Dear Professor McConnell,
I fear that you’re still begging all the questions, and in the same way. You just repeat (apparently taking no notice at all of what I said last time) that the Constitution’s text “plainly” doesn’t support my reading of it, and that my argument is fallacious because assisted suicide “plainly” is not included in any idea of freedom of conscience that’s part of America’s political traditions. But that’s exactly what we’re disagreeing about–we disagree about what issues our constitutional structure removes from the ordinary political process because we disagree about how to read the Constitution’s text and about whether a nation’s long-standing political practices can be inconsistent with its more abstract political ideals. It is that methodological disagreement, I said, that raises the central issues of political principle, about the nature of democracy, that I invited you to discuss. You once again “decline the honor” of discussing democracy, on the ground, you now say, that no one has appointed us a “roving constitutional convention,” and that “the people,” not “professors,” should decide such questions. That really won’t do. I’m talking about intellectual responsibility, not (our nonexistent) political authority. You keep insisting that matters are “plain” that have been the subject of intense debate among constitutional scholars and legal philosophers, and you should be willing to back up your claims, including all your methodological claims, with more than just repetition.
We should try to wind the discussion up, and it might help if I were now to restate, in outline form, the argument I’ve been making. (1) The abstract rights-bearing clauses of the Constitution, like the due-process clause, should be read as embodying general principles of political morality. They are not just shorthand references to the moral opinions of their authors or to the concrete practices accepted and rejected in our history. (2) So understood, the due-process clause protects, among other fundamental freedoms, freedom of conscience, understood as the right of each person not to have important liberties curtailed when the state’s only justification for doing so rejects his convictions about what kind of life best respects life’s intrinsic value. (3) That more specific right includes the right of a competent person to decide when to end his life, when his decision is based on genuine and stable convictions of that sort and the state’s only justification for denying that liberty denies those convictions. (4) Government also has the responsibility, however, to protect people from self-destructive acts when they are not competent, or when it is plausible to think that their act does not reflect genuine or stable values–among other reasons, for example, because it is based on demonstrably false beliefs. Legal constraints on assisted suicide are therefore justified to the degree to which they reflect a reasonable effort by government to respect both the right of conscience and that responsibility. (5) But an absolute prohibition on doctors helping terminally ill patients to kill themselves, in any and all circumstances, cannot be justified in that way.
Each step in the argument is controversial, and each can be defended or criticized only by deploying arguments of political principle. In my last posting, I explained why that is true of Step 1. I’m still hopeful that you’ll explain why you think that a conception of democracy that gives simple political majorities the final power to interpret the abstract rights of minorities–rights that the majority is legally bound to respect–is superior to the different conception of democracy that allows politically appointed judges to review those decisions, subject to the residual power of an extraordinary majority to overrule the judges. We’ve also discussed Step 2. We must take care, incidentally, not to fall into the pigeonholing trap, or to be deceived by labels. You’re right that freedom of conscience has been canvassed in First Amendment cases. But if the due-process clause protects fundamental liberties, it protects freedom of conscience too, and in a more general way. That was the message of the abortion decisions you dislike, and, in particular, of the passage from the Casey opinion we cited but that you want to dismiss as mere “rhetoric.” In any case, you could challenge Step 2, separately, only by denying that freedom of conscience, as I described it, is a fundamental liberty. Do you want to do that?
Do you want to challenge Step 3? How could we recognize a general right to freedom of conscience and not apply it to one of the most dramatic instances in which people’s decisions about their own lives turn on a matter of the deepest religious and ethical convictions? You don’t, I assume, disagree with Step 4. So we come to the last step, No. 5. If we assume a constitutionally protected right to freedom of conscience, which in principle extends to suicide in some cases, is it reasonable for government wholly to forbid, in all circumstances, medical assistance to patients who want to die? We wouldn’t countenance resolving parallel conflicts between state responsibilities and other constitutional rights in that crude way; we wouldn’t accept, for example, that because public speeches and demonstrations sometimes get out of hand, government can ban all speeches and demonstrations. We wouldn’t even consider that possibility unless we were convinced that no other way of providing a reasonable degree of protection from violent injury could be found, and we would insist that anyone making that claim had the burden of proof in sustaining it.
Perhaps you think that the analogy to free speech is inappropriate. But if so, that must be because you reject one or more of the earlier steps in the argument. If you did accept the earlier steps, you’d accept the analogy and the conclusion, wouldn’t you? You wouldn’t then say, as you do say, that if the evidence is inconclusive, we should resolve the doubt by permitting states wholly to deny any exercise of a constitutional right. You’d insist that those arguing for that position must meet a high standard of proof. You don’t even try to meet any such standard, however. Heaven’s Gate is beside the point–its members acted on “scientific” beliefs that are demonstrably false–and the Dutch experience, for all the emphasis you and others place on it, is only dubiously relevant, because the statistics you cite are hotly contested, and because an American state could adopt much more stringent safeguards than the Dutch have, without offending the principles we defend.
Perhaps the basic ground of your disagreement with our position doesn’t lie in the “practical” arguments about the difficulty of drawing lines that you cite when Step 5 is in question, but in your rejection, as a matter of political morality, of the principle defined in Step 3. So I’ll press you to consider two further questions. (A) I myself do not think that someone dying in great pain that can only be relieved by deep sedation is morally at fault if he ends his life by taking lethal pills, or that a doctor is morally at fault who helps him obtain those pills. (I think this not, as you unreasonably say, because I think lives in that circumstance are not worth living, but because I respect the right of people to make judgments like that for themselves.) Do you agree? (B) I myself do not think, in any case, that this is a matter on which a majority should dictate to individuals whose settled, reflective conviction is to the contrary. So even if I changed my mind about the moral question just discussed, I would not think it right to impose my views, however popular, on dying patients and their doctors who had a contrary opinion. If you were satisfied that the “practical” difficulties could be met by carefully drawn legislation, would you at least agree with me in that latter judgment, as a matter of political morality, even if we still disagreed about how far constitutional law incorporates that morality?
Please let me have your opinions about these crucial matters, and then I’ll try to make my next reply an appropriate way to close our discussion.