In the March 27, 1997, issue The New York Review published an amicus curiae brief submitted by six moral and political philosophers to the Supreme Court, urging the Court, in cases then pending, to recognize a limited constitutional right of terminally ill and competent patients to the help of a doctor in ending their lives, in order to avoid further pointless suffering and anguish.1 On June 26, the Court decided these cases, refusing to recognize such a right by an apparently crushing 9-0 vote.2 But though press reports did not make this clear, the unanimity of the vote was deceptive. Five of the six justices who wrote opinions made it plain that they did not reject such a right in principle, suggesting that the Court might well change its mind in a future case when more evidence of the practical impact of any such right was available.
The cases raised, moreover, 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 Court’s assisted suicide decisions contain the fullest and most candid judicial debate of that issue for many decades, and I shall discuss that debate first, not only because the issue is intrinsically important, but in order to understand the great differences in the opinions that made up the deceptively unanimous verdict.
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.” 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. He insisted that the due process clause protects 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…
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