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.

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. …