Dear Professor Dworkin,
I agree it is time to bring this discussion to a close. It may be valuable to review the course of the conversation. I have argued that laws against assisted suicide serve the legitimate state interest of protecting vulnerable people from pressure to “consent” to their own killing. While this is not the only reasonable approach to this difficult question, it is a reasonable approach, fully compatible with the text, history, experience, and constitutional tradition of the nation. Such laws can be declared “unconstitutional” only if judges are free to read the language of the Constitution as embodying their own moral and political preferences, unconstrained by conventional legal materials. I have suggested that, given the empirical uncertainties, the opposition both of those most affected and those most knowledgeable, and our lack of experience with a regime of legal assisted suicide, it would be a grave mistake for unelected judges to impose a single controversial position on the entire nation, precluding further democratic deliberation.
In your New York Review of Books essay and brief, you appeared to argue for a right to assisted suicide on the ground that this falls within the category of “intimate and personal choices” constitutionally protected by Planned Parenthoodvs.Casey (1992). In my first post (April 9) I pointed out that this argument was overbroad, and that constitutional rights under the due process clause are defined according to the nation’s experience rather than “generalizations and syllogisms” of this simplistic sort. In your response of April 15, you agreed that such an argument would be “preposterous.” On that, thankfully, we are agreed.
You substituted an argument distinguishing between three reasons the government might have for “limiting people’s freedom”: (1) to prevent injury to the legitimate interests of other people; (2) to prevent acts that “are horribly against the actor’s own interests”; and (3) to prevent acts that are “dangerous neither to other people nor to the actor himself” but that “offend popular ideas about how best to show respect for religious or ethical ideals.” You stated that your argument applied only to laws enacted “for the third of these reasons.” In my message of April 21, I pointed out (among other things) that assisted suicide laws do not rest solely on the third reason, but serve the first two governmental purposes as well: protecting vulnerable people from possible pressure from doctors, heirs, and cost-saving medical administrators; and protecting people from suicidal impulses that are based on clinical depression or treatable pain. Thus, even under your own test, assisted suicide laws would appear constitutional.
You immediately dropped this discussion of the purpose of laws against assisted suicide, shifting (in your message of April 29) to the claim that the laws violate freedom of conscience–a legal theory quite different from the due process and equal protection theories adopted by the lower courts. You also advocated a general approach to constitutional decision making, wherein judges may adopt their own readings of the “abstract” principles of the constitutional text, without regard to historical meaning or national experience. In my responsive post (May 8), I criticized this undisciplined notion of “interpretation,” and also pointed out how strange it is to characterize as freedom of “conscience” a right that applies to only a few people and that can be overridden (by your own account) whenever society thinks the individual’s decision is mistaken. I also noted that, in practical effect, recognition of this “right” would empower doctors–not patients–and might well lead, as it had in the Netherlands, to killing without consent.
On May 15, you “restated” your position in the form of an abstract 5-step argument, the crux of which was the conclusory assertion that freedom of conscience “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.” In response (May 29), I pointed out that this seemed to overlook my earlier messages regarding the actual “justifications” for the laws. So far, you had not disputed the accuracy of my statement of the purpose of the laws or of their effects (other than to disregard the Netherlands experience on the dubious ground that the United States will do a better job of regulation). Since the states’ “only justification” is not based on “denying those convictions” but on protecting vulnerable people from the imposition of “convictions” that would be cheap and convenient for the system, this new formulation of your position did not seem to advance the argument.
In your final post (June 9), you seem to admit that what you call the “practical arguments” (the actual purpose and effect of the laws) might have some bearing on the proper answer. Even so, you do not tell the readers of SLATEwhat your position on those “practical” questions is, suggesting that we reread your original essay, or perhaps one of your books. If, in fact, your argument depends on unstated presuppositions about the purpose of assisted suicide laws and the probable consequences of repealing them, it would have been helpful to tell us at an early stage of the discussion, so that we could subject those claims to critical examination.
You attempt to sidestep genuine discussion of these “practical” questions by claiming that the “burden of proof” should rest with those defending the laws. To a lawyer, that is a surprising suggestion. The burden of proof in every case is on the plaintiff. As the Supreme Court has said time and time again, acts of the legislature are entitled to a presumption of constitutionality. There is also a problem of logic: You seek to prove that there is a right to assisted suicide. I have contended, among other things, that whether such a right exists depends in part on the actual purpose and effect of the laws. Now you respond that “when a state urges practical necessity as a justification for overriding important constitutional rights, it has the burden of demonstrating that practical necessity by compelling argument.” But this statement assumes the correctness of the contested proposition (whether there is a right to assisted suicide). That is what logicians call “begging the question” and laymen call a “bootstrap” argument. Since the very question we are debating is whether there is a constitutional right to assisted suicide, you cannot use the assertion that there is such a right as the reason for allocating burdens of proof.
Perhaps it would be appropriate to end with a prediction. I predict that the Supreme Court will reverse these decisions, essentially for the reasons I have set forth. Going further out on a limb, I predict that no justice–liberal or conservative–will be persuaded by your argument (though it is possible that a minority will find that there is a constitutional right, which is overridden by the state’s justification). This will not, of course, prove that you are wrong as a philosophical matter. But it does provide a kind of empirical test of your claim that “a great many judges and scholars” share your disdain for a jurisprudence respectful of text, history, experience, and democratic deliberation. We will see.