Editorial

Libertarians and classical liberals have not had many opportunities to celebrate in recent years, but on January 17th we received an opinion from the Supreme Court which was worthy of jubilation. In 2001 Then Attorney General John Ashcroft decided to remove the federal prescription privileges of doctors who followed the procedures of the Oregon Death With Dignity Act, effectively overruling the state statute by executive fiat. Oregon contested the validity of this regulation, and the controversy has been working its way through the Federal Court system ever since. The case, known as Gonzales v. Oregon, concluded in January with the Supreme Court ruling for the State of Oregon in a 6-3 decision. Justice Kennedy wrote the majority opinion, and was joined by O’Connor, Stevens, Souter, Ginsburg, and Breyer. Justice Antonin Scalia wrote a dissenting opinion, and was joined by Chief Justice Roberts and Justice Thomas.

The Death With Dignity Act does not create an open season for assisted suicide, it includes a plethora of limitations. Patients must have a life expectancy of less than six months, as determined by two doctors; they must be mentally competent, they must wait 15 days after their initial request for life ending medication, the request itself must be made in writing and patients must be advised of their alternatives, such as pharmaceutical pain management. In the six years between the Act’s creation in 1998 and 2004, less than 300 people have utilized the ability to commit suicide.

Although the Court’s decision was a triumph, there are a number of things about the case that bode of trouble in the future. The dissent of Roberts, Scalia, and Thomas is a betrayal of libertarian legal principles. In 1995, the almost unlimited power of the Federal Government to overrule State Government was checked in the case of United States v. Lopez. This heralded the return of federalism to American government, and was one of the greatest victories for American libertarianism in a century marked by the massive enlargement of government power. In Lopez, Scalia and Thomas were on the side of the states, while Ginsberg, Stevens, Souter, and Breyer were on the side of the federal government. In a disturbing turn of events, the liberal and conservative blocks of the Court have reversed there positions on one of the most polarized issues in American Law. This is indicative of the ideological split among conservatives between traditionalist and libertarians.

The rise of the religious right has all but destroyed the influence of libertarians on the right. This can be clearly seen in Gonzales v. Oregon, from both the rejection of federalism by the Bush administration and the rejection of federalism by the conservative block on the Court. This is no isolated event: the Bush administration and legal conservative Antonin Scalia made a similar rejection of federalism and libertarian principles in the recent medicinal marijuana case Gonzales v. Raich. With two knew members on the Court, legal scholars are closely watching the development of federalism jurisprudence. Sadly, the first dissent that Roberts has made as Chief Justice was a blow against federalism in this very case. The religious conservatism of newly confirmed Justice Alito promises to add to this pattern. It may be that libertarians will have no place among American Libertarians in the years to come.

Federalism, the concept of dual sovereignty in which one national government exists parallel with a multitude of state governments, is one of the crown jewels of the American constitution. ‘Federalism’ in contemporary politics and law is usually synonymous with the advocacy of states rights. A commitment to states rights and the dual system of government is one of the most closely held values of American libertarians. If government power must exist at all, it is better to disperse it among a multitude of government bodies that must compete with each other for sovereignty. In general, the rule of state government is preferable to the rule of federal government because of the greater political legitimacy of state action. A democratic government elected by small group of people, like state government, possesses a greater degree of consent by the individual to government action than a government elected by a large group, like the federal government. This is particularly prominent in The Oregon Death With Dignity Act, which was directly approved by Oregon voters twice. State government is also preferable to federal government because a smaller government is necessarily a weaker government. 

The priority of state action over federal action has a number of other benefits. State governments often become laboratories for innovative policy making. Government must adapt to changing circumstance, and when it formulates new policies to do so, it is better to try out those policies on a small scale that to put all of one’s eggs in one basket by enacting the policy at a federal level.  State government is also able to customize itself to local values and thereby is in general a more representative government. We all know that the citizens of San Francisco have very different values from the citizens of Salt Lake City. Shouldn’t they be able to have those values represented by local and state government instead of compromising them at the federal level?

Although the question addressed by the Supreme Court in Gonzales v. Oregon focused on the authority of the Attorney General to overrule a state statute, and not on the validity of assisted suicide itself, the Court’s decision is a double victory for libertarians: it is a triumph for both federalism and the right to die movement. If Patrick Henry’s famous words “give me liberty or give me death” it is that individual sovereignty must always take priority, and that death is no boundary to freedom. What right does government have to tell us what time and place our lives should come to an end? What right does government have to impose months of horrible suffering upon a terminally ill cancer patient when that individual wishes to depart this world peacefully and painlessly? The Supreme Court has rightfully decided that the Federal Government has no such right, and that the will of the people twice articulated in a statewide referendum cannot be flouted by a federal agenda.  

_______________________________________________________

The Remnant is a "journal of conservative opinion" at The College of William & Mary.

To learn more, visit: http://www.wm.edu/so/remnant/about/index.html

>> back to top

home | search | site guide | contact us | privacy policy