De-Moralized: Glucksberg in the Malaise

31 Pages Posted: 31 Aug 2007

Abstract

Ten years down the road, what is the enduring significance of the "assisted suicide" cases, Washington v. Glucksberg and Vacco v. Quill? The cases reflect an unusually earnest, but nonetheless unsuccessful, attempt by the Supreme Court to grapple with a profound moral issue. So, why was the Court unable to provide a more satisfying justification for its conclusions? This essay, written for a symposium on the tenth anniversary of Glucksberg, discusses that question.

Part I examines some of the flaws in reasoning in the Glucksberg and Quill opinions and suggests that these flaws stem from the opinion-writers' inability to recognize and articulate their underlying normative assumptions. More specifically, both the Justices and the lower court judges, on both sides of the issue, evidently attributed normative significance to something like a "natural course of life" (even when they denied doing so), but none were willing or able to make this attribution explicit. Part II discusses the modern separation of moral reasoning from the metaphysical or theological perspectives that might once have endowed "nature" with normative significance, and it suggests that the deficiencies in Glucksberg-Quill are evidence of how that separation renders moral reasoning problematic. The Conclusion wonders whether in this situation, a renewed emphasis on formalism or tradition might make legal reasoning less unacceptable.

Keywords: morality, constitutional law, assisted suicide, moral reasoning

JEL Classification: K00, K1, K10

Suggested Citation

Smith, Steven Douglas, De-Moralized: Glucksberg in the Malaise. Michigan Law Review, Forthcoming; San Diego Legal Studies Paper No. 07-109. Available at SSRN: https://ssrn.com/abstract=1009251

Steven Douglas Smith (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States
619-260-7969 (Phone)
619-260-2492 (Fax)

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