12/18/2009
The New York Review of Books, Vol 44, No 5 March 27, 1997
This is a brief filed by 6 philosophers (Dworkin, Nagel, Nozick, Rawls, Scanlon, Thomson) with the US Supreme Court in support of assisted suicide, as there were two cases before the court relating to it. Dworkin wrote an introduction and in Slate Magazine there followed an exchange of letters between Michael McConnell and Dworkin, McConnell criticizing the brief's reliance on 'judicial rhetoric' and defending a reading of the due-process clause of the 14th amendment that rights are granted by the nation's 'tradition and experience' of granting them. Since the only one state has very recently allowed assisted suicide, there is no tradition and experience of granting this right therefore it is improper for the Court to grant it. Dworkin's reply is that this is a particular interpretation of the 14th amendment and isn't the only one used by the Court and certainly isn't the only defensible one.
The brief filed by the philosophers is introduced and summarized by author. Author takes the time to lay out the context of the debate: that there are two main 'slippery slopes' that the Court is worried about (or at least was worried about on oral argument): the theoretical and the practical.
The Theoretical slippery-slope says that there is no principled place to 'draw the line' about which assisted suicides are permissible and which are not. The Philosophers' response to this is to suggests a difference between firm, considered, deep convictions about life's value and impulsive decisions perhaps made out of emotional depression where the state has reason to believe that the person would be grateful later if they were prevented from dying.
The Practical slippery-slope says that if assisted-suicide were legal, states would no doubt try to regulate it; but there would be a mix of successes and failures, and the vulnerable patients, the poor or the less-cared-for, would die as an outcome of poor systematic protections. Author answers this first by suggesting that the wealthy already enjoy an informal version of this right. Author secondly suggests that this slippery-slope argument applies across the board, even with pain-management already. Building on this, if assisted suicide was legal, it would be likely legislated that all palliative measures would be legislated to be employed prior to the suicide, thereby possibly raising the level of care for the poor and needy.
Author proposes that there are three methods that the Court could use to rule against the lower courts (in favor of the right of assisted suicide) in this decision. The first would be to deny a liberty interest in assisted suicide. The second would be to grant a liberty interest in assisted suicide but claim that states can override this interest in toto. This seems to be 'a conundrum'. The final method would be postponement, which author favors as the least damaging way to reject lower courts' decisions.
The Philosophers' brief first claims that in a free society individuals have a right to determine, for themselves, their values about 'the most intimate and personal choices... central to a person's dignity and autonomy' (Casey). And offer deeply held beliefs about one's own death as falling under this category. Of particular interest is the discussion about the potential distinction between "letting die" and "killing", and a possible "common-sense" distinction between acts and omissions. The brief claims this is an error. Anything that causes death contrary to a patient's wishes, whether it is an act or an omission, is wrong for the same reason. The important interest here is the patient's wishes, and from a patient's perspective there is no difference what the doctor does if it is in line with her own wishes. From the doctor's perspective, there seems to be no difference either between less, more (or no) care if the death (or life) of the patient is what the doctor is aiming at. The final argument of the brief is that state interests are not high enough to categorically prohibit assisted suicide. The body of this argument involves responding to the Solicitor-General's arguments against assisted suicide.
12/11/09
Dworkin, Ronald - Sex, Death, and the Courts
12/11/2009
Sovereign Virtue, Harvard University Press, 2000, Ch 14
This is a chapter reviewing two strands of judicial interpretation of the rights enumerated in the US Constitution (and its amendments). The two topics that are used to reveal the tension between these interpretations are homosexuality and the right-to-die. Author argues that the 14th amendment is the 'most abstract source of these rights' (pg454), that is, rights not enumerated in the other amendments. Author frames these two issues as members of a larger set, that of an individual's right against the judgment of the majority about what is, by and large, an individual decision.
The 14th amendment offers two abstract and broad principles: that the state may not deprive a citizen of liberty with "due process of law" and that the state may not deny anyone "equal protection of the laws". This abstract language has both too broad and too narrow interpretations, yet the ones favored by judges seem to be two: 'historical' and 'integral'. The 'historical' interpretation is that individuals are protected with due process and equal protection on a limited number of rights that the American people historically and overwhelming have considered to be their rights. Author identifies Justice Byron White in the Bowers v Hardwick decision as a principal proponent of this interpretation. (pg454) The other interpretation, which the author calls the interpretation of 'integrity', is that the principles behind the enumerated (and common law) rights may, in some cases, rationally and logically suggest other rights that have not necessarily been considered rights previously. (pg455) Author sites Justice John Harlan as such an interpreter in a 1961 dissent of Poe v Ullman.
With these two interpretations in mind, author goes through supreme court decisions first about homosexuality in Colorado. Colorado amended its constitution to restrict any favorable discriminatory treatment to homosexuals, overturning some statutes instituted by some of the state's cities. The case of Evans v Romer was a challenge of the constitutionality of that amendment.
Using the 14th amendment's 'due process' clause, the strategy would go as follows: 1) show the law compromises a 'liberty interest'-- a constitutionally protected right, and if so, 2) show the law does not have enough legitimate state interest to pass a balancing test. (pg457)
Using the 'equal protection' clause, the strategy would be: 1) show that the law requires more than 'relaxed scrutiny', (rational basis) but instead 'strict' or 'heightened' scrutiny because it reduces the ability of a certain group to participate in the political process-- it systematically disadvantages a class. (pg58-9) This is commonly used in the case of 'suspect' classes like blacks due to this country's history of discrimination. (459-60) The strategy would be to claim that simple 'the prejudice and contempt' of a majority is sufficient to warrant 'strict' scrutiny of legislation that will affect them. (pg460-1)
When the case got to the supreme court, a separate amici curiae (friends of the court) brief was written in opposition to the law, which neglected the previous judicial frameworks: it argued instead that the law stops a class from being a class, which is a violation of equal protection. The actual supreme court decision, 6-3, was 'surprisingly bold' (pg463) because it said that the law did not even pass 'relaxed scrutiny' because it was based on nothing more "except animus toward the class it affects; it lacks a rational relationship to legitimate state interests" (pg464). Author considered this a victory for the 'integrity' interpretation.
The second topic considered is the right-to-die and assisted-suicide cases. Here, a supreme court decision of 9-0 against supporting such a right might seem like a resounding victory for the historicist approach, and the majority opinion of the court seemed like a straightforward historicisit reading-- inconsistent on principle, but in-line with history. What was interesting about the case was that the majority decision didn't represent 9 justices-- only 5. The others wrote their own opinions, and many of them revealed an 'integral' interpretation, but nevertheless held with the majority in this case. Author examines the different opinions and concludes that it isn't a knock-down victory for the historicist interpretation.
Sovereign Virtue, Harvard University Press, 2000, Ch 14
This is a chapter reviewing two strands of judicial interpretation of the rights enumerated in the US Constitution (and its amendments). The two topics that are used to reveal the tension between these interpretations are homosexuality and the right-to-die. Author argues that the 14th amendment is the 'most abstract source of these rights' (pg454), that is, rights not enumerated in the other amendments. Author frames these two issues as members of a larger set, that of an individual's right against the judgment of the majority about what is, by and large, an individual decision.
The 14th amendment offers two abstract and broad principles: that the state may not deprive a citizen of liberty with "due process of law" and that the state may not deny anyone "equal protection of the laws". This abstract language has both too broad and too narrow interpretations, yet the ones favored by judges seem to be two: 'historical' and 'integral'. The 'historical' interpretation is that individuals are protected with due process and equal protection on a limited number of rights that the American people historically and overwhelming have considered to be their rights. Author identifies Justice Byron White in the Bowers v Hardwick decision as a principal proponent of this interpretation. (pg454) The other interpretation, which the author calls the interpretation of 'integrity', is that the principles behind the enumerated (and common law) rights may, in some cases, rationally and logically suggest other rights that have not necessarily been considered rights previously. (pg455) Author sites Justice John Harlan as such an interpreter in a 1961 dissent of Poe v Ullman.
With these two interpretations in mind, author goes through supreme court decisions first about homosexuality in Colorado. Colorado amended its constitution to restrict any favorable discriminatory treatment to homosexuals, overturning some statutes instituted by some of the state's cities. The case of Evans v Romer was a challenge of the constitutionality of that amendment.
Using the 14th amendment's 'due process' clause, the strategy would go as follows: 1) show the law compromises a 'liberty interest'-- a constitutionally protected right, and if so, 2) show the law does not have enough legitimate state interest to pass a balancing test. (pg457)
Using the 'equal protection' clause, the strategy would be: 1) show that the law requires more than 'relaxed scrutiny', (rational basis) but instead 'strict' or 'heightened' scrutiny because it reduces the ability of a certain group to participate in the political process-- it systematically disadvantages a class. (pg58-9) This is commonly used in the case of 'suspect' classes like blacks due to this country's history of discrimination. (459-60) The strategy would be to claim that simple 'the prejudice and contempt' of a majority is sufficient to warrant 'strict' scrutiny of legislation that will affect them. (pg460-1)
When the case got to the supreme court, a separate amici curiae (friends of the court) brief was written in opposition to the law, which neglected the previous judicial frameworks: it argued instead that the law stops a class from being a class, which is a violation of equal protection. The actual supreme court decision, 6-3, was 'surprisingly bold' (pg463) because it said that the law did not even pass 'relaxed scrutiny' because it was based on nothing more "except animus toward the class it affects; it lacks a rational relationship to legitimate state interests" (pg464). Author considered this a victory for the 'integrity' interpretation.
The second topic considered is the right-to-die and assisted-suicide cases. Here, a supreme court decision of 9-0 against supporting such a right might seem like a resounding victory for the historicist approach, and the majority opinion of the court seemed like a straightforward historicisit reading-- inconsistent on principle, but in-line with history. What was interesting about the case was that the majority decision didn't represent 9 justices-- only 5. The others wrote their own opinions, and many of them revealed an 'integral' interpretation, but nevertheless held with the majority in this case. Author examines the different opinions and concludes that it isn't a knock-down victory for the historicist interpretation.
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