Oct 20, 2018 3 min read

This week (Oct. 27) in 1994, voters in Oregon approved the Death With Dignity Act, which allowed terminally ill patients to obtain lethal drugs. Reflecting on that decision, Supreme Court Justice Antonin Scalia said, “You think there’s a right to suicide? Do it the way the people of Oregon did and pass a law. Don’t come to the Supreme Court!”

Scalia’s point was that permitting assisted suicide should be up to the people, the voters, in each state – not the courts and certainly not the federal courts.

Scalia’s argument is based, first, on the fact that the Constitution, our guide to what is or isn’t legal, doesn’t mention suicide. Thus, it is not technically a legal issue but (obviously) a social, moral and cultural – and therefore political – issue. Legal issues are decided by the courts. Political issues should be decided by the people, which a majority of Oregonians did through legislation. Like or dislike their decision, constitutionally it was properly made.

But their decision should only be binding on the people of Oregon, according to the “Federalist” principle embedded in the Constitution. Under that principle, the national government is responsible for national issues – national defense, foreign policy, interstate commerce – because those issues affect all 325 million American citizens.

Issues dealing with “the lives, liberties and properties of the people, and [their] internal order, improvement, and prosperity” (Federalist 45) – meaning cultural, social, moral, and welfare issues – are “reserved to the several States.” The logic being that the people in every state differ regarding their social, cultural, moral and welfare attitudes. The mostly conservative people in Texas, for example, will approach social-cultural issues differently from that of the mostly liberal folks in Oregon, and those differences must be respected.

So, Oregon passed assisted suicide through the democratic process? Constitutionally, no problem. Texas did not? That also should be no problem, but, as Justice Scalia complained, not only are the federal courts encroaching upon what are undeniably state issues – thereby violating the Federalist principle – but also state courts are weighing in on what are undeniably political issues, thereby going beyond their jurisdictional authority and denying the people the final say.

Case in point is another clearly social-cultural issue (also not mentioned in the Constitution). Before the Supreme Court ruled 5-4 in Obergefell v. Hodges that gay marriage was legal in all 50 states, 26 states approved it through court decisions, while only 24 decided it – 11 for and 13 against – through the democratic process. So fewer than half the states decided it via the constitutionally prescribed people-driven process, meaning the courts usurped the right of millions of American citizens to decide for themselves an issue as longstanding and deep-seated as traditional marriage.

Bruce G. Kauffmann’s email address is bruce@historylessons.net.