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Life and Death Decisions (Part II)
In Part I of this essay, I discussed the unfitness of Harriet Miers, President Bush’s nominee to the Supreme Court, to succeed Sandra Day O’Connor as associate justice. Miers’ nomination presents a textbook case for the Senate to refuse to confirm the appointment: it was to prevent the appointment of someone like Miers – a crony of the president, who lacks the essential qualifications for the office to which he has nominated her – that the Constitution’s framers gave the Senate its “advise and consent” power. If the members of the Senate exercise that power responsibly, they will vote “No.” Unfortunately, as I also have noted, I have no confidence that the senators will act responsibly, for they are just as clueless about what makes a good Supreme Court justice as Mr. Bush is. It’s vitally important that Justice O’Connor’s successor is not only fit to serve on the Court, but also that she (or he) help maintain the positive legacy of the Rehnquist Court – its partial reinvigoration of the Constitution and its essential purpose, limiting government power. Assuming that the new Chief Justice, John Roberts, will prove to be a worthy successor to William Rehnquist – in other words, that he will follow a “conservative” jurisprudence similar to Rehnquist’s – the Court today is split, right down the middle, with four “liberal” justices who fail to recognize any meaningful limits on federal powers and four “conservative” justices who do recognize some limits, albeit inconsistently. Justice O’Connor occupies the critical “swing” seat on the Court, although she has tended to side with the conservatives, at least in important cases involving federalism questions. The ideal successor to O’Connor would not be an ordinary “conservative,” but a conservative who – like O’Connor, at her best – will be willing to exercise the Court’s judicial review powers both to broadly protect individual rights and to strictly limit federal government powers. Such a person would be an extraordinary type of conservative jurist, one who (like Justice Clarence Thomas) not only holds a judicial philosophy of adherence to the text of the Constitution but who also understands the importance of context in constitutional interpretation – someone, in other words, who appreciates the fact that the essential purpose of the Constitution is to limit government power, to prevent Congress and state legislatures from legislating away the fundamental rights of Americans. As Randy Barnett so eloquently put it (in the passages quoted at the end of my previous post – points so important that they’re worth repeating), “Times like these demand a justice with a firm grasp on constitutional text, history and principles. Someone who can resist the severe pressure brought by Congress, by the executive branch, by state and local governments, and also by fellow justices to exceed the Constitution’s limits on governmental power.” And as Barnett added, what is needed is not simply someone who’ll “adhere to the text,” but someone who will adhere to “the whole text, including the parts that limit federal and state powers.” That is, someone who – again, like Justice O’Connor, at her best – who will recognize, for example, that Congress’s power to “regulate Commerce among the states” does not give it unlimited power over all economic activity in the United States (as O’Connor did in her dissent in Raich, the 2005 medical marijuana case); or that when local governments exercise eminent domain powers to foster commercial development, they’re violating homeowners’ property rights as protected under the Fourteenth Amendment (and its incorporation of the Fifth Amendment’s Takings Clause) (as O’Connor recognized in her dissent in the recent Kelo decision). Professor Barnett is also right in noting that “we do not need to wait for Senate hearings” to know that Harriet Miers is unfit for the job – for absolutely nothing in her record suggests that she has the requisite understanding of constitutional law. One reason why it’s so important that Justice O’Connor’s seat be filled with an able successor is that the Court will consider some critical cases this term, including the case involving the Oregon physician-assisted suicide law. The Court’s decisions in cases like this will literally involve “life or death” questions, not only for terminally-ill individuals but also for federalism and other essential principles of the Constitution.
More on the Qualifications of a Supreme Court Justice
Supporters of Mr. Bush’s nomination of Harriet Miers to the Supreme Court have emphasized her distinguished career as a lawyer, both in the state of Texas (where she not only was a successor litigator and managing partner of a large law firm but also was elected president of the state bar association) and in Washington, D.C. (where she has served as Bush’s personal lawyer and White House counsel). As I previously noted, those credentials make her an appropriate choice for a federal district court judgeship or perhaps even a federal court of appeals. They do not make her qualified, however, for the Supreme Court. The problem isn’t that she has no experience as a judge: prior judicial experience isn’t required for the Court, and many justices throughout U.S. history (including at least three famous chief justices) have come to the Court without prior judicial experience. Indeed, it’s not even necessary that a Supreme Court justice be a lawyer, although it’s virtually impossible today to conceive of someone with the requisite knowledge of the law who has not formally studied law and at least received a basic law degree. The problem with Ms. Miers’ credentials is that they show absolutely no familiarity with the peculiar kind of law that’s the concern of the Supreme Court: constitutional law. Like millions of lawyers across the U.S., Ms. Miers has practiced law without having to grapple with important constitutional questions, except perhaps in occasional cases, which are few and far between. Most of her experience as a practitioner of the law has concerned corporate law. She has no expertise in constitutional law: she has not litigated any important constitutional cases; she has not written any articles about constitutional questions, she has not given any speeches about constitutional questions (except perhaps in the most general, or superficial way, that one might expect from a state bar association president). Indeed, there’s no evidence to suggest that she has even thought about constitutional questions in a serious way. Certainly there’s no evidence of this in her service in the Bush White House – in an administration headed by a president who seems ignorant of, and oblivious to, important questions of constitutionality. As I noted in the previous entry, the U.S. Supreme Court is a unique court that specializes in one particular area of the law, constitutional law. Unlike other federal courts – the district courts, which are trial courts handling a variety of civil and criminal cases, as well as the U.S. courts of appeal, which review those district court decisions – the Supreme Court, for the most part, limits its caseload to cases involving questions of constitutional law. These questions require the justices to have knowledge not only of the text of the Constitution but also of the history of the Court’s interpretation of the Constitution. Such knowledge does not come suddenly, even to the most brilliant mind: it requires years of hard study and training, not just in the law but in the specialized area of the law that focuses on constitutional matters. Only someone who has thought, written, and argued about constitutional questions – as a lawyer, as a judge, as a law professor or a legal commentator – has the experience required to serve ably as a Supreme Court justice. Moreover, to be an able justice it’s not enough to know the “right” answers to constitutional questions; it’s also necessary to understand fully the rationale for those answers and to articulate them in writing. The justices don’t just vote – in most cases, to affirm or to reverse a decision made by a federal court of appeals or a state supreme court – but (and arguably, this is the most important part of their job) they also write opinions, explaining the reasoning in support of their decisions. It is the reasoning that underlies the Court’s past decisions that comprises the heart of constitutional law. What students of constitutional law study is not simply what the Supreme Court has decided on major constitutional issues but why it so decided. A justice’s written opinion not only tries to persuade his or her colleagues but also try to persuade all readers of the Court’s decisions of the correctness of the justice’s interpretation of the Constitution and application of the law to the facts of a particular case. And, when the Court is divided, although the opinion for the majority counts in creating precedent, frequently the separate opinions written by justices either concurring with or dissenting from the majority opinion also help shape constitutional law. U.S. constitutional history is full of what one scholar has called “prophets with honor”: justices in dissent (or in concurrence) whose opinions are more soundly reasoned than the majority’s and who often foreshadow future developments in constitutional law. (One famous example is Justice John Marshall Harlan I, whose dissenting opinion in Plessy v. Ferguson (1896) famous articulated the concept of a “color-blind” Constitution.) The problem with Harriet Miers isn’t that her constitutional philosophy is unknown; the problem is that she has no constitutional philosophy and is utterly lacking in the credentials necessary for her to develop one. She might vote, in particular cases, in ways pleasing to either left-liberals or conservatives; but even when she’s on the “right” side, if she cannot convincingly articulate the reasons for her position – if she cannot hold her own, intellectually, with the other justices on the Court – she will not be able to do the job competently. As conservative constitutional lawyer Bruce Fein nicely put it, “Harriet Miers should be defeated or withdrawn because of her staggering ignorance of constitutional principles. A heart surgeon should not be entrusted with a cancer patient. Neither should a trial lawyer be entrusted with the Constitution.” With regard to the only credentials that count in determining whether Ms. Miers is qualified for the Court – her intellectual credentials – one additional point ought to be emphasized: her religious beliefs are irrelevant. It is despicable that the Bush administration (Bush himself as well as other high-level executive-branch officials) are attempting to exploit Ms. Miers’ evangelical Protestant beliefs in a desperate effort to rally support from religious conservatives. (Last week in a radio broadcast, conservative Christian leader James Dobson said he’d been assured by White House aide Karl Rove that Miers “is an evangelical Christian . . . from a very conservative church, which is almost universally pro-life”; and Mr. Bush has defended efforts by his staff to underscore Miers’ religious beliefs by maintaining that it’s a crucial part of her background, “why [he] picked” her for the Court.) It was equally despicable that some Senate Democrats and staffers had tried to make John Roberts’ religious beliefs – his Catholicism – an issue during his confirmation hearings. It’s apparent that such focus on a judicial candidate’s religious beliefs is motivated by concern over the abortion issue – an issue whose importance is greatly exaggerated by extremists on both sides (as noted below) – and it’s equally apparent that, with regard to Ms. Miers, the paucity of her record on questions of constitutional law seems to be forcing both her supporters and her critics to grasp at straws. Here, however, the Constitution itself speaks; and as provided in Article VI, Section 3, “no religious test shall ever be required as a qualification to any office or public trust under the United States.” That provision reflects the commitment of the Constitution’s framers to the general principle that religious belief is a private matter that ought not to concern the government in any way. As applied to the Senate’s “advise and consent” process, this principle takes any consideration of a nominee’s religious beliefs – either as a positive or a negative – off the table.
The Exaggerated Importance of Roe v. Wade
The debate over Ms. Miers’ confirmation to the Supreme Court – and indeed, the debate over all recent nominees to the federal bench – has been cheapened by both sides, by both Democrats and Republicans, by both liberals and conservatives, because of the fanaticism of activists on just one issue, abortion. For far too many people, everything boils down to a single-issue litmus test: the constitutionality of abortion – and specifically, the future status of the Court’s 1973 decision in Roe v. Wade: Is it “settled law,” a precedent that should continue to bind the Court, or is it an erroneous decision that ought to be overturned? All this obsession over Roe is, to put it bluntly, just plain stupid: the decision is nowhere near as important as its supporters and critics claim it to be, just as the issue of abortion (both in constitutional politics and in public-policy debates generally) is nowhere near as important (or interesting) as many people believe it to be. Abortion is a troubling issue, politically and constitutionally, because it involves a troubling legal question (when does human life begin?) and, depending on one’s answer to that question, a conflict between two fundamental rights (the pregnant woman’s right – usually seen as an aspect of her fundamental right to liberty or perhaps her property right over her own body – versus the unborn child’s right to life). The latter conflict exists because of the limitations of existing medical technology: Because it’s not (yet) possible to terminate a pregnancy without seriously harming if not killing the fetus, then a pregnant woman’s decision to terminate her pregnancy necessarily costs the life (or health) of the fetus. As someone with much confidence in science and technology, I am optimistic that someday – in the not-too-distant future – medical technology will advance to such a state that the abortion problem will be solved, essentially, by permitting a pregnancy to be terminated without this horrific cost – in other words, by allowing a fetus to be transplanted from the womb of one woman who doesn’t want to bear it to the womb of a woman who does (the intriguing premise behind Solomon’s Knife, a novel written by Victor Koman and published originally in 1989). In his opinion for a majority of the Supreme Court in Roe v. Wade (1973), Justice Harry Blackmun answered the first question, holding that, for purposes of federal law, the unborn child does not become recognized as a “person, in the whole sense,” until the point in pregnancy when it becomes “viable,” that is, able to live outside the mother’s womb, albeit with artificial aid. He then acted, literally, in Solomon-like fashion, by weighing the competing interests – (1) the rights of the pregnant woman, (2) the State’s interest in preserving and protecting the woman’s health, and (3) the State’s interest in protecting the life of the unborn child – and, basically, balancing them by assigning each to one of the three parts, or “trimesters,” of the typical human gestation period. Thus, the common view – advanced by both supporters and critics of Roe – that the decision “legalized abortion” misconstrues the more complicated holding of the Court: that it is unconstitutional – an unconstitutional abridgement of a pregnant woman’s right to terminate her pregnancy – for states to criminalize abortion during the first trimester (the first three months of pregnancy); but that the State may restrict abortions during the second trimester (to promote interest (2)) and may prohibit abortions altogether during the third trimester (that is, during the final three months of pregnancy, well after the point of viability) because the State’s interest (3) (that is, its interest in protecting the life of the unborn child) is then “compelling.” Thus, properly considered, Roe was as protective of the unborn’s right to life (in the last stages of pregnancy) as it was of the pregnant woman’s right to obtain an abortion (in the early stages of pregnancy). The usual conservative objection to Roe – that it epitomizes left-liberal “judicial activism” – is an oversimplification of the issue. Blackmun’s opinion for the Court is indeed activist, not because it advances a supposed “pro-choice” view but because it attempted to resolve a question – the balancing of interests, which presupposes the tricky question of when human life legally begins – to which the U.S. Constitution simply does not speak. Conservatives are wrong to criticize Roe for protecting a constitutional right to privacy – for there is a right to “privacy,” as part of the liberty rights protected under the due process clauses of both the Fifth and Fourteenth Amendments of the Constitution. There’s nothing impermissibly “activist” about courts broadly protecting liberty, for it’s a right that the Constitution explicitly embraces. (However, as former Chief Justice Rehnquist – then, simply Justice Rehnquist – correctly noted in his dissent in Roe, under the Court’s post-1937 jurisprudence, that part of liberty recognized as “the right to privacy” ought, if the Court was to be consistent, to be protected under the “rational basis” test of minimal judicial scrutiny – the same standard the Court uses with regard to, say, economic liberty rights.) The improper activism comes in with the Court’s (or at least a majority of the justices’) restricted view of what constitutes the fundamental right to “privacy” – and, more to the point, with the majority’s (that is, Justice Blackmun’s) balancing of the competing interests at stake in the abortion controversy. The latter is arguably a policy determination that ought to be left to legislatures, not decided by judges, who are ill-equipped to weigh all the various competing interests. Put another way, the troublesome question of when human life begins, for purposes of the law, is arguably a legislative question that, under our federal system of dividing powers between the federal government and the states, ought to be left to the states. Thus, as I have argued, the real problem with Roe is that it fails to follow the Tenth Amendment, which explicitly leaves “to the States or to the people” all powers not delegated to the national government. Congress is not given the power to define the beginning – or, for that matter, the end – of human life; therefore, it’s one of the reserved powers left to the States. If Congress is constitutionally unable to define human life (or to define murder, the crime in all its manifestations that involves the unlawful killing of a human being), then neither is the Supreme Court – even in the legitimate exercise of its Fourteenth Amendment judicial review powers, to protect the rights of life, liberty, and property from unconstitutional abridgement by the States. Abortion is a unique problem, legally and constitutionally, because it requires this difficult policy question to be decided first. In this respect, the modern debate over abortion is quite similar to the 19th-century debate over slavery: it was a difficult legal question, because it both depended logically on a difficult moral question (over which there was no consensus, as the differing views of Northern abolitionists and Southern apologists for slavery demonstrated) and also was an issue that the Constitution left to legislatures (either to Congress, which was given explicitly the power to legislate over the territories, or the states, which were given the autonomy to decide whether or not to legally recognize slavery). Just as the Supreme Court was improperly activist in deciding the “political” question of slavery’s status in the western territories, in its infamous Dred Scott decision (1957), the Court in Roe v. Wade improperly decided the “political” questions of when human life begins and how much weight should be given to the State’s interest in protecting an unborn child’s life versus the other competing rights at stake (including the liberty or property rights of the pregnant woman). Having noted all this – and thereby implicitly recognizing why Roe has been so controversial a decision – I nevertheless regard it as a decision whose importance has been greatly exaggerated, for several reasons. First, although abortion, as a moral and politically question, is hotly debatable, it is difficult to anyone who’s not a fanatic on the issue to regard it as a very important question. (In this respect, it’s quite different from the slavery issue in early American history, which concerned the single greatest betrayal in the American legal system to the founding principles of the United States, as stated in the Declaration of Independence.) Only an extreme “pro-life” fanatic can regard a fetus, in the earliest stages of its biological development, as a human “person,” in any meaningful sense: such a view takes the definition of humanness out of any rational context. Similarly, only an extreme “pro-choice” fanatic can regard restrictions on a pregnant woman’s right to terminate her pregnancy, except in exceptional cases (when the pregnancy resulted from rape or where it is medically necessary to save the woman’s life), as a significant impairment of either her legitimate liberty interest or her legitimate property interest in her own body. All libertarian theorists, for the past three centuries, have agreed that one person’s liberty ends where another person’s fundamental right (to life or to liberty) begins. No one legitimately has the right to kill another person, except in self-defense; in all cases outside the exceptions noted above (that is, for women who are not pregnant as a result of rape or for women whose life or health is not seriously jeopardized by the pregnancy itself), the pregnant woman’s right to freedom of pregnancy does not outweigh even the fetus’s potential right to life. That’s because (except in the cases of rape or unforeseen jeopardy to her life) a pregnancy resulting from a woman’s voluntary sexual act is a risk that she reasonably may be expected to have foreseen and therefore assumed. (In a similar way, a man who voluntarily engages in vaginal sex with a woman also assumes the risk she will become pregnant and therefore may be held legally responsible as a parent for the child who results from his sexual act.) There are many other ways in which the law limits the freedom – the legitimate liberty and property rights – of women and, indeed, of all persons (born or unborn) far more seriously than do laws restricting, in various ways, access to abortion. Abortion laws, generally, may be seen as laws that hold individuals responsible for their actions; and the degree of their responsibility is generally within the legitimate discretion of state legislatures to determine. Second, as noted above, although Roe may be legitimately criticized as an improperly “activist” decision, it’s among the least egregious of Supreme Court decisions in the modern (post-1937) era that have abused the judicial review power. As I noted in my previous blog essay “Judicial Activism, Real and Imagined” (April 4), there are many more Court decisions that ought to be overruled – starting with decisions like West Coast Hotel v. Parrish (1937) and Carolene Products (1938), which marked the so-called “New Deal Revolution” and the modern double-standard on protection of constitutional rights, as well as a long series of post-1937 decisions eviscerating limits on Congress’ powers under the Commerce Clause and so-called Spending Clause. Conservative activists who are concerned about left-liberal judicial activism ought to focus on these far more dangerous abuses of judicial power – decisions where the Court failed to exercise judicial review, by upholding laws that clearly exceeded the limits imposed by the Constitution on the powers of government – than on a decision like Roe, which deals with the peculiar problem of abortion. Consider just two examples, both from the New Deal era: Stewart Machine Co. v. Davis (1937), which upheld the Social Security Act despite the fact that old-age pensions (some would say Ponzi schemes or income-redistribution programs) are not among the enumerated powers of the national government and therefore not constitutional objects of the federal taxing power; and United States v. Darby (1941), which upheld the federal Fair Labor Standards Act (including its provisions mandating minimum wages and maximum hours) despite the fact that it concerned labor conditions and was not therefore a legitimate “regulation of commerce” among the states. Both Social Security law and federal labor laws deprive women (and men) of their economic freedom – and thereby deny them “choice” – in ways that are at least as significant as state laws restricting abortions. Yet many people (including most legal scholars) fail to see this denial of free choice as significant because they erroneously distinguish economic freedom from “personal liberty” (notwithstanding that it’s certainly a denial of personal liberty to take away one’s freedom to work for however many hours one chooses, at whatever wages one is willing to accept, or the freedom to keep all the money one has earned without a significant portion of it being taken away in FICA taxes). The two Supreme Court decisions upholding these New Deal laws – and subsequent decisions expanding even further Congress’s powers to “regulate commerce” and to spend taxpayers’ money – are far more dangerous “activist” decisions of the Court than Roe v. Wade. (As I have frequently observed, judges who follow their own subjective values in deciding constitutional questions are just as guilty of being “activist,” in the bad sense of the term, when they uphold laws against constitutional challenge as when they strike them down.)
The U. S. Senate: It Ain’t What It Used To Be
As I noted in Part I of this essay, I don’t expect the members of the Senate Judiciary Committee – particularly under political pressure from extreme activists on both sides of the abortion debate – to deal with Roe in an objective, rational, or even intelligent fashion. Both Democrats and Republicans will do as they did during the Roberts hearings: they will demagogue on this issue. And they will do so because most of them are quite susceptible to public opinion, particularly those who are up for re-election in 2006. The Senate today is full of third-rate demagogues, thanks to the Seventeenth Amendment – the early 20th-century amendment that altered the framers’ Constitution by substituting popular election for the original method for choosing U.S. Senators (by the state legislatures). The Seventeenth Amendment thus destroyed one of the key political checks in the Constitution (the direct check given to state governments on the more important house of the U.S. Congress) and transformed the Senate from the deliberative body the framers of the Constitution intended it to be – a body more insulated from popular opinion than the House of Representatives – into a body virtually indistinguishable from the House. Indeed, given the political makeup of the electorate in many states (like Ohio, for example, where statewide the number of Democrats and Republicans are about even), many Senators are arguably even more susceptible to public opinion than their counterparts in the House (especially those Representatives from politically “safe” districts). One result is that the Senate is full of “moderates” with no discernibly consistent political views (again, for example, like Senators DeWine and Voinovich, the two nominal “Republicans” from Ohio who on many issues vote exactly like Democrats). Given this, I don’t expect members of the Senate (whether Democrats or Republicans) to be competent to judge Harriet Mier’s qualifications (or lack thereof) to be a Supreme Court justice, for the Senators are as ignorant of constitutional law as Mr. Bush is. Roe v. Wade is just a huge red herring – and, sadly, for many of them, a politically convenient red herring – masking the really important issues that the Senate ought to be considering with regard to her nomination. Thus, I fear that if Miers in her confirmation hearings (like Roberts was in his) is sufficiently vague in answering questions about Roe (decrying “activism” on the one hand while extolling “settled law” on the other), she’ll be confirmed because Senators are willing to gamble – Republicans, on the hope she’ll vote (as Rehnquist did) to overturn Roe as a wrongly-decided case; Democrats, on the hope that (like O’Connor) she won’t, regarding the basic holding of Roe as settled precedent. It’s already clear, from their comparative silence on the Miers nomination, that many Senate Democrats are likely to vote “Yes” on Miers, not because they regard her as qualified for the Court, but because they regard her as sufficiently malleable on Roe and other issues of concern to leftists, as to make her “better” (in their eyes) than any other person Bush is likely to nominate for the Court. Law professor Randy Barnett recently posed the following questions on the “Volokh Conspiracy” blogsite: “Do Democrats want to support (or only tepidly oppose) a weaker conservative appointee who will be less dangerous than a highly qualified nominee with the judicial abilities to execute a serious judicial philosophy? Do they put their concern for judicial philosophy ahead of their concern for competence? Indeed would they not affirmatively prefer a less competent conservative on the bench to a more competent one?” The answer to each of his questions, clearly (and sadly), is: Yes. And that’s why Miers probably will be confirmed – to the lasting discredit of both President Bush and the U.S. Senate.
Gonzales v. Oregon: The “Assisted-Suicide Case”
On October 5 the U.S. Supreme Court (in the first major case considered by the Court since John Roberts has been sworn in as Chief Justice) heard oral arguments in the case Gonzales v. Oregon, in which the U.S. Justice Department is challenging Oregon’s physician-assisted suicide law, arguing that the Oregon law ought to be preempted by the federal Controlled Substances Act (CSA). The case has been generally referred to, in the news media and in political discourse, as the Oregon “assisted-suicide” case, but it does not directly concern an individual’s right to physician-assisted suicide – not any more than the case decided by the Court in June, Raich v. Gonzales, directly concerned an individual’s right to use marijuana for medicinal purposes. Instead, like Raich, what the case directly concerns – the issue on which the Supreme Court agreed to review it, and the basic issue that was briefed and argued to the Court – is, again, the reach of federal powers under the “Commerce Clause,” of Article I, Section 8 of the Constitution. It does concern an individual’s right – and like Raich, it concerns the individual’s fundamental right over his or her own body – but only indirectly, insofar as that right (and the freedom it requires for its full protection) may be abridged by laws passed by Congress. Put another way, the basic constitutional issue in this case is a question of federalism, of the division of powers between the federal government and the states – and the question, essentially, is: Does Congress have unlimited power over matters that affect the lives and liberties of individuals in the United States? Oregon’s Death with Dignity Act (enacted in 1994 and effective January 1, 1998) allows, under certain conditions, physicians to help a terminally ill patient die by prescribing fatal doses of narcotic drugs. In 2001 then-Attorney General John Ashcroft asserted federal authority under the CSA to bar doctors from prescribing the lethal doses of barbiturates that the Oregon law allowed them to prescribe to assist terminally-ill persons to end their own lives. Ashcroft maintained that physician-assisted suicide had no “legitimate medical purpose” and that therefore doctors who gave out drugs under the Oregon law could lose their licenses. After the state of Oregon challenged Ashcroft’s directive, the U.S. Court of Appeals for the Ninth Circuit ruled in 2004 that the attorney general lacked the power to intervene. That court of appeals decision is what the Supreme Court will review; the case is now titled Gonzales v. Oregon because Alberto Gonzales has replaced Ashcroft as attorney general. The critical question for the Court, again, is basically a question of federalism. Even the conservative editors of the Wall Street Journal have recognized that, in their words, “at bottom, the Oregon case turns on whether the Attorney General can, by an act of administrative fiat, nullify the expressed will of a majority of voters of one of the 50 United States” (referring to the fact that the Oregon law was twice endorsed by voters in state-wide referendums). Conceding that the CSA gives the federal government the power “to regulate, bar, or restrict drug availability, up to a point,” the editors add, “The question in Gonzales is whether the AG can use that power to accomplish a quite different public-policy goal – the neutering of Oregon’s assisted-suicide law – simply by asserting that taking drugs to end one’s life is not a `legitimate medical purpose’ for a barbiturate.” The Journal editors also corrected noted the unusual politics behind this federalism question: left-liberals now have “suddenly discovered, after years of promoting unlimited national power, that federalism has its uses after all”; while some social conservatives are “ignoring their federalism principles in order to enforce from Washington a policy outcome that they favor (preventing the legalization of assisted suicide).” To their credit, the editors recognize that federalism ought not be a left-right issue; that it’s really “a question of freedom and good governance” (“The New New Federalism,” Oct. 5). Conceding that it’s usually not possible to discern the Court’s eventual ruling from the questions that individual justices ask at oral argument, nevertheless the justices’ questions and comments on October 5 reveal what troubled them and suggest how they might divide on the case. Retiring Justice Sandra Day O’Connor seemed critical of the U.S. Justice Department’s position, observing that Ashcroft’s order reversed a stance of the Clinton administration that had refrained from using federal anti-drug laws to interfere with state regulation of the practice of medicine. The new Chief Justice, John Roberts, on the other hand, seemed more sympathetic to the national government’s position, asking the attorney for Oregeon, “Doesn’t [Oregon’s law] undermine the uniformity of federal law?” The person who succeeds Justice O’Connor may very well cast the deciding vote in the Oregon case. The close parallel to the issues in Raich suggests that a majority of the justices – the four left-liberal justices (Breyer, Ginsburg, Souter, and Stevens), joined by one or two of the “conservatives” (both Kennedy and Scalia joined the liberals in comprising the Raich majority) will side with Attorney General Gonzales, in taking a broad view of Congress’ powers under the Commerce Clause – allowing the federal “war on drugs” to trump any contrary state laws. What might make the result in this case different from Raich, however, is the fact that it concerns drugs that aren’t per se illegal under the CSA but which rather are legal drugs that require a physician’s prescription and which are used to help effectuate a terminally-ill patient’s “right to die.” (Although the Court, in its 1997 decision in Washington c. Glucksberg, had held that the U.S. Constitution does not protect a right to assisted suicide – notwithstanding the well-established common-law right to refuse medical treatment – Chief Justice Rehnquist’s opinion for the Court in that case expressed a concern that federal law should not preempt the “earnest and profound debate about the morality, legality, and practicality of physician-assisted suicide” that ought to take place in the various states.) Besides showing whether Chief Justice Roberts will continue or abandon his predecessor’s commitment to federalism – the so-called “New Federalism” of the Rehnquist Court – the other interesting question about this case is whether one or more of the “liberals” on the Court – Justices Ginsburg or Souter, perhaps, who seemed open to Oregon’s position -- will break ranks with their fellow left-liberal justices and recognize there are some limits to federal powers: here, as O’Connor’s question suggests, an exception that allows states some discretion in regulating the practice of medicine. Again, in other words, the case will determine how far we will go in nationalizing our laws. Retiring Justice O’Connor, who continues to sit on the Court until her successor is confirmed, will take part in the resolution of this case unless her seat is filled. If Miers is confirmed by the Senate before the Court rules in the Oregon case, however, O’Connor’s vote would not count – leaving open the real possibility of the Court scheduling a re-argument of the case and Miers casting the deciding vote, if the other eight justices are equally divided. In that scenario, Miers’ vote would not only decide the case but also the reasoning supporting her position will shape future constitutional law on this and similar questions. This illustrates, again, why it’s so important to have a well-qualified justice – one who not only votes the “right” way but who also can express clearly and persuasively her reasoning in writing. Almost all evidence thus far is that Harriet Miers is not such a person.
Questions of Morality, Not of Law
Going beyond the federalism question at issue in the Oregon case, the ultimate question raised by the Oregon law and the debate over physician-assisted suicide is this: Do you really own your own life? What’s so scary about the Justice Department’s position Gonzales v. Oregon isn’t just its disregard for principles of federalism – for the principle of decentralizing power, by keeping Congress confined to those national legislative powers enumerated in the Constitution – but rather the ultimate implication (and perhaps the principal motive for former Attorney General Ashcroft’s attempt to negate the Oregon law): that individuals may not decide for themselves when and how to end their own lives. Many social or religious conservatives are opposed to physician-assisted suicide because they’re opposed to the very concept of an individual’s “right to die.” USA Today recently published a feature story discussing the debate over assisted suicide. In a sidebar piece, it quoted religious writers representing various faiths – Catholic, Protestant, Jewish, Muslim, Buddhist, and Hindu – all opposed to suicide, presumably to show that Oregon’s law allowing a dying person to seek a doctor’s prescription for a lethal does of medication “breaks with traditional religious doctrines.” The article also quotes various bioethicists and other “experts” who, primarily from secular principles, say that each person ought to determine his or her own course in making medical decisions. This tension between a faith-based opposition to suicide and the principle of individual autonomy has become more and more problematic, over the past half-century or so, as medical technology has allowed Americans to life much longer. Today, the article notes, about 80% of Americans die in a health-care facility. Cases involving individuals whom modern technology can keep alive despite the lack of higher brain activity – patients in a “persistent vegetative state,” like the famous cases of Karen Ann Quinlan in the 1970s, Nancy Cruzan in 1990, and Terri Schiavo just this year – are not freakish or exceptional but, sadly, are becoming all-too-common in hospitals and hospices throughout the United States (“Defining the language of life, death,” Oct. 5). Furthermore, the question of physician-assisted suicide is just one example of a number of issues involving the intersection of morality and the law: issues involving homosexuality (including the decriminalization of sodomy laws and legal recognition of same-sex marriage), gambling, prostitution, and other so-called “victimless crimes” – so-called because they involve acts that some people regard as morally wrong (or even “sinful”) but which are acts done by “consenting adults” that do not harm others (except by offending them or by contributing to what some people regard as the corruption or debasement of society or popular culture generally). And in virtually all these issues, underlying the debate is the conflict between those who would use the coercive power of government to enforce “traditional values” (or religious teachings) and those who would limit the power of government to the protection of individual autonomy (or freedom, including the freedom to challenge moral codes that are based on mere tradition or faith). There’s good reason that American law has – and ought to – emphasize individual autonomy. Fortunately, law in the United States is not based on tenets of religious faith. We’re not “a Christian nation” (or a Judeo-Christian nation, or even a theistic nation), despite what some ill-informed zealots passionately believe; we’re a nation created during the great 18th-century philosophical movement known as the Enlightenment – a philosophical movement that, among other things, substituted reason for faith as the basis of human knowledge and which substitution the protection of individual rights for the promotion of collective “welfare” as the purpose of government. The law in America, if we truly live up to the radical principles of the American Revolution, is meant to protect the rights of the individual: the fundamental natural rights of life, liberty, and the pursuit of happiness, as stated in America’s founding document, the Declaration of Independence. Those rights are natural (and, according to some people’s belief systems, therefore “God-given”) because they inhere in the nature of man – in objective facts about the reality of human nature. Among the fundamental, distinguishing characteristics of human beings is the fact that they are creatures of volition: they make choices. Those choices may be good or bad, healthy or unhealthy, life-preserving or life-threatening – it really doesn’t matter (or ought not to matter), from the standpoint of the law, so long as they are freely chosen by individuals. Our legal system exists to protect that fundamental right – the right of each individual to life his or her own life as he chooses, so long as he does not interfere with the equal right of every other individual to do so. And so, as John Stuart Mill so nicely put it in his classic 19th-century essay On Liberty: “The sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. [The] only purpose for which power can be rightly exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. . . . The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.” If we apply this principle of autonomy, or the “sovereignty” of the individual, fully and consistently to the question of physician-assisted suicide -- and to other issues involving actions that are arguably “immoral” but which do not invade the rights of others – it’s clear that, while people are entitled to think that X, whatever it may be (suicide, homosexuality, sex for money, gambling, use of a narcotic drug, etc.), is “wrong,” “immoral,” “sinful,” “unhealthy,” etc., they are not entitled to use government – to use physical coercion, or force, which is the essence of governmental power – to impose their value-judgment on others. Historically, this is why American law protects religious freedom, among other aspects of individual liberty. As Thomas Jefferson observed, “The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbor to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.” Just as our legal system sees religious faith as a private matter, a matter of an individual’s conscience (between each person and his “god,” if he believes in one), so too should it see other moral questions that do not involve the violation of others’ rights. Unfortunately, American law has yet to perfectly or consistently realize the ideals of the Declaration of Independence: the autonomy principle has been undermined by the persistence, in our law and in our legal system, of contrary principles, many of them inherited from English law and rooted in the feudal, paternalistic past. Among these are the laws criminalizing certain actions, even when done by consenting adults, simply (and only) because those actions offend traditional notions of morality (again, often based in Judeo-Christian religious tenets). Do the majority of people in society have the legitimate power to impose their moral code – to “legislate morality,” quite literally – even upon individuals who do not accept that moral code, and even when the presumptively “immoral” acts do not harm others or do not violate others’ rights? Social conservatives, typically, say “Yes,” arguing that it’s legitimate for government to regulate morality. Libertarians, typically, say “No,” arguing that the only legitimate function of government is to protect individuals’ rights. Actions that do not harm others – that do not infringe upon other person’s rights to life, liberty, and the pursuit of happiness (including their rights to property) – are simply none of the government’s business (as, for example, the modern libertarian writer Peter McWilliams argued in his aptly-titled 1993 book, Ain’t Nobody’s Business If You Do). Each of us, as an individual – endowed by nature with the fundamental rights of life, liberty, and the pursuit of happiness – has the right to own our own life. If we truly owns our life, the law ought to recognize our fundamental right to decide when and how to end our life – our right to commit suicide – and, if we can find a doctor willing to do so, to enter into a contract with that doctor for his services (including the administration of certain drugs) to carry out our wishes. If the law – any law, whether it’s state law regulating the practice of medicine or criminalizing suicide or assisted suicide, or federal anti-drug laws – interferes with that right, the law should be seen as an unconstitutional abridgement of persons’ rights to life and/or liberty, in violation of the due process clauses of the Fifth and Fourteenth Amendments. Conservatives who do not see this are ignorant of the meaning of these vital protections of individual autonomy found in the text of the Constitution. They also fail to understand the essential meaning of rights, for they confuse life itself with the right to life, the same error that conservatives tend to make when discussing the abortion question. (For more on this, see my previous entry “A Life That One Owns,” Feb. 28.) The debate between those who would use the coercive power of government to enforce some notions of morality and those who would limit governmental power to the protection of individual rights – in other words, the debate between social conservatives and libertarians – is one of the most important, and interesting, public policy debates of our time. It will become increasingly important as the 21st century progresses. And that is yet another important reason why it’s important to have on the U.S. Supreme Court fully qualified persons – justices with not only the necessary intellectual skills but also with a real understanding of the essentials of the American constitutional system, in all its aspects (both its principles for limiting government power and its principles for protecting individual rights).
| Link to this Entry | Posted Friday, October 21, 2005 | Copyright © David N. Mayer |
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