History "lite" in modern American bioethics.

• Author: Short, Bradford William

Abstract: This article explores a disconcerting phenomenon. In recent years, in writing on the subject of assisted suicide, several bioethicists have made extraordinary historical claims. The history of Western moral theories that exhibit disapproval of all forms of suicide is well known. Nevertheless, the bioethicists have claimed that some of Europe's most prominent early modern moral philosophers never believed in the inalienable right to life. This claim is quite controversial because this right is an important basis for secular moral opposition to assisted suicide. Irrespective of whether or not opposition to assisted suicide is philosophically justified, the philosophers the bioethicists write about did in fact believe in the inalienable right to life. Bioethicists can only come to their conclusions concerning the philosophers by employing an improper historical methodology.

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In 1995, Martin Flaherty, a leading expert on Anglo-American legal history, published his seminal article on the misuse and inaccurate study of history by modern professional academics. (1) Entitled History "Lite" in Modern American Constitutionalism, (2) the article addressed misrepresentations of the history behind controversial provisions of the American Constitution such as the Takings Clause (3) of the Fifth Amendment (4) and the Contracts Clause (5) contained within Article One. (6) In this excellent work, Flaherty wrote that

Lawyers, judges, and-the ultimate concern of this Article-legal academics regularly turn to history when talking about the Constitution, and not merely as a rhetorical trope.... Despite this propensity, or maybe because of it, constitutional discourse is replete with historical assertions that are at best deeply problematic and at worst, howlers. (7) Being preoccupied with the Takings Clause and the Contracts Clause, Professor Flaherty did not address the constitutional legal history that is implicated in medical ethics or end-of-life issues. This article will examine the category of professionals whom Professor Flaherty left out, but who nonetheless have had a great impact on "American Constitutionalism"; bioethicists. Modern American bioethicists often make historical assertions that are patently false. The most glaring example of "history 'lite'" in modern American bioethics (8) can be found by examining how various important bioethicists address the issue of assisted suicide, (9) which is most certainly an important issue in American constitutional law. This disconcerting phenomenon can best be seen in the works of A. John Simmons, Tom Beauchamp, and James Childress.

Therefore, this article will first criticize Simmons' dismissal--based on historical grounds--of what professional philosophers and metaphysicians commonly call "the theory of inalienable rights." Second, this article will criticize the spurious historical claims concerning Immanuel Kant's metaphysics of morality found in Tom Beauchamp and James Childress' Principles of Biomedical Ethics. (10) Last, this article will conclude by looking at how the fruits of history lite threaten the soundness of our constitutional jurisprudence. In order to list these criticisms effectively, the author must begin by explaining what kind of historical methods yield better answers than those that can only be called history lite.

Two Basic Rules For Achieveing Historical Accuracy

Professor Flaherty, in cataloguing the "history lite" created by such important constitutional theorists as Richard Epstein, (11) Cass Sunstein, (12) and Bruce Ackerman, (13) also wrote about proper historical method. He criticized those who "blithely ignore" the "conventions" set up by professional historians. (14) He also criticized those who ignore historical "context" and thereby create "law office history." (15) Nevertheless, Flaherty's concerns in History "Lite" are not the concerns before us now. Certainly Flaherty is correct to decry both the existence of "law office history" and the irreverent attitude, held by many in our society, towards the conventions of academic historians. Furthermore, just as Flaherty would rightly have us believe, many constitutional theorists today are responsible for worsening these problems.

But the problems that exist in the works of Simmons, Beauchamp and Childress concern academic procedures that are far more basic. Again, Flaherty's excellent article provides us with the correct paradigm for analyzing these errors, which are the errors of modern American bioethicists. Flaherty was interested in making sure that as he criticized the work of Epstein, Sunstein and Ackerman he got them right. Not only is Flaherty's article about 17th and 18th century Anglo-American history, it discusses the subject of late 20th century American Constitutionalism. This too is history, in that it is like the "first rough draft of history" that journalism aspires to be. Flaherty's historical method in analyzing the works of Epstein, Sunstein and Ackerman provides us with the historical method we need to analyze the contentions that Simmons, Beauchamp and Childress make concerning Locke and Kant:

Weighed against these standards, the use of recent historiography in legal theory has yielded mixed results. For a sense of that mix one need turn no further than certain historical claims advanced by three of today's most prominent constitutional thinkers: Richard Epstein, Cass Sunstein, and Bruce Ackerman. As will become clear, assessing historical claims can take up as many pages as the claims themselves. Considering how well any of these prolific scholars appeals to the past in his work taken as a whole cannot be done in anything short of an extended study All that can be attempted here, therefore, is a critique of selected historical assertions. Such a project is legitimate so long as the selection is representative, or at least not misleading. Toward this end, the accounts to be considered come only from each theorist's major works and deal with the Founding in ways in which recent historical scholarship is directly relevant. (16) If Flaherty owes it to Epstein, Sunstein and Ackerman that, in criticizing them, he cites first their "major works," and if Flaherty also owes it to them that those citations are not "misleading," then certainly Simmons, Beauchamp and Childress owe precisely the same duty to Locke and Kant. (17) In fact, Flaherty's dicta merely remind us of what we should already know. The academic study of history is an ancient endeavor. What is the correct method for performing this academic study? That question is still largely unanswered. In pursuing historical truth vis-a-vis the history of ideas, however, certain obvious rules suggest themselves. Western political thinkers--who are the subject of this article--throughout their history have committed their thoughts to writing. Often they have been closely related to the University system of Europe and North America. (18) That system has and still does most value books and other, similarly long, scholarly writings. Thus, when studying the ideas of early modern Western moral thinkers one should always be aware of their most prominent works. And if we quote their most prominent works, we should do so accurately.

John Locke: Opponent Of Inalienable Rights?

In the last twenty-five years, as assisted suicide has become discussed more often, several articles have been written on the subject of inalienable rights. Perhaps the most important of these articles is A. John Simmons' Inalienable Rights and Locke's Treatises, (19) if for no other reason than that Simmons is widely regarded as one of the world's leading experts on John Locke's philosophy. (20) He is certainly not the only Locke scholar to achieve international recognition over the past twenty-five years; the late Peter Laslett comes to mind. (21) Nevertheless, Simmons is very important.

Also vital to our discussion is the fact that Locke's political theory has a great deal to say about suicide. For instance, Daniel Avila wrote that:

John Locke incorporated this contractual analysis into his theory on the limits of political sovereignty. He characterized the necessities of life as property that an individual could not bargain away in any political agreement with a ruler, even in exchange for security Locke asserted that each individual owed a duty to God to preserve his or her life. (22) To support this assertion Avila cites (23) the famous passage from Two Treatises of Government (24) wherein Locke condemns both suicide and voluntary submission to autocracy: "But though this be a state of liberty, yet it is not a state of licence; though man in that state has an uncontrollable liberty to dispose of his person or possessions, yet he has not liberty to destroy himself...." (25) In fact, as Avila notes, "being regarded by law as having a right to the protection of life that is considered alienable" (i.e., living in a legalized suicide regime) would cause an "injury" if one had an "inalienable fight to life." (26) At the end of his article, however, Simmons concludes that:

If this reading of Locke is accurate, it strongly suggests that he did not think of the moral limits on government as limits set by the citizens' inalienable rights; and, conjoined with earlier remarks on the 'right of revolution' in Locke, At establishes a strong prima facie case against regarding Locke, at any point in the Treatises (except for his position on paternal power), as a conscious defender of the thesis of inalienability (27) Moreover Simmons understands that his "reading" would eliminate a philosophical basis for the opposition to the legalized killing of various members of the human race: "It is worth remembering, however, that appeals to inalienable fights are not only usefully made in defense of reductions in government interference, as claims concerning the 'right to life' made by antiabortionists clearly demonstrate." (28) Of course...