Debriefing the Philosophers
There are many schools of thought to which an American philosopher may belong, but there is still only one school of American philosophy. The last few Marxists may look to Frederic Jameson to lead them, while the last few followers of Heidegger may look to such writers as John Caputo. Richard Rorty, with his strange brew of old-fashioned American pragmatism and postmodern French deconstruction, has his share of followers, as does Alasdair MacIntyre with his recent work on Thomas Aquinas. Nussbaum, Kripke, Cavell, Sokolowski, Irwin, and McInerneythese are all names to conjure with in the various worlds of contemporary philosophical thought. But far above the jarring sects, there stand the true heirs of William James and John Dewey: the group of thinkers who practice that mixture of empiricism, utilitarianism, pragmatism, and liberal social theory which remains the one distinctively American school of philosophy. Ronald Dworkin, now Professor of Jurisprudence at Oxford, and Thomas Nagel of New York University, together with Robert Nozick and John Rawls of Harvard, form the core. And when Harvards Thomas Scanlon and MITs Judith Jarvis Thomson are added in, the roster of Americas true philosophical establishment is nearly complete.
If for no other reason than the fact that these six thinkers are among the brightest lights of American philosophy, it is worth notice that they joined last fall to file an amicus brief in the two assisted-suicide cases pending before the Supreme Court: Washington v. Gluckberg, appealed from the U.S. Court of Appeals for the Ninth Circuit, and Vacco v. Quill, appealed from the Second Circuit. As Dworkin himself observes in the new introduction he wrote for the briefs publication in the March 27, 1997 issue of the New York Review of Books, there seems to be no other occasion on which "a group has intervened in Supreme Court litigation solely as general moral philosophers." The sheer existence of a brief signed with these names proclaims that the opinion of Americas most elevated intellectuals is exactly where one thought it would be: solidly in favor of declaring a constitutionally protected right to doctor-assisted suicide.
But there is another reason that what the New York Review of Books named "The Philosophers Brief" deserves attention. No fights are as bitter, no distinctions are as strongly defended, as those that occur between members of the same school of thought. In his introduction, Dworkin is careful to admit that "we differ among ourselves about general issues of political philosophy and justice," while the brief itself acknowledges that the authors "differ on many issues of public morality and policy." Only an issue of extreme importance could compel them to put aside their professional philosophical differenceseven while they claim the authority to speak on the issue precisely because they are professional philosophers.
The result had at least a chance to be one of the most significant documents in the history of American philosophy. The methods and assumptions on which the joined thinkers rely cannot be those that define this or that philosopher carefully distinguishing his own work from the work of others in his school, but the common methods and broad assumptions that define the entire school of thought. The document offered an opportunity to show, once and for all, the shared practice of Americas contemporary philosophical establishment.
It does not manage to seize that opportunity. There is probably little importance to the legal and strategic incompetence of the Philosophers Brief. Its attempt to pin assisted suicide to the abortion dicta of the 1992 Casey v. Planned Parenthood decision seems generally less successful than the original attempt by the Ninth Circuit, but that is not in itself a significant indictment of the briefs philosophical analysis. Neither is it philosophically significant that the philosophers spend too much effort exposing flaws in the analysis offered by the Clinton Administration (given that the Court, during oral argument on January 8, revealed it had never been impressed with the Administrations reasoning).
What is important, however, is that the Philosophers Brief should also prove philosophically incompetent. Apart from a compressed argument denying any distinction between acting and refraining from acting (an argument presented as obvious to the trained philosophical mind), there is nothing in the Philosophers Brief that requires its authors be philosophers. Indeed, with such sentences as "Death is, for each of us, among the most significant events of life," there is much in the brief that requires its authors not be philosophers. Those of us who have graded freshman ethics papers know such sentences well; we read them, and sigh, and wonder where to begin. By remarking that, for the dying person, death is not an event in any normal sense of the word? By observing that, even if death is taken as an event, the one thing it surely is not is an event of life (reminding these philosophers that their own Ludwig Wittgenstein has a famous discussion of this very point)? Or by pointing out that, even if death is taken as an event of life, it cannot be merely among the most significant events of life, but must rank all by itself?
There may exist philosophically sophisticated arguments for the position taken by the authors of the Philosophers Brief. Seneca, Montaigne, David Hume, and others have written in defense of suicide (though their position becomes even more difficult when speaking of assistance in suicide). And if such thinkers are not, except perhaps for Hume, in the absolute first rank in the history of philosophy, they are nonetheless writers for the ages. But sophisticated arguments do not appear in the American philosophers text. Perhaps the authors feared that the justices of the Supreme Court (and the readers of the New York Review of Books) would not understand the technicalities of a purely philosophical analysis, however distinctively American. Or perhaps the differences between these six thinkers are so profound that there is in fact no American school, and once they set aside their differences they found nothing genuinely philosophical remaining. But the more likely explanation is that, for the sake of advancingand putting themselves among the leaders in advancingwhat they believe to be a correct social and political opinion, Americas most distinguished philosophers were willing to betray their discipline, their reputations, and their own brilliant philosophical minds.
We have seen this pattern before, of course, in the scurrying of American intellectuals to trade thinking well for thinking rightthe thinking-right of everyone from the Communists in the 1930s to the feminists in the 1970s. But precisely because we have seen it before, and know that for seventy years it has contributed enormously both to the American publics contempt for intellectuals and to intellectuals contempt for the American public, we ought to be surprised to find the lesson so poorly learned. What had the promise to be a high-water mark of American philosophy turns out to be another low-water mark of the willingness of Americas philosophers to cash in their reputations and credentials in order to join a social and political campaign.
In itself, the Philosophers Brief is not a particularly bad compendium of the standard, middle-brow constitutional and legal arguments for assisted suicide as those arguments stood last fall. The twists and turns to which Ronald Dworkin puts them in his new introduction are proof that such arguments have become somewhat stale after the Court revealed during oral argument what lines it was interested in exploring. But the basic analysis is essentially the one that Judge Stephen Reinhardt used in his Ninth Circuit opinion. The Casey decisioncited six times in the five pages of the Philosophers Briefguarantees that "at the heart of liberty is the right to define ones own concept of existence, of meaning, of the universe, and of the mystery of human life." Since death is, as the philosophers insist, "among the most significant events of life," people must not be forced "to end their lives in a way that appalls them, just because that is what some majority thinks proper."
In Cruzan v. Missouri (1990), the Supreme Court held that a patient could compel the withdrawal of life-sustaining equipment and drugs, even though death should result. Cruzan did not seem to disallow laws against assisted suicide, particularly such laws as New Yorks, based upon a Task Force Report that distinguished between withdrawing life support and providing lethal medication. Expanding upon the Cruzan decision, however, the Second Circuit in Vacco v. Quill dismissed the New York Task Force Report and argued that a right to have life-sustaining medication withdrawn entails a right to have life-destroying medication prescribed. Echoing the Second Circuit, the Philosophers Brief asserts that Cruzan logically demands the legalization of assisted suicide. "Whether a doctor turns off a respirator in accordance with the patients request or prescribes pills that a patient may take when he is ready to kill himself," the philosophers declare, "the doctor acts with the same intention: to help the patient die."
There are, they concede, risks of mistake in diagnosis and knowledge of the patients will. These risks were the subject of the Solicitor Generals briefs for the Clinton Administration, and the philosophers set themselves primarily to answer the Administrations analysis. Where the Solicitor General had what they acknowledge as a valid pointas in the risks of the Dutch practice of euthanizing newborns who could not under any view be thought to have given consentthey insist that the problem can be addressed by careful regulation. But their general argument relies upon the denial of a distinction between withdrawing life support and prescribing death: whatever possibilities for error exist in prescribing death exist as well in withdrawing life support, and since such possibilities did not prevent the decision in Cruzan, they ought not prevent the affirmation of a right to assisted suicide.
Avoiding the excesses of Reinhardt in the Ninth Circuit (who dwelt graphically on the horrors of unhastenable death), the Philosophers Brief uses emotional appeal at only a few key points in the text. Declaring full agreement with the right of other patients to fight death to the last possible moment, the brief concludes with a claim that it has defined the highest constitutional ground: ensuring the ability of all to die as they choose.
Judged as philosophical argument, nothing in the Philosophers Brief rises to a level that requires a philosopher. When the brief gives its moving description of the anguish of patients "sedated near oblivion," we may have an idea of what is meant, and it may even be true. But a philosopher is the person we expect to look at such a description and wonder whether we have not confused the patients own anguish with the anguish we feel looking at the patient. A philosopher is the person we expect to ask how we could ever know with certainty what a person "sedated near oblivion" actually feels. There is a certain rough plausibility to the proposition that a patient might wish to die if he could only stand somehow outside himself to see himself lying helpless and sedated, but it is a proposition that ought to give a philosopher the kind of serious pause the Philosophers Brief never takes.
This resolute refusal to engage in philosophical analysisby authors who claim the authority to speak because they are Americas most distinguished philosophersappears again and again in the Philosophers Brief. Though it dismisses as philosophically naive ("based on a misunderstanding of the pertinent moral principles") the commonsense distinction between letting die and killing, the brief uses such commonsense phrases as "in the patients best interest to die" without any nod toward their philosophically difficult character. (How, a philosopher ought to ask, can it ever be in anyones best interest to cease to have interests?) In a way unworthy of trained thinkers, the brief elides the question of why life has value into the possibility that life has no value. And in a fairly straightforward begging of the question near the end of the text, the brief asserts that there exist patients "whose decisions for suicide plainly cannot be dismissed as irrational or foolish or premature," offering as a self-evident premise what was supposed to be proved as the conclusion.
Perhaps the most unphilosophical element, however, is the authors constant description of life as something each person has a constitutional right to judge for himself as a wholeincluding the death which is "among the most significant events of life." Insofar as such a description has any philosophical coherence, it seems to require the further assumption of a point after death from which to view the whole lifea religious or philosophical assumption that the brief repeatedly asserts the Constitution prohibits the justices from making.
Even judged merely as constitutional and legal argument, most of the philosophers points have already found their answer. Beginning with the declaration that respect for "the American constitutional tradition" demands a right to assisted suicide and ending with an appeal to "the spirit and letter of the Courts past decisions," the philosophers seem deaf to the irony of appealing to the four-year-old "tradition" of Casey, a case that has manifestly failed either to carry the American public in its wake or to obtain a settled set of consequences in American jurisprudence.
One proof that these philosophers have betrayed their professional expertise comes in their briefs many appeals to the abortion dicta of Casey, for the American philosophy practiced by the six authors of the Philosophers Brief manifests in every other situation a deep suspicion of the kind of soft metaphysical claims about "the mystery of human life" made in the Casey decision. But even as a strategy of argument for a liberal sensibility that has already obtained legalized abortion and wants assisted suicide, the appeal to Casey is dangerous. The Court, during oral argument, seemed extremely reluctant to declare a right to assisted suicide. Precisely to the extent to which the Philosophers Briefand the Ninth Circuit, with somewhat more forcesucceeds in persuading a reluctant Court that Casey logically demands assisted suicide, they put their oft-cited "mystery of human life" passage at risk of reversal or serious reinterpretation.
The Clinton Administration seems to have realized this risk. The Solicitor Generals arguments are concerned primarily to preserve Caseys guarantee of abortion no matter what decision the Court comes to in the two pending assisted-suicide cases. But the Court revealed that the arguments it was interested in exploring were not those given by the Solicitor General, and the extended reply the Philosophers Brief makes to the Administration proves to have been wasted. The Solicitor General argues that mistakes in ascertaining the will of the patient are unavoidable, and thus the state has a sufficient interest to override what is conceded to be a liberty interest of the patient. The Court needed little teaching from the philosophers to demolish this line of reasoning. In oral argument Chief Justice William Rehnquist called "rather a conundrum" the notion that the state could both concede and prohibit a liberty, and Justice Antonin Scalia observed that the Court could as well say that "theres a liberty interest in murdering people" as a way of upholding laws banning murder.
The stronger arguments against legalized assisted suicideor at least the stronger arguments the Court revealed that it was interested in hearingare a pair of "slippery slope" arguments that gained force from their exposition in briefs filed by opponents to assisted suicide. The first involves a slippage in jurisprudential logic, and the second involves a slippage in practical protections for the weak and poor.
The logical slippage that concerned the Court is the difficulty in maintaining any distinction once the Second Circuits dismissal of the New York State Task Force has been granted. If withdrawing life-support cannot be distinguished from giving the patient the means for death, then the bright line has apparently been broken: no legal grounds seem to exist for distinguishing assisted suicide from euthanasia, the terminally ill from the chronically ill, and the physically ill from the merely depressed.
The practical slippage that concerned the Court is the difficulty in ensuring that patients will not be pressured into suicide as a way of ending their expensive medical care. Though the philosophers dismiss the Solicitor Generals comments about the difficulties of ascertaining the independent will of the patientat one point putting the word "pressure" in quotation marks to indicate the impossibility of anyone ever arriving at a decision unswayed by the opinions and advice of othersthe particular dangers to the weak and the poor received little attention from either the Clinton Administration or the philosophers.
It was to address these stronger arguments that Ronald Dworkin wrote his introduction in the New York Review of Books. For the opponents of assisted suicide, perhaps the most interesting feature of Dworkins new essay comes near the end, when he virtually concedes that, given the clues spectators heard during oral argument, the case for assisted suicide is lost. He concludes with a plea that the Court not decide the cases, arguing that postponement "would be the most statesmanlike way in which the Court could make the wrong decision." "In the meantime," he adds, "the public would have had an opportunity to participate more fully in the argument about principle; and, when circumstances make it possible, wide public discussion is a desirable and democratic preliminary to a final Supreme Court adjudication." The sentence deserves framing: In its casual assumption that democratic discourse is merely a desirable "preliminary""when circumstances make it possible"to a Supreme Court ruling, this must take its place among the most blatant declarations of judicial rule of America.
There is, however, something even more interesting in the introductory essay. Compelled to answer stronger arguments than the Solicitor General was able to make in his determination to preserve the Casey abortion license, Dworkin is forced, by the lack of any real philosophical foundation in the Philosophers Brief, to present a series of astonishingly weak responses. The argument of a slippage in jurisprudential logic remains, I think, capable of answer: Even if pro-life forces lose the battle on assisted suicide, they are not going to concede that euthanasia logically follows. But Dworkins own answer to this legal slippery slope is merely that a willingness of the courts to hear virtually every disputed case would suffice to stop any decay of principle. It is unclear how this might be an answer to the claim that granting assisted suicide would eventually leave the courts unable to make any distinctions at all, since the danger of legal slippage exists precisely in the constant appeal to judicial review. Insofar as Dworkin admits a line the courts may draw to prevent, say, depressed teenagers from demanding assistance in committing suicide, he thinks it involves asking whether judges can imagine the would-be suicide ever being grateful that someone prevented him from killing himself. But this too seems custom-made to induce the legal slippage it purports to halt, creating opportunities for anyone in an adverse situationbankruptcy, life imprisonment, permanent injuryto claim a rational basis for doctor-assisted suicide.
The argument gets worse when he examines the risk to the weak and poor. Though regulations might be put in place to prevent it, Dworkin observes, "many people fear that such regulation could not be adequately enforced, and that particularly vulnerable patientspoor patients dying in overcrowded hospitals that had scarce resources, for examplemight be pressured or hustled into a decision for death." He cites several studies on the current practice of euthanasia and assisted suicide, particularly a 1996 Washington State study that claims that 26 percent of doctors are already granting 24 percent of patient requests for lethal prescriptions, despite the laws currently prohibiting it. And he argues, "The evidence suggests . . . that such [poor] patients might be better rather than less well protected if assisted suicide were legalized with appropriate safeguards. More of them could then benefit from relief that is already availableillegallyto . . . many middle-class people." Far from quelling fear of a slippery slope, this argument actually affirms it: We neednt worry that the legalization of assisted suicide will put the poor at risk of premature death, because it will in fact bring them a set of benefits they currently lack, first among which is premature death. Even the factual premise of the argument is not evident. The "For example" with which he introduces the studies of lethal prescription is at best mistaken and at worst deceitful, for such studies in generaland the Washington State study in particularmake no mention of the economic class of the patients requesting death.
Dworkin, however, makes a second argument against the risk to the poor, picking up a suggestion by the Coalition of Hospice Professionals in another amicus brief: "Removing legal bans on suicide assistance will enhance the opportunity for advanced hospice care for all patients because regulation of physician-assisted suicide would mandate that all palliative measures be exhausted as a condition precedent to assisted suicide." Since most of the appeals to emotion made in arguments for assisted suicideincluding those in Dworkins essay, a more graphic piece than the original Philosophers Briefrely on the inefficiency of pain-controlling medication, this line of reasoning offers little comfort to those who worry about the poor. But even without such appeals, it takes a simply contradictory position on regulation: regulation that is routinely violated before legalized assisted suicide will never be violated after legalization. If mere regulation is sufficient to mandate proper palliative measures, we presumably do not need assisted suicide to achieve them; if regulation is not sufficient, then the legalization of assisted suicide makes the consequences of that insufficiency fatal.
The fundamental question raised by the publication of the Philosophers Brief remains how Americas most distinguished philosophers could make in public what they must surely know are such poor arguments. In his introduction, Dworkin seizes upon the one genuinely philosophical element in the original brief, the theory that the doctors intention is the morally significant component of a medical action. Applying it to the claim made in oral argument that a patient who demands the removal of life support is not committing suicide, he rephrases the theory with a negative example: "Some doctors, who stop life support only because the patient demands, do not aim at death. But neither do doctors who prescribe lethal pills only for the same reason, and hope that the patient does not take them." Only someone whose desire to arrive at a particular result has utterly trapped his own thinking could so completely surrender any sense of what the word "prescribe" really means in the relation between a doctor and patient.
But Dworkin is in many ways a trapped man, trapped by the ambition that led him to join Nagel, Nozick, Rawls, Scanlon, and Thomson in betraying themselves and the enterprise of American philosophy. It may be very human to want to change the world rather than simply explain it, to hunger to be influential players rather than mere thinkers. But it is, as the Philosophers Brief reminds us once again, an unhappy ambition for philosophers.
J. Bottum is Associate Editor of First Things.