Nearly 170 years ago, in the classic first volume of his Democracy in America, Alexis de Tocqueville observed, "Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question." De Tocqueville viewed this as a peculiarly U.S. development. He attributed it to the authority of the judiciary in the United States to review governmental enactments and establish individual rights based on judicial interpretation of the federal and state constitution. "Whenever a law that the judge holds to be unconstitutional is invoked in a tribunal of the United States, he may refuse to admit it as a rule; this power is the only one peculiar to the U.S. magistrate, but it give rise to immense political influence," de Tocqueville explained. He then commented, "But as soon as a judge has refused to apply any given law in a case, that law immediately loses a portion of its moral force." The same can be said of individual rights: those decreed by the Supreme Court carry added moral force, those denied by that Court carry less moral force. To some extent, Americans conflate morality with constitutionality. The relevance of this observation in a review of two books about efforts to legalize physician-assisted death, Ian Dowbiggin's A Merciful End and Wesley J. Smith's Forced Exit, should become apparent later - but for now, permit me to elaborate on the general observation.
Edward J. Larson,
Euthanasia in America - Past, Present, and Future: A Review of A Merciful End and Forced Exit,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol102/iss6/12