Still, what has not been fully appreciated by the votaries of federalism is the way in which this decision by the Court cannot be cabined in Oregon. The scheme offered to us in the name of federalism asks us to incorporate the view that assisted suicide is just another, tenable view about the proper ends of doctors and medicine. Justice Kennedy plants the premise when he remarks that the Attorney General had sought to bar a policy in Oregon merely “because it may be inconsistent with one reasonable understanding of medical practice.”One of my best friends, who happens to be a colleague in my department, is also a libertarian, and he assures me that there are many varieties of libertarianism, so it is, of course, something of a generalization to worry too much about the compatibility of this sort of libertarianism with Catholicism. Clearly libertarians can be faithful Catholics, since whatever one happens to think about the morality of assisted suicide, or of anything else, one is not committed to empowering the state to enforce morality unless the common good happens to be at stake as well.
The aversion to self-killing or self-murder, the enduring concern about doctors using their powers to end life—all of that is simply diminished now as “one reasonable understanding of medical practice,” no more right or wrong than anything else. To incorporate that understanding at the top of the State, in the national government, is to do nothing less than to erode the conviction that has firmed up the laws for the protection of life at the center and the periphery in this country. If the assistance of suicide is regarded as just another “reasonable understanding of medical practice,” why should that view of things not begin to seep into parts of the federal establishment? Why should it not come to affect the understandings that prevail in military hospitals or in divisions of the National Institutes of Health?
To recall an older example, we might have lived for a while with a federalism that allowed slavery in some of the States. But the question posed by Lincoln is just what would happen to our understanding, as a people, as we had come to incorporate a certain indifference on this point—if we came to think that there was nothing exactly wrong in principle with some men ruling others, as property, without their consent. I am not putting assisted suicide on the same plane as slavery; I am simply trying to remind us of the way in which we may talk ourselves out of moral understandings central to the laws as we talk ourselves into the view that one version of the uses of medicine is quite as reasonable as another. In this way, moral understandings, once firmly settled, become unsettled. And we should not deceive ourselves about the reach of that small change the Court brought forth last week.
The worry, of course, is the problem of determining when the common good really is at stake, a problem inextricably bound up with the question of what the common good actually is. These are very thorny issues, obviously, and there is no consensus on them even among conservatives, let alone among conservative and libertarians. There is something of a consensus that, when it comes to protecting innocent human life, the common good is involved, and so we have laws against murder. But the consensus even here is tenuous, since not everyone regards the unborn as instantiations of innocent human life, and even some who so regard them do not necessarily think them deserving of the protection of the law. So it should come as no surprise to find that the consensus is even thinner when it comes to issues such as assisted suicide.
Another of my intellectual heroes, Roger Scruton, has written that conservatism, as a political orientation, can be characterized by a committment to certain institutional structures. Scruton does not specify any set of necessary and sufficient structures, but certainly institutional religion would rank high on most lists drawn up by conservatives on the street, even those who are not religious. The reason, I suspect, is that institutional religion provides the clearest framework for understanding fully what is meant by the common good. Political frameworks, such as a democratic constitutional arrangement, can define a common good, but institutional religions are, by their very nature, institutions that reflect the common human experience of generation upon generation of persons who have formed a part of the evolution of a culture, and no political institution can hope to match that for humanistic appeal.