The question of the constitutional case against suicide: an historiographical and originalist inquiry into the degree to which the theory of the inalienable right to life and liberty is enforced by the Thirteenth Amendment.

• Author: Short, Bradford William

ABSTRACT: This article completes a study that the author foreshadowed in his previous articles. The Western moral theory that defends the inalienable right to life and liberty--and that therefore forbids all forms of suicide and slavery--is now well known to the author's readers. What is not well known is an answer to the question of whether this theory, in its totality, was part of the original intent of the Thirteenth Amendment to the Constitution of the United States. The theory of the inalienable right to life and liberty was supported by many political philosophers in the seventeenth and eighteenth centuries. Those philosophers and their theory did shape a good deal of the thought of the men who made the Thirteenth Amendment a part of the Constitution. The anti-suicide implication of the theory, however, was not present in the minds of the framers and ratifiers of the Thirteenth Amendment, and therefore was not part of their intent.

Preface

There is no important topic that the fields of legal history, political philosophy and constitutional theory have engaged in less serious academic analysis of than the topic of the inalienable right to life and liberty. Readers of my articles that were published in Issues in Law &Medicine a few years ago know that I have tried to make up for this lack of academic study? But those efforts were mostly concerned with a "history 'lite'" (2) of the theory of the inalienable right to life and liberty, that is, they were concerned with a false "history" told by America's irresponsible bioethicists. (3) Therefore, my previous contributions to Issues have been primarily negative, in that they have debunked the history "lite" of the bioethicists and only told the story of the theory of the inalienable right to life and liberty in an ancillary manner. As a result of this, what is probably the most important implication of my research into the history of the theory--its implication for the prohibition of suicide under the Thirteenth Amendment--is addressed in my writings nearly always at the end of them, and always in a somewhat tucked-away corner of the article. (4) In one of these corners I wrote the following:

[If the prohibition of suicide directly implied by the theory of the inalienable right to life and liberty] is part of the right to life and liberty that was made inalienable by the Thirteenth Amendment in 1865, that is to say, if one cannot, without violating the Constitution, throw away one's life just as one cannot sell one's liberty now that slavery is abolished in America, then [the legalization of assisted suicide by State law is itself an unconstitutional act]. (5) Indeed, here I went so far as to raise the possibility (6) that members of the United States Supreme Court who were Originalists (members like Justice Antonin Scalia) should, because of their Originalism, have considered striking down laws such as the Oregon Death with Dignity Act. (7) It should be noted that in these passages I made it clear that this was merely an inquiry that I felt should be raised by the legal academic community and the Federal Courts:

In the end, assisted suicide should not be made illegal, or unconstitutional, or be held to be unconstitutional, based on only the combined authority of [the theorists of the inalienable right to life and liberty that I have analyzed in the History "Lite" trilogy].... The American people deserve more than ... [the history "lite" that the bioethicists have given them]. They deserve the chance to weigh every 17th, 18th and 19th century thinker's opinions in the scales of originalist historical analysis. They deserve the chance to see just what the original intent of the Thirteenth Amendment was, if it can be found. (8) In these passages, in no way did I assert that the History "Lite" trilogy had proved that the full theory of the inalienable right to life and liberty was a part of the Thirteenth Amendment. The trilogy merely showed that that could be the case. (9) But, that inquiry was not answered by the trilogy itself, and it has not been answered by the scholarly community in the five years since the last part of the trilogy was published.

As a result of this situation, there are still two more articles that the people and government of the United States need in order to have a full answer to, first, the inquiry of what exactly is the history of the theory of the inalienable right to life and liberty, and second, the inquiry of whether the Thirteenth Amendment enacted and constitutionalized the full theory of the inalienable right to life and liberty in such a way that all State laws legalizing assisted suicide are themselves unconstitutional.

It is that second inquiry that will be answered by this article. The article telling the history of the theory in the Age of Enlightenment--in the seventeenth and eighteenth centuries when it actually grew into adulthood--has yet to be written and completed. But part of that background history is related in this article in a way that gives the reader the sure footing of knowledge that he needs as we enter into this study of American Constitutional thought in the mid-1860's. In any event, and most importantly, the question of the status of suicide under the Thirteenth Amendment is finally answered. And beyond this, my readers will soon see that my answer to this inquiry is anything but what anyone would have expected it to be when I began this work more than a decade ago.

Introduction

"Liberty" is a very controversial, substantially amorphous, usually ennobling, and--in America--always topical, idea. Unfortunately, most people today seem to think that the "liberty" that is protected by "the right to liberty" is mere freedom from constraint by other people or the government. And yet, this negative definition (10) of "the right to liberty" was not always dominant. Indeed, the liberal-democratic order in the United States and Great Britain had its origin in a very different concept of liberty. It is this concept of liberty, and whether, and to what degree, it constitutes the original intent of the Thirteenth Amendment to the Constitution, that is the subject of this article. (11) This positive definition of the right to liberty is fundamentally explained by the "theory of the inalienable right to life and liberty." Because this liberty right was an inalienable right it was obligatory that it never be violated, not even with the consent of the person whose life and liberty was in question. As a result, constitutions and laws were created to protect this inalienable right to life and liberty from both other people who might want to attack someone and his life and liberty, and from the individual himself who might be willing (at some point as he went through the harshness of life) to throw his life and liberty away. It followed from this that the government, established to defend life and liberty, also had no place taking it away from innocent people. Thus, the sacredness and inviolability of the inalienable right to life and liberty demanded laws that protected it from violations by government, by other people, and even by the individuals themselves.

As has been said, this inalienable right to life and liberty was what liberal-democratic government originated from in Great Britain and North America. The triumph of the theory of the inalienable right to life and liberty in Britain's Glorious Revolution of 1688 was absolutely necessary for the people of what would become the United States to receive the liberal-democratic principles of government that they today take for granted. (12) The political theory that came out of the Glorious Revolution clearly maintained that all humans were endowed with this inalienable right to life and liberty. And as a result of this right they could not rightfully be made into slaves or rightfully be made victims of unjustifiable homicide. Also as a result of this right they could not rightfully consent to slavery either under private persons who might seek to own slaves or under the government if the governors wished to own a nation of slaves, and they also could not rightfully kill themselves. All these acts violated the inalienable right to life and liberty, and therefore all should be always and everywhere illegal. Consent to these violations did not matter. The distinction between private and governmental actors who violated this right did not matter. Only the inviolability of the inalienable right to life and liberty mattered. It was the foundation of all just government, and the first law of any just government was to protect its foundation. The first part of this article will more fully explain how Englishmen in the late seventeenth century formulated and defended this inalienable right to life and liberty, and how the resulting theory proceeded to become more and more accepted by both British and Continental thinkers in the eighteenth century.

The second part of this article will move ahead in time, to the period at the end of the Civil War when the Congress of the United States drafted, debated and passed the Thirteenth Amendment, and when the Indiana General Assembly ratified it. (The State of Indiana has the honor of being a government that in the 1860's kept relatively detailed records of the speeches of the members of its Legislature. The same cannot be said for many other States in the Union at the time. (13)) Faced with a great multitude of American blacks who had been held as slaves long after Englishmen and Americans had claimed to have completely assented to the theory of the inalienable right to life and liberty, the Republicans and War Democrats in Congress and the Indiana General Assembly in 1864 and 1865 decided to complete the process begun in 1688 (at least with respect to slavery) and enact that all humans under American jurisdiction were forever free and unownable, and that therefore slavery was legally impossible and totally abolished...