Walter Benjamin once said that authors should write the article or book they looked for in the literature but could not find. Because so much has been written about assisted suicide, one would think little else needed to be said on the subject. Yet when I looked for a serious discussion about why we should consider the right to life “unalienable,” I was disappointed. This lacuna on such a foundational question seems odd since, by definition, a right to assistance in one’s suicide implies a right to the alienation of life. Therefore, the dearth of commentary on unalienable rights in the assisted-suicide context is surprising. Thwarted in my search for sources, I am left to create a source of my own.
The Declaration of Independence immortalized the concept of unalienable rights when it grounded the American Revolution on the defense of natural rights. Years after writing the Declaration, Thomas Jefferson argued that “nothing then is unchangeable [in the design and conduct of the United States government] but the inherent and unalienable rights of man.” In addition, colonists in Massachusetts rejected the first proposal for a state constitution in 1778 primarily because it lacked any reference to unalienable rights. The 1780 redraft written by John Adams, with assistance from Samuel Adams and James Bowdoin, asserted that all persons “have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives.” This language survives as part of the oldest continuously operating constitution in the world. The constitutions of twenty-eight other states, as well as the Universal Declaration of Human Rights, contain similar language. These facts suggest that the idea of unalienable rights is more than rhetorical window dressing. Why is it that our country’s founders insist on the recognition of certain rights as inviolable and unalienable?
Richard Tuck provides some background in his 1979 book, Natural Rights Theories: Their Origin and Development. According to Tuck, certain philosophers posited the existence of a natural personal freedom so broad as to allow individuals to consent to any form of outside control, even slavery and tyranny. Luis de Molina of Portugal defended the African slave trade in 1601 on the grounds that the Africans sold to European traders were already enslaved by other Africans as a result of intertribal wars. The slave trade was excused by the purported natural right of Africans to consent to arrangements whereby the victors in war could enslave the vanquished and sell them to others. Francisco Suarez of Spain asserted that “slavery and other, similar matters” are “not opposed to natural law” since, in his view, persons could sell or alienate their liberty in the same way they could transfer their property. Hugo Grotius, John Selden, Thomas Hobbes, and Robert Filmer each defended forms of absolute rule by monarchs because, in their view, such authority presumably arose from an “original contract” between a monarch and his or her subjects. If individuals were free to give away their personal freedom, then an entire population could hand over its political freedom in exchange for security. Since a deal is a deal, rebellion by the disadvantaged is unjustified even in the face of political oppression.
John Locke is the most famous opponent of this view. In his Two Treatises on Government, he asserted that our “natural liberty” is still subject to a “natural law” that “willeth the peace and preservation of all mankind.” We lack the authority to agree to our own enslavement or destruction because we are the “workmanship of one omnipotent and infinitely wise maker.” We are thus bound to preserve our lives and “not to quit our station willfully.” Since we lack “the power over [our] own life,” we “cannot by compact or [our] own consent enslave [ourselves] to anyone, nor put [ourselves] under the absolute, arbitrary power of another to take away [our] life.” Thus, advocates of practices amounting to slavery or political oppression could not assert in their defense some original bargain or “tacit consent” because no agreement, whether real or implied, could warrant such practices. Slavery and oppression constitute a “state of war” and thus justify the rebellion of the tyrannized against a tyrant.
The American colonists found in Locke’s writings the argument for their revolt. Whatever “deal” existed between the King of England and his subjects, no original bargain or tacit consent could justify “taxation without representation” and other acts of tyranny. According to Samuel Adams, it would be “the greatest absurdity to suppose it in the power of one or any other number of men at the entering of society to renounce their essential natural rights, or the means of preserving those rights, when the great end of civil government . . . is for the support, protection, and defense of those very rights [including] life.”
The legal philosopher Hugo Grotius understood unalienable rights as interests “which belong so essentially to one man that they could not belong to another, as a man’s life, body, freedom, honor.” In other words, natural unalienable rights are so fundamentally linked to the physical existence and political status of individuals that any attempted alienation would be impossible or self-contradictory. In his 1978 book, The Massachusetts Constitution of 1780: A Social Compact, Ronald M. Peters, Jr. described the prevailing colonial view about unalienable rights as follows:
If a natural right is inherent, then it must be essential to the very existence as a human being of him who possesses it. If this is the case, then it must be quite literally impossible for that individual to forfeit the power of controlling it. Therefore, it is unalienable because it cannot physically be alienated. . . . The really unalienable rights of men, according to Article I [of the Massachusetts Constitution], consist not of life, liberty, happiness, or property; but rather they are the “right of enjoying and defending their lives and liberties,” and the right of “acquiring, possessing, and protecting property.” Society can take a man’s property, but not his right to acquire or possess it. It may even take his life, but the individual still has the right to fight in order to defend it. These rights are “natural, essential, and unalienable” because they define the very meaning of being a human being. A man who could not do these things would not be a man. . . . It would be contrary to human nature.
Other philosophers have composed variations on this theme. John Stuart Mill argued that self-regarding acts intended to renounce one’s own freedom cease being exercises of freedom, and defeat the purpose of laws permitting freedom. Thus, “the principle of freedom cannot require that [one] should be free not to be free. It is not freedom to be allowed to alienate [one’s] freedom.” In the same manner, Immanuel Kant asserted, “If freedom is the condition of life it cannot be employed to abolish life and so to destroy and abolish itself. To use life for its own destruction, to use life for producing lifelessness, is self-contradictory.” More recently, Daniel Callahan has argued that “We cannot, I believe, transfer our sovereignty to another without contradicting it. A sovereignty that can legally and morally be given away is fragile and contingent, not sovereignty at all. To allow another person to kill us is the most radically imaginable relinquishment of sovereignty, not just one more way of exercising it.”
Such philosophical ruminations may seem too esoteric to have much influence on public opinion. Yet somehow this doctrine sparked a political revolution in 1776. Understanding how and why the American Founders made their case as they did may provide some insights into how the unalienable rights doctrine can, and should, influence public opinion on assisted suicide.
Had it been the case in 1776 that every colonist was a patriot, and none a loyalist, then Jefferson would have needed only to refer to threats against the inviolable rights of the colonists. An inviolable right is one that cannot ever be justly violated, while an inalienable right cannot ever be given away. As it was, Jefferson needed to claim that British rule threatened rights that possessed both qualities, since many colonists backed the Crown and resisted any call to oppose it. They took no offense and complained of no violation, thus providing cover for the Crown against any charge that it was violating colonial rights. The loyalists were willing to give the Crown a level of control that the patriots deemed tyrannical. Since the loyalists and the patriots shared the same political status under the law as British subjects, the loyalists’ acquiescence to the legal policies of the Crown directly affected the patriots. Jefferson had to assert that the loyalists’ rights were being violated, simply in order to protect his own. This is what led him to complain of threats to certain unalienable rights.
The relationship between the loyalists and patriots in 1776 is not much different from the relationship today between the terminally ill members of the Hemlock Society and the terminally ill members of the group Right to Life in Oregon after the passage of Oregon’s new assisted-suicide law. For this new law affects the legal status of all persons with terminal conditions by considering them to be candidates for assisted suicide whether or not they want to be eligible. Oregon’s legalization of assisted suicide sweeps within its purview both those who wish to give up their right to live and those who don’t.
The law may serve the interests of the terminally ill members of the Hemlock Society, but the same law provides the terminally ill members of Right to Life with cause for complaint. The Oregon law cannot be defended on the grounds that the killing it permits is supposedly voluntary. The resulting devaluation of legal status, whereby all terminally ill persons will now be treated under the criminal law of Oregon as having a merely alienable right to live, is for the terminally ill members of Right to Life an involuntary assault on their dignity under the law. This injury will only be exacerbated as the laws are extended to surrogates who can request lethal injections on behalf of adults and minors who cannot speak for themselves.
At stake then is a principle that is neither religious in nature (religious principles having no legal standing in the public square) nor too difficult to grasp—we do not have the right to cause harm to others who do not consent. Assisted-suicide advocates often refer to the obverse of this principle, the so-called rule of autonomy, by asserting that they have a right to do to themselves whatever they want as long as they do not harm others. As demonstrated here, however, while the commission of a suicide in individual cases might be considered a harmless exercise of autonomy (but only if we ignore the detrimental social consequences), the legalization of assisted suicide cannot be so considered because it necessarily involves a public act affecting the legal status of everyone.
When a suicide law fails to distinguish Hemlock members from Right to Lifers, Not Dead Yet members, or devout Christians, but considers all these people eligible for suicide assistance when they are terminally ill, then the status-based injury it inflicts on members of the latter three groups actually violates any so-called rule of autonomy. No individual or group has the right to devalue the legal status of others against their will. While Hemlock members may reject their status as persons with an unalienable right to live, they share that status with others and thus cannot unilaterally alter it without injuring others. No amount of regulations or safeguards can avoid this result.
This political and legal analysis, I believe, provides the best legal argument against allowing assisted suicide. By this I do not mean that the mere assertion of this argument in the public arena will magically turn the tide. Sentiment and self-interest still reign supreme. Some may even respond that the coercive destruction of another’s full-fledged legal status is necessary to achieve some utilitarian objective, and that the interests of Hemlock members outweigh the interests of Right to Life members. But by then the debate will have moved to a different key. Choice and autonomy would no longer be the stated bases for changing the law to favor suicide assistance. All I wish to demonstrate is that for those supporters of assisted suicide who value more than just their own autonomy, who are not swept along by emotion, and yet who do not share my religious or philosophical vision, an argument can be made against the legalization of assisted suicide in terms that are principled, comprehensible, and convincing.
Daniel Avila is Associate Director for Public Policy at the Massachusetts Catholic Conference, headquartered in Boston.