In the blog yesterday, Neil Skjoldal reminded us that bioethics will likely again play a role in the upcoming nomination process of Judge Neil Gorsuch to be an Associate Justice on the Supreme Court of the United States (SCOTUS). Why is this the case? To paraphrase Professor H. Tristram Engelhardt, I believe it is due in part to the inability of moral strangers to resolve bioethical and moral controversies. Consider the following:
While it is often said that one cannot legislate morality on an individual level, SCOTUS clearly has the final say on whether a particular law is deemed either constitutional, and therefore permitted to stand, or unconstitutional and therefore struck down. This is important because laws permit or proscribe activity and behaviors that naturally reflect our individual and group morality. Laws pertaining to abortion, assisted suicide and euthanasia are a few bioethical examples. Since we live in a secular, multicultural nation, rulings of constitutionality by SCOTUS are effectively stipulations of or rulings on morality, and so long as “We the People” agree to follow the Constitution, we agree to be bound by the Court’s judgment.
I find support for this concept in the legal writings of the late Arthur Leff, former professor of law at Yale Law School. He held that normative law or morality cannot exist without a transcendent, unimpeachable source, namely God. Who decides what is right and wrong in His absence? Leff responded as follows in Unspeakable Ethics, Unnatural Law:
As long as the Constitution is accepted, or at least not overthrown, it successfully functions as a God would in a valid ethical system: its restrictions and accommodations govern. They could be other than they are, but they are what they are, and that is that. There will be, as with all divine pronouncements, a continuous controversy over what God says, but whatever the practical importance of the power to determine those questions, they are theoretically unthreatening. It is only when the Constitution ceases to be seen as fulfilling God’s normative role, ceases, that is, to be outside the normative system it normally constitutes, or when, as is impossible with a real God, it is seen to have “gaps,” that a crisis comes to exist. What “wins” when the Constitution will not say, or says two things at the same time? … [Or, put another way], much of the time one can act as if there is, for constitutional determinations, a God, though He may occasionally mumble.
This is crucial because the justices of the Supreme Court are the only ones in privileged positions to interpret those mumblings for the rest of us. What is more troublesome though not surprising is they often understand those mumblings very differently, always settling conflict over their varying interpretations by a simple majority vote. The fact that five individuals can overrule four others and set the legal environment for our nation’s bioethical landscape for their 324 million neighbors is reason enough to desire, if not demand, bioethical acuity in applicants for those positions.
In his book, The Foundations of Bioethics, Engelhardt repeatedly makes the case that moral strangers are not able to resolve moral controversies through “sound rational argument or an appeal to moral authority”¹ , but added later that “…the decisions of limited democracies can create structures of moral authority…[but that authority]…will provide no substantive, nonprocedural moral instruction.”² In the future, SCOTUS may determine a constitutional right to assisted suicide, so long as proper informed consent is obtained. The determination of the rightness or wrongness of the decision will be argued in procedural rather than moral terms. Per Engelhardt, there can be no other secular bioethical determination.
To restate the obvious: it matters who is interpreting our constitutional mumblings as they are grounding our secular bioethics.
¹ H. Tristram Engelhardt, Jr., The Foundations of Bioethics 2d ed. (New York: Oxford Uiversity Press, 1996), p. 8.
² Ibid., p. 13.