Dear Professor Dworkin,
I am delighted that you now agree with me that it is “preposterous” (I was more diplomatic) to argue that all “intimate and personal” decisions are constitutionally protected. Now you offer a more subtle argument, based on “three kinds of reasons governments give for limiting people’s freedom”: 1) that the acts inflict injury on others; 2) that the acts are “horribly against the actor’s own interests”; or 3) that the acts, though they are “dangerous neither to other people nor to the actor himself” are forbidden because they “offend popular ideas about how best to show respect for religious or ethical ideals”–in other words, that they are immoral. Your “principle,” you now say, is merely that the third of these reasons is not legitimate.
There are three flaws in this argument.
First, you put the cart before the horse. Before determining what reasons may be sufficient to justify infringements on “people’s freedom,” it is necessary to determine whether an asserted interest (such as assisted suicide) is a constitutional right to begin with. If the supposed constitutional right to assisted suicide cannot be derived from syllogisms about “intimate and personal choices” (as we now seem to agree), and it plainly is not derived from standard constitutional materials (the constitutional text, the history illuminating its meaning, the tradition and experience of the nation, or established precedent), where does it come from? Constitutional law cannot proceed at the abstract level of an Oxford seminar. Constitutional claims must be rooted in something recognizable as law–something ultimately traceable to the will of the people, who in our system are sovereign. To treat whatever “rights” may seem important or desirable as a matter of abstract theory as constitutionally protected would render the actual Constitution irrelevant.
In my last message, I explained that the accepted mode of determining whether an asserted interest is fundamental is to ask whether it has been recognized as such through the evolving history and experience of the nation. This has the virtue both of connecting constitutional law to the consent of the governed and of ensuring a cautious and experimental–and nondogmatic–approach to constitutional change. Under this standard, assisted suicide plainly is not a fundamental right. You assert that this interpretation of the due-process clause has “been widely rejected,” but you supply no citations (probably because, outside of the abortion cases, it has been widely followed and never rejected). Even the 2nd Circuit, in its assisted-suicide decision, recognized these authorities and concluded that there was no basis for saying that assisted suicide is a fundamental right under established due-process analysis.
Second, there is no principle of constitutional law that precludes the enactment of laws based on the moral and ethical judgments of the community. The principle can be found neither in the Constitution nor in any decision of the Supreme Court. On the contrary, the classic statement of the “police powers” of government includes protections for public “health, safety, welfare, and morals.” If you are suggesting this as a proposal for constitutional change, we could all give it serious consideration; but as a description of our actual constitutional practice it lies in the realm of wishful thinking.
Third, even if there were such a principle, it is far from clear that assisted-suicide laws would fall within it. Is the administration of deadly poison (even with consent) so obviously an act that is “dangerous neither to other people nor to the actor himself”? Assisted-suicide laws are commonly thought to fall into your first category: They protect patients from doctors, heirs, and medical administrators who might exploit their condition of vulnerability to induce them to “choose” a cheap and speedy death. Alternatively, the laws might fall into your second category: protecting the actor from committing an act that is horribly against his own interest. Like selling oneself into slavery, assisted suicide is seen by many as the ultimate self-destruction of freedom.
Society has a legitimate interest in protecting vulnerable people who are not in a position to exercise informed and independent choice. It may be true that for some individuals, death is freely chosen; but for many others, such a “choice” is a product of clinical depression, poor treatment of pain, pressure (often subtle) from doctors and family members (who may well be motivated by considerations of cost), and–most importantly–feelings of guilt caused by the burden they are placing on others. The proper treatment for most such patients is better pain therapy and treatment for depression, as well as encouragement, love, support, and reassurance. For many of the poor, the weak, and the friendless, the “right to die” means that the doctors will feel free to tell them they are better off dead.
These are among the reasons generally invoked by opponents of assisted suicide. You and your five fellow philosophers may disagree with them. But it has been the unanimous conclusion of interdisciplinary task forces appointed in New York and Britain, the conclusion of the professional societies of those most experienced in the care of the terminally ill, the conclusion of the representatives of the people in every state of the union, the conclusion of the people themselves in referendums in two out of the three states where a vote was held, and the conclusion of every other nation in the world but one to retain these restrictions. We do not want death to be added to the doctor’s checklist of treatment options. The issue is currently undergoing intense and sober discussion in medical and ethical circles, newspapers, legislatures, churches, synagogues, symposiums, street corners, and all the other forums in which Americans make decisions that affect our lives. By what right would you pre-empt these deliberations and take this decision out of the hands of the people?