FREDERICK SCHAUER
ABSTRACT. Using the right to die and the United States Supreme Court case of Cruzan v. Director, Missouri Department of Health as exemplars, this article explores the notion of third-order decisionmaking. If first order decisionmaking is about what should happen, and second-order decisionmaking is about who should decide what should happen, then third-order decisionmaking is about who should decide who decides. This turns out to be an apt characterization of constitutionalism, which is centrally concerned with the allocation of responsibility for making decisions about the allocation of responsibility. Deference to erroneous second-order decisions, as in the Cruzan case itself, may merely be an example of this central feature of constitutionalism. Key Words: constitutionalism, Cruzan case, right-to-die, rules
Nancy Cruzan died on December 26, 1990. As with most events, her death was a consequence of a series of other events, and also of a series of decisions. Among these decisions was not only the decision that Nancy Cruzan should die, which is the first-order decision, and not only the decision about who should decide whether (and when) Nancy Cruzan should die, which is the second-order decision, but also the decision about who should decide who should decide whether (and when) Nancy Cruzan should die, which I call the third-order decision. My goal here is to explore this issue of third-order decisionmaking, the question of how a society does and should allocate the decisionmaking authority about decisionmaking authority. This question is not merely the 'meta' question that can be asked about any decision, including the decision about who decides. Rather, it is a question that focuses in somewhat different terms on the question that is central to constitutional decisionmaking and constitutionalism in general. One thing that is significant about the case of Nancy Cruzan, therefore, is that it wound up Frederick Schauer, ].D., John F. Kennedy School of Government, Harvard University 79 John F. Kennedy Street, Cambridge, MA 02138, U.S.A. The Journal of Medicine and Philosophy 17:573-587,1992. © 1992 Kluwer Academic Publishers. Printed in the Netherlands.
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THE RIGHT TO DIE AS A CASE STUDY IN THIRD-ORDER DECISIONMAKING
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I. FIRST-ORDER DECISIONMAKING
What should happen? Starkly put, the answer to this question is a first-order decision. The fact of a first-order decision, however, is a capacious notion, existing within and consequently consistent with a wide variety of approaches for making first-order decisions. Act utilitarian approaches will arrive at a first order decision by considering all and only the ways in which alternative decisions will increase (or decrease utility), other varieties of consequentialism will consider consequences of a certain type, and non-consequentialist approaches will look to the presence or absence of certain features of the event in question in order to determine what should happen. But under any of these broad approaches, or under any other, the goal is to try to determine quite simply which ultimate decision is best, in other words, to determine what should happen. With respect to the right to die, and with particular reference to
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being a constitutional case in the Supreme Court of the United States.1 That this happened is an explicit manifestation of the fact that one of the questions to be answered about Nancy Cruzan and about the right to die was the question whether the 'who decides' question was to be answered by Missouri or by the Constitution of the United States as personified in the United States Supreme Court.2 Moreover, although not before the Supreme Court, another similar question was whether at the state level the 'who decides' question was to be answered by the Missouri Supreme Court, by the Missouri legislature, or by the Missouri Department of Health. These third-order or constitutional questions have rarely in any context been the subject of sustained philosophical analysis, perhaps in part because so much of philosophical analysis presupposes that the analyst herself is the one who, as ideal observer, should be deciding, if not the first-order question of what should happen, then at least the second-order question of who decides what should happen. But in a large number of contexts, and an especially large number in any constitutional system, the question of who decides who decides is real and important. My aim is to open this area to more serious philosophical thought than has so far been the case, and to do so by using the right to die as a particularly concrete and timely case study for exploring this question.
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the case of Nancy Cruzan, the first-order question is therefore the question of whether Nancy Cruzan should live or die. Act consequentialists would in considering this question try to determine the consequences of her living and the consequences of her dying, although which consequences counted would vary with the variety of consequentialism at issue.3 But many varieties of consequentialism would consider the costs, economic and otherwise, to Nancy Cruzan's parents were she to live, and the costs were she to die; the costs to the state (including the costs of foregoing alternative uses of economic and medical resources necessary to keep her alive) of her living; the costs and benefits to Nancy Cruzan itself, where different varieties of consequentialism would reach different conclusions on what those costs and benefits are; and the costs and benefits to others somewhat removed from this case, including, for example, the costs of a possible increase in the number of consequentially suboptimal decisions that might be a consequence of a consequentially optimal individual decision.4 The aim of this consideration is what some would refer to as an 'all things considered' decision for this case, and others, such as Joseph Raz, would describe as the best decision "on the balance of reasons" (Raz). But even outside of the consequentialist perspective presupposed by these formulations, it is still possible to imagine a strictly first-order decision focused only on the question of whether Nancy Cruzan should live or Nancy Cruzan should die. Some non-consequentialist might believe, for example, that all technologically avoidable death is non-consequentially wrong,5 and thus since Nancy Cruzan's death on and prior to December 26, 1990 was technologically avoidable, then the first order decision on and prior to that date should simply be that Nancy Cruzan should live.6 More sophisticated variants of this position are of course possible and extant, but my point is only that from either consequentialist or non-consequentialist perspectives it is not difficult to imagine a decision directed not to the allocation of decisionmaking authority but only to the first-order question of whether Nancy Cruzan should Live or die. Implicit in asking (only) the first-order question is one of two possible perspectives. One is the common (and important) perspective of the ideal philosophical observer, not concerned with seemingly more mundane questions of establishing second-best institutions in a non-ideal world. From this perspective, which
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II. SECOND-ORDER DECISIONMAKING
Although I believe that aspects of pure first-order decisionmaking exist in various philosophical perspectives on decisionmaking and also in many actual decisionmaking environments, much that I have just discussed is likely to appear as somewhat of a caricature. And that is because second-order decisionmaking, concerned with who is to make the first-order decisions, pervades so much of our decisional life. Second-order decisionmaking, the question of who decides, is everywhere we look. It is the premise of rule-consequentialism, and indeed of rule-based perspectives of any stripe (see Schauer, 1991), for decision according to rule presupposes a division of decisionmaking authority between rule-maker and rule-follower. When the addressee of a rule follows the rule rather than making her own best all things considered decision, she accedes (whether because she believes it right to do so, or because the rule-maker has by sanctions given her prudential reasons for doing so) in the decision made by another. And when the designer of a decisionmaking environment establishes domains of rule-based decisionmaking, that designer thus makes the second-order decision that certain decisions are better made by the rule-makers than by the rule-followers.
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some (but not I) take to be virtually definitional of the philosophical enterprise, to think philosophically about the question of life and death in the context of Nancy Cruzan would simply be to think about whether Nancy Cruzan should live or die. Alternatively, one could have a view about individual responsibility such that all agents have a responsibility for doing the "right thing" in any circumstance in which they are confronted with the possibility of action. Although most of us never had the possibility of affecting Nancy Cruzan's life or death, those holding this position would maintain that were we to find ourselves in that position we would be morally required both to ask and to act on the answer to the first-order question. To hold otherwise, and thus to allow for conceptual space between what should happen and what we should do, would be for them a fundamentally immoral act, inconsistent with a proper view of morality holding morality to presuppose doing the right first-order thing wherever and whenever we have the opportunity to do so.
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This kind of second-order decision is also the premise of most approaches to rights and to autonomy, for a recognition of autonomy or of rights like the right to privacy is based on the possibility that the value of choice qua choice has importance independent of the substance of the choice made. Were there no second-order decisions that (some) first-order decisions about the life choices of individuals are to be made by the individuals concerned, even when those are not the best decisions, autonomypreserving rights would make little sense. Thus, the decision to respect autonomous decisionmaking by another is a second-order decision about someone's right to make a decision, just as a decision not to respect autonomous decismaking by another agent may (but need not) be a second-order decision about that agenf s absence of a right to make that decision. So what would be the grounds for a second-order decision about who should make first-order decisions? One would be that certain second-order decisions would maximize the number of correct first-order decisions. Thus, when a second-order decision is made to hold police officers to crisp and exceptionless rules about their treatment of suspects, the second-order decisionmaker recognizes that rule-following on the part of the police officers will be suboptimal because the rules, like all rules, will be actually or potentially under- and over-inclusive vis-a-vis their background justifications, and vis-a-vis the best decision on the balance of reasons. But the second-order decisionmaker may believe that more errors will be made by police officers attempting to make the best decisions in each case (the police offers may systematically because of their role underassess the interests of suspects, or they may simply not understand all of the relevant considerations) than will be made when the police offers simply follow rules whose under- and over-inclusiveness insures some number of errors as well. Thus, one basis for a second-order decision is the determination by the second-order decisionmaker that one or another locus of decision will minimize the number of errors. Alternatively, the second-order decisionmaker may allocate the decisionmaking competence to one or another decisionmaker not because of a desire to minimize errors, but because of some aspect of the roles that various individuals possess. If the second-order decisionmaker is unsure about what the correct first-order decision is, then perhaps a default rule would let such decisions be
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made by the concerned individuals. Indeed, this may be one account of the basis for rights like the right to privacy. If questions about life choice are sufficiently contested, then liberalism's default rule is that they are to be made by the individual whose life is at issue. And it might be that other roles have independent moral content. Democracies empower majorities to make decisions that others might make better, and societies give parents responsibilities for child-rearing that may not be based on the view that parents are necessarily best at that task. My goal here is not to evaluate these or other reasons for making second-order decision. Still, it is clear that most discussions of the right to die are premised on some number of secondorder decisions of this variety. When we talk about the right to die, or about the ability to make a so-called 'living will', we implicitly make a decision to allow the first-order decisions to be made by a particular individual - the one who is to live or die - even where those decisions might not be the same first-order decisions that would be made by others, or even where those first-order decisions are not the correct decisions, putting aside the value of decisionmaking autonomy. Although allowing the seemingly most concerned agent to make the decision is in the current context the most common second-order decision, others are possible as well. We might make the second-order decision that decisions about who is to live or who is to die should be made by medical committees, or by relatives, or by the state. And we might, as in Nancy Cruzan's case itself, confront these alternatives only when a presumed primacy of a decision by the most concerned agent defaults. That is, Missouri did have, although it did not have to have, legal rules allowing Nancy Cruzan to have made the choice by executing a living will. It was only because she did not do so that the question arose in the Missouri Supreme Court as to who - the state or her parents - should make the decision about whether Nancy Cruzan should live or die in the absence of conclusive evidence about how Nancy Cruzan did or would have exercised this choice. Choosing among these alternatives is likely based on just the kinds of factors noted above. It might be that there is some notion of the correct decision about ending life, and that we believe that more correct decisions will be made by allowing the decisions to be made by the person whose life is at issue than by any other individual or institution. Or it might be that because the society is
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III. THIRD-ORDER DECISIONMAKING All of this is relatively familiar philosophical terrain. What is less familiar, however, is the remaining question of the allocation of decisionmaking authority - the question of who decides who shall decide. Consider the alternative second-order decisions in Nancy Cruzan's case. The first order-decision could be made by Nancy Cruzan; it could be made by her primary physician; it could be made by her family; it could be made by a committee of physicians, lawyers, and ethicists; or it could be made by the state. In the previous section I assumed that choosing among these five (and there might be more) alternatives, making the second-order decision about who is to decide, was not itself subject to an institutional analysis. That is, the second-order decision was to be made by the ideal observer, or the second-order decision was to made by whichever agent was confronting the opportunity for decision. If the right decision is that the decision is to be made by Nancy Cruzan, then any second-order decision allowing the firstorder decision to be made by, say Nancy Cruzan's parents is simply wrong, and an agent herself acts wrongly in being part of that morally erroneous decision. Or if, to track the actual case, the right second-order decision is that Nancy Cruzan should decide whether she should live or die, and in default of her own decision then her relatives should decide whether she should live or die, then any decision inconsistent with that second-order decision is itself wrong. From this perspective, therefore, Missouri made the wrong second-order decision in not recognizing Nancy Cruzan's parents' (fallback) right to decide whether Nancy Cruzan should live or die, and for exactly the same reasons the majority of the Justices of the Supreme Court acted wrongly in not recognizing and enforcing the correctness of that second-order decision.7
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sufficiently unsure about these issues it allocates the decisions about them to the most concerned party as part of liberalism's general default rule in cases of uncertainty. Arid it might be that even if individuals might over time and in the aggregate not make the best decisions about their own lives and whether to continue or to terminate them, a strong value of autonomy even in the face of some knowledge about what a correct decision would look like would prefer the individual even if individuals cannot over time be expected to make the best decision.
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Implicit in this view is that the moral wrongness of Missouri's decision is a sufficient condition for the wrongness of the Supreme Court's decision to let Missouri's wrong decision stand. But consider again the relationship between first-order and second-order decisions. Even if it is wrong on the balance of reasons for me to devote my life to playing video games, interfering with that decision (by others, or by state) is also wrong because it violates the second-order principle of autonomy. It is wrong to be a Nazi, or to be a member of the Ku Klux Klan, or to advocate violence against women, but most strong principles of freedom of speech and freedom of association, principles that are themselves second-order principles (see Schauer, 1989), permit agents to make these morally wrong decisions. Thus, it is familiar that second-order principles (or reasons, or decisions) commonly create a zone of immunity for morally erroneous first-order decisions. Similarly, it is possible that there would be, with much the same relationship, third-order principles (or decisions) that would create a zone of immunity for morally erroneous second-order decisions. As I noted in the introduction, this is not only the logically easy point that whatever can be said about the relationship between first-order and second-order decisions can be said at one remove (and so on, ad infinitum and ad nauseam). Rather, it is at the center of much that we understand about constitutionalism, for at least a large part of constitutionalism concerns the organization of governmental institutions in such a way that some governmental institutions make certain second-order decisions and different governmental institutions make other ones. Consider the issue of retirement age, where the first-order decision is the age at which employees should retire. But who should decide when employees retire? One possibility, and thus one second-order decision, is that employees themselves should decide. Another possibility, and thus a different second-order decision, is that employers should decide. And a third possibility is that the state by law should decide. But as to these three (and there might be more) different second-order decisions, who should choose among them? Implicit in the Supreme Court's decision that this is not a constitutional matter8 is a third order decision that choosing among these second-order possibilities is for the state and not for the national constitution or the national judiciary. Implicit in the Age Discrimination in Employment Act of 1967 is a third-order decision
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by Congress that the second-order decisions should not be made by the states. The Supreme Court's actual decision in Cruzan v. Director, Missouri Department of Health itself can now be seen as just this type of third-order decision. The Missouri Supreme Court made the second-order decision that determining whether and when Nancy Cruzan should die was, in the absence of clear instructions from Nancy Cruzan herself, to be made by the Director of the Missouri Department of Health. In mounting a constitutional challenge to that decision, Nancy Cruzan's parents were not only claiming that the Missouri Supreme Court made the wrong second-order decision in granting the decisional power to the Director and not to the Cruzans. They were claiming as well that the third order-decision, resolving the competing second-order claims of the Cruzans and the Director, was one to be made by the Supreme Court of the United States. And in rejecting that claim, the Supreme Court made the decision, itself a third-order decision,9 that the State, in whatever governmental guise it chose, was the one to decide who was to decide. Missouri's decision to prefer the Director to the Cruzans, just as a putative decision by Missouri to prefer the Cruzans to the Director, was the consequence of the Supreme Court's third-order decision that deciding who decides was for the state and not for the Supreme Court of the United States. Third-order decisionmaking would thus be absent when, and only when, the Supreme Court (or anyone else) was of the view that any wrong second-order decision by the state was a sufficient condition for its invalidation by any body with the power (which is here distinguished from authority) to do so. As long as there is at least one possible case in which a wrong second-order decision is not a sufficient condition for its nullification, then the body refraining from nullification is necessarily making a third-order decision that the body making the second-order decision has, in effect, the right to be wrong, just as second-order decisions to refrain from interfering with erroneous first-order decisions similarly embody the view that certain agents have the right to be wrong. Moreover, as long as there is one possible case of nonnullification, then even a decision to nullify is a third-order decision, because it is a decision to appropriate the task of thirdorder decisionmaking in a context when non-appropriation remains a live option.
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All of the foregoing, of course, goes only to identifying the fact of third-order decisionmaking, and not to the grounds on which third-order decisions should be made. That the Supreme Court's decision in Cruzan was a third-order decision does not get us very far in assessing whether it was the correct third-order decision. Like second-order decisions, third-order decisions are decisions about the allocation of power. And like second-order decisions, third-order decisions about the allocation of power can be made for numerous reasons, reasons that, as sketched above, can usefully be distinguished into two types. One is based on ability, and on the supposition that one goal of second-order decisionmaking would be to maximize the number of correct first-order decisions. Thus, when Hare advocates that decisions in the nonreflective mode be made according to simplified rules of limited specificity, he is advocating a second-order decisionmaking procedure designed to maximize, for an array of first-order decisions, the number of correct decisions within that array. Similarly, Raz's exclusionary reasons are also aimed at excluding from consideration those first-order reasons which under some circumstances might generate too high a probability of an erroneous result. Second-order decisions about who decides are often of the same variety, allocating decisionmaking authority to the institution or individual likely to make the smallest number of first-order errors. Many of the same considerations apply in the context of thirdorder decisionmaking. If we are concerned that some decisionmaking institution might make erroneous second-order decisions because of a desire to aggrandize its own decisionmaking authority, a third-order decision to withdraw some or all of the second-order decisions from that self-interested body would, in theory, increase the number of correct second-order decisions. One argument for a third-order decision other than the one that the Supreme Court actually made in Cruzan, therefore, is that second-order decisions about who should decide issues about death and dying will be made better if not made by state legislatures and (frequently elected) state courts. Those bodies, so the argument goes, are frequently led by political and electoral pressures into making suboptimal decisions that could be avoided by institutions (like the Supreme Court) more removed from those
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electoral and political pressures. Although this argument plausibly undergirds all of the dissenting opinions in Cruzan, it was not so articulated, because all of the dissents assumed without argument that this decision was an appropriate one for the Supreme Court to make. Nor did the majority make the argument that might counter this one, although one argument that was not made in any of the opinions, but that would support the actual result in Cruzan, is that many second-order decisions require empirical investigation likely to be performed with greater information and consequently greater accuracy by an institution, such as a legislature, having greater fact-finding capacity than the Supreme Court.10 All of this, however, assumes that the goal is to make the greatest number of correct first-order decisions. Often, however, there are other goals, just as there are with second-order decisions. We recognize the right to privacy, and thus recognize the right to be wrong about the first-order decisions that affect individual lives, not because we think that people will necessarily or even more often make the best decisions about what will affect them, but because the value of personal autonomy acts for many people as a non-consequentialist side constraint leading them to respect individual autonomy even as or when they know it will lead to a smaller number of correct first-order decisions. The second-order decision that parents rather than social welfare agencies should make certain life decisions for their children is not necessarily based on the greater comparative competence of parents (although such an argument could be made), but rather an argument that treats familial integrity and parental authority as independent goods. Many of the same reasons for ability-independent allocation of authority decisions apply as well in the institutional context, and thus apply as well to third-order decisionrnaking. One reason for holding, for example, that elected majorities (rather than, say, courts) should make second-order decisions is a value of majoritarianism independent of the empirical likelihood that majorities will make better second-order decisions. Another reason might be that some written document, such as a written constitution, had some claim on our fidelity and that in addition it explicitly made a particular decision about who was to decide which issues. And what we call 'federalism' is an argument that treats state autonomy as structurally similar to individual
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autonomy in allowing the autonomous institution to have the right to make wrong decisions. These arguments suggest that it is not a sufficient condition for holding the Supreme Court's decision in Cruzan to be erroneous that allowing parents of those in Nancy Cruzan's state to make the decision about dying (the second-order decision) would result in a larger array of correct first-order decisions, even in the long run. If there is an independent value in the autonomy of Missouri qua Missouri, analogous to the independent value of individual autonomy, then that value might suggest that the third-order decisionmaker should refuse to nullify even some erroneous second-order decisions, such as, arguably, the decision to allow the Director rather than the Cruzans to determine whether and when Nancy Cruzan should die. And it might also be that if the issues are sufficiently socially contested, then state autonomy operates as a default rule again structurally similar to a default rule in favor of the individual when there is no clear view about what is an appropriate life choice. The opinions in Cruzan do seem to track this debate. The dissenters, in arguing that the liberty interest of the concerned individual constitutes a sufficient condition for Supreme Court intervention, supported a third-order decision that questions of individual rights against majorities ought necessarily to be made not by the majorities, but by institutions structurally likely to be most sensitive to individual rights.11 The various opinions comprising the majority, however, all relied either on arguments from the independent value of constitutional text's allocation of powers, or on arguments for the independent value of state decisions qua state decisions as a component of federalism. This notion of institutional autonomy, even where not related to the likelihood that the institution will reach a large number of correct results, touches on a number of other questions too large to be dealt with here. Do nations, or peoples, have rights qua nations or peoples? If so, and we commonly think so in the international context and in the context of questions about self-determination, then it is at least plausible that some would think that this applies to states in the United States as well. If a written constitution were to establish the decisional autonomy of certain institutions, such as it arguably does with respect both to the states and to the separate branches of the federal government, do arguments touching on the obligation to obey the law (if indeed there is such
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an obligation) command deference by some officials to the erroneous decisions of others? None of these questions is easy, nor can they be answered uniformly for all institutions and all societies. Nevertheless, they are designed to show that just as it is a mistake to move from a correct first-order decision (for example, that Nancy Cruzan should die) to the acontextual responsibility of any other agent or institution to correct it (for example, that the state should terminate Nancy Cruzan's life regardless of her own earlier expressed wishes), so too is it a mistake to move from a correct second-order decision (for example, that Nancy Cruzan's parents should decide when she is to die if she is in a persistent vegetative state and her own earlier statements are at least consistent with desiring death) to the acontextual responsibility of any other agent or institution to correct it. Consequently, it might be that the conclusion that Nancy Cruzan should have died on the date prior to December 26, 1990 when her parents first wished her life support systems disconnected, even when coupled with the conclusion that Nancy Cruzan's parents should have had the authority to decide whether she was to die prior to December 26, 1990, does not lead to the conclusion that the Supreme Court acted incorrectly in allowing Missouri's ex hypothesi erroneous secondorder decision to stand. Constitutionalism itself, being about third-order decisionmaking, is about a particularly pervasive form of role morality. If we reject all forms of role morality, then we must reject constitutionalism, other than in the thin sense of a way of establishing an institution to reach what it perceives to be the correct result wherever and whenever it sees it. But if conversely we accept a somewhat thicker sense of constitutionalism, one that allows institutional factors to lead some institutions to act passively in the face of incorrect first- and second-order decisions by other institutions, then in at least one context we have accepted the notion of role morality. But whether the role morality embedded in constitutionalism should lead us to reject constitutionalism, or whether a role morality that is correct for constitutionalism is correct in other domains, are, among many others, questions that must be left to another day.
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1
Cruzan v. Director, Missouri Department of Health, 110 S. Ct. 2841 (1990). The relationship between the authority of the Constitution of the United States and the authority of the Supreme Court of the United States is problematic, but nothing I say here turns on this point. So too, the very question of the appropriate sources for Supreme Court constitutional decisionmaking (original intent, text, moral values, etc.) encompasses the entire field of constitutional theory, a field I am happy to leave lurking on the perimeter of the narrower question I pursue here. 3 I refer specifically to act consequentialism, because all plausible varieties of rule consequentialism (e.g., Rawls, 1955; Hare, 1981) are based on the kinds of second-order considerations that I discuss in the following section. As devices for the allocation of decisionmaking jurisdiction (Schauer, 1991), rules are necessarily based on something other than first-order considerations. 4 This is a somewhat cumbersome way of articulating the "slippery slope" (see Schauer, 1985) issue that pervades, on one side or another, so many discussions of right to die issues (e.g., Kamisar, 1991; Martyn and Bourguinon, 1991). 5 In the right to die literature, this is sometimes referred to as the 'vitalisf position. (See Robertson, 1991.) 6 Nothing in this article turns on the philosophically and scientifically difficult question of defining death. For my purposes, Nancy Cruzan was alive prior to December 26,1990, and dead after that date. 7 Thus note that many commentators (e.g., Robertson, 1991) base their view that the Supreme Court decision was correct on a view that the decision of the Missouri Supreme Court was correct. Although a correct second-order decision might be a sufficient condition for a third-order decision refusing to interfere with it, my point is that the reverse does not hold, and that an incorrect secondorder decision is not a sufficient condition for a third-order decision interfering with it. Moreover, it is possible that, for a range of jurisdictional reasons, it would be appropriate to interfere with and nullify a correct decision. 8 Massachusetts Board of Retirement v., Murgia, 427 U.S. 307 (1976). 9 For an insightful development of the claim that all decisions are also secondorder decisions about the authority of the decisionmaker (and, mutatis mutandis, at one remove) (See Fried, 1963). 10 Similar arguments from ability support some arguments for preferring parents to medical professionals in cases like Nancy Cruzan's. See (Rhoden, 1988). 11 See (Dworkin, 1977), pp. 184-205. 2
Dworkin, R.: 1977, Taking Rights Seriously, Harvard University Press, Cambridge. Fried, C : 1963, Two concepts of interests: Some reflections on the supreme Court's balancing tesf, Harvard Law Review 76, 755-781.
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REFERENCES
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Hare, R.M.: 1981, Moral Ttiinking: Its Levels, Method and Point, Clarendon Press, Oxford. Kamisar, Y.: 1991, 'When is there a constitutional "Right to die"? When is there no constitutional "Right to Live"?', Georgia Law Review 25,1203-1242. Martyn, S., and Bourguinon, H.: 1991, 'Coming to terms with death: The Cruzan case', Hastings Law Journal, 42,817-858. Rawls, J.: 1955, T w o concepts of rules', The Philosophical Review 64,3-32. Raz, J.: 1975, Practical Reason and Norms, Hutchinson, London. Rhoden, N.: 1988, 'Litigating life and death'. Harvard Law Review 102,375-446. Robertson, J.A.: 1991, 'Cruzan and the constitutional status of nontreatment decisions for incompetent patients', Georgia Law Review, 25,1139-1202. Schauer, F.: 1985, 'Slippery slopes', Harvard Law Review 99,361-383. Schauer, F.: 1989, The second best first amendmenf, William and Mary Law Review 31,1-23. Schauer, F.: 1991, Playing By the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life, Clarendon Press, Oxford.
ABSTRACT. Using the right to die and the United States Supreme Court case of Cruzan v. Director, Missouri Department of Health as exemplars, this article explores the notion of third-order decisionmaking. If first order decisionmaking is about what should happen, and second-order decisionmaking is about who should decide what should happen, then third-order decisionmaking is about who should decide who decides. This turns out to be an apt characterization of constitutionalism, which is centrally concerned with the allocation of responsibility for making decisions about the allocation of responsibility. Deference to erroneous second-order decisions, as in the Cruzan case itself, may merely be an example of this central feature of constitutionalism. Key Words: constitutionalism, Cruzan case, right-to-die, rules
Nancy Cruzan died on December 26, 1990. As with most events, her death was a consequence of a series of other events, and also of a series of decisions. Among these decisions was not only the decision that Nancy Cruzan should die, which is the first-order decision, and not only the decision about who should decide whether (and when) Nancy Cruzan should die, which is the second-order decision, but also the decision about who should decide who should decide whether (and when) Nancy Cruzan should die, which I call the third-order decision. My goal here is to explore this issue of third-order decisionmaking, the question of how a society does and should allocate the decisionmaking authority about decisionmaking authority. This question is not merely the 'meta' question that can be asked about any decision, including the decision about who decides. Rather, it is a question that focuses in somewhat different terms on the question that is central to constitutional decisionmaking and constitutionalism in general. One thing that is significant about the case of Nancy Cruzan, therefore, is that it wound up Frederick Schauer, ].D., John F. Kennedy School of Government, Harvard University 79 John F. Kennedy Street, Cambridge, MA 02138, U.S.A. The Journal of Medicine and Philosophy 17:573-587,1992. © 1992 Kluwer Academic Publishers. Printed in the Netherlands.
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THE RIGHT TO DIE AS A CASE STUDY IN THIRD-ORDER DECISIONMAKING
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I. FIRST-ORDER DECISIONMAKING
What should happen? Starkly put, the answer to this question is a first-order decision. The fact of a first-order decision, however, is a capacious notion, existing within and consequently consistent with a wide variety of approaches for making first-order decisions. Act utilitarian approaches will arrive at a first order decision by considering all and only the ways in which alternative decisions will increase (or decrease utility), other varieties of consequentialism will consider consequences of a certain type, and non-consequentialist approaches will look to the presence or absence of certain features of the event in question in order to determine what should happen. But under any of these broad approaches, or under any other, the goal is to try to determine quite simply which ultimate decision is best, in other words, to determine what should happen. With respect to the right to die, and with particular reference to
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being a constitutional case in the Supreme Court of the United States.1 That this happened is an explicit manifestation of the fact that one of the questions to be answered about Nancy Cruzan and about the right to die was the question whether the 'who decides' question was to be answered by Missouri or by the Constitution of the United States as personified in the United States Supreme Court.2 Moreover, although not before the Supreme Court, another similar question was whether at the state level the 'who decides' question was to be answered by the Missouri Supreme Court, by the Missouri legislature, or by the Missouri Department of Health. These third-order or constitutional questions have rarely in any context been the subject of sustained philosophical analysis, perhaps in part because so much of philosophical analysis presupposes that the analyst herself is the one who, as ideal observer, should be deciding, if not the first-order question of what should happen, then at least the second-order question of who decides what should happen. But in a large number of contexts, and an especially large number in any constitutional system, the question of who decides who decides is real and important. My aim is to open this area to more serious philosophical thought than has so far been the case, and to do so by using the right to die as a particularly concrete and timely case study for exploring this question.
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the case of Nancy Cruzan, the first-order question is therefore the question of whether Nancy Cruzan should live or die. Act consequentialists would in considering this question try to determine the consequences of her living and the consequences of her dying, although which consequences counted would vary with the variety of consequentialism at issue.3 But many varieties of consequentialism would consider the costs, economic and otherwise, to Nancy Cruzan's parents were she to live, and the costs were she to die; the costs to the state (including the costs of foregoing alternative uses of economic and medical resources necessary to keep her alive) of her living; the costs and benefits to Nancy Cruzan itself, where different varieties of consequentialism would reach different conclusions on what those costs and benefits are; and the costs and benefits to others somewhat removed from this case, including, for example, the costs of a possible increase in the number of consequentially suboptimal decisions that might be a consequence of a consequentially optimal individual decision.4 The aim of this consideration is what some would refer to as an 'all things considered' decision for this case, and others, such as Joseph Raz, would describe as the best decision "on the balance of reasons" (Raz). But even outside of the consequentialist perspective presupposed by these formulations, it is still possible to imagine a strictly first-order decision focused only on the question of whether Nancy Cruzan should live or Nancy Cruzan should die. Some non-consequentialist might believe, for example, that all technologically avoidable death is non-consequentially wrong,5 and thus since Nancy Cruzan's death on and prior to December 26, 1990 was technologically avoidable, then the first order decision on and prior to that date should simply be that Nancy Cruzan should live.6 More sophisticated variants of this position are of course possible and extant, but my point is only that from either consequentialist or non-consequentialist perspectives it is not difficult to imagine a decision directed not to the allocation of decisionmaking authority but only to the first-order question of whether Nancy Cruzan should Live or die. Implicit in asking (only) the first-order question is one of two possible perspectives. One is the common (and important) perspective of the ideal philosophical observer, not concerned with seemingly more mundane questions of establishing second-best institutions in a non-ideal world. From this perspective, which
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II. SECOND-ORDER DECISIONMAKING
Although I believe that aspects of pure first-order decisionmaking exist in various philosophical perspectives on decisionmaking and also in many actual decisionmaking environments, much that I have just discussed is likely to appear as somewhat of a caricature. And that is because second-order decisionmaking, concerned with who is to make the first-order decisions, pervades so much of our decisional life. Second-order decisionmaking, the question of who decides, is everywhere we look. It is the premise of rule-consequentialism, and indeed of rule-based perspectives of any stripe (see Schauer, 1991), for decision according to rule presupposes a division of decisionmaking authority between rule-maker and rule-follower. When the addressee of a rule follows the rule rather than making her own best all things considered decision, she accedes (whether because she believes it right to do so, or because the rule-maker has by sanctions given her prudential reasons for doing so) in the decision made by another. And when the designer of a decisionmaking environment establishes domains of rule-based decisionmaking, that designer thus makes the second-order decision that certain decisions are better made by the rule-makers than by the rule-followers.
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some (but not I) take to be virtually definitional of the philosophical enterprise, to think philosophically about the question of life and death in the context of Nancy Cruzan would simply be to think about whether Nancy Cruzan should live or die. Alternatively, one could have a view about individual responsibility such that all agents have a responsibility for doing the "right thing" in any circumstance in which they are confronted with the possibility of action. Although most of us never had the possibility of affecting Nancy Cruzan's life or death, those holding this position would maintain that were we to find ourselves in that position we would be morally required both to ask and to act on the answer to the first-order question. To hold otherwise, and thus to allow for conceptual space between what should happen and what we should do, would be for them a fundamentally immoral act, inconsistent with a proper view of morality holding morality to presuppose doing the right first-order thing wherever and whenever we have the opportunity to do so.
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This kind of second-order decision is also the premise of most approaches to rights and to autonomy, for a recognition of autonomy or of rights like the right to privacy is based on the possibility that the value of choice qua choice has importance independent of the substance of the choice made. Were there no second-order decisions that (some) first-order decisions about the life choices of individuals are to be made by the individuals concerned, even when those are not the best decisions, autonomypreserving rights would make little sense. Thus, the decision to respect autonomous decisionmaking by another is a second-order decision about someone's right to make a decision, just as a decision not to respect autonomous decismaking by another agent may (but need not) be a second-order decision about that agenf s absence of a right to make that decision. So what would be the grounds for a second-order decision about who should make first-order decisions? One would be that certain second-order decisions would maximize the number of correct first-order decisions. Thus, when a second-order decision is made to hold police officers to crisp and exceptionless rules about their treatment of suspects, the second-order decisionmaker recognizes that rule-following on the part of the police officers will be suboptimal because the rules, like all rules, will be actually or potentially under- and over-inclusive vis-a-vis their background justifications, and vis-a-vis the best decision on the balance of reasons. But the second-order decisionmaker may believe that more errors will be made by police officers attempting to make the best decisions in each case (the police offers may systematically because of their role underassess the interests of suspects, or they may simply not understand all of the relevant considerations) than will be made when the police offers simply follow rules whose under- and over-inclusiveness insures some number of errors as well. Thus, one basis for a second-order decision is the determination by the second-order decisionmaker that one or another locus of decision will minimize the number of errors. Alternatively, the second-order decisionmaker may allocate the decisionmaking competence to one or another decisionmaker not because of a desire to minimize errors, but because of some aspect of the roles that various individuals possess. If the second-order decisionmaker is unsure about what the correct first-order decision is, then perhaps a default rule would let such decisions be
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made by the concerned individuals. Indeed, this may be one account of the basis for rights like the right to privacy. If questions about life choice are sufficiently contested, then liberalism's default rule is that they are to be made by the individual whose life is at issue. And it might be that other roles have independent moral content. Democracies empower majorities to make decisions that others might make better, and societies give parents responsibilities for child-rearing that may not be based on the view that parents are necessarily best at that task. My goal here is not to evaluate these or other reasons for making second-order decision. Still, it is clear that most discussions of the right to die are premised on some number of secondorder decisions of this variety. When we talk about the right to die, or about the ability to make a so-called 'living will', we implicitly make a decision to allow the first-order decisions to be made by a particular individual - the one who is to live or die - even where those decisions might not be the same first-order decisions that would be made by others, or even where those first-order decisions are not the correct decisions, putting aside the value of decisionmaking autonomy. Although allowing the seemingly most concerned agent to make the decision is in the current context the most common second-order decision, others are possible as well. We might make the second-order decision that decisions about who is to live or who is to die should be made by medical committees, or by relatives, or by the state. And we might, as in Nancy Cruzan's case itself, confront these alternatives only when a presumed primacy of a decision by the most concerned agent defaults. That is, Missouri did have, although it did not have to have, legal rules allowing Nancy Cruzan to have made the choice by executing a living will. It was only because she did not do so that the question arose in the Missouri Supreme Court as to who - the state or her parents - should make the decision about whether Nancy Cruzan should live or die in the absence of conclusive evidence about how Nancy Cruzan did or would have exercised this choice. Choosing among these alternatives is likely based on just the kinds of factors noted above. It might be that there is some notion of the correct decision about ending life, and that we believe that more correct decisions will be made by allowing the decisions to be made by the person whose life is at issue than by any other individual or institution. Or it might be that because the society is
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III. THIRD-ORDER DECISIONMAKING All of this is relatively familiar philosophical terrain. What is less familiar, however, is the remaining question of the allocation of decisionmaking authority - the question of who decides who shall decide. Consider the alternative second-order decisions in Nancy Cruzan's case. The first order-decision could be made by Nancy Cruzan; it could be made by her primary physician; it could be made by her family; it could be made by a committee of physicians, lawyers, and ethicists; or it could be made by the state. In the previous section I assumed that choosing among these five (and there might be more) alternatives, making the second-order decision about who is to decide, was not itself subject to an institutional analysis. That is, the second-order decision was to be made by the ideal observer, or the second-order decision was to made by whichever agent was confronting the opportunity for decision. If the right decision is that the decision is to be made by Nancy Cruzan, then any second-order decision allowing the firstorder decision to be made by, say Nancy Cruzan's parents is simply wrong, and an agent herself acts wrongly in being part of that morally erroneous decision. Or if, to track the actual case, the right second-order decision is that Nancy Cruzan should decide whether she should live or die, and in default of her own decision then her relatives should decide whether she should live or die, then any decision inconsistent with that second-order decision is itself wrong. From this perspective, therefore, Missouri made the wrong second-order decision in not recognizing Nancy Cruzan's parents' (fallback) right to decide whether Nancy Cruzan should live or die, and for exactly the same reasons the majority of the Justices of the Supreme Court acted wrongly in not recognizing and enforcing the correctness of that second-order decision.7
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sufficiently unsure about these issues it allocates the decisions about them to the most concerned party as part of liberalism's general default rule in cases of uncertainty. Arid it might be that even if individuals might over time and in the aggregate not make the best decisions about their own lives and whether to continue or to terminate them, a strong value of autonomy even in the face of some knowledge about what a correct decision would look like would prefer the individual even if individuals cannot over time be expected to make the best decision.
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Implicit in this view is that the moral wrongness of Missouri's decision is a sufficient condition for the wrongness of the Supreme Court's decision to let Missouri's wrong decision stand. But consider again the relationship between first-order and second-order decisions. Even if it is wrong on the balance of reasons for me to devote my life to playing video games, interfering with that decision (by others, or by state) is also wrong because it violates the second-order principle of autonomy. It is wrong to be a Nazi, or to be a member of the Ku Klux Klan, or to advocate violence against women, but most strong principles of freedom of speech and freedom of association, principles that are themselves second-order principles (see Schauer, 1989), permit agents to make these morally wrong decisions. Thus, it is familiar that second-order principles (or reasons, or decisions) commonly create a zone of immunity for morally erroneous first-order decisions. Similarly, it is possible that there would be, with much the same relationship, third-order principles (or decisions) that would create a zone of immunity for morally erroneous second-order decisions. As I noted in the introduction, this is not only the logically easy point that whatever can be said about the relationship between first-order and second-order decisions can be said at one remove (and so on, ad infinitum and ad nauseam). Rather, it is at the center of much that we understand about constitutionalism, for at least a large part of constitutionalism concerns the organization of governmental institutions in such a way that some governmental institutions make certain second-order decisions and different governmental institutions make other ones. Consider the issue of retirement age, where the first-order decision is the age at which employees should retire. But who should decide when employees retire? One possibility, and thus one second-order decision, is that employees themselves should decide. Another possibility, and thus a different second-order decision, is that employers should decide. And a third possibility is that the state by law should decide. But as to these three (and there might be more) different second-order decisions, who should choose among them? Implicit in the Supreme Court's decision that this is not a constitutional matter8 is a third order decision that choosing among these second-order possibilities is for the state and not for the national constitution or the national judiciary. Implicit in the Age Discrimination in Employment Act of 1967 is a third-order decision
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by Congress that the second-order decisions should not be made by the states. The Supreme Court's actual decision in Cruzan v. Director, Missouri Department of Health itself can now be seen as just this type of third-order decision. The Missouri Supreme Court made the second-order decision that determining whether and when Nancy Cruzan should die was, in the absence of clear instructions from Nancy Cruzan herself, to be made by the Director of the Missouri Department of Health. In mounting a constitutional challenge to that decision, Nancy Cruzan's parents were not only claiming that the Missouri Supreme Court made the wrong second-order decision in granting the decisional power to the Director and not to the Cruzans. They were claiming as well that the third order-decision, resolving the competing second-order claims of the Cruzans and the Director, was one to be made by the Supreme Court of the United States. And in rejecting that claim, the Supreme Court made the decision, itself a third-order decision,9 that the State, in whatever governmental guise it chose, was the one to decide who was to decide. Missouri's decision to prefer the Director to the Cruzans, just as a putative decision by Missouri to prefer the Cruzans to the Director, was the consequence of the Supreme Court's third-order decision that deciding who decides was for the state and not for the Supreme Court of the United States. Third-order decisionmaking would thus be absent when, and only when, the Supreme Court (or anyone else) was of the view that any wrong second-order decision by the state was a sufficient condition for its invalidation by any body with the power (which is here distinguished from authority) to do so. As long as there is at least one possible case in which a wrong second-order decision is not a sufficient condition for its nullification, then the body refraining from nullification is necessarily making a third-order decision that the body making the second-order decision has, in effect, the right to be wrong, just as second-order decisions to refrain from interfering with erroneous first-order decisions similarly embody the view that certain agents have the right to be wrong. Moreover, as long as there is one possible case of nonnullification, then even a decision to nullify is a third-order decision, because it is a decision to appropriate the task of thirdorder decisionmaking in a context when non-appropriation remains a live option.
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All of the foregoing, of course, goes only to identifying the fact of third-order decisionmaking, and not to the grounds on which third-order decisions should be made. That the Supreme Court's decision in Cruzan was a third-order decision does not get us very far in assessing whether it was the correct third-order decision. Like second-order decisions, third-order decisions are decisions about the allocation of power. And like second-order decisions, third-order decisions about the allocation of power can be made for numerous reasons, reasons that, as sketched above, can usefully be distinguished into two types. One is based on ability, and on the supposition that one goal of second-order decisionmaking would be to maximize the number of correct first-order decisions. Thus, when Hare advocates that decisions in the nonreflective mode be made according to simplified rules of limited specificity, he is advocating a second-order decisionmaking procedure designed to maximize, for an array of first-order decisions, the number of correct decisions within that array. Similarly, Raz's exclusionary reasons are also aimed at excluding from consideration those first-order reasons which under some circumstances might generate too high a probability of an erroneous result. Second-order decisions about who decides are often of the same variety, allocating decisionmaking authority to the institution or individual likely to make the smallest number of first-order errors. Many of the same considerations apply in the context of thirdorder decisionmaking. If we are concerned that some decisionmaking institution might make erroneous second-order decisions because of a desire to aggrandize its own decisionmaking authority, a third-order decision to withdraw some or all of the second-order decisions from that self-interested body would, in theory, increase the number of correct second-order decisions. One argument for a third-order decision other than the one that the Supreme Court actually made in Cruzan, therefore, is that second-order decisions about who should decide issues about death and dying will be made better if not made by state legislatures and (frequently elected) state courts. Those bodies, so the argument goes, are frequently led by political and electoral pressures into making suboptimal decisions that could be avoided by institutions (like the Supreme Court) more removed from those
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electoral and political pressures. Although this argument plausibly undergirds all of the dissenting opinions in Cruzan, it was not so articulated, because all of the dissents assumed without argument that this decision was an appropriate one for the Supreme Court to make. Nor did the majority make the argument that might counter this one, although one argument that was not made in any of the opinions, but that would support the actual result in Cruzan, is that many second-order decisions require empirical investigation likely to be performed with greater information and consequently greater accuracy by an institution, such as a legislature, having greater fact-finding capacity than the Supreme Court.10 All of this, however, assumes that the goal is to make the greatest number of correct first-order decisions. Often, however, there are other goals, just as there are with second-order decisions. We recognize the right to privacy, and thus recognize the right to be wrong about the first-order decisions that affect individual lives, not because we think that people will necessarily or even more often make the best decisions about what will affect them, but because the value of personal autonomy acts for many people as a non-consequentialist side constraint leading them to respect individual autonomy even as or when they know it will lead to a smaller number of correct first-order decisions. The second-order decision that parents rather than social welfare agencies should make certain life decisions for their children is not necessarily based on the greater comparative competence of parents (although such an argument could be made), but rather an argument that treats familial integrity and parental authority as independent goods. Many of the same reasons for ability-independent allocation of authority decisions apply as well in the institutional context, and thus apply as well to third-order decisionrnaking. One reason for holding, for example, that elected majorities (rather than, say, courts) should make second-order decisions is a value of majoritarianism independent of the empirical likelihood that majorities will make better second-order decisions. Another reason might be that some written document, such as a written constitution, had some claim on our fidelity and that in addition it explicitly made a particular decision about who was to decide which issues. And what we call 'federalism' is an argument that treats state autonomy as structurally similar to individual
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autonomy in allowing the autonomous institution to have the right to make wrong decisions. These arguments suggest that it is not a sufficient condition for holding the Supreme Court's decision in Cruzan to be erroneous that allowing parents of those in Nancy Cruzan's state to make the decision about dying (the second-order decision) would result in a larger array of correct first-order decisions, even in the long run. If there is an independent value in the autonomy of Missouri qua Missouri, analogous to the independent value of individual autonomy, then that value might suggest that the third-order decisionmaker should refuse to nullify even some erroneous second-order decisions, such as, arguably, the decision to allow the Director rather than the Cruzans to determine whether and when Nancy Cruzan should die. And it might also be that if the issues are sufficiently socially contested, then state autonomy operates as a default rule again structurally similar to a default rule in favor of the individual when there is no clear view about what is an appropriate life choice. The opinions in Cruzan do seem to track this debate. The dissenters, in arguing that the liberty interest of the concerned individual constitutes a sufficient condition for Supreme Court intervention, supported a third-order decision that questions of individual rights against majorities ought necessarily to be made not by the majorities, but by institutions structurally likely to be most sensitive to individual rights.11 The various opinions comprising the majority, however, all relied either on arguments from the independent value of constitutional text's allocation of powers, or on arguments for the independent value of state decisions qua state decisions as a component of federalism. This notion of institutional autonomy, even where not related to the likelihood that the institution will reach a large number of correct results, touches on a number of other questions too large to be dealt with here. Do nations, or peoples, have rights qua nations or peoples? If so, and we commonly think so in the international context and in the context of questions about self-determination, then it is at least plausible that some would think that this applies to states in the United States as well. If a written constitution were to establish the decisional autonomy of certain institutions, such as it arguably does with respect both to the states and to the separate branches of the federal government, do arguments touching on the obligation to obey the law (if indeed there is such
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an obligation) command deference by some officials to the erroneous decisions of others? None of these questions is easy, nor can they be answered uniformly for all institutions and all societies. Nevertheless, they are designed to show that just as it is a mistake to move from a correct first-order decision (for example, that Nancy Cruzan should die) to the acontextual responsibility of any other agent or institution to correct it (for example, that the state should terminate Nancy Cruzan's life regardless of her own earlier expressed wishes), so too is it a mistake to move from a correct second-order decision (for example, that Nancy Cruzan's parents should decide when she is to die if she is in a persistent vegetative state and her own earlier statements are at least consistent with desiring death) to the acontextual responsibility of any other agent or institution to correct it. Consequently, it might be that the conclusion that Nancy Cruzan should have died on the date prior to December 26, 1990 when her parents first wished her life support systems disconnected, even when coupled with the conclusion that Nancy Cruzan's parents should have had the authority to decide whether she was to die prior to December 26, 1990, does not lead to the conclusion that the Supreme Court acted incorrectly in allowing Missouri's ex hypothesi erroneous secondorder decision to stand. Constitutionalism itself, being about third-order decisionmaking, is about a particularly pervasive form of role morality. If we reject all forms of role morality, then we must reject constitutionalism, other than in the thin sense of a way of establishing an institution to reach what it perceives to be the correct result wherever and whenever it sees it. But if conversely we accept a somewhat thicker sense of constitutionalism, one that allows institutional factors to lead some institutions to act passively in the face of incorrect first- and second-order decisions by other institutions, then in at least one context we have accepted the notion of role morality. But whether the role morality embedded in constitutionalism should lead us to reject constitutionalism, or whether a role morality that is correct for constitutionalism is correct in other domains, are, among many others, questions that must be left to another day.
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1
Cruzan v. Director, Missouri Department of Health, 110 S. Ct. 2841 (1990). The relationship between the authority of the Constitution of the United States and the authority of the Supreme Court of the United States is problematic, but nothing I say here turns on this point. So too, the very question of the appropriate sources for Supreme Court constitutional decisionmaking (original intent, text, moral values, etc.) encompasses the entire field of constitutional theory, a field I am happy to leave lurking on the perimeter of the narrower question I pursue here. 3 I refer specifically to act consequentialism, because all plausible varieties of rule consequentialism (e.g., Rawls, 1955; Hare, 1981) are based on the kinds of second-order considerations that I discuss in the following section. As devices for the allocation of decisionmaking jurisdiction (Schauer, 1991), rules are necessarily based on something other than first-order considerations. 4 This is a somewhat cumbersome way of articulating the "slippery slope" (see Schauer, 1985) issue that pervades, on one side or another, so many discussions of right to die issues (e.g., Kamisar, 1991; Martyn and Bourguinon, 1991). 5 In the right to die literature, this is sometimes referred to as the 'vitalisf position. (See Robertson, 1991.) 6 Nothing in this article turns on the philosophically and scientifically difficult question of defining death. For my purposes, Nancy Cruzan was alive prior to December 26,1990, and dead after that date. 7 Thus note that many commentators (e.g., Robertson, 1991) base their view that the Supreme Court decision was correct on a view that the decision of the Missouri Supreme Court was correct. Although a correct second-order decision might be a sufficient condition for a third-order decision refusing to interfere with it, my point is that the reverse does not hold, and that an incorrect secondorder decision is not a sufficient condition for a third-order decision interfering with it. Moreover, it is possible that, for a range of jurisdictional reasons, it would be appropriate to interfere with and nullify a correct decision. 8 Massachusetts Board of Retirement v., Murgia, 427 U.S. 307 (1976). 9 For an insightful development of the claim that all decisions are also secondorder decisions about the authority of the decisionmaker (and, mutatis mutandis, at one remove) (See Fried, 1963). 10 Similar arguments from ability support some arguments for preferring parents to medical professionals in cases like Nancy Cruzan's. See (Rhoden, 1988). 11 See (Dworkin, 1977), pp. 184-205. 2
Dworkin, R.: 1977, Taking Rights Seriously, Harvard University Press, Cambridge. Fried, C : 1963, Two concepts of interests: Some reflections on the supreme Court's balancing tesf, Harvard Law Review 76, 755-781.
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REFERENCES
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Hare, R.M.: 1981, Moral Ttiinking: Its Levels, Method and Point, Clarendon Press, Oxford. Kamisar, Y.: 1991, 'When is there a constitutional "Right to die"? When is there no constitutional "Right to Live"?', Georgia Law Review 25,1203-1242. Martyn, S., and Bourguinon, H.: 1991, 'Coming to terms with death: The Cruzan case', Hastings Law Journal, 42,817-858. Rawls, J.: 1955, T w o concepts of rules', The Philosophical Review 64,3-32. Raz, J.: 1975, Practical Reason and Norms, Hutchinson, London. Rhoden, N.: 1988, 'Litigating life and death'. Harvard Law Review 102,375-446. Robertson, J.A.: 1991, 'Cruzan and the constitutional status of nontreatment decisions for incompetent patients', Georgia Law Review, 25,1139-1202. Schauer, F.: 1985, 'Slippery slopes', Harvard Law Review 99,361-383. Schauer, F.: 1989, The second best first amendmenf, William and Mary Law Review 31,1-23. Schauer, F.: 1991, Playing By the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life, Clarendon Press, Oxford.
