By Zeinab Bailoun • April 06, 2017•Writers in Residence
Neil Gorsuch, the U.S. Supreme Court nominee slated to replace the late Justice Scalia, is no stranger to questions of life and death. His 2009 book, The Future of Assisted Suicide and Euthanasia, looks carefully at the historical trajectory of the current movement in the United States for the right to die, and argues "that all human beings are intrinsically valuable and the intentional taking of human life by private persons is always wrong." Gorsuch, who completed his doctoral degree in philosophy at Oxford, bases his argument on secular moral theory and common law.
Much of Gorsuch's way of thinking about the law and legal questions derives from the influence of the jurisprudential stance of his advisor at Oxford, John Finnis, a conservative legal scholar and philosopher who espouses the "natural law" standpoint. Natural law theory argues that some laws and legal standards derive their authority from our understanding of morality. This means that a judge ruling on a case makes her decision (and perhaps should do so) by looking to moral principles - even if the principles are not themselves encoded in the law - because morality is, in a sense, a higher legal source. This goes beyond what an originalist like Scalia, who would prefer to look only at the text itself, might be willing to do.
How has this affected the way Gorsuch approaches legal questions? In a chapter near the end of his book, Gorsuch presents the argument "that there is a moral imperative not to do harm to [irreducible and non-instrumental human goods such as human life], and that such a rule would prohibit assisted suicide and euthanasia." For Gorsuch, the conclusion that the United States should retain currently existing laws prohibiting these two forms of death is a conclusion that naturally follows from the argument for, or belief in, a moral imperative not to do harm to human life.
Gorsuch illustrates this argument as follows:
In claiming something as a basic good, I have in mind something that is intrinsically worthwhile... that is categorically good, not something that is good only because of its usefulness in achieving some other end . . . [Our understanding of basic goods is] I think simply a product of our practical human experience . . .
Indeed, our entire political system is premised on the notion and acceptance of such basic, fundamental rights (and wrongs), as reasoned from human experience. Our Declaration of Independence begins the substance of its work with the bold assertion that certain "truths" about human nature are indeed "self-evident," that these self-evident truths include the impulse for life and the value of liberty, and all that follows in the Declaration, the whole purpose and ideal of government as envisioned by the founding document of our country, is to establish a government that is aimed at securing and protecting what our founders considered to be self-evident human rights and truths . . .
[In] the words of the Declaration of Independence, we hold it as "self-evident" that "all men [and women] are created equal" and enjoy "certain unalienable Rights," and "that among these are Life."
Without the premise that all human lives are equally valuable, therefore, Gorsuch argues that we lose the entire rationale behind equal protection. Laws permitting assisted suicide and euthanasia would essentially be unconstitutional.
Many other moral principles can arguably be labelled "self-evident." The question is, to what extent should these moral principles play a role in delineating boundaries between the legal and illegal? Assuming judges should reach beyond the text of the law to draw on morality, should we expect more honesty from them on the specifics of their moral beliefs?