Dear Professor McConnell,
I'm sorry you didn't notice what you call the "philosophy" in our brief. I'll try to point it out to you, and to explain why your failure to notice it accounts for your own--I think seriously mistaken--opinions about constitutional law. It may also account for your failure to notice the tragic personal dimensions of the issue we're discussing. Constitutional law is, after all, about what is acceptable--according to the moral principles to which our nation is committed--for some people to do to others.
You attribute to us the preposterous idea that people have a constitutional right to make "intimate" personal decisions any way they wish--which would cover, I suppose, sacrificing one's children to a god--and your counterexamples show that you did not notice the important distinctions we made in proposing a very different principle. There are at least three kinds of reasons governments give for limiting people's freedom. First, some acts, like filming child pornography, injure the legitimate and important interests of other people--in that case, the children who are filmed. Second, some acts, like destroying yourself with drugs or selling yourself into slavery, are horribly against the actor's own interests, as he himself would judge these if he was thinking clearly. Third, some acts, like religious dissidence, or a woman aborting her fetus, or homosexual sex, or a terminally ill patient killing himself to avoid further pointless pain, that are dangerous neither to other people nor to the actor himself, nevertheless offend popular ideas about how best to show respect for religious or ethical ideals.
Our principle insists only that people not be prevented from making momentous personal decisions themselves, according to their own convictions, for the third of these reasons. The Supreme Court claimed not to violate that principle when it allowed states to forbid polygamy: It said that allowing multiple marriages injured other people by causing administrative confusion. The court certainly did violate the principle when in 1986 it allowed states to make homosexual sex a crime, but many commentators think, as I do, that the court in effect reversed that dreadful decision (though without mentioning it) in last year's Colorado homosexuality case. That leaves only your counterexample about homosexual marriage, and I agree that there are grounds for arguing that denying homosexuals even the most important of the legal benefits of marriage violates our principle. But it hardly vitiates an important constitutional principle that so far the court has refused to recognize that principle in all the cases to which it actually applies: It did not vitiate the equality principle of the Equal Protection Clause, for example, when the courts permitted official racial segregation in school for long decades before 1954.
That brings me to your general theory of due process. You say that the facts of particular issues, not general principles, should decide constitutional cases. But that, as Kant warned, is an illusory distinction because without general principles we cannot decide which facts are relevant and why. The passage we quoted about "intimate" decisions, moreover, was not mere "judicial rhetoric"; it was the ground that three key justices gave for the court's decision refusing to permit states to make early abortion a crime. I believe you disagree with that decision--you helped write a brief in the assisted-suicide case, on behalf of three of the fiercest anti-abortion-rights congressmen, which declared that the decision was "of questionable legitimacy." But your disapproval doesn't mean that the court's central rationale was an empty verbal gesture.
In any case, you, too, are relying on a general principle: that the due-process clause only forbids the particular constraints on liberty that the American states have historically already rejected. That historicist interpretation, which makes the clause virtually toothless, has had its defenders: A majority of the justices relied on it in the 1986 homosexuality decision I mentioned, for example. But it has also been widely rejected, including, incidentally, by Harlan himself (who obviously interpreted his own abstract language differently) in the very dissenting opinion from which you quote, and by all the justices who have cited his dissent as support for their view that anti-abortion-rights laws violate the due-process clause.
We shouldn't, however, get into an argument about who can find the most quotes on his side. I'd much rather know more about why you oppose a constitutional right to assisted suicide. You suggest that the second kind of reason I distinguished earlier is enough to justify denying that right. If we allow it even for terminally ill and mentally competent patients, you say, that might put pressure on such patients to choose death when they really want to live a little longer. We can certainly debate the likelihood of that consequence--after all, as I pointed out in my introduction, a great many dying patients already have doctors who will prescribe lethal pills for them even though it is illegal, and that increasingly available and acknowledged opportunity has not produced any apparent heightened sense of vulnerability or otherwise cheapened the public's sense of life's value. But I agree that the possibility of abuse is enough to justify giving states considerable authority to regulate assisted suicide in any reasonable way to ensure that any successful request for death is genuine and stable.
The bare possibility is not enough, however, to justify an absolute prohibition for everyone, in any circumstance, which means condemning thousands of people to a lingering, agonized death they desperately want to avoid, a death they think insults rather than honors the value of their lives. Only the third kind of reason--that they are wrong in that ethical judgment--could purport to justify that. Do you think the third kind of reason legitimate? Do you think forcing people to die in a way they abhor because others disagree with them is consistent with America's traditions of respect for the conscience of an individual?