Friday, July 6, 2018

Does the Constitution protect the freedom to eat one another?

The harrowing story of a Thai boys soccer team trapped in a cave reminds me of my favorite case from law school -- Regina v. Dudley & StephensAdrift on a lifeboat, with little hope for rescue, Tom Dudley and Edwin Stephens killed and ate the cabin boy, Richard Parker. A fourth man, Edmund Brooks, participated in the feast, but apparently never assented to the murder, and he was the star witness for the prosecution. Dudley and Stephens were convicted of murder, but their death sentences were commuted by the Crown to six months in prison. 

Survival cannibalism is also the focus of the well known legal essay, The Case of the Speluncean Explorers, which is styled as a decision by the fictitious Supreme Court of Newgarth. The five Justices must decide whether to uphold the murder convictions of four spelunkers who killed and ate the fifth member of their exploration team after a landslide trapped them underground. The Justices disagree strenuously about the appropriate legal reasoning and resolution of the case, with two Justices voting to uphold the convictions, two voting to set them aside, and the fifth abstaining.

As we await President Trump's announcement of a nominee to succeed Justice Kennedy on the United States Supreme Court, a great deal of attention has been paid to a number of controversial issues that divide Americans -- abortion rights, same-sex marriage, affirmative action, the death penalty, and gun control. One issue, however, towers above them all, yet has been glaringly absent -- survival cannibalism. 

Thankfully, even though the Thai boys soccer team remains trapped, the rescue team has been able to provide them with food and medical assistance, so they will not face the predicament of Dudley and Stephens or the Speluncean Explorers. Still, their story should give us pause and remind us that we cannot take our own comfort and well-being for granted. The day may come when we have to face the unthinkable. And if that happens, we need to have the law on our side. 

So if there should be one litmus test to serve on the Supreme Court, it is surely this: Do you support a constitutional right to survival cannibalism? 

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.