Assisted Suicide And Federalism

Debate Club this week wades into the perilous question of federalism and assisted suicide. The debate pits Jonathan Adler, a law professor at Case Western Reserve University, against Wesley Smith, a lawyer and author.

The debate focuses on the Attorney General's interpretation of the Controlled Substances Act to include drugs that are often used in assisted suicide. Since a referendum in Oregon reflected the state's support for assisted suicide, this interpretation of a federal law conflicts with Oregon law. Under the preemption doctrine the federal law will prevail. What the Supreme Court is being asked to decide in Gonzales v. Oregon is whether an interpretation of a federal law by a member of the executive branch can trump state law.

In Gonzales v. Raich the Court recognized Congress' ability to pass law under the Commerce Clause that is in conflict with state law. Gonzales was a triumphant victory for supporters of broad federal powers, and represented the scaling back of the federalist progress the Rehnquist Court had made in Lopez and Morrison.

Like Raich, Gonzales v. Oregon is unique in that it revolves around a conflict between two conservative values: the sanctity of life and federalism. The former is important across the board; no liberal I can think of would argue that life is not important. Some just believe that a person's right to autonomy overrides the state's interest in protecting life. Conservatives, especially the so-called moral conservatives, reject this line of thought because it places too high a premium on autonomy and too little on life. The state must protect life, even if state interference would infringe on a "privacy" right.

Support for federalism is almost uniquely found among conservatives. Liberals generally do not trust the states to make proper decisions (well, except on the SSM issue), owing this distrust to years of state's right activists using federalism as a cover for racism. Conservatives recognize that states might abuse this power, but feel the benefits of federalism outweigh the risks of government mandated racism.

The assisted suicide question requires conservatives to balance the moral issues with their adherence to federalism. At what point must the federal government step in? Would any conservative allow states to murder disfavored minorities under the guise of states' rights? I would assume not. What about a state law that allowed the government to confiscate any property from its residents? Again I can't imagine a conservative supporting such a law. But what about a state deciding to implement a 60% income tax? I garner that many conservatives would support the state's right to pass such a law, while opposing the law itself. So where do conservatives draw the line?

Of course this analysis is simplistic. Conservatives come in many stripes and colors. Some support federal legislation that furthers morality (at least according to their interpretation). Others hold federalism up as a very high standard, almost never allowing moral legislation to infringe on state's rights.

The proper place to draw the line can only be determined if we understand the theoretical underpinnings of federalism. What end does federalism serve? Broadly speaking federalism allows for the many differences in opinion in a diverse and large country such as the US. Federalism is an important value because it gives people a choice, rather than requiring half the country to abide by the wishes of a tiny majority. On many important issues, local solutions are superior in that they can take into account the nuances of small groups.

Why do we have moral legislation? With the exception of libertarians and a small number of conservatives, most believe the government (or the people) should be able to determine the moral climate of the society they live in. Should people be allowed to kill fetuses? If the people do not want fetuses killed because it imposes a moral stain on society, the government should be allowed to outlaw abortion. The moral choices of the majority should dictate conduct for the minority because the conduct of the minority directly affects the moral climate that the majority enjoys.

So if Oregon's law would be allowed to pass, perhaps the assisted suicides would infringe on the rights of the residents of Alabama, because a society that allows assisted suicide is a society that is less moral than one that prohibits it (I realize that's a debatable proposition).

So the question then becomes how immoral the legislation is. Assisted suicide is something that involves life and death. But as Adler notes, we allow states to make all types of life and death decisions, such as the death penalty and abortion questions.

This question cannot be conclusively solved in one post on a blog. The moral issues notwithstanding, federalism is bedrock on which this country was built. The moral "stain" on society must be so egregious that it threatens to topple our society as we know it for federalism to take a back seat. So if you're still with me at this point, that's my take.