Public policy through constitutional litigation is increasingly the route taken by those who cannot prevail in the legislative process. However, a new lawsuit filed in Tennessee over a provision in the state constitution with respect to assisted suicide could make the rule of law meaningless.
The policy at issue that was defeated during last year’s legislative session was instigated by former Gubernatorial candidate John Jay Hooker. He urged passage of a bill that would have empowered doctors to assist in the death of a patient with a terminal illness. It would have negated current law that makes it a felony for a person to assist in the death of another person. The bill failed.
So, Mr. Hooker, along with some physicians, filed a lawsuit this week arguing that the law prohibiting a third person from participating in the act of suicide violates the following provision of the state constitution:
“Power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, and happiness.”
His argument is as follows: “Does the government have the right to tell me I can’t check out of this hotel? I say the government can’t tell the people they can’t do something that is in pursuit of their own happiness, and that doesn’t involve anyone else.”
Of course, within his own statement is the rebuttal to his argument, because assisted suicide, by definition, does involve someone else. Mr. Hooker is free to commit suicide if that is what he wants to do. However, the state can uphold the value and dignity of life by forbidding third parties from intentionally participating in the act.
But there is something more disturbing here than simply a logical flaw in his argument; it is the idea that each of us should be allowed to be a law unto ourselves. Lurking under Mr. Hooker’s argument are two wrong ideas—that law can’t legislate values and morality, and that each person is an island unto themselves, making decisions and taking actions that have no affect on others or society in general.
The U.S. Supreme Court has already gone down this path when, in 1992, Justice Kennedy wrote in regard to abortion regulations that liberty is “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Presumably, Mr. Hooker would have our state Supreme Court follow suit.
Many clear-headed thinkers have commented that Justice Kennedy’s morally muddled thinking would make law and the regulation of civil society impossible if applied faithfully. Not surprisingly, Justice Kennedy struggled last month to find a rational basis for defending the millennia-old definition of marriage as a man and a woman in the face of claims that it denied same-sex couples their rights.
Justices and politicians must have a principle, a rational basis, by which to decide which of many competing moral choices people will be allowed to make. One cannot simultaneously embrace as a guiding principle “the right to define one’s own concept of existence” and still regulate the conduct one might use to define their own existence.
The denial of any absolutes by our society—and by extension, by those we put into positions of leadership in our society—has left us in an absolute mess. There is no way out unless we are daring and courageous enough to say, like the young boy who pointed out that the King had no clothes, that this denial of absolutes is absolutely the denial of the reality we daily bump into, namely, the absolute necessity of regulating our interactions with one another.
The ancient Hebrews embraced the idea that Mr. Hooker wants our Supreme Court to embrace and that the U.S. Supreme Court has already embraced. It was described as “every man [doing] that which was right in his own eyes.” It didn’t work out too well for them, and it ultimately won’t work out too well for us if increasing numbers of us don’t begin to learn how to challenge the reigning orthodoxy that undermines the rule of law and the constitution that purports to govern us. If you want to learn how to do that, then consider attending one of our Stand for Truth seminars in the fall.
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.
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