|legal theory: philosophy|
Assisted Suicide: Are There Moral Issues In Constitutional Law?
We are going to consider next whether considerations of morality ever play any actual, necessary, or proper part in judicial decisionmaking about constitutional-legal issues -- for example, issues of the sort presented by the Glucksberg and Quill cases. But let us be clear what the question is, and what it is not. If we answer "yes, considerations of morality do play an actual, necessary, and proper part in constitutional adjudication," we have not thereby yet said that trained and licensed moral philosophers are appropriate and useful advisers, or even that explicitly elaborated moral theories are appropriate or useful guides, for whatever moral inputs are needed for judicial decisions of legal issues. For it might, alternatively, be the case that these inputs can be as well or better supplied, for purposes of legal decisionmaking, out of the general knowledge and sensibilities of seasoned lawyers -- lawyers as intellectually capacious, as reflective, as conscientious, and as deeply knowledgeable of American society, history, and culture, as one would presumably hope for in judges who have risen to seats on the country's high court.
You will recall from prior discussion that the current doctrine of substantive due process makes a great deal turn on the method used by the courts, led by the Supreme Court, to decide whether a given "liberty," or a given aspect of liberty -- such as the freedom of persons in certain circumstances to act toward bringing their lives to an end without interference from the state -- is "fundamental." In his retrospective account of the Glucksberg and Quill cases, "Assisted Suicide:What the Court Really Said," New York Review of Books vol. XLIV, No. 14, September 25, 1997, pp. 40-44, at p. 40, Ronald Dworkin provides an engaging account of a long-standing, on-going debate among the Justices about this very question. "The cases," Dworkin writes, raised
not only the question of a specific right to assisted suicide, but a more fundamental constitutional issue as well -- how to understand and enforce the "due process clause" of the Fourteenth Amendment, which declares that states may not "deprive any person of life, liberty or property, without due process of law." That clause offers more potential protection to the liberty of individual citizens than any other constitutional provision. Its language is very abstract, however, and the actual protection it offers depends on whether it is read narrowly or expansively. . . .
The words "due process of law" might conceivably have been taken to mean, at one extreme, that government may compromise liberty in any way it likes so long as it follows stipulated procedures of lawmaking in doing so. At the other extreme, the clause might be interpreted to say that judges may strike down any law that offends what they themselves deem to be a requirement of pure justice. But almost every lawyer rejects both those extremes. The due process clause, according to the general understanding, condemns all the laws -- and only the laws -- that curtail liberties that are, in an often-quoted passage from an earlier Supreme Court decision, "deeply rooted in this Nation's history and tradition."(*) [These "deeply rooted" liberties are, in other words, the "fundamental rights" of which I spoke above.(*)] But that historical standard is also very abstract and lawyers disagree about what it means.
In his majority opinion in the assisted suicide cases, on behalf of himself and four other justices, Chief Justice William Rehnquist defended an historicist view of the "Nation's history and tradition" test [for "fundamentality" of a claimed liberty right]. He insisted that the due process clause protects [as "fundamental"] only those specific liberties that have historically been respected by American states, so that the clause does protect citizens from unwanted and invasive medical treatment, because the common law of most states has for a long time granted that protection. But, according to Rehnquist, the clause permits laws prohibiting a doctor from helping people dying in great pain to die sooner, because almost all states have long prohibited such help.
In an unusually candid statement of this view, Rehnquist acknowledged that it might well produce anomalies of principle, because it might well be that no principled distinction can be drawn between liberties that American states have historically protected and those that they have denied. [Rehnquist] said that the Supreme Court's suggestion, in its earlier Cruzan decision, that the due process clause gives people a right to have life-saving apparatus removed from their bodies was drawn only from common-law practice, and wasnot simply deduced from abstract concepts of personal autonomy.... The decision to commit suicide with the assistance of another may be just as personal and profound as the decision to refuse unwanted medical treatment, but it has never enjoyed similar legal protection.(*)Justice David Souter, on the other hand, in his separate opinion concurring in but not joining Rehnquist's majority opinion, offered a much more expansive view of the historical test. He said that the nation's history and traditions include not just the specific rights that have been recognized in the past, but the "basic values" that are revealed when we interpret those rights to see which more general principles of political morality they represent. It may be, he said, that states have not always been wholly faithful to those basic values, and that some of even the oldest legal practices, like the long prohibition on abortion, can now be seen to offend them and so to violate the due process clause. Judges, he said, must take care in deciding which principles of political morality do underlie the nation's history, because these values can be identified at varying levels of generality and judges must not state them more broadly than a sound interpretation would justify. He conceded that identifying principles at the right level of generality is not a mechanical matter. "Selecting among such competing characterizations demands reasoned judgment about which broader principle, as exemplified in the concrete privileges and prohibitions embodied in our legal tradition, best fits the particular claim asserted in a particular case." He drew, from his understanding of the due process clause, very different conclusions about assisted suicide from Rehnquist's. If we apply reasoned judgment to the assisted suicide issue, Souter argued, we can identify arguments of what he called "increasing forcefulness for recognizing some right to a doctor's help in suicide."
The strongest of these arguments, he said, rests on a general principle, embedded in past traditions, that guarantees aright to medical care and counsel, subject to the limiting conditions of informed, responsible choice when death is imminent.... There can be no stronger claim to a physician's assistance than at the time when death is imminent, a moral judgment implied by the State's own recognition of the legitimacy of medical procedures necessarily hastening the moment of impending death [e.g., terminating life support and allowing pain relief that advances death].So Rehnquist's and Souter's views of the due process clause are dramatically different: the first protects individuals only from laws that few states have seen any reason to enact, and offers no protection at all against historically popular invasions of individual freedom.(*) The second holds out the possibility that even longstanding and popular legal rules, like the ban on assisted suicide, might be held unconstitutional when they can be seen to violate more general and established principles of freedom. . . .
So there you have a Dworkin's-eye view of an important doctrinal debate. Dworkin describes two "dramatically different" views of fundamental-rights adjudication, and we need names by which to differentiate them. As Dworkin depicts them, both approaches are "historicist" in the sense that both look to the past -- to "tradition" -- for authoritative guidance to the legal meaning of the Due Process clause, specifically with regard to which aspects of liberty are to count as so "deeply rooted" or "fundamental" as to require a special kind of justification for laws that infringe them. The dispute between the two approaches is not over the centrality of tradition in this field of constitutional-legal decisionmaking, but rather over the correct specification, for this purpose, of the concept of "tradition."
Let us, therefore, call Justice Rehnquist's method, the one that Dworkin rejects, the "tradition of detail" approach and the other method, the one that Dworkin favors, the "tradition of principle" approach.
Rehnquist's stance in the "right to die" cases, as described by Dworkin, nicely illustrates the tradition-of-detail approach. We could still use a good example, though, of the tradition-of-principle" approach. Of course, much of what we find in Parts I and II of the Philosophers' Brief is meant to be just that. An even more striking and equally pertinent illustration occurs in the dissenting opinion of Justice Stevens in Cruzan.
In Cruzan you will recall, Chief Justice Rehnquist's opinion for the majority, having conceded that application of Missouri's "clear and convincing evidence" rule to Nancy Cruzan's case called for substantial justification, nevertheless found sufficient justification in certain interests of the state. Justice Stevens dissented. In his view, the majority's process of interest-assessment gave Nancy Cruzan's fundamental liberty interest too little respect.
In the following passage, Justice Stevens produced a graphic illustration of the method of looking to the legal past not for concrete practices but for the enduring large principles of political morality incorporated into our law, which it is the judge's job tboth to distill from the country's legal history and to apply to changing social circumstances. (The notes [letters A-O] which appear in the body of Justice Stevens' text show you what the many cases cited by Stevens were each specifically about. I want to encourage you to reflect on the implicit structure of the argument Stevens means to be building by this concatenation of citations to cases dealing with such a wide variety of specific issues.)
It is perhaps predictable that courts might undervalue the liberty at stake here. Because death is so profoundly personal, public reflection upon it is unusual. As this sad case shows, however, such reflection must become more common if we are to deal responsibly with the modern circumstances of death. Medical advances have altered the physiological conditions of death in ways that may be alarming: Highly invasive treatment may perpetuate human existence through a merger of body and machine that some might reasonably regard as an insult to life, rather than as its continuation. But those same advances, and the reorganization of medical care accompanying the new science and technology, have also transformed the political and social conditions of death: people are less likely to die at home, and more likely to die in relatively public places such as hospitals or nursing homes.
We have recognized that the special relationship between patient and physician will often be encompassed within the domain of private life protected by the Due Process Clause.(A) See, e.g., Griswold v. Connecticut, 381 U.S. 479, 481 (1965);(B)Roe v. Wade, 410 U.S. 113, 152-153 (1973);(C)Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 759 (1986).(D) Ultimate questions that might once have been dealt with in intimacy by a family and its physician have now become the concern of institutions. When the institution is a state hospital, as it is in this case, the government itself becomes involved. Dying nonetheless remains a part of "the life which characteristically has its place in the home," Poe v. Ullman, 367 U.S. 497, 551 (1961) (Harlan, J., dissenting).(E) The "integrity of that life is something so fundamental that it has been found to draw to its protection the principles of more than one explicitly granted Constitutional right," id., at 551-552, and our decisions have demarcated a "private realm of family life which the state cannot enter." Prince v. Massachusetts, 321 U.S. 158, 166-167 (1944).(F) The physical boundaries of the home, of course, remain crucial guarantors of the life within it. See, e.g., Payton v. New York, 445 U.S. 573, 589 (1980);(G)Stanley v. Georgia, 394 U.S. 557, 565 (1969).(H) Nevertheless, this Court has long recognized that the liberty to make the decisions and choices constitutive of private life is so fundamental to our "concept of ordered liberty," Palko v. Connecticut, 302 U.S. 319, 325 (1937),(I) that those choices must occasionally be afforded more direct protection. See, e.g., Meyer v. Nebraska, 262 U.S. 390 (1923);(J)Griswold v. Connecticut, 381 U.S. 479 (1965); Roe v. Wade, 410 U.S. 113 (1973); Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 772-782 (1986) (STEVENS, J., concurring).
Respect for these choices has guided our recognition of rights pertaining to bodily integrity. The constitutional decisions identifying those rights, like the common law tradition upon which they built, are mindful that the "makers of our Constitution . . . recognized the significance of man's spiritual nature." Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting).(K) It may truly be said that "our notions of liberty are inextricably entwined with our idea of physical freedom and self-determination." Ante at 287 (O'CONNOR, J., concurring). Thus we have construed the Due Process Clause to preclude physically invasive recoveries of evidence not only because such procedures are "brutal" but also because they are "offensive to human dignity." Rochin v. California, 342 U.S. 165, 174 (1952).(L) We have interpreted the Constitution to interpose barriers to a State's efforts to sterilize some criminals not only because the proposed punishment would do "irreparable injury" to bodily integrity, but because "[m]arriage and procreation" concern "the basic civil rights of man." Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942). The sanctity, and individual privacy, of the human body is obviously fundamental to liberty. "Every violation of a person's bodily integrity is an invasion of his or her liberty." Washington v. Harper, 494 U.S. 210, 237, (1990) (STEVENS, J., concurring in part and dissenting in part).(M) Yet, just as the constitutional protection for the "physical curtilage of the home . . . is surely . . . a result of solicitude to protect the privacies of the life within," Poe v. Ullman, 367 U.S., at 551 (Harlan, J., dissenting), so too the constitutional protection for the human body is surely inseparable from concern for the mind and spirit that dwell therein.
It is against this background of decisional law, and the constitutional tradition which it illuminates, that the right to be free from unwanted life-sustaining medical treatment must be understood. That right presupposes no abandonment of the desire for life. Nor is it reducible to a protection against batteries undertaken in the name of treatment, or to a guarantee against the infliction of bodily discomfort. Choices about death touch the core of liberty. Our duty, and the concomitant freedom, to come to terms with the conditions of our own mortality are undoubtedly "so rooted in the traditions and conscience of our people as to be ranked as fundamental," Snyder v. Massachusetts, 291 U.S. 97, 105 (1934),(N) and indeed are essential incidents of the unalienable rights to life and liberty endowed us by our Creator. See Meachum v. Fano, 427 U.S. 215, 230 (1976) (STEVENS, J., dissenting).(O)
It is always debatable whether a given piece of constitutional-legal doctrine is "the law." No doubt, most American lawyers and judges take it for granted that the clauses of the Constitution are law binding on judges, but "the clauses of the Constitution" are not what I mean by constitutional-legal doctrine. Constitutional-legal doctrine consists of the clusters of propositions, rules, and tests worked out by judges in the course of applying constitutional clauses to the decision of concrete cases -- clusters that the judges then expect, and are expected, to put to use in deciding future comparable cases (and, indeed, in deciding what future cases are comparable).28 For example:
(1) the Due Process Clause has some range of substantive application to restrictions of liberty by state regulatory laws, and
(2) the substantive application of the clause is to be carried out, in part, by requiring governments to show a rational basis for all laws restricting "ordinary" liberties, and in part by requiring governments to satisfy a stricter test (of "compelling" interest or "no undue burden") for all laws restricting "fundamental" or "deeply rooted" liberties, and
(3) whether a given liberty or aspect of liberty belongs in the latter category is to be decided by [a census of past prevailing legal and social concrete practices bearing on the precise question at hand] [a distillation of basic, large principles of political morality from the entirety of American political and legal history].
Propositions (1) through (3) exemplify what I mean by a legal doctrine. Now, obviously, you do not have a working doctrine in hand until you have resolved the debate in (3), the debate between Rehnquist and Scalia on one side and Dworkin and Stevens on the other. Of course, that is not to say that either (1) or (2) is beyond dispute. Neither of those propositions is remotely evident on the face of the constitutional text. Both are judicial inventions -- judicial interpretations of the legal text. They are, as such, eminently disputable -- the evidence for which is that, as any student of our constitutional-legal history can tell you, they have both been hotly and reasonably disputed. Nevertheless, (1) and (2) are, for the time being, settled. They are a part of the current working agreement among lawyers and judges about how certain kinds of constitutional cases will be sorted and argued and the decisions of them made and explained. So (3) is where the current action is. (3) is at an open face or cutting edge of the doctrine.
Now, this is quite typical of how legal doctrine works: generating a cluster of for-the-time-being, more-or-less concretely decisive propositions about legal meaning (settled now, but each at some earlier moment the debatable invention of some judge) -- the cluster, however, always having one or more open ends, edges, or faces. A legal-doctrinal cluster's open ends and faces are its sites of growth, extension, refinement, and adaptation. They are also, therefore, the doctrine's sites of unsettlement, of uncertainty and controversy.29 To put the matter somewhat differently: The devil is in the details. For example: Okay, fine, in order to decide whether the liberty of a person to put an end to a life of suffering in the shadow of imminent death gets special constitutional protection, I have to determine whether a regard for that liberty is "deeply rooted in this nation's history and traditions." That's our doctrine, and it's settled. But what, exactly, does "deeply rooted in this nation's history and traditions" mean? How do I apply this notion? As Rehnquist and Scalia do, or as Dworkin and Stevens do?
But if, then, there are always lying around these large or small devilish doctrinal details for judges to resolve, how does a judge resolve them, if not by the application of a moral judgment to a choice that has to be made among plausible alternatives? Now, notice, please, that I said a moral judgment. I did not say moral knowledge, or technique, or expertise. I did not say a moral theory. I did not say moral philosophy. It could just be a matter of a simple country lawyer's moral intuition, impulse, gestalt. It could just be a matter of a simple country lawyer's upbringing. Suppose that it is. I do not retreat from the claim that the judge's choice or decision at the cutting edge of doctrine has, necessarily, a moral component. That is because a moral component inheres in any decision that anyone responsibly makes, from among multiple open possibilities, about what he or she ought to do. Isn't that what "moral" means?
Our business now is to look further at this claim of an ineliminable moral component in judicial choices at the cutting edges of doctrine, with specific reference to the "deeply rooted" or "fundamental rights" sub-doctrine edge of the "substantive due process" doctrine in American constitutional law. We are going to take it in two steps. First, we focus on the choice between the Rehnquist/Scalia and the Dworkin/Stevens approaches to "deeply rooted." Then we focus on the work that remains to the judge who decides on the Stevens approach.
"A Constitution of Detail," or a "Constitution of Principle"? Thus did Ronald Dworkin once put the question.31 Where to find the answer? Suppose that a uniform, clear direction toward an answer could be found in any one or more of the following: the text of the Constitution, the idea of democratic government, or the idea of government under law (the rule of law).32 In that case, the indicated direction would impose a compelling constraint on the choices of judges of the law in what everyone agrees is supposed to be a regime of democratic government under a written, chartering law, the Constitution.33 But do any of the constitutional text, or the commitment to democracy, or the idea of the rule of law contain the direction we seek? Not, it seemswithout involving us in choices among contending positions that are undoubtedly moral and even recognizably philosophical in character.34
Take first the text of the Constitution. Some contenders say >that the use of sweeping and abstract formulations such as "liberty," "due process of law," and "equal protection of the laws" can only be understood as the people's political act of instruction to judges to put future lawmaking to the test of compliance with abstract principles of liberty, fairness, and equality, according to the judges' understanding of what those principles have meant at their best, to Americans at their best, across the broad sweep of American history.35Other contenders say >that to give politically unaccountable judges such an unbounded authority to use their favored interpretations of an aspirational American political morality to defeat the specifically expressed will of contemporary political majorities would be offensive to democracy; so flagrantly offensive, in fact, that either a much more restrictive judicial license must be construed out of the clauses in question, or else the clauses must be discarded from the judicially enforceable part of American constitutional law.36The first group of contenders retort> that the second have the wrong conception of democracy, because (1) the "point" of democracy is not that contemporary majorities should rule over contemporary minorities, but rather that everyone should have reason to see that the laws by which she is governed are laws in whose authorship she can claim a full part, and (2) that objective is not satisfiable except on the condition of the subjection of all lawmaking to certain abstract principles of liberty, fairness, and equality.37 The first group may then go on to add that those very principles, thankfully, are the aspirations revealed by a study of the full sweep of American political and legal history, at least when the study is undertaken with points (1) and (2) in mind.
It doesn't take x-ray vision to see that the debate here has both a moral and a philosophical content, and one doesn't have to be a philosophy maven to expect that the canonical and contemporary literature of Western moral and political philosophy might have much to contribute to an ordering and clarification of the debate. One can easily envision an intermediary role for legal scholars versed in political philosophy who, even while taking sides in the debate, may be able to devote their philosophical training and habits of mind to clarification of the debaters' assumptions and terms, to a sorting and comparison of their positions, to revelation of points of agreement and disagreement, to a cleansing of obfuscation, and so forth.
From any of this, does it follow that the field of intellectual concentration called political philosophy has any hope of deciding the dispute, in the sense of bringing the disputants to agreement? or that any responsible judge should dream of searching for answers to the choices she has to make in philosophical discourses over the meaning or point of democracy?
Of course, democracy is not the only value, and serving democracy is not the only way in which a constitution might contribute to the preservation or furtherance of value in human life. In his recent book, A Matter of Interpretation: Federal Courts and the Law (1997), Justice Antonin Scalia maintains that the "whole purpose" of a written constitution is to "prevent change." "A society that adopts a bill of rights," Scalia says, "is skeptical that evolving standards of decency always mark progress and that societies mature' as opposed to rot."39 To see this judicial "philosophy" in action, consider this passage from Scalia's dissenting opinion in United States v. Virginia, 116 S. Ct. 2264 (1996), a case in which the Court held unconstitutional Virginia's exclusion of women from admission to the Virginia Military Institute:
Much of the Court's opinion is devoted to deprecating the closed mindedness of our forebears with regard to women's education, and even with regard to the treatment of women in areas that have nothing to do with education. Closed minded they were -- as every age is, including our own, with regard to matters it cannot guess, because it simply does not consider them debatable. . . .
. . . [I]n my view the function of this Court is to preserve our society's values regarding (among other things) equal protection, not to revise them; to prevent backsliding from the degree of restriction the Constitution imposed upon democratic government, not to prescribe, on our own authority, progressively higher degrees. For that reason it is my view that . . . "when a practice not expressly prohibited by the text of the Bill of Rights bears the endorsement of a long tradition of open, widespread, and unchallenged use that dates back to the beginning of the Republic, we have no proper basis for striking it down." Rutan v. Republican Party of Ill., 497 U.S. 62, 95 (1990) . . . .
As you can see, Scalia associates his value-conservationist view of the Constitution's purpose, and of the Court's role in enforcing it, with his support of the tradition-of-detail approach to fundamental rights adjudication. He explains the connection in his prevailing opinion in the case of Michael H. v. Gerald D. (1989). An unwedded man in California sought a right to visitation with his biological child, whose mother was married to another man at the time when the child was conceived and born. California law had long denied the "natural" father any rights in these circumstances. This father sought relief from this law, claiming that his interest in contact with his child is a fundamental aspect of constitutionally protected liberty. Justice Scalia said it can't be that, because historical American law had typically and specifically refused all rights of contact to men in the petitioning father's position, deeming the father to be the man to whom the mother was married at the time of childbirth, and deeming the other man to be a stranger to the family.
Justice Brennan dissented, protesting vigorously against this method of decision. Resorting to the "tradition of principle" approach to fundamental rights adjudication, Brennan recalled prior Court decisions extending a protected-liberty status to a class of what he called "generalized interests" that "society traditionally has thought important." Among these generalized interests, Brennan listed "freedom from physical restraint, marriage, childbearing, [and] childrearing." He said the decisive question must be whether the biological father's visitation interest falls in all reason under an even more general principle of liberty that these traditionally esteemed, generalized interests exemplify. Anticipating Ronald Dworkin's complaint against Rehnquist, Brennan said that
by describing the decisive question as whether [the biological father's interest] is one that has been "traditionally protected by our society," rather than one that society traditionally has thought important (with or without protecting it), and by suggesting that our sole function is to "discern society's views," the plurality acts as if the only purpose of the Due Process Clause is to confirm the importance of interests already confirmed by a majority of the States. Transforming the protection afforded by the Due Process Clause into a redundancy mocks those who, with care and purpose, wrote the Fourteenth Amendment.Replied Scalia:
We do not understand . . . why our practice of limiting the Due Process Clause to traditionally protected interests turns the clause "into a redundancy." Its purpose is to prevent future generations from lightly casting aside important traditional values--not to enable this Court to invent new ones.We do not need a team of professional political philosophers to point out to us that Scalia's attribution of purpose to the Due Process Clause is an expression of a classical philosophy of political conservatism. It is redolent of Edmund Burke's Reflections on the Revolution in France, and it is certainly very far from disreputable. No more obscure is Brennan's alliance with an opposite,"progressive" or "emancipatory" political-philosophical stance -- Voltaire's let us say, in opposition to Burke's. "We are not," Brennan said in his Michael H. dissent,
an assimilative, homogeneous society, but a facilitative, pluralistic one, in which we must be willing to abide someone else's unfamiliar or even repellent practice because the same tolerant impulse protects our own idiosyncracies. ... In a community such as ours, "liberty" must include the freedom not to conform. The plurality ... squashes this freedom by requiring specific approval from history before protecting anything in the name of liberty.
In Brennan's view, in other words, the law's preexistent refusal to respond to the biological father's visitation interest might have to be judged a failure on the law's part to measure up to its own immanent, aspirational standard of reason and right, and correcting for such failures is a chief purpose of constitutionalism in general and of the fundamental rights doctrine in particular.
We witness here a clash of political "philosophies" that is as old (at least) as Plato. Is there anything in the text of our Constitution -- or anything in the very idea of having a (written) Constitution -- to resolve it? If not, then are Scalia and Brennan, in arriving at their clashing imputations of purpose to the American Constitution, engaged in a form of political philosophizing? If so (1) is there anything wrong with that (or any way for responsible judges to avoid it), and (2) is there any reason why Scalia or Brennan, before committing himself to imposing on the country, from his seat on the high bench, one or another of these contesting ascriptions of constitutional purpose, should have scheduled a consultation with a representative group of licensed moral and political philosophers? If not, then (3) is there any reason to desire that a given judge maintain self-knowledge and consistency from case to case in his approach to constitutional interpretation, or to desire that the entire company of judges maintain a continuing effort to achieve as much consensus about this matter as honest judgment on their several parts will permit, and (4) might a continuing output of philosophically informed and disciplined analysis of, and participation in, the conservative/progressive dispute over constitutional interpretation make any contribution toward those desired objectives?
Everyone is certain that American constitutionalism is a project in government under law, or the rule of law. Ours is supposed to be a government of "laws" and not of "men."41 But what is it for law and not persons to rule? What is legality, or lawfulness? What, indeed, is law?
On one view, the essence of legality is certainty of rule, where "rule" means a decisive standard for the decision of cases, application of which is unlikely to be uncertain or disputable. Thus, the members of society will be able to plan their affairs in confidence. Thus, all will be able to see that all are being subjected to the same law. Thus, the law, and not the judges, will be "king." Not surprisingly, we find that Justice Scalia, a chief proponent of the "tradition as detail" approach to fundamental-rights adjudication, is also an outspoken protagonist of the idea of "the rule of law" as "a law of rules." In his Michael H. opinion, Scalia explained the connection he sees between the two positions:
One would think that Justice Brennan would appreciate the value of consulting the most specific tradition available, since he acknowledges that "[e]ven if we can agree . . . that 'family' and 'parenthood' are part of the good life, it is absurd to assume that we can agree on the content of those terms and destructive to pretend that we do." Because such general traditions provide such imprecise guidance, they permit judges to dictate rather than discern the society's views. . . . Although assuredly having the virtue (if it be that) of leaving judges free to decide as they think best when the unanticipated occurs, a rule of law that binds neither by text nor by any particular, identifiable tradition, is no rule of law at all.
Scalia, in other words, offers for use in fundamental-rights adjudication the following rule, which he hopes and expects will hold to a feasible minimum the occasions for unrestrained exercises of judicial morality or "discretion" in deciding which aspects of liberty are "fundamental:" If the aspect of liberty on which the challenged state law infringes is one to which the concrete American political and legal practice historically has given protection, the state had better have a darned persuasive reason for its law. In every other case, the law is valid without more ado.
It is, however, deeply controversial whether the essence of legality consists in the decisively rule-like character of legal propositions. A contrasting view of the essence of legality or the rule of law is closely tied to a perception that every judicial disposition of a legal case applies or threatens the use of force on some person whose freedom is taken to be a value of the highest order. Is there any way that these applications of force could possibly be consonant with the freedoms of all the members of a modern society, divided as they are by deep conflicts among their varying conceptions of the good and their associated projects and pursuits in life? Yes, some political philosophers say, there is a way, and it is this:42 Each such application of force will have to be explainable by public principles of political morality that everyone can find reason to respect. (Then everyone will be living under a law of his or own approval.)
Accordingly, it is said, the essence of legality or the rule of law resides in the public visibility, respectability and consistency of the principles of political morality that judges invoke to justify the state's applications of force to its inhabitants. It follows, in this view, that a judge who treats as binding law an array of rules that the judge himself understands to be mutually inconsistent or contradictory betrays the highest calling of the judicial office, which is, for the sake of freedom, to make the state's exercises of force responsive to a body of justifying principle that all have reason to accept.
The congeniality of this view of the point of legality to the tradition-of-principle approach to fundamental-rights adjudication is, as we have seen, a chief theme in the writings of Ronald Dworkin in the field of constitutional theory. The view has ties with both the enlightenment political philosophies of Jean-Jacques Rousseau and Immanuel Kant and the contemporary political philosophy of John Rawls. It nevertheless depends (a point illustrated by Justice Stevens' Cruzan dissent, both the portion we have seen so far and a further portion still to come) on a perennially controversial conception of the human good that constitutions and other laws are presumably designed to serve -- a conception of this good as consisting, in crucial part, in autonomy or moral freedom, the state of being the author of one's own governing conception of what is worth pursuing in life, and of having adequate space in which to pursue it.
Philosophy is not going to settle debates between those who favor a constitutional tradition of detail because (they think) it serves the pragmatic virtues of a law of rules, and those who favor a constitution of principles because (they think) it responds to normative claims of autonomy. It seems likely that, in the last analysis, a judge's sense of whether the essence of legality consists in rule or principle (or thinks that the whole issue is miscast) is determined not by philosophical analysis but by experience and temperament -- although, as usual, philosophically informed legal scholarship may have much to contribute to the clarification of understanding, including judicial self-understanding -- and judicial self-understanding may be prerequisite to judicial consistency in principle, and consistency in principle may be a cardinal judicial virtue.
Let us assume that a particular judge is committed to the tradition-of-principle approach to deciding whether a constitutionally protected interest -- a "fundamental" right -- is at stake in the Glucksberg and Quill cases. The question is: Can this judge do what he has to do with the pertinent legal materials, in order to decide what he has to decide, without assuming the role -- and thus, it would seem, the responsibility -- of a moral and political theorist (or "philosopher")? When the judge discerns an intelligible and unifying order of principle in the array of legal material he studies, isn't he also (necessarily) bringing to bear on the material (i) a fairly specific and very likely controversial (if doubtless only partly articulated) account of what it means for human lives to go well -- bearing in mind that an important part of what it means might be that persons freely pursue their own ideas about what is of value in life, on publicly recognized fair terms of social cooperation among those holding conflicting ideas -- and (ii), relatedly, an account of what basic social arrangements and conditions are justly supportive of various peoples' lives going well, and (iii) an account of what, therefore, the good or justifiable state does and does not do? But such a concatenation of (i), (ii) and (iii) is, in fact, a political-moral theory or "philosophy" of just the sort over which moral and political philosophers historically have conducted their debates.
Consider a dispute that arose in the Cruzan case between Rehnquist and Stevens. Rehnquist, you will recall, conceded a constitutionally protected status to a person's interest in refusing medical treatment, even life-sustaining treatment. But he went on to find that Missouri had sufficiently weighty governmental interests to justify its legal demand for clear and convincing evidence of a comatose patient's wish to have life-sustaining treatment discontinued. Here is a part of what Rehnquist had to say on this point:
. . . Here, Missouri has a general interest in the protection and preservation of human life, as well as other, more particular interests, at stake. It may legitimately seek to safeguard the personal element of an individual's choice between life and death. The State is also entitled to guard against potential abuses by surrogates who may not act to protect the patient. Similarly, it is entitled to consider that a judicial proceeding regarding an incompetent's wishes may not be adversarial, with the added guarantee of accurate factfinding that the adversary process brings with it. The State may also properly decline to make judgments about the "quality" of a particular individual's life, and simply assert an unqualified interest in the preservation of human life to be weighed against the constitutionally protected interests of the individual. * * *In Glucksberg, Rehnquist explained in similar terms the state's justifying interest in its law prohibiting assistance of suicide:
. . . Missouri relies on its interest in the protection and preservation of human life, and there can be no gainsaying this interest. As a general matter, the States -- indeed, all civilized nations -- demonstrate their commitment to life by treating homicide as serious crime. . . .
But in the context presented here, a State has more particular interests at stake. The choice between life and death is a deeply personal decision of obvious and overwhelming finality. We believe Missouri may legitimately seek to safeguard the personal element of this choice through the imposition of heightened evidentiary requirements. It cannot be disputed that the Due Process Clause protects an interest in life as well as an interest in refusing life-sustaining medical treatment. Not all incompetent patients will have loved ones available to serve as surrogate decisionmakers. And even where family members are present, "[t]here will, of course, be some unfortunate situations in which family members will not act to protect a patient." In re Jobes, 108 N.J. 394, 419, 529 A.2d 434, 477 (1987). A State is entitled to guard against potential abuses in such situations. Similarly, a State is entitled to consider that a judicial proceeding to make a determination regarding an incompetent's wishes may very well not be an adversarial one, with the added guarantee of accurate factfinding that the adversary process brings with it. Finally, we think a State may properly decline to make judgments about the "quality" of life that a particular individual may enjoy, and simply assert an unqualified interest in the preservation of human life to be weighed against the constitutionally protected interests of the individual.
First, Washington has an "unqualified interest in the preservation of human life." Cruzan, 497 U. S., at 282. The State's prohibition on assisted suicide, like all homicide laws, both reflects and advances its commitment to this interest. ("[T]he interests in the sanctity of life that are represented by the criminal homicide laws are threatened by one who expresses a willingness to participate in taking the life of another"). This interest is symbolic and aspirational as well as practical . . . .
Justice Stevens, dissenting in Cruzan, had no problem with the state's interests in preserving the individual's choice and protecting against abuse or mistake. But he thought that Missouri's law went well beyond what was reasonably necessary for the sake of those interests, and he took sharp issue with Rehnquist's claim that the state could right the balance by adding to its side an additional interest in the sanctity of human life as such, or an additional diffuse and "unqualified" interest the preservation of human life as such, regardless of quality, regardless of attachment to any particular person, and indeed in opposition to the interests and wishes, regarding the quality and duration of that life, of the person whose life it is.
Here is how Stevens stated his objection:
Our Constitution is born of the proposition that all legitimate governments must secure the equal right of every person to "Life, Liberty, and the pursuit of Happiness." In the ordinary case, we quite naturally assume that these three ends are compatible, mutually enhancing, and perhaps even coincident.
. . .The Court . . . permits the State's abstract, undifferentiated interest in the preservation of life to overwhelm the best interests of Nancy Beth Cruzan, interests which would, according to an undisputed finding, be served by allowing her guardians to exercise her constitutional right to discontinue medical treatment. . . .
. . . [I]n my view, the Constitution requires the State to care for Nancy Cruzan's life in a way that gives appropriate respect to her own best interests.
. . . We may . . . justly assume that death is not life's simple opposite, or its necessary terminus, but rather its completion. Our ethical tradition has long regarded an appreciation of mortality as essential to understanding life's significance. It may, in fact, be impossible to live for anything without being prepared to die for something. . . .
These considerations cast into stark relief the injustice, and unconstitutionality, of Missouri's treatment of Nancy Beth Cruzan. . . . But Nancy Cruzan's interest in life, no less than that of any other person, includes an interest in how she will be thought of after her death by those whose opinions mattered to her. . . . How she dies will affect how [her] life is remembered. The trial court's order authorizing Nancy's parents to cease their daughter's treatment would have permitted the family that cares for Nancy to bring to a close her tragedy and her death. Missouri's objection to that order subordinates Nancy's body, her family, and the lasting significance of her life to the State's own interests. The decision we review thereby interferes with constitutional interests of the highest order.
. . . Missouri asserts that its policy is related to a state interest in the protection of life. In my view, however, it is an effort to define life, rather than to protect it, that is the heart of Missouri's policy. Missouri insists, without regard to Nancy Cruzan's own interests, upon equating her life with the biological persistence of her bodily functions. * * *
Life, particularly human life, is not commonly thought of as a merely physiological condition or function. Its sanctity is often thought to derive from the impossibility of any such reduction. When people speak of life, they often mean to describe the experiences that comprise a person's history, as when it is said that somebody "led a good life." They may also mean to refer to the practical manifestation of the human spirit, a meaning captured by the familiar observation that somebody "added life" to an assembly. If there is a shared thread among the various opinions on this subject, it may be that life is an activity which is at once the matrix for and an integration of a person's interests. In any event, absent some theological abstraction, the idea of life is not conceived separately from the idea of a living person. Yet, it is by precisely such a separation that Missouri asserts an interest in Nancy Cruzan's life in opposition to Nancy Cruzan's own interests. . . .
The laws punishing homicide, upon which the Court relies, do not support a contrary inference. Obviously, such laws protect both the life and interests of those who would otherwise be victims. Even laws against suicide presuppose that those inclined to take their own lives have some interest in living, and, indeed, that the depressed people whose lives are preserved may later be thankful for the State's intervention. . . .
[But] there is no reasonable ground for believing that Nancy Beth Cruzan has any personal interest in the perpetuation of what the State has decided is her life. [Perhaps] it would be possible to hypothesize such an interest on the basis of theological or philosophical conjecture. But even to posit such a basis for the State's action is to condemn it. It is not within the province of secular government to circumscribe the liberties of the people by regulations designed wholly for he purpose of establishing a sectarian definition of life. . . .
My disagreement with the Court is thus unrelated to its endorsement of the clear and convincing standard of proof for cases of this kind. Indeed, I agree that the controlling facts must be established with unmistakable clarity. The critical question, however, is not how to prove the controlling facts but rather what proven facts should be controlling. In my view, the constitutional answer is clear: the best interests of the individual, especially when buttressed by the interests of all related third parties, must prevail over any general state policy that simply ignores those interests. Indeed, the only apparent secular basis for the State's interest in life is the policy's persuasive impact upon people other than Nancy and her family. Yet, "[a]lthough the State may properly perform a teaching function," and although that teaching may foster respect for the sanctity of life, the State may not pursue its project by infringing constitutionally protected interests for "symbolic effect." The failure of Missouri's policy to heed the interests of a dying individual with respect to matters so private is ample evidence of the policy's illegitimacy.
Only because Missouri has arrogated to itself the power to define life, and only because the Court permits this usurpation, are Nancy Cruzan's life and liberty put into disquieting conflict. If Nancy Cruzan's life were defined by reference to her own interests, so that her life expired when her biological existence ceased serving any of her own interests, then her constitutionally protected interest in freedom from unwanted treatment would not come into conflict with her constitutionally protected interest in life. . . . The opposition of life and liberty in this case are thus not the result of Nancy Cruzan's tragic accident, but are instead the artificial consequence of Missouri's effort and this Court's willingness, to abstract Nancy Cruzan's life from Nancy Cruzan's person.
Thus did Stevens make a closely allied pair of moral-philosophical points: one about the relation of death to life, another about the relation of our ideas about life's value to our ideas about lives being lived by the persons whose lives they are. The passage -- which bears a detectable resemblance to a philosophical passage in a recent work by Ronald Dworkin46 -- is one of moral-philosophical argumentation if I have ever seen one. And it is also one of political-philosophical argumentation. The arguments of Rehnquist that aroused Stevens' passionate response are clear expressions of a communitarian political philosophy, by which I mean a readiness to conceive of a community as a moral agent or subject to which can be attributed both (i) an expressive or symbolic interest (here, in maintaining a certain attitude toward human life and its sanctity) to weigh against individual interests in self-determination and (ii) a kind of possessive interest in the endurance of each person's life, distinct from any interest the person herself might have in that matter. Against this communitarianism, Stevens plants -- and ascribes to the Constitution as a descendant of the Declaration of Independence -- a contrasting individualistic political philosophy, by which I mean a readiness to deny that a government can have any legitimate interests that are not traceable to interests of individuals. He is making a political-philosophical claim, a claim about a particular tradition of normative political thought for which he claims the Constitution as a member.
But the point I want to make is not just that Stevens engaged in both moral and political philosophizing in his Cruzan dissent. It is that the presence in the opinion of this philosophizing is crucial to the force and even the intelligibility of the opinion as a whole, considered as a legal argument construing a tradition of principle in order to ascertain the constitutionally protected status of the interests claimed by the private parties in Glucksberg and Quill.
For consider what we would have in the excerpt I showed you before, without the philosophical amplification I have just now put before you. We would have, to begin with, a passage in which Stevens cites a lot of judicial decisions. Now, one could, if one wanted, see each cited decision as a contribution to a constitutional tradition of detail. One would simply specify for each cited decision the concrete practice in which someone wished to engage, or the concrete interest for which someone claimed the state's due regard, to which the decision either granted or denied society's recognition and protection.
The result, in list form, would look something like this:
This looks like a normative hodge-podge, a motley crew of details. Is it conceivable that any observer could shape it up into an expression of a unified body of political-moral principle, without having already somewhere in mind (please excuse the repetition) a fairly specific (and very likely controversial) idea of what it means for human lives to go well and, relatedly, of what social conditions are justly supportive of various peoples' lives going more or less well, and of what, therefore, the good or justifiable state does and does not do?
Well, you might say, the cited judicial decisions don't just consist of the specific results reached -- concrete practices or interests "protected" or "unprotected" -- but include also the reasoning and rhetoric that accompany and explain the decisions. Maybe those can suffice to glue the decisions together into an expression of a unifying political-moral theory, one that the collection itself projects onto a mind free of any theoretical prepossession. But it does not seem likely. What happens, for example, if we string together the rhetorical snatches that Stevens himself gleans from the decisions? We get an array of references to constitutionally valued interests, activities and places -- something like: (I simply take these from Stevens' opinion in the order in which they appear): "the domain of private life," "questions dealt with in intimacy by a family and its physician," "life which characteristically has its place in the home," "private realm of family life into which the state cannot enter," "decisions and choices constitutive of private life," "man's spiritual nature," "our idea of physical freedom and self-determination," "human dignity," "the basic civil rights of man," "the sanctity, and individual privacy, of the human body," "bodily integrity," "The privacies of the life within the physical curtilage of the home."
In shorter form: "private," "intimate," "family," "home," "spiritual," "dignity," "physical," "self-determination," "body." What is the moral notion, stance, or outlook that is drawing it all together into a principle that we can definitely say either covers or does not cover a terminally ill and suffering patient's getting lethal pills from the doctor? If "body" is the key, where does "dignity" come in? If "physical" is the key, where does "spiritual" come in? If "intimacy" is the key, where does "self-determination" come in? Not for a moment do I suggest that you can't possibly answer these questions. You can answer them. Stevens did answer them, in the second long passage that I excerpted from his opinion.
The point is: You cannot, and he did not, answer them without doing what it is that moral and political philosophers do when they propose, explain, and defend specific moral and political theories -- meaning, again (please excuse the repetition), specific (and very likely controversial) ideas of what it is for human lives to go well and, relatedly, of what social conditions are justly supportive of various peoples' lives going more or less well, and of what, therefore, the good or justifiable state does and does not do.