Assisted Suicide

       I won’t comment on your attempt to paint my correction of your misreading as a shift in my position. I’ll concentrate instead on your most important claim, which is that political principle has little to do with legal reasoning, even in great constitutional cases. Your claim seems to me paradoxical, because you could only defend it, as I’ll try to show, by appealing to political principles yourself–to very controversial ones about the character of a genuine democracy.
       The great rights-bearing clauses of the Constitution are drafted in very abstract moral language–they insist on “freedom” of speech and religion, for example; prohibit “cruel” punishment; and require “due” process and “equal” protection of law. Everything therefore depends on how that abstract language is to be interpreted. One view, which is now popular among very conservative lawyers, is that the abstract moral language should be read as having primarily a historical reference, so that it outlaws only those political practices that have been regularly repudiated as unjust or unfair over the course of American history. The Supreme Court relied on that historicist strategy (which makes the great clauses almost toothless) in the widely reviled 1986 homosexuality decision it has now in effect overruled–the court argued, in 1986, that the due-process clause does not invalidate laws making homosexual sex a crime because such laws are common in American history.
       A great many judges and scholars now prefer a different interpretive strategy, however: They believe that the abstract clauses should be understood as incorporating certain fundamental principles of individual freedom and equality, principles that are honored in the general structure of our Constitution and legal practice, but nevertheless dishonored, from time to time, in more specific practices. On that view, a constitutional challenge to long-established laws, like the anti-homosexual laws, asks judges to consider whether those laws, in spite of their long history, can nevertheless now be seen to offend more general principles to which the Constitution commits the nation. You agree, I take it, that the court relied on that way of understanding the due-process clause in its momentous abortion decisions. But you are wrong to say it did so only in those cases.
       It used the same strategy of principle in its great equal-protection decisions, including those striking down long-established patterns of racial and gender discrimination, and in crucial due-process decisions that held that states could not outlaw the teaching of foreign languages in public schools, for example, or prohibit the use or sale of contraceptives, even to teen-agers. And, in the present case, eight judges of the prestigious Ninth Circuit Court of Appeals, in a rare en banc proceeding, explicitly rejected the historicist strategy in holding that Washington state’s anti-assisted-suicide law violated the due-process clause.
       So you shouldn’t say that your style is “the accepted mode” (whatever that means) as if that ended all legal discussion. The historicist strategy is at best one of a variety of constitutional strategies in play in our constitutional history, and our basic disagreement is about which of these strategies is appropriate for judges in a democracy. I’m afraid that all your arguments beg that question, however, by simply assuming that yours is. You say, for example, that a right to assisted suicide “plainly” cannot be “derived” from the constitutional text. But whether a particular decision can be derived from the abstract language of a constitutional provision depends on how that provision is properly interpreted, and if the strategy of principle our brief adopted is the appropriate one, then a right to assisted suicide indeed can be derived from the text, by showing how fundamental the freedom of individual conscience is to America’s political ideals. You say that we switch cart and horse by arguing for a principle that protects individuals when government offers one kind of reason for restricting their liberty–official disapproval of their personal ethical values–but not when it offers another–the need for protecting the interests of other people, for example. But there are strong grounds for claiming that that is exactly the right that the abortion and other due-process cases I mentioned presuppose, and if the principled strategy these cases used is sound, that is the right we must now enforce.
       How should we debate which of the two interpretive strategies is more appropriate? We can make no progress if either of us simply declares that his method is “accepted,” or “settled,” or “well-known,” or what is required by “law” as distinct from “an Oxford seminar.” As I suggested, we must test our views against conceptions of good government and democracy. You begin to do that when you ask, at the end, “By what right would you pre-empt these deliberations and take this decision out of the hands of the people?” Of course I have no right, and moreover no power, to do anything of the kind. But my colleagues and I do have the right to defend a conception of democracy according to which the powers of the majority are limited by principle even when it is controversial what that principle requires. You and I must finally face the question, then, whether that conception of democracy is attractive and, if so, whether those principles include a right of personal conviction that would allow competent people near death to decide how they wish to die.
       You say that we need not confront that question because some restrictions on assisted suicide can be defended as serving the ordinary interests of some patients. We agreed that some restrictions can be defended in this way: We cited circumstances in which it would be reasonable to think that someone who is prevented from killing himself would later be glad he was. But, as I said, that defense cannot justify an absolute prohibition that would deny a doctor’s assistance even to patients in the extreme circumstances of the plaintiff patients in these cases. Society can justify that absolute constraint only if it presumes collectively to dictate to individuals what their personal convictions should be about matters of salvation or dignity or self-respect.
       So I must repeat the question I put in my last note and which you did not answer. People of deep faith and conscience disagree about whether the suicide of someone dying in great pain with no hope is, in your words, “the ultimate self-destruction of freedom,” or whether it is, as many other people think, freedom’s final gift. Do you really think we should settle for a view of our democracy, or a way of reading our Constitution, that would permit a majority to impose one answer to such religious or spiritual questions on everyone, including desperately sick people in their last and most vulnerable moments?