Thursday, January 7, 2016

The Supreme Court and a Life Barely Lived - The New York Times

Linda Greenhouse reports the recent death of Joshua DeShaney (nee Braam) at age 36.  He was the brain damaged plaintiff who sued the Department of Social Services in Wisconsin.  The state agency failed to act to protect him despite their actual knowledge that he had brain damage due to repeated beatings by his father.  That led to one of the most appalling restatements of conservative interpretation of the Fourteenth Amendment which promises all the equal protection of the law:
“Nothing in the language of the Due Process Clause,” the chief justice wrote, “requires the state to protect the life, liberty, and property of its citizens against invasion by private actors.” The opinion continued: “The Clause is phrased as a limitation on the state’s power to act, not as a guarantee of certain minimal levels of safety and security.”
This callous - and now firmly embedded - limitation of government's duty to  act to protect the health and welfare is a great stain on our nation.  Unfortunately it is a bedrock principle of the "libertarian" legal tradition that underlies today's conservative movement.  Northwestern Law School Professor Andrew Koppelman has aptly called it "tough luck constitutionalism". - gwc

The Supreme Court and a Life Barely Lived - The New York Times

by Linda Greenhouse

IT wasn’t surprising that a man named Joshua Braam, who died in November in Muskego, Wis., at the age of 36, didn’t make the engaging “lives they lived” lists that appeared at year’s end. The life he lived was constricted in the extreme. A series of savage beatings by his father, who had obtained custody after a divorce and whose history of abuse had been reported to the local child welfare authorities to no avail, left Joshua comatose and permanently brain damaged at the age of 4. At 12, he was adopted by Richard and Ginger Braam, who cared for him for the rest of his life.

His biological mother, acting on his behalf, sued the Winnebago County, Wis., Department of Social Services for depriving Joshua of the “liberty” protected by the due process clause of the 14th Amendment. The Supreme Court’s rejection of that claim, in a 1989 opinion written by Chief Justice William H. Rehnquist, provoked Justice Harry A. Blackmun to exclaim in dissent: “Poor Joshua!”

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