Dear Professor Dworkin:
Sorry for the delay in responding. Your latest response just caught up with me on a family vacation. Ironically you have accused me of repeating myself, but instead of answering any of my arguments about the purposes of assisted suicide laws (April 21) or the likely consequences of repealing them (May 8), you have chosen "to restate, in outline form, the argument [you have] been making." As before, this argument rests on a vague and open-ended statement of constitutional principle (steps 1 and 2) followed by a specific and controversial conclusion (Step 3) that simply ignores all the complexities of the problem. Your claim that the "state's only justification" for assisted suicide laws "denies" the individual's conviction about when to end his life makes me wonder whether you have been reading my posts (or indeed, whether you have read any of the task force reports or materials explaining the rationale for assisted suicide laws). The "justification" for these laws, as set forth by their proponents, is not (as you suppose) that all persons that seek to end their lives are "morally at fault." It is to protect vulnerable people from a situation in which the cheap and speedy solution of death becomes natural, normal, and expected. I have not uttered a word of criticism of those who, without urging and in the face of legal obstacles, choose to end their lives. They find the means. My concern is for the vastly larger number of persons, who, if death becomes a routine medical option (comfortingly called a "right") will be susceptible to pressure, however subtle, to take the "sensible" course, which spares so many people anxiety and expense.
Your argument presupposes that if one accepts certain vague statements of political principle (mostly Step 2) it must follow, as a logical matter, that assisted suicide should be permitted. This is Step 3. Your sole argument for Step 3--set forth in the fourth paragraph--is nothing but a rhetorical question, which is no argument at all. An argument for Step 3 would require you to address the actual justifications for assisted suicide laws and their probable consequences, which you have thus far studiously avoided. If you look seriously at these issues, you will find difficult questions of judgment, including empirical questions as well as questions of morality, medical practice, and patient preference, on which reasonable people disagree. You pay no attention to the informed opinions of those most knowledgeable about the issue; nor to the expressed preferences of the poor and elderly people most affected by it (are you aware that, according to polls, healthy young males favor assisted suicide while poor and elderly women oppose it?); nor to the judgments of the representatives of the people, who have debated the issue in almost half the states in the last seven years, and have unanimously rejected your point of view. Instead, you posit an abstract 5-step argument as if this issue could be resolved by syllogism.
Your mode of argument is a modern version of late-19th century legal formalism, in which legal theorists claimed that the entire complex structure of common law could be derived from a few basic postulates regarding property, contract, and tort. This is the sort of logic that persuaded the Supreme Court that if we believe in liberty of contract (their equivalent of Step 2) it follows that maximum hour laws must be unconstitutional ("Step 3"), except in certain specific circumstances relating to health and safety ("steps 4 and 5"). It took the legal realists to point out that empirical judgments and social consequences matter, and that legislatures are generally more adept than judges at making decisions about social and economic policy. One need not be a legal realist to see the fallacy in the earlier approach.
This brings us to the issue of constitutional method (Step 1). I have maintained that constitutional principle must be based on the actual historical experience and judgments of the nation, rather than the political creed of the interpreter, however plausible that creed may be as a philosophical matter. (Thus, when I said that assisted suicide has "plainly" not been recognized by this nation, I was not begging any questions, but making an incontrovertible historical point. Even you do not deny that the supposed "right" to assisted suicide has been rejected by almost every American jurisdiction, for almost the whole of our history.) This is not a question of moral philosophy but of institutional legitimacy: not of what is the right answer but of who has the right to decide. From the beginning of judicial review in Marbury vs. Madison, the authority of judges to overturn legislative acts has been based on the proposition that the challenged law conflicts with the higher will of the people, expressed in the Constitution. When judicial review is divorced from the longstanding and settled will of the people--when it is turned into a question of philosophy rather than law--it loses this claim to democratic legitimacy, and comes to rest solely on the dubious proposition that the judge's will is superior to the people's.
This brings us to the role of democratic judgment (none of your steps). The issue is not whether "politically appointed judges" may "review" the decisions of representative bodies. Of course they can. It is whether they may override those decisions for no better reason than that they disagree with the legislature regarding social policy. You seem to believe that all social and political questions that can be characterized as involving the "abstract" ideas of liberty or equality (a capacious jurisdiction) may--indeed must--be decided by the judiciary, and ultimately by the Supreme Court, without any serious role for democratic judgment. By contrast, I believe that our Constitution is fundamentally democratic in nature--relying on the deliberation and judgment of the representatives of the people or resolution of most contested issues. The Constitution resolves a limited (but important) set of questions, which our history has shown to be of fundamental importance, but for the most part socialists and capitalists, libertarians and communitarians, traditionalists and progressives are free to strive for their competing conceptions of rights, justice, and equality in the political arena. The Constitution establishes a framework for democratic government; it does not answer all questions for us or vest judges with the power to do so.
This may be the largest difference between us. I believe in the principle--going back at least to John Marshall--that the judiciary should displace the judgment of the people's representatives only when it is tolerably clear that fundamental established principles of constitutional law have been breached. If I read your position correctly, you think that federal judges owe no deference to representative institutions (no matter how longstanding or unanimous their judgments may be) when the question is arguably governed by abstract constitutional language.
It is hard to imagine any question that should not be decided by judges under your formulation. The entire set of criminal laws defines the reach of "liberty"; taxing and spending affect "equality"; much of public education impinges upon "freedom of conscience"; zoning, environmental regulation, and much of the modern regulatory state affect "property" (which is also an abstract principle, though you leave it out of your litany). Why is assisted suicide more a question of "freedom of conscience" than the nature of sex-education curriculum in public schools, for example? Why should legislatures be able to "dictate" to the minority whether they may gamble, use prostitutes, or work for less than the minimum wage? What is the practical limit, under your approach, to total government by judiciary? What gives you such faith that judges will make better decisions than legislators? Does the experience of world history support the view that regimes based on the supposed greater wisdom of a small elite group are superior to those based on representative democracy?
Whatever one may think of rule by judges in the abstract, it is peculiarly inappropriate when the question to be resolved (like assisted suicide) is one in which reasonable and knowledgeable people of good will disagree, and about which we have no national experience. You are so confident of the correctness of your own opinions that you ask the judiciary to strike down the laws of 49 of the states, in the teeth of the consensus of informed opinion to the contrary. To me it seems far more sensible to allow these questions to be deliberated in the 50 states, to see what experience will bring. You ask why I prefer our constitutional democracy to your notion of expansive power for the judiciary: The answer is that I lack your confidence in the power of a few smart people to reach the correct answer to complicated and contested questions. I prefer the decentralized decision-making of multiple bodies, responsive to popular opinion, subject to checks and balances, and open to experience and revision. The problem with your vision of judicial predominance is that it will impose a single controversial answer on the entire nation, without any roots in our nation's historical experience. And because of the nature of judicial decision-making (the principle of stare decisis) that answer will be extremely difficult to change even if it is wrong.
Very truly yours,
Michael W. McConnell