Dear Professor McConnell,
I hope you weren’t rushed, because of your vacation, in replying to my last note. In fact, I didn’t say that a state’s only reason for regulating assisted suicide is to dictate religious and ethical convictions to individual citizens. I said, rather, that only that reason could justify a particularly crude kind of regulation–an absolute prohibition with no exceptions even for plainly competent people dying in great and untreatable pain. You fear that I have not been attending to the practical arguments. You should reread my original essay in the New York Review of Books that launched our discussion. (You might also look, if you wish, at the pertinent part of my recent book on the issue, Life’s Dominion.) You may disagree with my analysis of the factual evidence, or with the material I cited, but it really is unfair to suggest that I have “studiously avoided” the factual issues just because I don’t keep repeating what I first said. Perhaps I might add, with the greatest respect, that it is time that conservative lawyers trained themselves out of the knee-jerk charge that anyone who makes moral arguments of even minimal complexity in a legal context is guilty of conceptual or mechanical jurisprudence. That old dog won’t hunt any more: The charge is very bad intellectual history, and even worse legal philosophy.
Given the uncertainties you describe, the burden of proof is a crucial issue. I have been arguing 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, and that it is not enough for it merely to point to reasonable people who agree with its claims. No showing of necessity, let alone a compelling one, was made in these cases. That is why I suggested that if the Court does reverse the lower-court decisions our brief supports, as most observers expect it to, it should nevertheless signal its readiness to reconsider the issue when states might be thought in a better position to make that showing.
You haven’t responded to my claim about the burden of proof, presumably because you doubt that American citizens have a constitutional right to follow their own religious or ethical convictions in deciding when to die, even in the tragic circumstances of the patients in these cases, who pleaded for an end to their agony. That brings us back to the issues of constitutional interpretation we have been discussing. You offer, as a guiding thesis, that courts should not disturb state legislation unless–in your marvelously vague phrase–it is “tolerably clear” that the legislation offends constitutional principles. No one could disagree with that. But my colleagues and I–along with a majority of the judges of the lower courts and a great many citizens–do think that it is “tolerably clear” that the Constitution’s general principles guarantee that specific right, and we offered arguments for thinking so. You reply that we must be wrong, but you base that complaint entirely on your view of how judges should decide what is “tolerably clear” about the Constitution. In your view, no specific right follows from an abstract constitutional principle if that specific right has been consistently denied in American history, and so you repeat, yet again, that 49 American states absolutely forbid assisted suicide. Of course we reject that interpretive strategy, as has the Supreme Court in the various cases I mentioned in past notes.
In your latest note you support your view by citing an undoubtedly popular political ideal–that important political decisions should be made by a majority of the people not by a few elite judges. As you know, many political scientists doubt that, as a practical matter, state legislatures regularly reflect the majority’s will, particularly on issues, like contraception, abortion, and assisted suicide, that passionately committed minority religious groups are apt to treat as issues of dominant importance justifying great time and expense. But it may also be questioned whether majority rule, even if our own political practices could realize it, would be a satisfactory interpretation of democracy. That view of democracy has been widely rejected, among political philosophers and politicians, in favor of a different one that makes certain rights of minorities and individuals a precondition to genuine democracy, and lawyers who favor giving power to judges to interpret and apply an abstract statement of those rights do so not–as in your parody–because they believe in the divine right or infallibility of judges but because they think this a better strategy for protecting those rights than allowing the majority to decide when its own power should be limited.
Of course there are risks in that strategy. You are perfectly right that there is no subject of legislation–zoning rules, environmental regulation, sex-education constraints, or any of the others that you mention–that could not (indeed, has not) been thought to raise issues about abstract constitutional rights, and there is at least a theoretical danger that an undisciplined and adventurous court might be tempted to try to assume powers the Constitution, interpreted in the way we recommend, would not give it. That danger is sharply reduced by the processes through which judges, and particularly Supreme Court justices, are appointed and confirmed, and by a steadily growing public concern with at least the most important constitutional decisions. It would be even more sharply reduced, as I have been arguing for some years, if more constitutional scholars took up and publicized substantive political debates about the right line between genuine matters of constitutional principle, which judges are bound to consider and assess, and matters of social policy that are not properly their concern. That would be much more helpful, I think, than insisting on formal interpretive strategies, about original intentions or historical practices, that try to treat these crucial substantive issues the way Canute tried to treat the tide.
In any case, we must ask whether these dangers of rights inflation are greater than the danger of rights violations that would be posed by a majoritarianism constrained only by your toothless tests. Reasonable people can disagree about that, of course. But it is worth noticing, at least, that all the nations that have recently achieved democracy, in many cases at the cost of much blood and suffering, have chosen to run the former rather than the latter risk, and have asked their judges to take on the role you would have our judges abandon. I am glad, in any case, that our discussion has finally identified one key and overlooked issue in the public discussions about assisted suicide. It may have helped others to see how that debate turns on a more fundamental disagreement about the right interpretation of, and the best strategy for, improving political democracy.