REFLECTIONS ON LIFE, DEATH, AND THE CONSTITUTION

Vol. 19 No. 12 (December, 2009) pp.858-861

REFLECTIONS ON LIFE, DEATH, AND THE CONSTITUTION, by George Anastaplo. Lexington: The University of Kentucky Press, 2009. 320pp. Cloth. $70.00. ISBN: 9780813125336. Paper. $26.95. ISBN: 9780813192307.

Reviewed by Christopher A. Riddle, Department of Philosophy, Queen’s University,

Canada. E-mail: christopher[dot]a[dot]riddle[at]queensu[dot]ca.

In recent years, bioethical issues such as those surrounding life and death have come to the forefront of not only philosophical, political, and legal discussions, but in contemporary, non-academic thought as well. George Anastaplo’s REFLECTIONS ON LIFE, DEATH, AND THE CONSTITUTION is an incredibly creative and sprawling piece of work that transcends these boundaries. Anastaplo seamlessly weaves some of our most commonly held notions – life, death, religion, liberty, natural law, morality – into an intricate and cohesive story. This book is in many ways demonstrative of both Anastaplo’s breadth of scholarship, and whimsy.

The first half of REFLECTIONS ON LIFE, DEATH, AND THE CONSTITUTION examines a wide range of historical work to provide the reader with an understanding of how many authors of the past, such as Eurpides, William Shakespeare, and Abraham Lincoln, have framed how we think about life-and-death issues today. In Anastaplo’s words, “The Essays developed here begin with reminders of what is said elsewhere (in space and time) about matters critical for understanding the life-and-death issues addressed in American constitutional law” (p.ix). He continues, “the first half of Part One mostly recalls the ways that such issues were addressed by gifted authors prior to the emergence of the United States” (p.ix).

Here Anastaplo discusses Thucydides and funerals, Eurpides and resurrection, and mortality and the Declaration of Independence, to name but a few examples. While this first half contains many wonderfully insightful observations, there are some omissions that arise in the second portion of Part 1 that I was disappointed to discover.

Take for example, the discussion of public health and the enhancement and protection of life contained within Chapter 9, “Public Health and Private Consciences”. Here Anastaplo examines the Opinion of the Supreme Court in BUCK V. BELL (1927), a case in which Carrie Buck, a woman with an intellectual disability, was committed to a State Colony and subsequently sterilized. Justice Oliver Wendell Holmes cited utilitarian concerns for the general welfare of society in upholding the order for sterilization. Such a case immediately evokes thoughts of Ashley X, a girl born in 1997 with severe developmental disabilities whose treatment included growth attenuation, a hysterectomy, breast bud removal, and an appendectomy. Ashley’s treatment received much academic attention in early 2007 and such discussions extended into popular culture when in 2008, Ashley’s parents granted an [*859] interview to CNN to discuss their decision to undertake such treatments. Ashley would even have a Law & Order episode based upon her ordeal. While Anastaplo performs a wonderful balancing act in integrating classic texts and Supreme Court decisions, I think care needs to be taken not to omit contemporary examples such as Ashley.

That said, make no mistake that this first portion of the book is so sprawling and vast that it is somewhat churlish to criticize Anastaplo for such an omission. After all, he could not cover everything of interest, and indeed, stokes an admirable amount of fires.

While the first portion of this book is wonderfully creative and enlightening, in many ways the meat of REFLECTIONS ON LIFE, DEATH, AND THE CONSTITUTION is its second half. When Anastaplo contextualizes these texts within American constitutional law, REFLECTIONS ON LIFE, DEATH, AND THE CONSTITUTION hits its stride. These works are critically examined in relation to complex Supreme Court decisions that may sometimes prove to be at odds with our established conceptions of life and death. Social questions such as the right to contraception, the legality of abortion, the acceptability of capital punishment, the right to die, and the presence of religious teachings in school, are all scrutinized through a thorough examination of the relevant Supreme Court decisions. GRISWOLD v. CONNECTICUT (1965), ROE v. WADE (1973), FURMAN v. GEORGIA (1972), CRUZAN v. DIRECTOR, MISSOURI DEPARTMENT OF HEALTH (1990), and EPPERSON v. ARKANSAS (1968), all serve as testing grounds and means of contextualization for the notorious slippery answers to the abovementioned questions.

Here again however, I fear Anastaplo has missed some opportunities to provide contemporary examples to contextualize some of the discussions he undertakes. Take for example, the Fourth Chapter of Part 2, “Roe v. Wade (1973) and the Law of Abortion,” which discusses the Opinion of the Court in ROE v. WADE (1973) when ruling in favor of the right of women to abort a fetus for any reason until the point when it becomes viable. Seeing as REFLECTIONS ON LIFE, DEATH, AND THE CONSTITUTION is well-suited to be read by those whose expertise resides outside of the realm of legal scholarship, a more thorough discussion of the abortion debate might have served Anastaplo’s readership well. While Anastaplo eloquently captures a portion of this debate when he states, “on one side are the pro-choice advocates, who prefer not to identify themselves as advocates of abortion or the destruction of fetuses . . . on the other side are the pro-life advocates, who prefer not to identify themselves as advocates of the suppression of abortions or of the control of women” (p.123), he nevertheless missed what I think is a viable opportunity to engage his readers in this debate further – to both stimulate thought, and provide the historical context of argumentation on this debate.

Pivotal work such as Judith Jarvis Thomson’s A DEFENSE OF ABORTION (1971) could simultaneously stimulate thought as well as provide the rich history of argumentation surrounding ROE v. WADE (1973). Thomson invokes her famous violinist example to demonstrate the right to abortion. She states:

You wake up in the morning and find yourself back to back in bed with an unconscious violinist. A famous unconscious violinist. He has been found to have a fatal kidney ailment, and the Society of Music Lovers has canvassed all the available medical records and found that you alone have the right blood type to help. They have therefore kidnapped you, and last night the violinist's circulatory system was plugged into yours, so that your kidneys can be used to extract poisons from his blood as well as your own. The director of the hospital now tells you, "Look, we're sorry the Society of Music Lovers did this to you - we would never have permitted it if we had known. But still, they did it, and the violinist now is plugged into you. To unplug you would be to kill him. But never mind, it's only for nine months. By then he will have recovered from his ailment, and can safely be unplugged from you. (pp.48-49)

Thomson of course, argues for the rights of the woman, and asks: “Is it morally incumbent on you to accede to this situation? No doubt it would be very nice of you if you did, a great kindness. But do you have to accede to it? What if it were not nine months, but nine years? Or longer still?” (p.49).

Through the utilization of the above argument, Anastaplo could have demonstrated in an accessible, but no less rigorous manner, how arguments have been framed and addressed within the rich academic history surrounding this topic.

Similarly, within the Ninth Chapter of Part 2, “Washington v. Glucksberg (1997) and Assisted Suicide,” Anastaplo makes the distinction between “killing” and “letting die,” or “letting go.. This debate has an equally rich history of argumentation that is largely absent in REFLECTIONS ON LIFE, DEATH, AND THE CONSTITUTION. There are numerous influential texts that clearly outline this debate that could have been drawn upon by Anastaplo. Take for example, LIFE AND DEATH WITH LIBERTY AND JUSTICE: A CONTRIBUTION TO THE EUTHANASIA DEBATE, by Germain Grisez and Joseph M. Boyle, Jr.; ACTIVE AND PASSIVE EUTHANASIA, by James Rachels; IS KILLING NOT WORSE THAN LETTING DIE?, by Winston Nesbitt; or finally, WHY KILLING IS NOT ALWAYS WORSE – AND SOMETIMES BETTER – THAN LETTING DIE, by Helga Kuhse.

However, as stated previously, Anastaplo covers an admirable amount of ground in REFLECTIONS ON LIFE, DEATH, AND THE CONSTITUTION and sparked my interest and curiosity to such an extent, that I found myself wanting more. It was a very rare occasion that I was intrigued by a topic only to find subtle aspects of the debate missing.

In fact, Anastaplo offers a sprawling and rigorous contribution to legal scholarship that is at the same time, accessible to a remarkably wide audience. Readers interested in bioethics, political science, history, or even literature, will find themselves enthralled by Anastaplo’s thoroughness. In this sense, the monograph would be of interest to not only political or legal scholars, but a wide breadth of individuals. Anastaplo’s contribution to legal scholarship is a large one, and REFLECTIONS ON LIFE, DEATH, AND THE CONSTITUTION only serves to further establish him as one of the most interesting legal theorists of today.

REFERENCES:

Grisez, Germain and Joseph M. Boyle, Jr. 1971. LIFE AND DEATH WITH LIBERTY AND JUSTICE: A CONTRIBUTION TO THE EUTHANASIC DEBATE. Notre Dame: University of Notre Dame Press.

Kuhse, Helga. 1998. “Why Killing is Not Always Worse – And Sometimes Better – Than Letting Die”. CAMBRIDGE QUARTERLY OF HEALTHCARE ETHICS 7(4):371-4.

Nesbitt, Winston. 1995. “Is Killing No Worse Than Letting Die?” JOURNAL OF APPLIED PHILOSOPHY 12(1):101-106.

Rachels, James. 1975. “Active and Passive Euthanasia”. NEW ENGLAND JOURNAL OF MEDICINE 292(2):78-80.

Thomson, Judith Jarvis. 1971. “A Defense of Abortion.” PHILOSOPHY & PUBLIC AFFAIRS 1(1):47-66.

CASE REFERENCES:

BUCK v. BELL, 274 U.S. 200 (1927).

CRUZAN v. DIRECTOR, MISSOURI DEPARTMENT OF HEALTH, 497 U.S. 261 (1990).

EPPERSON v. ARKANSAS, 393 U. S. 97 (1968).

FURMAN v. GEORGIA, 408 U.S. 238 (1972).

GRISWOLD v. CONNECTICUT, 381 U.S. 479 (1965).

ROE v. WADE, 410 U.S. 13 (1973).

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