into his throat. Before going to bed, his secretary, Tobias Lear, urged him to take something for it. “You know I never take anything for a cold,” he answered. “Let it go as it came.”1Washington slept a fitful sleep, waking after two with fever and trouble breathing. He refused to allow Martha to leave the warm bed to call for help, because she had just recently overcome a serious illness of her own. She held him close through the remaining terrible hours of darkness. With the rising sun, Martha summoned Lear, who came into the room to find his friend able to speak only in a cracked whisper and struggling to breathe. His condition would later be described in a variety of ways. It was classified as “an inflammatory affection of the upper part of the wind pipe called in technical language cynanche trachealis.” A leading practitioner explained this as “an inflammation of the glottis, larynx or upper part of the trachea … known by a peculiar croaking sound of the voice” and “associated with difficulty breathing, sometimes leading to suffocation.”2 Although the ailment was something of a mystery, the treatment was straightforward and well known. In fact, Washington prescribed it for himself before any doctors arrived. The time-tested remedy of bloodletting was clearly indicated.Washington sent for an overseer, George Rawlins, and asked him to bleed him. Rawlins, fretting this great responsibility, had to be steadied by his patient. “Don’t be afraid,” Washington told him as he held out his arm to the waiting knife. But the overseer made too small an incision. “The orifice is not large enough,” Washington said. He instructed him to extend the cut. At around eleven, medical help finally arrived. Dr. James Craik, of Alexandria, immediately recognized the gravity of the situation. Craik called for the assistance of Dr. Elisha Cullen Dick, someone who could share the responsibility for treating the quickly deteriorating condition of the former president. Before Dick arrived, Craik tried an assortment of measures. Principal among them was bleeding Washington twice. The therapy seemed only to weaken the patient more. Dick arrived at three, and the doctors bled Washington a fourth time, still with no salutary effect. As John Marshall described in The Life of George Washington, “The utmost exertions of medical skill were applied in vain.”3 Washington was slipping away and the best modern medicine available could do nothing for him.Bloodletting was a centuries-old therapeutic practice that had the virtue of both conforming to medicine’s knowledge of human anatomy at the time of its invention and having passed the test of clinical observation and experience. It thus worked in theory and practice. Bloodletting was based on theories promulgated in the Hippocratic Corpus, written by several authors between 420 and 370 BC. The Corpus advised doctors to closely observe symptoms, be open to ideas from all sides, and be willing to identify the causes of disease. A typical passage advised as follows:
Declare the past, diagnose the present, foretell the future: practice these things. In diseases make a habit of two things—help, or at least do no harm. The art involves three things—disease, the diseased, and the doctor. The doctor is the servant of the art. The diseases must join with the doctor in combating the diseased.4
Disease was associated with an imbalance stemming from one of several sources. The four possibilities were the elements (the building blocks of the body and the whole universe), the fluids (known as “humours”), the powers (hot and cold and sweet and sour), or fluxes that might have settled in the wrong place.With any illness, then, the probable cause might be found in an imbalance existing in one of the four humours. The main two were bile and phlegm, with the first considered the cause of summer diseases, such as diarrhea, and the second the cause of winter colds. A third humour was black bile or melancholy, a deadly substance in pure form. The fourth fluid was blood, and it was the foundation of the theory of plethora, which provided that certain illnesses were caused by an excessive buildup of blood. Bloodletting offered a certain cure for imbalances of the blood. The therapy was compelled by the theory. If the disease was caused by excessive blood, bleeding would relieve the condition by attacking the roots of the ailment. Curiously, by the time of Washington’s mortal illness, the medical community had long discarded the theory of humours. As is not unusual, in medicine as in law, the treatment far outlived its original rationale.The gentler form of bloodletting was to put leeches on the affected area. Leeches, because they were imported from Russia, were a rich man’s remedy. Savannah doctor Richard Arnold, for instance, wrote in 1838 to a friend in Philadelphia to “beg a favor.” Arnold could not find affordable leeches. He complained that “leeches sell here at the very high price of 50 cents each and there is not a regular leecher here to apply them.” He explained that the local medical society had arranged to supply leeches at not more than 25 cents each, but the supplier “sold out” before complying with his contract. “If leeches were not so dear many more would be used. At present they are only in the reach of the rich.”5Although Washington could well afford leeches, they were not always readily available, and not routinely kept in most medicine cabinets. Using a knife to open his veins, Washington’s attendants employed the more dramatic and painful form of bloodletting. Isabella Beeton, in her Book of Household Management (1861), explained the bloodletting procedure, also known as venesection or phlebotomy. “Place a handkerchief or piece of tape rather but not too tightly round the arm, about three or four inches above the elbow.” When the veins swell, she wrote, one should “take the lancet in his right hand, between the thumb and first finger … then gently thrust the tip of the lancet into the vein.” She then explained how to bandage the wound and what to do if the patient fainted. It was generally advised, in fact, that a patient should be bled “until syncope,” or fainting.6As the futility of Washington’s doctors’ efforts became palpable, he asked in a vanishing voice to be allowed to die without further interruption. “I thank you for your attentions, but I pray you to take no more trouble about me.”7 He told his doctor, “My breath cannot last long.” He added, “Doctor, I die hard, but I am not afraid to go. I believed from my first attack that I should not survive it.” His secretary, Lear, vainly tried to comfort him. Washington thanked him for his efforts, saying, “It is a debt we must pay to each other, and I hope when you want aid of this kind you will find it.”Evening trod heavily into night. The only sounds heard in the enveloping darkness were Washington’s labored breathing and the ticking of a clock. His breathing became shallower with each passing moment. Several times through the night he attempted to speak to the anguished souls nearby, mainly without success. Martha sat in a chair at the foot of the bed, awaiting the tolling of the fateful hour.Shortly after ten o’clock, he told Lear, “I am just going.” He whispered one final order. “Have me decently buried, and do not let my body be put into the vault in less than three days after I am dead.” Given the technology of the time, he astutely feared being buried alive. Minutes later, Washington took his own pulse, and found it fading away. At twenty minutes past the hour, his hand fell from his wrist and he breathed his last.Martha, interrupting the clock’s forward march, asked, “Is he gone?” Lear could only confirm the fact with the sorrow on his face and a weak gesture of his hand. “’Tis well,” she said. “All is now over. I shall soon follow him. I have no more trials to pass through.”Washington was buried four days later without, at his request, any funeral oration. But no shortage of testaments to his greatness marked his passing. “Our Washington is no more,” exclaimed John Marshall. “The Hero, the Sage, and the Patriot of America—the man on whom in times of danger every eye was turned, and all hopes were placed—lives now only in his own great actions and in the hearts of an affectionate and afflicted people.” In Congress, Marshall introduced resolutions drafted by Henry Lee, one of Washington’s officers, which concluded famously, “to the memory of the MAN, first in war, first in peace, and first in the hearts of his countrymen.”8
In an age before antibiotics, Washington’s doctors’ failure to save him can hardly be condemned. Medicine would not enter the scientific age for more than a century after Washington’s death. Even today, clinical medicine is as much art as it is science. Although bloodletting was based on theories considered obsolete even then, experience seemed to demonstrate its value. Certainly, many of those receiving the treatment improved. But as we know today, the same number, and probably more, would have improved without the treatment or with a placebo substitute. The human body has great restorative powers, resources that seem buttressed by psychological expectations regarding a prescribed “cure.” Only in the future would fidelity to the scientific method require doctors to demonstrate the efficacy of their treatments. At the close of the eighteenth century, bare assertion premised on naked authority was enough.The American Constitution was born in this prescientific age. Yet it remains viable in the age of science. The Constitution has survived from the days of the horse and carriage to the jet age, from quill pens to microprocessors, and from celestial mechanics to quantum mechanics. How is this possible? Does the Constitution transcend the knowledge of a particular time and the generations that live by it? Or is it a document malleable enough to mean what each new generation sees in it? Is the Constitution like the child’s game of identifying objects in the passing clouds, in which everyone sees the image he or she wishes to see?The Constitution’s secret of success is that its provisions mainly express aspirations. Free speech, due process, equal protection, and sundry other grand phrases articulate ideals. Even the main textual articles that organize the framework of the national government and set the boundaries between it and the states are written in broad strokes. For the most part, the Constitution provides an architectural blueprint for the good society. The engineers who followed the framers have shaped that plan to fit the peculiar circumstances of the day.The Constitution has always been interpreted through the lens of contemporary knowledge. The pool of contemporary knowledge has grown and changed fundamentally in the more than two centuries since the Constitution was ratified. It is not only our view of the medicinal value of bloodletting or leeches that has been transformed. Our knowledge of the physical and social worlds has changed dramatically in an assortment of important ways. In particular, science has affected our sense of reality in three ways. First, our conception of the nature of humanity has undergone basic and fundamental changes. Despite the founders’ stated belief in equality among men, we are a profoundly more egalitarian society than they could have believed possible. Second, and most obviously, technology has changed to an extent that we live in a completely alien world compared to the one experienced by the founding generation. News of the Constitution’s ratification took weeks to reach the four corners of the relatively compact thirteen states. Today, reporters read and parse Supreme Court opinions on television only minutes after they have become public. Lastly, the tools of science, especially statistics, by which we describe and understand the world are almost completely new. The power of measurement is many orders of magnitude greater than what the framers knew.In 1776, Thomas Jefferson penned the immortal words that “all men are created equal.” This was a radical leap of faith regarding the perceived nature of man and one far from universally accepted. Not until 1870 were all men formally included, since only then did the Thirteenth, Fourteenth, and Fifteenth Amendments guarantee basic equal rights to blacks. Much more time would pass before this formal equality would become realized in fact. It would take fifty more years before women would be accorded a portion of equal protection when the Nineteenth Amendment gave them the right to vote. Not until the 1970s did the Supreme Court include women in the Fourteenth Amendment’s guarantee of equal protection. Even today, the Court struggles to resolve what is meant by equality and how it is to be guaranteed. In the context of gender equality, for instance, the Court must attempt to delineate what it refers to as the biological and cultural differences that distinguish men and women. The challenge, as the Court has described it, is to ensure that no laws prevent men and women from fully and equally realizing their potential, but to allow laws to distinguish between the sexes—that is, discriminate—when the relevant differences are a product of biology. The Court increasingly turns to the biological and social sciences in making these determinations.Easily the most dramatic development that has occurred since the eighteenth century is the transformation of society in the wake of technological innovation. From jets to the Internet, we live in a technological world that the framers would not recognize and could never have imagined. Benjamin Franklin devised and implemented the Pony Express, an institution that immediately fell within the prescriptions of the Fourth Amendment’s injunction against unreasonable searches and seizures by government officials. The First Amendment was born in the world of newspapers and pamphlets. The Second Amendment, to the extent that it concerns the private right to possess guns (a hotly debated interpretation), was conceived in a time of the top-loading musket. Today, television, the Internet, and semiautomatic weapons all fall within the parameters of these ancient provisions. And as technology advances, allowing manipulation of DNA and the creation of life outside the womb, courts will increasingly face challenges in the legal area of reproductive privacy, dealing with technologies ranging from in vitro fertilization and frozen embryos to gene therapy and cloning.The final area of dramatic change since 1787 is in the area of statistical assessment and evaluation. The field of statistics burgeoned in the nineteenth century and truly came of age in the twentieth. In the area of applied science—the only kind of science the law cares about—statistics are the hammers and nails in the scientist’s toolbox. Physics, biology, ecology, psychology, sociology, and many other disciplines are entirely dependent on statistical methods. For instance, the constitutionality of an environmental regulation designed to save an endangered species might depend upon the scientific basis for the intervention. If the regulation restricts land development but is not reasonably tailored to accomplish its objectives, the regulation might violate the Constitution. Statistics are necessary to make this determination. Statistical evaluations can be found throughout constitutional law, covering such topics as the existence of discrimination, the validity of predictions of violence in capital cases, and the pervasiveness and effects of Internet pornography on children.While science and technology have advanced profoundly over the last two centuries, the Constitution has been amended only seventeen times since the Bill of Rights was ratified in 1791. The responsibility for daily application of the Constitution’s ancient words falls mainly upon the judiciary, led by the United States Supreme Court. The duty to align constitutional law with the modern world thus rests with the judges. Yet a basic principle of law, precedent, or, in Latin, stare decisis, mandates that judges not depart from past practice without good reason. Unlike the scientist who sees virtue in progress and change, the judge finds virtue in the status quo. In the case of ordinary law, both statutory and common law, this deference to precedent makes good sense. People come to rely on existing rules and often fashion their behavior to conform to or take advantage of them. Also, ordinary laws can be changed by simple legislative action and are thus amenable to regular democratic processes.Constitutional law is quite different and the usual reasons for requiring consistency with past practice do not apply. Constitutional law is primarily the product of past decisions of the Supreme Court. There is no obvious reason why the justices of today should follow uncritically justices who have long since passed from the scene. To be sure, in some constitutional contexts, adherence to past practice may be well advised, because societal practices have developed around particular constitutional rulings. Property rights and rules surrounding police discretion may be areas in which maintaining consistency—just for the sake of consistency—makes sense. In most constitutional contexts, however, the decision whether to maintain the status quo, a status quo possibly premised on obsolete views of the empirical world, will be considerably more complicated.Constitutional law is different also in the very limited ways it can be altered. Other than by the extraordinarily cumbersome process of amendment, precedent can only be changed by judicial decision. Justice Felix Frankfurter described the Court’s continuing obligations as follows:
We recognize that stare decisis embodies an important social policy. It represents an element of continuity in law, and is rooted in the psychologic need to satisfy reasonable expectations. But stare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision, however recent and questionable, when such adherence involves collision with a prior doctrine more embracing in its scope, intrinsically sounder, and verified by experience … . This Court, unlike the House of Lords, has from the beginning rejected a doctrine of disability at self-correction.9
Despite this recognized need for justices on the Supreme Court to adjust constitutional principles to accord to the modern world, there remains a strong tendency toward inertia. Shouts of judicial activism inevitably accompany judge-initiated doctrinal reform. Yet, very often, these reforms merely overturn past judicial decisions that have no greater claim to sanctity other than their advanced age. As Oliver Wendell Holmes Jr. put it, “It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.”10 Still, many doctrines today were crafted decades or centuries ago and enforce in the present the vulgar scientific beliefs of those earlier times.While bloodletting, long a subject of scientific derision, is no longer practiced today as it was in Washington’s time, leeches have reemerged in a dramatic way. But it is not their effectiveness in relieving excess blood that is so valuable. Instead, doctors employ them as therapeutic tools to assist advanced medical procedures. In order to carry out their “bloodsucking,” leeches, as is true for mosquitoes and ticks, had to somehow overcome the clotting processes of their victims. The potential value of this anticlotting property is vast.In modern plastic and reconstructive surgery, leeches are used directly to impede the patient’s natural clotting mechanisms. When surgeons reattach body parts, such as fingers, they usually have little difficulty reconnecting the ends of arteries. Arteries have thick walls that can be readily sutured. Thin-walled veins, however, present greater challenges. Very often, surgeons can reestablish circulation in arteries but not in veins. With the circulation compromised, the blood going to the reattached finger becomes congested and eventually blocked, threatening the success of the procedure. Leeches interrupt the clotting that leads to this congestion. Leech saliva anaesthetizes the wound area, dilates blood vessels to increase blood flow, and prevents the blood from clotting.Leeches have also become the subject of twenty-first-century recombinant DNA technology. In the nineteenth century, John B. Haycraft, a physiologist at the University of Wales, discovered that blood did not coagulate in the gut of the leech. In the 1950s, a German scientist, Fritz Marquardt, isolated a protein from leeches called hirudin, which contains sixty-five amino acids that operate to inhibit blood-clot formation. Scientists are studying hirudin, seeking to develop drugs that will act as clot-busters (“fibrinolytics”), anticoagulants (sometimes erroneously referred to as blood thinners), and antiplatelets (to prevent platelet aggregation). Genetic technology is central to the success of these efforts.Just as in the somewhat sportive example of leeches, the Constitution was framed on factual bases that no longer pertain today. Its basic factual premises—knowledge of human nature, contemporary technology, and the methods by which the social and biological worlds are measured—have undergone constant and drastic change since the day the Constitution came into being. Yet we continue to rely on those ancient words. This reliance, however, is not necessarily misplaced. It may be that the forms and structure continue to be valid, but for different reasons. Leeches were employed in 1799 to reduce excess blood, a derisive use, but have a function today as an anticoagulant. Similarly, in 1799, the notion of federalism and states’ rights depended largely on the prevalent agrarian lifestyle and a confidence in Montesquieu’s theories regarding the virtues of small republics. In a sprawling modern urban society, many of the premises supporting states’ rights are no longer believed. This does not necessarily mean that state sovereignty has no place in modern America. It does mean, however, that we should interpret and use the idea of states’ rights in accordance with our contemporary understanding of the facts.Blind adherence to the past and ignorance of the factual premises upon which our Constitution was framed and by which it has been interpreted through history are a prescription for disaster. We are beholden to past generations for the ideals they espoused, but we should not be prisoners of their beliefs about human nature or the nature of the world. States, like leeches, may have their uses in modern society, but we ought to understand and make explicit the reasons for thinking so. Otherwise, unthinking advocacy of states’ rights, because that is what has “always been done,” is tantamount to employing leeches for purposes of bloodletting rather than as a modern medical tool with specific salutary uses. As the story of Washington’s last days teaches, this is no way to treat a great nation.Copyright © 2004 by David L. Faigman
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