Microscopic rights: an expanding constitutional universe.

In early March, the Ninth Circuit Court of Appeals, in the case of Compassion in Dying v. State of Washington, announced the discovery of a new "fundamental right" in the United States Constitution, a right to assisted suicide.

It's amazing what can be seen with these new judicial microscopes, developed by the same people who made the Hubble telescope. It has been more than a century-and-a-quarter since passage of the Fourteenth Amendment and more than two centuries since the Bill of Rights, yet in all this time no one's eyesight was acute enough to discover this right. Using a high-powered judicial microscope, however, the Ninth Circuit was able to spot this marvelous constitutional provision: it's written in teeny-weeny letters, invisible to the naked eye, in the tail of one of the commas of the Fourteenth Amendment. (This is an improved version of the microscope used in 1973 by the Supreme Court when it discovered another fundamental right, abortion, which, we now know, had been inscribed in minute script in the upper portion of the same comma.

Sad to say, three judges out of the court's eleven were not able to discern the right to suicide, despite the microscope. But this is the same proportion of the American population that fails to master any new technology, just under 30 percent. I bet these three judges don't know how to use ATM cards either.

Judge Stephen Reinhardt, who wrote the majority opinion, is not only a virtuoso at this new optico-juridical technology; he is also, it turns out, a great sociologist, able to assure us that "there is no reason to believe that legalizing assisted suicide will lead to the horrific consequences its opponents suggest."

Panicky people fear that constitutionalization of assisted suicide will lead to pressures on old people to speed up their deaths, pressures originating in some cases from impatient relatives but more often from cost-conscious health insurance providers, including government. These worrywarts have even coined a new name for the thing they fear: "seniorcide" or "elderly genocide."

Others worry that if assisted suicide is a "fundamental right" there will be no logical way to limit this right to a small number of hard cases, just as we cannot limit the right of abortion to hard cases. If something's a fundamental right, then it's a fundamental right; it should be available to everybody in virtually all circumstances.

Still others worry that making suicide a constitutional right is tantamount to declaring it a moral right, since in America that's the way we view constitutional rights; and that this "moralization" of suicide will increase its attractiveness and acceptability among the young.

Not to worry. Judge Reinhardt has turned sociology into a predictive science, something sociologists themselves have been trying to do, without success, for the last century-and-a-half. He has seen the future, and it works. It is a future in which assisted suicide is compassionate, rational, and tidy; in which everything else goes on as usual with this single happy exception--a few in desperate pain are allowed to make a voluntary exodus; a future, in short, in which the foolish decisions of the likes of Judge Reinhardt have no "horrific consequences."

At about this point somebody will object, "So you don't like the conclusion the Ninth Circuit has arrived at. So what? Your ridicule doesn't change the fact that the decision is judicially sound. It follows quite logically from Supreme Court precedents, especially Roe (1973) and Casey (1992). There is a straight line from Griswold (1965) to Compassion in Dying. Maybe you don't like it, but that's the way the system works."

I confess to the sin of not being a lawyer, and to the even greater sin of not being a professor of constitutional law; but it seems to me there is something odd in the logic used by many American legal minds. In other fields of intellectual endeavor the reductio ad absurdum is recognized as a valid logical move: if your premises lead to absurd conclusions, there must be something wrong with your premises. But in constitutional law the opposite principle prevails: if your premises lead to absurdities (for example, that there are fundamental constitutional rights to abortion and assisted suicide), then you should lovingly embrace the conclusions and declare, despite appearances, that they are not the least bit absurd.

"A foolish consistency is the hobgoblin of little minds," said Emerson. He might have added, "--and of big judges." Normal people think common sense is entitled to trump consistency when the two conflict. Legal theorists of the Blackmun/Reinhardt persuasion think it works the other way round.

I regret the flippant tone of this column, especially when speaking of one of the three grand divisions of the federal government. Respect for courts, above all the highest federal courts, is one of the great foundations of liberty and social order in this country, and I am reluctant to contribute to the erosion of this respect. My car does not sport one of those bumper stickers that says, "Question authority."

But what is one to do? It is not the critics who damage the legitimacy of courts so much as it is the courts who undermine their own legitimacy by inventing constitutional provisions that outrage both common sense and the moral feelings of vast numbers of Americans. When courts do this, how can we persuade ourselves to respect them? If you prick us, do we not bleed?

And if we are told, "That's the way the system works," we answer that that's not the way the system was supposed to work at all. For these decisions are not only preposterous in content but undemocratic in method. In creating rights of suicide and abortion, judges--unelected aristocrats with life tenure--abolish rights of legislatures and the people who elect them. If homicidal rights are to be created at all, this should be done via the democratic process.

To be fair, however, it should be noted that in its graciousness the judiciary has allowed us to remain a democracy in a hundred small matters while reserving to itself the authority to decide only the really big questions. So don't worry. Democracy won't disappear entirely until the Supreme Court brings the method of filling potholes under the rubric of constitutional rights--and this won't happen for another twenty or thirty years at the earliest.