CARL E. SCHNEIDER
CRUZAN AND THE CONSTITUTIONALIZATION OF AMERICAN LIFE
Key Words: constitutional rights, courts, fundamental right, personal right, public policy, rights TJie real tragedy of human life is that everybody has a case.
Henry James I
When Cruzan v. Director, Missouri Department of Health was
decided, it was greeted angrily on many fronts. In Cruzan, of course, the United States Supreme Court considered a Missouri statute that required anyone asking that food and water be withheld from a patient in a persistent vegetative state to show by clear and convincing evidence that that withdrawal was what the patient would have wanted. The Court held only that nothing in the United States Constitution prevents Missouri from imposing such a requirement. Cruzan did not hold that Missouri's standard was a good one, or that it yielded a wise decision for Nancy
.Carl E. Schneider, Professor of Law, University of Michigan, Hutchins Hall, Ann Arbor, Michigan, 48109, U.S.A. The lournal of Medicine and Philosophy 17: 589-604,1992. © 1992 Kluwer Academic Publishers. Printed in the Netherlands.
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ABSTRACT. In America today, public policy governing an increasing number of social issues is made through the judicial enforcement of constitutional rights. Cruzan raised the question whether policy regarding the withdrawal of medical care from incompetent patients is to be handled similarly. This essay argues that privacy-rights doctrine provides a poor basis for constructing public policy in this area. It suggests that the Court has been unable to articulate a convincing basis for privacy rights and that the basis the Court seems to assume poorly fits many circumstances to which it is applied. The essay further contends that the Court has been unable to describe a persuasive method of analyzing the state interests that are at stake in privacy cases and to accommodate those interests in a reasonable way. The essay concludes that these are issues as to which policy is better formed through a political, not judicial, process.
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The academic left is telling us there is no reason courts should feel an obligation to behave differently from elected officials. The large liberal academic center, always first to be second, is generally going along. And ... our recent Republican presidents have adopted the idea with a vengeance, and so to a substantial extent has Congress. (Ely 1991, pp. 834-835.)
Combined, these two developments have had a momentous effect: Americans have come more and more to expect that their public policy should be made in important part by a judicial application of constitutional rights doctrines. Such an approach has estimable merits: Our Constitution uncontroversially requires that courts enforce a valued series of well-established rights. But this approach also has costs and limits which are less often noticed. Those costs and limits are particularly marked in the area affected by what the Court has called the 'privacy' doctrine. Cruzan is a consequential, if ambiguous, step in the Court's exposition of that doctrine. The opinions in Cruzan also instantiate many of the costs and limits of what we may somewhat broadly call the constitutionalization of American life. In this essay, then, I want to use the case as a vehicle for exploring some of the disadvantages of judicially applied rights doctrine as an instrument of social policy. I will not consider here the extent to which courts may legitimately base their holdings on 'policy7 considerations. That question has been long and extensively canvassed.2 Rather, I will suggest that, at least where they must proceed by rights analysis, courts are generally poorly situated to make wise social policy. I will primarily argue that courts enforcing constitutional rights must use a highly abstract, rigid, and narrow form of analysis that
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Cruzan. The Court held only that the standard was not constitutionally impermissible. Yet much of the most adamant lay - and even some professional - criticism ignored the majority's constitutional arguments and treated the case as though it were simply a statement about what good public policy demands.1 This reaction bespeaks, I think, two remarkable developments in contemporary American attitudes toward law. The first has to do with the role of rights. When Americans confront social problems, they increasingly tend to think about them in terms of rights, particularly constitutional rights. The second has to do with the role of courts. As John Hart Ely writes,
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In this section, I will try to suggest some of the ways in which the privacy-rights doctrine provides a poor basis for sound policymaking. I will begin by discussing a series of systematic problems with the formulation of the privacy right itself, and then I will consider some deficiencies in the Court's treatment of the interests a state advances to justify infringing privacy rights. The first of the systematic problems on the rights side of the equation is that "the origin, scope, justification, and purpose" of many of the rights at issue in privacy cases are all uncertain (Schneider, 1988a, p. 158). These rights are essentially of recent origin, and the textual basis for them is scant. The case law through which these rights have been developed has not always labored to explore or explain their nature. This is troubling on the familiar principle that in a democratic society courts, as nonmajoritarian institutions, should not thwart decisions of majoritarian institutions without well-founded and clearly expounded authority. But it is also troubling at a more practical level. To see why, we need to understand how the Supreme Court analyzes privacy rights. The Court has commonly denominated
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is poorly suited to formulating policy in areas of social complexity and difficulty. I will conclude that, flawed though it surely is, the political process is an apter, wiser institution for this purpose. I hope my discussion will also provide a lawyer's eye view of Cruzan itself. To help make my comments on the case clearer, let me quickly describe my approach to it. In terms of conventional constitutional analysis, I believe the majority was correct in refusing to overturn the Missouri statute. Whatever constitutional right a competent patient might have to refuse treatment, an incompetent patient simply cannot exercise such a right. Any such right is, further, a personal right, and thus it cannot be exercised for an incompetent patient, except perhaps by someone the patient has appointed. In addition, in light of my views on the limits of constitutional rights-analysis as a tool for policy making, I believe that the majority was wise to reject the dissents' desires to build a constitutional law of patients' rights on the facts of Cruzan. I am, though, a little uneasy about how the majority may someday develop its assertion that patients do have some kind of constitutional interests in refusing medical treatment.3)
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these rights 'fundamental', and it has commonly imposed on any statute with which such a right conflicts an onerous burden of justification. Thus the question whether a litigant can assert a right is crucial. Yet because of its uncertainty about the nature of these rights, the Court has regularly answered that question incoherently and unpredictably. This failing appears in Cruzan in the inability of the Justices to agree on whether Nancy Cruzan actually had a 'fundamental' right. The majority apparently found, without saying so, that Cruzan's right was not fundamental. Rather, it described her claim as a 'protected liberty interest'. Justice O'Connor apparently agreed, or at least did not say that anything more than that a 'protected liberty interest' was at stake. Justice Scalia joined the majority opinion, but seemed to suggest that there really was no constitutional right involved at all. Justices Brennan and Stevens contended that Cruzan's right was fundamental. That there should be so much confusion about such basic questions so late in the development of privacy rights suggests the weakness of those rights as bases for making policy. A second problem with the rights side of the equation lies in the assumptions which the Court has substituted for the kind of considered and persuasive formulation whose absence I have just been mourning. These assumptions might loosely be called the Tvlill paradigm'. Ordinarily, when we Americans think in terms of rights, "we think in terms of the state's regulation of a person's actions. In such conflicts, we are predisposed to favor the person, out of respect for his moral autonomy and human dignity". That predisposition also rests on our belief that the state can bear any risks of an incorrect decision better than the individual can (Schneider, 1988a, p. 157). Cruzan, however, demonstrates two of the Mill paradigm's important defects as an exclusive basis for constitutional rights analysis. The first is that the paradigm assumes a competent rights bearer. In privacy law, however, there is often no such a person. And when there is no such person, much of the basis for the privacy right itself collapses. Consider Cruzan. The significance of Nancy Cruzan's incompetence lay in the nature of the right asserted for her. It is a right to decide. If we ask why we might attribute such a right to people, we are likely to suggest two reasons, each inapplicable to an incompetent patient. The first is that people will make better decisions for themselves than the
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state can, since they know their own situations better than the state could and have every incentive to make a more careful decision than the state would. But Nancy Cruzan could not know anything or respond to any incentives. The second reason we might attribute such rights to peopie is "out of respect for their status as independent moral agents". However, "it makes little sense to attribute rights to people who cannot be independent moral agents" (Schneider, 1988a, p. 165). In short, the very rationale for privacy rights seems undercut by the absence of the competent rights bearer the Mill paradigm assumes. Justice Brennan's dissent nonetheless argued that Nancy Cruzan had a right to choose whether to live or die. The majority pointed out the obvious fact that she could not choose anything. She was unconscious. Yet so committed was Justice Brennan to the aggrandizement of rights that he retreated to the argument that a court could do for her what she would have done for herself. This is a fragile argument. Think for a moment how hard it might have been for Cruzan herself to decide what to do. Consider the case of Elizabeth Bouvia (Bouvia, 1986). Bouvia was a twenty-eight-year-old quadriplegic woman. She was able and intelligent. But her arms and legs were useless. She suffered from cruel and crippling arthritis. She could do nothing for herself. She asked to be denied food so that she might die. She fought a bitter and determined battle for death through the courts. Eventually, they granted her wish. But when they did, she changed her mind and chose to live. Hers is a common experience - that until people finally confront their own mortality, they do not know how they would react.4 If Elizabeth Bouvia was uncertain after so much time, thought, and struggle whether she wanted to live, how are we to guess what Nancy Cruzan would have wanted?5 We might simply assume that, having rights, Cruzan would want to exercise them. And surely framing the Cruzan case in terms of rights exerts a psychological force in favor of such an assumption, a force that may well have swayed the dissenters. But even competent people regularly and reasonably decline to exercise all sorts of rights. Further, Cruzan had not just one right, but almost a cacophony rights, rights which potentially conflicted. She had a right to life; she had a right to die; she had a right to refuse treatment; and she had a right (Justice Stevens believed) to have a decision made in her best interests. How could anyone know which right she would have preferred?
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HI We now turn from problems with the formulation of the privacy right to problems with the Court's assessment of state interests which conflict with that right. American constitutional rights discourse has been conspicuously unable to deal convincingly with such state interests. Both courts and commentators have been almost entirely fixed on the project of expounding rights and almost entirely indifferent to countervailing interests.7 Yet in any important (and therefore complex) question of public policy, those interests are unlikely to be trivial and likely to deserve some accommodation. The costs of ignoring the state-interest side of the balance sheet reveal themselves in even the most basic aspects of rights analysis.
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The impossibility of knowing what Cruzan would have done makes it inappropriate to treat a decision to withhold food and water from her as her exercise of her right. And since it is just as impossible for any surrogate - her family, her guardian ad litem, or her physician - to know what she would have done, it is wrong to treat any surrogate's decision as such an exercise. This does not mean that we should disregard what we might garner about Cruzan's preferences, what her family thought her preferences were, or even what her family themselves preferred. It merely means that we should not attribute to any of those considerations the dispositive power of a right. The Mill paradigm fails in Cruzan in a second significant way. That paradigm assumes a single rights-bearer confronting the state. But in Cruzan there were two sets of potential rights-holders - Nancy Cruzan and her parents. The dissents often seemed to suggest that the interests of the two sets could be conflated. Yet the interests of people in intimate relationships often diverge. First, love is not the only strong feeling to which intimacy gives rise. Love can be mixed with equally strong but harsher feelings of jealousy, resentment, and even hate. Second, people in such relationships may have conflicts of interest - even including the crassest kind of wish that one person should die so that the other can receive an inheritance. Such concerns presumably and reasonably contributed to the majority's reluctance in Cruzan to hand over treatment decisions entirely to the family (Cruzan, 1190, p. 4922).6
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The Court often says that where a 'fundamental' right is at stake, a statute must be 'necessary7 to serve a 'compelling' state interest. But the Court has been unwilling or unable to apply this standard consistently or even to define its terms. This confusion characterizes the opinions in Cruzan. As I noted above, those opinions disagreed about whether Cruzan had a 'fundamental' right. This disagreement was crucial, since the nature of the right defines the level of scrutiny to which a state interest should be subjected. The majority opinion held that Cruzan did not have a fundamental right, but it did not even attempt to define the standard to be used in evaluating state interests that interfered with the kind of right she did have. Justices Brennan and Stevens felt that Cruzan had a fundamental right, but even they could not agree on what standard followed from that conclusion. Justice Brennan said that "if a requirement imposed by a State 'significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests" (Cruzan, 1990, p. 4927 col 1). Justice Stevens said that, at a minimum, the state's act must "bear a reasonable relationship to a legitimate state end". This judicial failure even to articulate usable standards for evaluating state interests bespeaks "the Court's unwillingness or inability to decide what it meant to do when it began to constitutionalize [this area of law and]... the difficulties of setting coherent yet reasonably simple and workable judicial policy" for such difficult subjects" (Schneider, 1988b, p. 95). The dissents in Cruzan demonstrate particularly clearly the common judicial tendency to dismiss with the barest attention the state's proffered interests. Those dissents essentially argued that the state has no interest in the life of a person who does not want to live and that therefore the state cannot require that it be shown by clear and convincing evidence (instead of some lesser standard) that an incompetent person wishes to refuse treatment. This understates the seriousness of the state's interests. For one thing, the state has an interest arising out of its most basic function - its obligation to protect the lives of its citizens. It may well be that Nancy Cruzan would have wanted not to be treated in her circumstances. But the evidentiary standard challenged in Cruzan was to be applied in all cases in which the issue was whether lifesustaining treatment should be denied an incompetent patient, not just in the relatively easy case of patients in a persistent vegetative
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state. And even as to that relatively easy case, I think it is at least constitutionally reasonable for the state to assume that, while many and perhaps most people would decide at some point to refuse medical treatment, most people prefer life to death and will struggle to retain it as long as they can. On this view, the state protects people who cannot protect themselves by setting an evidentiary standard that errs on the side of treatment. As the dissents pointed out, it is no doubt true that Missouri's evidentiary standard would sometimes result in treatment being given where the patient would not have wanted it. But as the majority noted, such a result is quite unremarkable in our legal system. We regularly decline to give effect even to a clearly expressed intention where that intention has not been given the proper legal form, as the laws of wills, gifts, conveyancing, and contracts all testify. We do so in part for reasons of efficiency: Where people have followed the correct legal forms in expressing their wishes, we are relieved of the administrative burden and social cost of ad hoc inquiries into their true intent. That is, we require people to make their preferences clear so that everyone who needs to can discover with ease and confidence what those preferences are.8 But we have reasons for declining to enforce preferences that are not expressed in the correct legal form that go beyond efficiency. It is not just that we wish to avoid the burden of ad hoc inquiries; we also have doubts about the success of any such inquiries. Decisions not made according to a prescribed form and embodied in binding documents are often forbiddingly hard to reconstruct post hoc. They are too often vaguely expressed and dimly remembered. Further, we fear that even a clearly but informally expressed preference might not represent a person's considered desires. The forms and formalities associated with signing legal documents are intended to bring home to their signers a full and sharp realization that they are making a binding decision and therefore should think carefully before acting. In sum, even had Cruzan not been unconscious, even had she been plainly competent, we might still have wanted to be sure that she truly, firmly wanted to die. The dissents would apparently view this as paternalistic and thus improper. I think it is more accurate and helpful to see it as a recognition that people make decisions within social structures. Particularly when people make decisions in areas the law regulates as extensively as it regulates
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the ending of human life, the law needs to arrange those structures in ways that conduce to good. 'Good' in such situations means caution. We have all had the experience of thinking that if some situation arose we would want some particular result, but nevertheless of discovering that, when pressed to make an actual decision, our impulse was not our true wish. This common experience is widely reflected in the law. Many consumer protection codes, for example, insist upon a locus poenitentiae which permits a purchaser time for reflection and for rescinding a purchase. The very doctrine of informed consent which was so central to the opinions in Cruzan reflects a concern that patients not make hasty, ill-informed ill-considered decisions. In sum, as the case of Elizabeth Bouvia reminds us, people can make decisions in even the most solemn ways about even the momentous questions which, when truly tested, are regretted.9 Because Cruzan was not competent, the need for caution was even greater. This is particularly true since the people - the family - who will usually be seeking to end treatment will often be people who stand to benefit in some way from doing so. And even when, as of course often happens, patients need not be protected from their families, they may still need to be protected from the other people who may participate in making decisions about them - namely the relevant medical personnel.10 In short, if one declines to see Cruzan in the dissent's fictional terms of a patient actually exercising a constitutional right to refuse treatment, it appears in the more realistic light of someone (here, Cruzan's parents) wanting to cause the patient's death, and the patient being unable to speak for herself. Put this way, it is quite understandable for the state to seek solid assurance that death is really what the patient would have wanted or what is genuinely in her best interests. I have been arguing that it is reasonable for the state to put some barriers in the way of even a competent patient's decision to die and thus, a fortiori, reasonable for it to be cautious in permitting surrogates to decide that an incompetent patient should die. But the state's interests extend beyond protecting individual patients. More broadly, the state has a general social interest in maintaining a sense of the value of human life. Justice Stevens dismissed this interest as purely symbolic, but symbols have meaning and consequences. Consider, for example, the history of our progress from official opposition to euthanasia, through official acceptance of passive euthanasia, toward an embrace of
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active euthanasia. That history demonstrates, I believe, that it can be hard for us to control our progress down a slippery slope when we begin to make ending human life easier.11 The state may, I believe, justifiably assert an interest in controlling that slide. In any event, is it true that society has no interest in the lives of its citizens once they have decided not to live? Suppose, for instance, that A had irrevocably decided to commit suicide and had taken poison which would inevitably result in his death. Suppose further that B then killed A. Is B innocent of homicide because A's life has ceased to be of interest to the state? Surely not. B is guilty of homicide partly because of the social interest in maintaining a sense of the sanctity of human life in order to encourage people to respect it. But the social interest in A's life also arises out of the belief that few things are more important than human life, that it is valuable in itself and not just to the holder, that "each man's death diminishes me". If there is a social interest in rocks, louseworts, and snail darters, why not in human lives?12 In this section and its predecessor I have not been arguing for any particular legal and social policy for governing decisions to withhold medical treatment. Nor have I said that the kinds of values expressed in rights terms in the opinions in Cruzan ought to be ignored in setting such policy. On the contrary, they are clearly and centrally relevant. Finally, I have not contended that the state interests I explored ought invariably to overwhelm all else. What I have been arguing is that the framework which constitutional rights analysis provides for understanding and assimilating the interests at stake in formulating such a policy is fatally inadequate: It has not been carefully considered by the Court. Its terms have not been cogently stated or consistently applied. It systematically overweighs a too narrow view of individual rights. It systematically underweights the many and complex social interests which are part of what good social policy should promote. Whatever its other uses may be, it is a poor basis for making social policy. Is there an alternative to the constitutionalization of social issues which I have described? Perhaps the flaws of American rights discourse can be overcome. Mary Ann Glendon, for example, has proposed that a better model is to be found in Europe (Glendon, 1991). She argues that many European countries have devised ways of thinking about rights which are less rigid, less artificial, and better able to accom-
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modate the complexity of the world. But while a less narrow, crabbed, and absolutist language of rights would be welcome, I doubt that any such language can be or ought to be a primary vehicle for resolving social questions as complex and uncertain as the ones we have been discussing. I am instead inclined to believe that our best hope lies in political resolution of these issues. Let me try to explain briefly why. Part of my reason is the now banal observation that courts are institutionally ill-equipped to make good social policy. They are limited in their ability to collect information, to bring all the affected parties into court, to anticipate and deal with social problems before they become crises, and so on. This kind of argument seems to me basic, but it has been made so often I need not take time here for it.13 I do, however, want to make another other point. The kind of question of question Cruzan raises seems to me poorly suited to judicial resolution and fairly well-suited to political resolution. That issue is a complicated question of public policy, as to which many interests - the patient's, the patient's family's, medical practitioner's, society's economic interests, society's social and moral interests - are relevant. In their present scale these problems are relatively new. We do not know how they will change as medical skill progresses and social attitudes change. Further, these problems involve questions of medical knowledge which are highly sophisticated and questions of social value and social preference which are ultimately suprarational. To respond to all this we need an institution which can accommodate flexibly and informally, if necessary - the all shifting, contradictory, chaotic, and ineffable interests that are at stake. That institution is not a court. If it is anything, it is a frankly political institution. It has become fashionable to believe that political institutions are incapable of acting, and that therefore courts must act for them. I believe that this grossly ignores the centrality of legislation in addressing such social issues as civil rights and the environment. It surely ignores the imposing amount of legislative activity regulating withdrawal of medical treatment that has been generated in just the past few years. In any case, it is a virtue of legislatures that they can do nothing. It is not always best for the law to act. It can sometimes be better to let other social institutions feel their way toward wisdom than to have courts try to micro-
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that reason is the best guide to policy, that the educated - particularly professionals like lawyers - are better equipped to reason than the less educated, and that the educated are therefore better equipped and better entitled to govern. This feeling finds its institutional expression in a preference for extending the authority of courts, the branch of government to which the elite has the easiest and in many ways the most exclusive access (Schneider, 1988b, p. 109.).
I am repeatedly struck at how often I see these attitudes among lawyers and law students, a startling number of whom believe that their education (especially their legal education), their intellectual ability, and their freedom from prejudice and from the superstition of religion give them a superior moral claim to political power (Schneider, 1988b, p. 109.).
Not only is this attitude corrosive of democratic principles, it contributes to another problem which has cursed some important debates in the privacy area. Framing claims in rights terms (which both sides regularly do, as in the abortion controversy) already makes compromise difficult, since a right is a terrible thing to compromise. The attitude I just described further intensifies conflict and frustrates compromise. Justice Brennan's dissent in Cruzan illustrates the way in which rights arguments cut off social discourse and seem to poison much of what is left. Personally, Justice Brennan was one of the most
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manage a social problem with which they are only faintly familiar and which they have few tools for resolving. This is not just an issue courts are ill-equipped to handle. It is the kind of social issue which I think is fairly well-suited to democratic resolution. It is an issue that concerns everyone, to which everyone has something relevant to say, and about which we can all learn by listening to our fellow citizens. This leads me to a last comment on the constitutionalization of social issues for democratic government. My point here is not the standard one - that we ought to be reluctant to give authority to non-majoritarian institutions - although it is true enough. Rather, I am concerned with a problem that is specially intense in the realm of privacy law. Many of the issues that that law treats are the subject of "culture wars"14 in which divisions have formed along class lines. Those divisions have been intensified by, as I recently wrote, the feeling of the elite
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decent people on the Court. Why, then, is his dissent unwilling to concede that the Missouri court and the majority might be acting out of decent motives? He wrote that Missouri and this Court have displaced Nancy's own assessment of the processes associated with dying. They have discarded evidence of her will, ignored her values, and deprived her of the right to a decision as closely approximating her own choice as humanly possible. They have done so disingenuously in her name, and openly in Missouri's own.
NOTES 1
For a brief survey of such misreadings, see Kamisar (1990, p. 3 n.2). For a recent review of that literature (and a statement of views that I find essentially congenial), see Ely (1991). 3 For sensible views of the constitutional issues in Cruzan, see Kamisar (1991) and Robertson (1991a). 4 For a moving expression of this discovery, see Williams, 1989. 5 See Rick (1991, part II) for material on the indecisiveness and ambivalence of patients who want to die that makes the 'substituted judgment7 for which Justice Brennan argues seem particularly unreliable. For an effective and sustained attack on substituted judgment, see inter alia, Buchanan, et al., (1989). 6 For further criticism of the American language of rights in the context of privacy law, see Schneider (1988a). For a more comprehensive and comparative review of it, see Glendon (1991). 7 There is nothing inherent in the idea of rights that must prevent a court from taking state interests seriously. But that reaction does seem to follow plausibly 2
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Is there really evidence for the perfidy of Missouri and the majority? Are these issues really so simple? Can we hope to find a sensible social compromise of this question if even judges are unable to conduct a civil discussion of it?15 In preference to making public policy for treating incompetent patients through judicial rights-analysis, then, I would hope for a political resolution of the questions Cruzan raises. Ultimately, though, we must accept that as to those questions we are condemned to uncertainty and sorrow. However deeply we think, we cannot know how to resolve every case. The strength of reason is too weak. However hard we try, we cannot write rules that will cause all cases to be decided as we would wish. The power of language is too poor. We are trapped in our own ambivalence about what is good and our own inability to attain even what we know is right.
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from the American mode of rights thinking, which, as Professor Glendon argues, is of a specially absolutist kind (Glendon, 1991). For an extended critique of the Court's handling of state interests, see Schneider (1988b). 8 Part of the problem in Cruzan is probably that Cruzan was caught in a transitional period. It is possible that as living wills, durable powers of attorney become more common, people like Cruzan will come to know about them and, where they want to, sign them. At least at that point it will be more reasonable to expect people to do so and to deny effect to any wishes they express that are not in a form clearly announcing that the preferences stated in them are intended to have legal effect. 9 For an argument that even living will are unsatisfactory devices for ascertaining the true interests of incompetent patients, see Robertson (1991b). 10 On the propensity of some physicians to see treatment issues as exclusively medical and not at all moral or social, see Buchanan (1979). For a more realistic look than any of the opinions in Cruzan offers of the actual practice of "informed consent," see Levin (1986). For a case where the doctors and possibly the family seem to have wanted the patient dead but where the patient nevertheless recovered and wanted to live, see Flick (1991), pp. 1143-1145. 11 For masterful treatments of the slippery-slope problem, see Kamisar (1958) and Kamisar (1991). On the same problem, see also Schneider (1991). 12 In a move that reflects the standard judicial hostility to state interest arguments, Justice Brennan's dissent argues that the state's interest in life "is not even well supported by that State's own enactments" (Cruzan, 1990, p. 4930 n.15). He said that Missouri does require everyone to seek medical care, that its living will statute "encourages the pre-planned termination of life", and that the state does not require "court review of every decision to withhold or withdraw lifesupport. ..." This argument reflects the common mistake of saying that because the state has gone part way in the direction of promoting the individual right (here, the right to refuse treatment) that the state may not limit it at all. It also reflects the mistake which Robert Nagel pointed out in one of the classic student notes (Note, 1972) of failing to recognize that the state is trying to promote many interests at once, each of which is valuable, but none of which can be fully promoted if the rest are also to be served. Further, Justice Brennan said that because Missouri lacks a state health insurance program it is not interested in human life. But the state need not promote an interest to the absolute maximum in order to show that that interest is a serious one. Finally, Justice Brennan's implication that the state is somehow being hypocritical in claiming an interest in human life attributes to 'the state' an attitude so complex an institution cannot easily have as a general matter and probably does not in fact have in this particular case. 13 One classic statement of these arguments is Horowitz (1977). For a discussion of them in the context of privacy cases, see Schneider (1986). I do think I should say that some of the American enthusiasm for having courts make policy through constitutional adjudication seems to arise from public ignorance about
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REFERENCES Bouvia v. Superior Court, 225 Cal.Rptr. 297 (Cal. App. 2 Dist. 1986). Buchanan, A.E.: 1979, 'Medical paternalism or legal imperialism: Not the only alternatives for handling Saikewicz-type cases', American Journal of Law & Medicine 5,97-117. Buchanan, A.E. and Brock, D.W.: 1989, Deciding For Others: The Ethics of Surrogate Decisions Making, Cambridge University Press, Cambridge, England. Cruzan v. Director, Missouri Department of Health, 58 U.S.L.W. 4916 (1990). Ely, John Hart: 1991, 'Another such victory: Constitutional theory and practice in a world where courts are no different from legislatures', Virginia Law Review 77,833-879. Flick, Michael R.: 1991, 'The due process of dying 7 , California Law Review 79, 1122-1167. Glendon, Mary Ann: 1987, Abortion and Divorce in Western Law: American Failures, European Challenges, Harvard University Press, Cambridge. Glendon, Mary Ann: 1991, Rights Talk, The Free Press, New York. Horowitz, Donald: 1977, The Courts and Social Policy, The Brookings Institute, Washington, D.C. Hunter, James Davison: 1991, Culture Wars: The Struggle to Define America, Basic Books, New York. Kamisar, Yale: 1958, 'Some non-religious views against proposed "MercyKilling" legislation', Minnesota Law Review 42,969-1042. Kamisar, Yale: 1990, 'The right to die' case: Cruzan v. Director, Missouri Dep't of Health, Prepared Remarks at the U.S. Law Week's Twelfth Annual Constitutional Law Conference, September 14,1990. Kamisar, Yale: 1991, 'When is there a constitutional "Right to Die'? When is there no constitutional "Right to Live"?', Georgia Law Review 25,1203-1242. Levin, B.W.: 1986, 'The culture and politics of "Baby Doe" decisions', Paper presented at the 108th Annual Spring Meeting of the American Ethnological Society.
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how appellate courts, and particularly the Supreme Court, actually work. Consider, for example, how much time a Justice devotes to a case. I clerked for one of the most careful and lawyerly Justices. Nevertheless, clerks had only ten days to draft an opinion, and those ten days were invariably filled with many other tasks that competed for attention. Each case was only one of some hundred and fifty to be decided that term. It is no wonder that, at least when 1 was there, few Justices drafted their own opinions. 14 For an extended investigation of this idea, see Hunter (1991). 15 The clearest example of the way rights discourse has impeded compromise is the controversy over abortion. For discussions of that example and of the possibility of political compromise of the abortion dispute, see Schneider (1988b), pp. 110-118, and Glendon (1987).
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Contemporary Problems 51, 79-122.
Schneider, Carl E.: 1991, 'Law at the end of life', Dinner Address, Annual Meeting, Deutsch-Amerikanische Juristen-Vereinigung, Bonn, Germany, November 20. Williams, Vicki: 1989, 'The horror is worth it', Newsweek, (October 9), 14.
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Note: 1972, 'Legislative purpose, rationality, and equal protection', Yale Law Journal 82,123-154. Robertson, John A.: 1991a, 'Cruzan and the constitutional status of nontreatment decisions for incompetent patients', Georgia Law Review 25,1139-1202. Robertson, John A.: 1991b, 'Second thoughts on living wills", Hastings Center Report 21 (November-December), 6-9. Schneider, Carl E.: 1986, 'Lawyers and children: Wisdom and legitimacy in family policy', Michigan Law Review 84,919-940. Schneider, Carl E.: 1988a, 'Rights discourse and neonatal euthanasia', California Law Review 76,151-176. Schneider, Carl E.: 1988b, State-interest analysis in fourteenth amendment "Privacy" Law: An essay on the constitutionalization of social issues', Law and
CRUZAN AND THE CONSTITUTIONALIZATION OF AMERICAN LIFE
Key Words: constitutional rights, courts, fundamental right, personal right, public policy, rights TJie real tragedy of human life is that everybody has a case.
Henry James I
When Cruzan v. Director, Missouri Department of Health was
decided, it was greeted angrily on many fronts. In Cruzan, of course, the United States Supreme Court considered a Missouri statute that required anyone asking that food and water be withheld from a patient in a persistent vegetative state to show by clear and convincing evidence that that withdrawal was what the patient would have wanted. The Court held only that nothing in the United States Constitution prevents Missouri from imposing such a requirement. Cruzan did not hold that Missouri's standard was a good one, or that it yielded a wise decision for Nancy
.Carl E. Schneider, Professor of Law, University of Michigan, Hutchins Hall, Ann Arbor, Michigan, 48109, U.S.A. The lournal of Medicine and Philosophy 17: 589-604,1992. © 1992 Kluwer Academic Publishers. Printed in the Netherlands.
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ABSTRACT. In America today, public policy governing an increasing number of social issues is made through the judicial enforcement of constitutional rights. Cruzan raised the question whether policy regarding the withdrawal of medical care from incompetent patients is to be handled similarly. This essay argues that privacy-rights doctrine provides a poor basis for constructing public policy in this area. It suggests that the Court has been unable to articulate a convincing basis for privacy rights and that the basis the Court seems to assume poorly fits many circumstances to which it is applied. The essay further contends that the Court has been unable to describe a persuasive method of analyzing the state interests that are at stake in privacy cases and to accommodate those interests in a reasonable way. The essay concludes that these are issues as to which policy is better formed through a political, not judicial, process.
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The academic left is telling us there is no reason courts should feel an obligation to behave differently from elected officials. The large liberal academic center, always first to be second, is generally going along. And ... our recent Republican presidents have adopted the idea with a vengeance, and so to a substantial extent has Congress. (Ely 1991, pp. 834-835.)
Combined, these two developments have had a momentous effect: Americans have come more and more to expect that their public policy should be made in important part by a judicial application of constitutional rights doctrines. Such an approach has estimable merits: Our Constitution uncontroversially requires that courts enforce a valued series of well-established rights. But this approach also has costs and limits which are less often noticed. Those costs and limits are particularly marked in the area affected by what the Court has called the 'privacy' doctrine. Cruzan is a consequential, if ambiguous, step in the Court's exposition of that doctrine. The opinions in Cruzan also instantiate many of the costs and limits of what we may somewhat broadly call the constitutionalization of American life. In this essay, then, I want to use the case as a vehicle for exploring some of the disadvantages of judicially applied rights doctrine as an instrument of social policy. I will not consider here the extent to which courts may legitimately base their holdings on 'policy7 considerations. That question has been long and extensively canvassed.2 Rather, I will suggest that, at least where they must proceed by rights analysis, courts are generally poorly situated to make wise social policy. I will primarily argue that courts enforcing constitutional rights must use a highly abstract, rigid, and narrow form of analysis that
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Cruzan. The Court held only that the standard was not constitutionally impermissible. Yet much of the most adamant lay - and even some professional - criticism ignored the majority's constitutional arguments and treated the case as though it were simply a statement about what good public policy demands.1 This reaction bespeaks, I think, two remarkable developments in contemporary American attitudes toward law. The first has to do with the role of rights. When Americans confront social problems, they increasingly tend to think about them in terms of rights, particularly constitutional rights. The second has to do with the role of courts. As John Hart Ely writes,
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In this section, I will try to suggest some of the ways in which the privacy-rights doctrine provides a poor basis for sound policymaking. I will begin by discussing a series of systematic problems with the formulation of the privacy right itself, and then I will consider some deficiencies in the Court's treatment of the interests a state advances to justify infringing privacy rights. The first of the systematic problems on the rights side of the equation is that "the origin, scope, justification, and purpose" of many of the rights at issue in privacy cases are all uncertain (Schneider, 1988a, p. 158). These rights are essentially of recent origin, and the textual basis for them is scant. The case law through which these rights have been developed has not always labored to explore or explain their nature. This is troubling on the familiar principle that in a democratic society courts, as nonmajoritarian institutions, should not thwart decisions of majoritarian institutions without well-founded and clearly expounded authority. But it is also troubling at a more practical level. To see why, we need to understand how the Supreme Court analyzes privacy rights. The Court has commonly denominated
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is poorly suited to formulating policy in areas of social complexity and difficulty. I will conclude that, flawed though it surely is, the political process is an apter, wiser institution for this purpose. I hope my discussion will also provide a lawyer's eye view of Cruzan itself. To help make my comments on the case clearer, let me quickly describe my approach to it. In terms of conventional constitutional analysis, I believe the majority was correct in refusing to overturn the Missouri statute. Whatever constitutional right a competent patient might have to refuse treatment, an incompetent patient simply cannot exercise such a right. Any such right is, further, a personal right, and thus it cannot be exercised for an incompetent patient, except perhaps by someone the patient has appointed. In addition, in light of my views on the limits of constitutional rights-analysis as a tool for policy making, I believe that the majority was wise to reject the dissents' desires to build a constitutional law of patients' rights on the facts of Cruzan. I am, though, a little uneasy about how the majority may someday develop its assertion that patients do have some kind of constitutional interests in refusing medical treatment.3)
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these rights 'fundamental', and it has commonly imposed on any statute with which such a right conflicts an onerous burden of justification. Thus the question whether a litigant can assert a right is crucial. Yet because of its uncertainty about the nature of these rights, the Court has regularly answered that question incoherently and unpredictably. This failing appears in Cruzan in the inability of the Justices to agree on whether Nancy Cruzan actually had a 'fundamental' right. The majority apparently found, without saying so, that Cruzan's right was not fundamental. Rather, it described her claim as a 'protected liberty interest'. Justice O'Connor apparently agreed, or at least did not say that anything more than that a 'protected liberty interest' was at stake. Justice Scalia joined the majority opinion, but seemed to suggest that there really was no constitutional right involved at all. Justices Brennan and Stevens contended that Cruzan's right was fundamental. That there should be so much confusion about such basic questions so late in the development of privacy rights suggests the weakness of those rights as bases for making policy. A second problem with the rights side of the equation lies in the assumptions which the Court has substituted for the kind of considered and persuasive formulation whose absence I have just been mourning. These assumptions might loosely be called the Tvlill paradigm'. Ordinarily, when we Americans think in terms of rights, "we think in terms of the state's regulation of a person's actions. In such conflicts, we are predisposed to favor the person, out of respect for his moral autonomy and human dignity". That predisposition also rests on our belief that the state can bear any risks of an incorrect decision better than the individual can (Schneider, 1988a, p. 157). Cruzan, however, demonstrates two of the Mill paradigm's important defects as an exclusive basis for constitutional rights analysis. The first is that the paradigm assumes a competent rights bearer. In privacy law, however, there is often no such a person. And when there is no such person, much of the basis for the privacy right itself collapses. Consider Cruzan. The significance of Nancy Cruzan's incompetence lay in the nature of the right asserted for her. It is a right to decide. If we ask why we might attribute such a right to people, we are likely to suggest two reasons, each inapplicable to an incompetent patient. The first is that people will make better decisions for themselves than the
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state can, since they know their own situations better than the state could and have every incentive to make a more careful decision than the state would. But Nancy Cruzan could not know anything or respond to any incentives. The second reason we might attribute such rights to peopie is "out of respect for their status as independent moral agents". However, "it makes little sense to attribute rights to people who cannot be independent moral agents" (Schneider, 1988a, p. 165). In short, the very rationale for privacy rights seems undercut by the absence of the competent rights bearer the Mill paradigm assumes. Justice Brennan's dissent nonetheless argued that Nancy Cruzan had a right to choose whether to live or die. The majority pointed out the obvious fact that she could not choose anything. She was unconscious. Yet so committed was Justice Brennan to the aggrandizement of rights that he retreated to the argument that a court could do for her what she would have done for herself. This is a fragile argument. Think for a moment how hard it might have been for Cruzan herself to decide what to do. Consider the case of Elizabeth Bouvia (Bouvia, 1986). Bouvia was a twenty-eight-year-old quadriplegic woman. She was able and intelligent. But her arms and legs were useless. She suffered from cruel and crippling arthritis. She could do nothing for herself. She asked to be denied food so that she might die. She fought a bitter and determined battle for death through the courts. Eventually, they granted her wish. But when they did, she changed her mind and chose to live. Hers is a common experience - that until people finally confront their own mortality, they do not know how they would react.4 If Elizabeth Bouvia was uncertain after so much time, thought, and struggle whether she wanted to live, how are we to guess what Nancy Cruzan would have wanted?5 We might simply assume that, having rights, Cruzan would want to exercise them. And surely framing the Cruzan case in terms of rights exerts a psychological force in favor of such an assumption, a force that may well have swayed the dissenters. But even competent people regularly and reasonably decline to exercise all sorts of rights. Further, Cruzan had not just one right, but almost a cacophony rights, rights which potentially conflicted. She had a right to life; she had a right to die; she had a right to refuse treatment; and she had a right (Justice Stevens believed) to have a decision made in her best interests. How could anyone know which right she would have preferred?
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HI We now turn from problems with the formulation of the privacy right to problems with the Court's assessment of state interests which conflict with that right. American constitutional rights discourse has been conspicuously unable to deal convincingly with such state interests. Both courts and commentators have been almost entirely fixed on the project of expounding rights and almost entirely indifferent to countervailing interests.7 Yet in any important (and therefore complex) question of public policy, those interests are unlikely to be trivial and likely to deserve some accommodation. The costs of ignoring the state-interest side of the balance sheet reveal themselves in even the most basic aspects of rights analysis.
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The impossibility of knowing what Cruzan would have done makes it inappropriate to treat a decision to withhold food and water from her as her exercise of her right. And since it is just as impossible for any surrogate - her family, her guardian ad litem, or her physician - to know what she would have done, it is wrong to treat any surrogate's decision as such an exercise. This does not mean that we should disregard what we might garner about Cruzan's preferences, what her family thought her preferences were, or even what her family themselves preferred. It merely means that we should not attribute to any of those considerations the dispositive power of a right. The Mill paradigm fails in Cruzan in a second significant way. That paradigm assumes a single rights-bearer confronting the state. But in Cruzan there were two sets of potential rights-holders - Nancy Cruzan and her parents. The dissents often seemed to suggest that the interests of the two sets could be conflated. Yet the interests of people in intimate relationships often diverge. First, love is not the only strong feeling to which intimacy gives rise. Love can be mixed with equally strong but harsher feelings of jealousy, resentment, and even hate. Second, people in such relationships may have conflicts of interest - even including the crassest kind of wish that one person should die so that the other can receive an inheritance. Such concerns presumably and reasonably contributed to the majority's reluctance in Cruzan to hand over treatment decisions entirely to the family (Cruzan, 1190, p. 4922).6
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The Court often says that where a 'fundamental' right is at stake, a statute must be 'necessary7 to serve a 'compelling' state interest. But the Court has been unwilling or unable to apply this standard consistently or even to define its terms. This confusion characterizes the opinions in Cruzan. As I noted above, those opinions disagreed about whether Cruzan had a 'fundamental' right. This disagreement was crucial, since the nature of the right defines the level of scrutiny to which a state interest should be subjected. The majority opinion held that Cruzan did not have a fundamental right, but it did not even attempt to define the standard to be used in evaluating state interests that interfered with the kind of right she did have. Justices Brennan and Stevens felt that Cruzan had a fundamental right, but even they could not agree on what standard followed from that conclusion. Justice Brennan said that "if a requirement imposed by a State 'significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests" (Cruzan, 1990, p. 4927 col 1). Justice Stevens said that, at a minimum, the state's act must "bear a reasonable relationship to a legitimate state end". This judicial failure even to articulate usable standards for evaluating state interests bespeaks "the Court's unwillingness or inability to decide what it meant to do when it began to constitutionalize [this area of law and]... the difficulties of setting coherent yet reasonably simple and workable judicial policy" for such difficult subjects" (Schneider, 1988b, p. 95). The dissents in Cruzan demonstrate particularly clearly the common judicial tendency to dismiss with the barest attention the state's proffered interests. Those dissents essentially argued that the state has no interest in the life of a person who does not want to live and that therefore the state cannot require that it be shown by clear and convincing evidence (instead of some lesser standard) that an incompetent person wishes to refuse treatment. This understates the seriousness of the state's interests. For one thing, the state has an interest arising out of its most basic function - its obligation to protect the lives of its citizens. It may well be that Nancy Cruzan would have wanted not to be treated in her circumstances. But the evidentiary standard challenged in Cruzan was to be applied in all cases in which the issue was whether lifesustaining treatment should be denied an incompetent patient, not just in the relatively easy case of patients in a persistent vegetative
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state. And even as to that relatively easy case, I think it is at least constitutionally reasonable for the state to assume that, while many and perhaps most people would decide at some point to refuse medical treatment, most people prefer life to death and will struggle to retain it as long as they can. On this view, the state protects people who cannot protect themselves by setting an evidentiary standard that errs on the side of treatment. As the dissents pointed out, it is no doubt true that Missouri's evidentiary standard would sometimes result in treatment being given where the patient would not have wanted it. But as the majority noted, such a result is quite unremarkable in our legal system. We regularly decline to give effect even to a clearly expressed intention where that intention has not been given the proper legal form, as the laws of wills, gifts, conveyancing, and contracts all testify. We do so in part for reasons of efficiency: Where people have followed the correct legal forms in expressing their wishes, we are relieved of the administrative burden and social cost of ad hoc inquiries into their true intent. That is, we require people to make their preferences clear so that everyone who needs to can discover with ease and confidence what those preferences are.8 But we have reasons for declining to enforce preferences that are not expressed in the correct legal form that go beyond efficiency. It is not just that we wish to avoid the burden of ad hoc inquiries; we also have doubts about the success of any such inquiries. Decisions not made according to a prescribed form and embodied in binding documents are often forbiddingly hard to reconstruct post hoc. They are too often vaguely expressed and dimly remembered. Further, we fear that even a clearly but informally expressed preference might not represent a person's considered desires. The forms and formalities associated with signing legal documents are intended to bring home to their signers a full and sharp realization that they are making a binding decision and therefore should think carefully before acting. In sum, even had Cruzan not been unconscious, even had she been plainly competent, we might still have wanted to be sure that she truly, firmly wanted to die. The dissents would apparently view this as paternalistic and thus improper. I think it is more accurate and helpful to see it as a recognition that people make decisions within social structures. Particularly when people make decisions in areas the law regulates as extensively as it regulates
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the ending of human life, the law needs to arrange those structures in ways that conduce to good. 'Good' in such situations means caution. We have all had the experience of thinking that if some situation arose we would want some particular result, but nevertheless of discovering that, when pressed to make an actual decision, our impulse was not our true wish. This common experience is widely reflected in the law. Many consumer protection codes, for example, insist upon a locus poenitentiae which permits a purchaser time for reflection and for rescinding a purchase. The very doctrine of informed consent which was so central to the opinions in Cruzan reflects a concern that patients not make hasty, ill-informed ill-considered decisions. In sum, as the case of Elizabeth Bouvia reminds us, people can make decisions in even the most solemn ways about even the momentous questions which, when truly tested, are regretted.9 Because Cruzan was not competent, the need for caution was even greater. This is particularly true since the people - the family - who will usually be seeking to end treatment will often be people who stand to benefit in some way from doing so. And even when, as of course often happens, patients need not be protected from their families, they may still need to be protected from the other people who may participate in making decisions about them - namely the relevant medical personnel.10 In short, if one declines to see Cruzan in the dissent's fictional terms of a patient actually exercising a constitutional right to refuse treatment, it appears in the more realistic light of someone (here, Cruzan's parents) wanting to cause the patient's death, and the patient being unable to speak for herself. Put this way, it is quite understandable for the state to seek solid assurance that death is really what the patient would have wanted or what is genuinely in her best interests. I have been arguing that it is reasonable for the state to put some barriers in the way of even a competent patient's decision to die and thus, a fortiori, reasonable for it to be cautious in permitting surrogates to decide that an incompetent patient should die. But the state's interests extend beyond protecting individual patients. More broadly, the state has a general social interest in maintaining a sense of the value of human life. Justice Stevens dismissed this interest as purely symbolic, but symbols have meaning and consequences. Consider, for example, the history of our progress from official opposition to euthanasia, through official acceptance of passive euthanasia, toward an embrace of
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active euthanasia. That history demonstrates, I believe, that it can be hard for us to control our progress down a slippery slope when we begin to make ending human life easier.11 The state may, I believe, justifiably assert an interest in controlling that slide. In any event, is it true that society has no interest in the lives of its citizens once they have decided not to live? Suppose, for instance, that A had irrevocably decided to commit suicide and had taken poison which would inevitably result in his death. Suppose further that B then killed A. Is B innocent of homicide because A's life has ceased to be of interest to the state? Surely not. B is guilty of homicide partly because of the social interest in maintaining a sense of the sanctity of human life in order to encourage people to respect it. But the social interest in A's life also arises out of the belief that few things are more important than human life, that it is valuable in itself and not just to the holder, that "each man's death diminishes me". If there is a social interest in rocks, louseworts, and snail darters, why not in human lives?12 In this section and its predecessor I have not been arguing for any particular legal and social policy for governing decisions to withhold medical treatment. Nor have I said that the kinds of values expressed in rights terms in the opinions in Cruzan ought to be ignored in setting such policy. On the contrary, they are clearly and centrally relevant. Finally, I have not contended that the state interests I explored ought invariably to overwhelm all else. What I have been arguing is that the framework which constitutional rights analysis provides for understanding and assimilating the interests at stake in formulating such a policy is fatally inadequate: It has not been carefully considered by the Court. Its terms have not been cogently stated or consistently applied. It systematically overweighs a too narrow view of individual rights. It systematically underweights the many and complex social interests which are part of what good social policy should promote. Whatever its other uses may be, it is a poor basis for making social policy. Is there an alternative to the constitutionalization of social issues which I have described? Perhaps the flaws of American rights discourse can be overcome. Mary Ann Glendon, for example, has proposed that a better model is to be found in Europe (Glendon, 1991). She argues that many European countries have devised ways of thinking about rights which are less rigid, less artificial, and better able to accom-
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modate the complexity of the world. But while a less narrow, crabbed, and absolutist language of rights would be welcome, I doubt that any such language can be or ought to be a primary vehicle for resolving social questions as complex and uncertain as the ones we have been discussing. I am instead inclined to believe that our best hope lies in political resolution of these issues. Let me try to explain briefly why. Part of my reason is the now banal observation that courts are institutionally ill-equipped to make good social policy. They are limited in their ability to collect information, to bring all the affected parties into court, to anticipate and deal with social problems before they become crises, and so on. This kind of argument seems to me basic, but it has been made so often I need not take time here for it.13 I do, however, want to make another other point. The kind of question of question Cruzan raises seems to me poorly suited to judicial resolution and fairly well-suited to political resolution. That issue is a complicated question of public policy, as to which many interests - the patient's, the patient's family's, medical practitioner's, society's economic interests, society's social and moral interests - are relevant. In their present scale these problems are relatively new. We do not know how they will change as medical skill progresses and social attitudes change. Further, these problems involve questions of medical knowledge which are highly sophisticated and questions of social value and social preference which are ultimately suprarational. To respond to all this we need an institution which can accommodate flexibly and informally, if necessary - the all shifting, contradictory, chaotic, and ineffable interests that are at stake. That institution is not a court. If it is anything, it is a frankly political institution. It has become fashionable to believe that political institutions are incapable of acting, and that therefore courts must act for them. I believe that this grossly ignores the centrality of legislation in addressing such social issues as civil rights and the environment. It surely ignores the imposing amount of legislative activity regulating withdrawal of medical treatment that has been generated in just the past few years. In any case, it is a virtue of legislatures that they can do nothing. It is not always best for the law to act. It can sometimes be better to let other social institutions feel their way toward wisdom than to have courts try to micro-
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that reason is the best guide to policy, that the educated - particularly professionals like lawyers - are better equipped to reason than the less educated, and that the educated are therefore better equipped and better entitled to govern. This feeling finds its institutional expression in a preference for extending the authority of courts, the branch of government to which the elite has the easiest and in many ways the most exclusive access (Schneider, 1988b, p. 109.).
I am repeatedly struck at how often I see these attitudes among lawyers and law students, a startling number of whom believe that their education (especially their legal education), their intellectual ability, and their freedom from prejudice and from the superstition of religion give them a superior moral claim to political power (Schneider, 1988b, p. 109.).
Not only is this attitude corrosive of democratic principles, it contributes to another problem which has cursed some important debates in the privacy area. Framing claims in rights terms (which both sides regularly do, as in the abortion controversy) already makes compromise difficult, since a right is a terrible thing to compromise. The attitude I just described further intensifies conflict and frustrates compromise. Justice Brennan's dissent in Cruzan illustrates the way in which rights arguments cut off social discourse and seem to poison much of what is left. Personally, Justice Brennan was one of the most
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manage a social problem with which they are only faintly familiar and which they have few tools for resolving. This is not just an issue courts are ill-equipped to handle. It is the kind of social issue which I think is fairly well-suited to democratic resolution. It is an issue that concerns everyone, to which everyone has something relevant to say, and about which we can all learn by listening to our fellow citizens. This leads me to a last comment on the constitutionalization of social issues for democratic government. My point here is not the standard one - that we ought to be reluctant to give authority to non-majoritarian institutions - although it is true enough. Rather, I am concerned with a problem that is specially intense in the realm of privacy law. Many of the issues that that law treats are the subject of "culture wars"14 in which divisions have formed along class lines. Those divisions have been intensified by, as I recently wrote, the feeling of the elite
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decent people on the Court. Why, then, is his dissent unwilling to concede that the Missouri court and the majority might be acting out of decent motives? He wrote that Missouri and this Court have displaced Nancy's own assessment of the processes associated with dying. They have discarded evidence of her will, ignored her values, and deprived her of the right to a decision as closely approximating her own choice as humanly possible. They have done so disingenuously in her name, and openly in Missouri's own.
NOTES 1
For a brief survey of such misreadings, see Kamisar (1990, p. 3 n.2). For a recent review of that literature (and a statement of views that I find essentially congenial), see Ely (1991). 3 For sensible views of the constitutional issues in Cruzan, see Kamisar (1991) and Robertson (1991a). 4 For a moving expression of this discovery, see Williams, 1989. 5 See Rick (1991, part II) for material on the indecisiveness and ambivalence of patients who want to die that makes the 'substituted judgment7 for which Justice Brennan argues seem particularly unreliable. For an effective and sustained attack on substituted judgment, see inter alia, Buchanan, et al., (1989). 6 For further criticism of the American language of rights in the context of privacy law, see Schneider (1988a). For a more comprehensive and comparative review of it, see Glendon (1991). 7 There is nothing inherent in the idea of rights that must prevent a court from taking state interests seriously. But that reaction does seem to follow plausibly 2
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Is there really evidence for the perfidy of Missouri and the majority? Are these issues really so simple? Can we hope to find a sensible social compromise of this question if even judges are unable to conduct a civil discussion of it?15 In preference to making public policy for treating incompetent patients through judicial rights-analysis, then, I would hope for a political resolution of the questions Cruzan raises. Ultimately, though, we must accept that as to those questions we are condemned to uncertainty and sorrow. However deeply we think, we cannot know how to resolve every case. The strength of reason is too weak. However hard we try, we cannot write rules that will cause all cases to be decided as we would wish. The power of language is too poor. We are trapped in our own ambivalence about what is good and our own inability to attain even what we know is right.
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from the American mode of rights thinking, which, as Professor Glendon argues, is of a specially absolutist kind (Glendon, 1991). For an extended critique of the Court's handling of state interests, see Schneider (1988b). 8 Part of the problem in Cruzan is probably that Cruzan was caught in a transitional period. It is possible that as living wills, durable powers of attorney become more common, people like Cruzan will come to know about them and, where they want to, sign them. At least at that point it will be more reasonable to expect people to do so and to deny effect to any wishes they express that are not in a form clearly announcing that the preferences stated in them are intended to have legal effect. 9 For an argument that even living will are unsatisfactory devices for ascertaining the true interests of incompetent patients, see Robertson (1991b). 10 On the propensity of some physicians to see treatment issues as exclusively medical and not at all moral or social, see Buchanan (1979). For a more realistic look than any of the opinions in Cruzan offers of the actual practice of "informed consent," see Levin (1986). For a case where the doctors and possibly the family seem to have wanted the patient dead but where the patient nevertheless recovered and wanted to live, see Flick (1991), pp. 1143-1145. 11 For masterful treatments of the slippery-slope problem, see Kamisar (1958) and Kamisar (1991). On the same problem, see also Schneider (1991). 12 In a move that reflects the standard judicial hostility to state interest arguments, Justice Brennan's dissent argues that the state's interest in life "is not even well supported by that State's own enactments" (Cruzan, 1990, p. 4930 n.15). He said that Missouri does require everyone to seek medical care, that its living will statute "encourages the pre-planned termination of life", and that the state does not require "court review of every decision to withhold or withdraw lifesupport. ..." This argument reflects the common mistake of saying that because the state has gone part way in the direction of promoting the individual right (here, the right to refuse treatment) that the state may not limit it at all. It also reflects the mistake which Robert Nagel pointed out in one of the classic student notes (Note, 1972) of failing to recognize that the state is trying to promote many interests at once, each of which is valuable, but none of which can be fully promoted if the rest are also to be served. Further, Justice Brennan said that because Missouri lacks a state health insurance program it is not interested in human life. But the state need not promote an interest to the absolute maximum in order to show that that interest is a serious one. Finally, Justice Brennan's implication that the state is somehow being hypocritical in claiming an interest in human life attributes to 'the state' an attitude so complex an institution cannot easily have as a general matter and probably does not in fact have in this particular case. 13 One classic statement of these arguments is Horowitz (1977). For a discussion of them in the context of privacy cases, see Schneider (1986). I do think I should say that some of the American enthusiasm for having courts make policy through constitutional adjudication seems to arise from public ignorance about
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REFERENCES Bouvia v. Superior Court, 225 Cal.Rptr. 297 (Cal. App. 2 Dist. 1986). Buchanan, A.E.: 1979, 'Medical paternalism or legal imperialism: Not the only alternatives for handling Saikewicz-type cases', American Journal of Law & Medicine 5,97-117. Buchanan, A.E. and Brock, D.W.: 1989, Deciding For Others: The Ethics of Surrogate Decisions Making, Cambridge University Press, Cambridge, England. Cruzan v. Director, Missouri Department of Health, 58 U.S.L.W. 4916 (1990). Ely, John Hart: 1991, 'Another such victory: Constitutional theory and practice in a world where courts are no different from legislatures', Virginia Law Review 77,833-879. Flick, Michael R.: 1991, 'The due process of dying 7 , California Law Review 79, 1122-1167. Glendon, Mary Ann: 1987, Abortion and Divorce in Western Law: American Failures, European Challenges, Harvard University Press, Cambridge. Glendon, Mary Ann: 1991, Rights Talk, The Free Press, New York. Horowitz, Donald: 1977, The Courts and Social Policy, The Brookings Institute, Washington, D.C. Hunter, James Davison: 1991, Culture Wars: The Struggle to Define America, Basic Books, New York. Kamisar, Yale: 1958, 'Some non-religious views against proposed "MercyKilling" legislation', Minnesota Law Review 42,969-1042. Kamisar, Yale: 1990, 'The right to die' case: Cruzan v. Director, Missouri Dep't of Health, Prepared Remarks at the U.S. Law Week's Twelfth Annual Constitutional Law Conference, September 14,1990. Kamisar, Yale: 1991, 'When is there a constitutional "Right to Die'? When is there no constitutional "Right to Live"?', Georgia Law Review 25,1203-1242. Levin, B.W.: 1986, 'The culture and politics of "Baby Doe" decisions', Paper presented at the 108th Annual Spring Meeting of the American Ethnological Society.
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how appellate courts, and particularly the Supreme Court, actually work. Consider, for example, how much time a Justice devotes to a case. I clerked for one of the most careful and lawyerly Justices. Nevertheless, clerks had only ten days to draft an opinion, and those ten days were invariably filled with many other tasks that competed for attention. Each case was only one of some hundred and fifty to be decided that term. It is no wonder that, at least when 1 was there, few Justices drafted their own opinions. 14 For an extended investigation of this idea, see Hunter (1991). 15 The clearest example of the way rights discourse has impeded compromise is the controversy over abortion. For discussions of that example and of the possibility of political compromise of the abortion dispute, see Schneider (1988b), pp. 110-118, and Glendon (1987).
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Schneider, Carl E.: 1991, 'Law at the end of life', Dinner Address, Annual Meeting, Deutsch-Amerikanische Juristen-Vereinigung, Bonn, Germany, November 20. Williams, Vicki: 1989, 'The horror is worth it', Newsweek, (October 9), 14.
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Note: 1972, 'Legislative purpose, rationality, and equal protection', Yale Law Journal 82,123-154. Robertson, John A.: 1991a, 'Cruzan and the constitutional status of nontreatment decisions for incompetent patients', Georgia Law Review 25,1139-1202. Robertson, John A.: 1991b, 'Second thoughts on living wills", Hastings Center Report 21 (November-December), 6-9. Schneider, Carl E.: 1986, 'Lawyers and children: Wisdom and legitimacy in family policy', Michigan Law Review 84,919-940. Schneider, Carl E.: 1988a, 'Rights discourse and neonatal euthanasia', California Law Review 76,151-176. Schneider, Carl E.: 1988b, State-interest analysis in fourteenth amendment "Privacy" Law: An essay on the constitutionalization of social issues', Law and
