ANONYMOUS REVIEW OF THE
"LIVING  CONSTITUTION" AND THE RIGHT TO DIE

By

HENRY MARK HOLZER 

Law professor Henry Mark Holzer has made a significant addition to his legal and political legacy with this book. The author of "Sweet Land of Liberty?" and "The Supreme Court Opinions of Clarence Thomas" weighs in with his learned take on the right to suicide and the 9th Amendment ("The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people"). This amendment to the Bill of Rights - which was ratified in 1791 - has virtually no Constitutional case law or doctrine built up around it.

Yet, Holzer builds his case on the 9th Amendment, despite this. The dearth of precedent built up around the 9th Amendment does not negate its relevance to the individual citizen's right to life, in Holzer's eyes. Nor should it.

Where Holzer finds the Court going astray is its reliance, since the Post-Reconstruction era, of basing many of its pivotal decisions on substantive due process, which Holzer finds to be a bastardization of its limited role in deciding cases along procedural due process lines. This is no small point.

By invoking substantive due process, Holzer contends, the Court has overstepped its purview and wandered into the realm of policy making, what many have called "legislating from the bench."

I can find no fault with Holzer's scholarship or arguments supporting the right to die, i.e., the right of the sovereign individual to live his own life, which incorporates the right of taking one's own life. He makes this connection to this right to life beginning with the right of individuals to be protected from death by abortion and to live a life unencumbered by the chains of slavery as well as the bonds of conscription. Above all, Holzer is intellectually and legally consistent — in this most crucial of contexts.

In doing so, Holzer strikes a blow against the deeply inhumane and chilling legacy of eugenics. He identifies the foundation for laws surrounding abortion and birth control as having evolved from premises popularized in the culture by the eugenics movement.

And, yet, this is where I part company with Holzer, inasmuch as he advocates for the right of individuals to contract with others to perform "assisted suicide." I find it a much harder sell than the right to take one's own life, because there is so much that can go wrong with such a formulation. There is such a thin line separating this right to die from the euthanasia movement, which itself, is a semantic brother of eugenics.

A more than cursory examination of assisted suicide laws in Australia, Belgium, the Netherlands — and now, Canada — has demonstrated that the "right to die" invariably devolves into the "duty to die." That is, the old, and the incurably physically and mentally infirm, are strong-armed into dying for the "good of society," which justification Holzer nonetheless strongly argues against. He regards "social usefulness" as an anti-Constitutional, anti-liberty, and anti-life notion.

This is not to take away from Holzer's central thesis: That if man owns his own life, he also cannot be prohibited from the liberty to deciding upon the time and place of ending it, if he so wishes. Nor would I invalidate his argument for the theoretical right to choose an agent — free of coercion, of course — from assisting an individual in such a situation.

It is just that the devil is in the details, and within those details lies an insoluble paradox: By introducing this concept and practice to the medical profession, it places its practitioners in direct opposition to Hippocrates' maxim, "First, do not harm." With so much of medicine in the hands of the State and corporations, we have already seen so much of the profession compromised against the Hippocratic Oath, particularly in the practice of abortion and the new Mengele-like practice of child mutilation and genetic-tampering known as "transgender confirmation" therapy and surgery.

That said, that is a matter of implementation. One area that seldom gets mentioned in the "right to die" scenario can be found in the palliative care and hospice health care settings, which is where the best solution lies to these very difficult decisions.

If we as a society cannot countenance involving the medical profession and the State in getting into the assisted suicide business, then, at the very least, we as a society need to listen to patients who live with excruciating pain as part of their daily lives: Take the shackles off the physicians whose hands are tied behind their backs by heartless bureaucrats and regulators. Instead of depriving legitimate patients of pain medication they so desperately need — and callously adding the hurting to the casualty rolls in the "War on Drugs" — give back the right of the people to relieve that suffering. Likewise, make it easier for the dying to leave this earthly realm with dignity by relieving their suffering in a hospice setting in their final days, through morphine or whatever other medications are available.

Those are my beliefs, so I hope the reader doesn't necessarily ascribe my divergence from Holzer on the assisted suicide issue to Holzer himself. Nor do I disrespect his position, or mean to impute motives to him that clearly are not in his writing. It is just that I can see this issue becoming hijacked by today's eugenics movement, because in many cases, it already has been.

That said, this volume has earned its place among the many engaging works in his oeuvre. Henry Mark Holzer has, and steadfastly remains, a national treasure. His vital literary contribution over the decades, on liberty and the law, is timeless and indispensable.