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| LEGISLATING MORALITY |
| Wednesday, January 18, 2006 |
| Even conservative Supreme Court Justice Antonin Scalia, the model for President Bush's wish that judges would rule according to the law and the Constitution, not according to their own beliefs, can't always keep his own personal opinions out of his judicial opinions.
In his dissent from the Court's 6-3 ruling that upheld Oregon's assisted suicide law, Scalia wrote, ""If the term 'legitimate medical purpose' has any meaning, it surely excludes the prescription of drugs to produce death."
Really? Is that a medical, legal, or moral opinion? It is clearly a moral opinion with no legal foundation whatsoever. If you ask a person suffering from an incurable, painful disease, and he has found no other means to ease the suffering, he would likely argue that prescribing drugs to produce death serves a very legitimate medical purpose - to end suffering.
The Oregon assisted suicide case is very similar to the medical marijuana case, in that the U.S. Attorney General, in both cases, argued that the federal powers to regulate controlled substances trumps the states' rights to decide which drugs can be used and for what purposes. It was former Attorney John Ashcroft's opinion that neither the medical use of marijuana nor the use of drugs to assist in suicide is a "legitimate medical purpose."
The problem is, that's not up to a bureaucrat or a judge to decide. That's a subjective, i.e., a legislative decision, that should be left to the elected representatives of the people. Moral judgments are not the venue of bureaucrats or the courts. That principle should apply to Justice Scalia as surely as it should to Justice Ginsburg.
In the two cases, the court tested the same argument by the same bureaucrat, former Attorney General John Ashcroft. In one case, they agreed with Ashcroft. In the other, they disagreed. The only difference was the prevailing moral judgment of the court on the underlying issues: assisted suicide and marijuana.
Now, in both the case of medical marijuana and assisted suicide, the law of the land represents the prevailing moral judgment of the U.S. Supreme Court, not that of the elected representatives of the people. As you may have guessed by now, that, in my opinion is not a good thing. |
posted by Jack Mercer @ 1/18/2006 11:07:00 AM   |
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| 6 Comments: |
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You know, this may be almost slightly off topic but it has to do with government and force. A lot of states nowadays have anti-smoking laws in public places. One place they have these is bars and restaurants of course. Now I am a non-smoker, but say, if Joe Somebody owns his own small bar and chooses to allow his patrons to smoke in there, how does the government come in and ban smoking in someone else's private establishment? That has been eating at me for a while.
Getting to your post, I read that on Yahoo the other day. One thing I agreed with Scalia on, and this seemed to be the foundation of his dissent, was that this is an issue left for the individual states to decide and not the supreme court. I couldnt disagree with that really. I do not oppose assisted suicide, I wish there was more that could be done for people (medicinal marijuana is a step- ironically that gets shot down by the same people who may oppose assisted suicide), but I am no one to say that a person in excruciating pain has to continue to live their life against their own wishes nor should the federal govt.
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CH, the danger always lies in affording government too much power. Anti-smoking laws are just a tip of the proverbial iceberg, and we will see it more as time passes. That's the reason that we should vehemently oppose any infringement regardless of whether it fits our moral paradigm. When we empower government in one thing they will assume it in another. That was one of the exceptions I took with Shea's post. I don't mind the criticism of Walmart, but I find it very distasteful to congratulate a government who steps in and legislates its morality.
As far as marijuana, cocaine, any drug out there, I believe it is inconsistent and corrupt of our government to control those substances and give alcohol a free ride.
-Jack
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One of my students wrote an essay about the medical use of marijuana that disturbed me. Bless her, she had taken "Just Say No" completely to heart, and decided that we shouldn't investigate any worthwhile uses of "bad drugs," but should stick with what we've been using for the last 30 years. I tried to explain, gently, about the incredible number of new drugs that have come on the market in the last 30 years, and about the "bad drugs" we have routinely used as a staple, such as morphine. She kind of got it--sort of--but I think it might require a member of her family getting chemo or having glaucoma to break through the stigma of marijuana use. As you note, however, alcohol on college campuses . . . well, that's a different story.
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Hi EP!
I understand where the kid is coming from and also where you come from. Personally I think the decay in society stems from losing our core values and embracing systems devised to remove responsibility from one group and give it to another. Of course I speak of Fabian socialism or collectism. What has happened in society is that we have shifted responsibility. In the name of social medicine, we make those who don't abuse drugs responsible for paying for the health care of those who do. Therefore the collective rises against the abusers and eliminates the freedom for those who would use responsibly.
EP, we have freedoms eliminated all of the time because we fail to hold those people responsible for doing the wrong things--or at least fail to let them suffer the consequence of their action.
I am not saying that there cannot be safety nets--just that in the name of "what is good for society" (egalitarianism --which leads to totalitarianism) we eliminate individual freedoms. This may be a good direction to take your class's discussion! :)
Take care,
-Jack
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Wow Jack, thats what Ive been saying for a long time about drugs; what makes alcohol any more acceptable, and any less endangering to our lives and community? In regards to EPs medicinal marijuana issue, I agree with what both you and the professor have to say.
As an aside, I appreciate the professor's respect for what students write. Isn't that what a thesis in a paper is about? These matters need to be discussed, instead of arrogantly dismissing a point of view. One of my friends wrote a paper our senior year of college that a prof disagreed with and pretty much insulted him for it.
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I, too, think the double standard regarding alcohol (and tobacco for that matter) is folly.
As to legislating morality, one could say that all law is legislated morality. I mean, most of it boils down to "don't kill, don't steal, don't hurt other people," right?
And, finally, the big question, the kind that I know Jack likes to explore here:
If the purpose of the Supreme Court is to interpret the constitution, then aren't they doing what they're supposed to do when they issue their opinions?
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You know, this may be almost slightly off topic but it has to do with government and force. A lot of states nowadays have anti-smoking laws in public places. One place they have these is bars and restaurants of course. Now I am a non-smoker, but say, if Joe Somebody owns his own small bar and chooses to allow his patrons to smoke in there, how does the government come in and ban smoking in someone else's private establishment? That has been eating at me for a while.
Getting to your post, I read that on Yahoo the other day. One thing I agreed with Scalia on, and this seemed to be the foundation of his dissent, was that this is an issue left for the individual states to decide and not the supreme court. I couldnt disagree with that really. I do not oppose assisted suicide, I wish there was more that could be done for people (medicinal marijuana is a step- ironically that gets shot down by the same people who may oppose assisted suicide), but I am no one to say that a person in excruciating pain has to continue to live their life against their own wishes nor should the federal govt.