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Reflections on Life, Death, and the Constitution

Reflections on Life, Death, and the Constitution

George Anastaplo
Copyright Date: 2009
Pages: 312
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  • Book Info
    Reflections on Life, Death, and the Constitution
    Book Description:

    The role of law in government has been increasingly scrutinized as courts struggle with controversial topics such as assisted suicide, euthanasia, abortion, capital punishment, and torture. Reflections on Life, Death, and the Constitution explores such issues by using classical standards of morality as a starting point for understanding them. Drawing on works of literature and philosophy, and on U.S. Supreme Court decisions, George Anastaplo examines the intimate relationship between human nature and constitutional law.

    eISBN: 978-0-8131-7327-6
    Subjects: Law, Political Science

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Preface
    (pp. ix-xii)
    George Anastaplo
  4. Part One

    • 1. On Understanding the Others
      (pp. 3-11)

      What can be learned from other “cultures” about life and death? Can the Others truly be known, except by a rough approximation, especially when there are profound differences in language involved that are likely to elude translators? Is it primarily, or most reliably, about Ourselves that we learn when we study Others?

      The point of departure, for our purposes here, is the Yukio Mishima short story “Patriotism,” which describes what we would call a suicide pact between a Japanese Army lieutenant and his wife. A traditional Japanese mode of suicide is drawn upon by the young officer. Our interest in...

    • 2. Life and Not-Life in Thucydides’ Funeral Oration
      (pp. 12-16)

      It seems to have been customary, for those who delivered funeral orations in our orator’s city, to “praise the one who made this [kind of] speech a part of [the] law, saying that it is noble that a speech be delivered over those being buried after falling in war.” The orator opened, in this way, his own funeral address, recorded in the account of the Peloponnesian War provided by Thucydides, an address provided (in the remarkable Thomas Hobbes translation) in Appendix D of this volume (but a translationnotquoted in this Essay). But the orator immediately voiced reservations about...

    • 3. Death and Resurrection in Euripides’ Bacchae
      (pp. 17-24)

      Euripides, evidently self-exiled in Thrace, included in his final dramatic trilogy, produced posthumously for him in Athens, a play about the unsettling introduction into Greece from the East of the Bacchae (the followers of Dionysus), and particularly their introduction into Pentheus’ Thebes. The audience is reminded of what had happened to Semele in Thebes, a generation before the coming of the Bacchae to Greece, while she was carrying the infant Dionysus, fathered by Zeus. It is said of Semele, a daughter of the Theban founder, Cadmus, in theOxford Classical Dictionary:

      Her story consists almost wholly of her relations with...

    • 4. Resurrection and Death in Everyman
      (pp. 25-30)

      Everyman,from the late fifteenth century, is considered perhaps the greatest of English morality plays. The action of the play begins with Everyman learning that his death is imminent. Death, ordained by God Himself, is exhibited as an inevitable limit on human life.

      Although one may “know” of this limit from early on in one’s life, death can still appear unexpectedly. If a series of reincarnations on Earth isnotposited, death is always substantially unexpected in that the human being has never had that experience personally and hence cannot truly know what is coming. Expectations with respect to death...

    • 5. John Milton and the Limits of the Garden of Eden
      (pp. 31-39)

      The problem of death is very much a concern of John Milton’sParadise Lost.The opening lines of this epic anticipate the subject to be explored:

      Of Man’s First Disobedience and the Fruit

      Of that Forbidden Tree, whose mortal taste

      Brought Death into the World and all our woe,

      With loss ofEden,till one greater Man

      Restore us and regain the blissful Seat,

      Sing Heav’nly Muse . . .

      That “greater Man,” Jesus of Nazareth, is introduced as a divinity in this poem and is shown, in his earthly form, in Milton’s sequel,Paradise Regained.

      The “loss ofEden,”...

    • 6. Human Mortality and the Declaration of Independence
      (pp. 40-45)

      We are reminded, at the outset of the Declaration of Independence, of the transitory character of our lives. Its initial words, “When in the Course of human Events,” look both to events past and to events yet to come. Much is being provided for in a momentous present.

      The inherently vulnerable, yet ever resilient, human species is taken for granted. It is evident throughout the Declaration that recollections of what has already happened can provide guidance both as to what to expect and as to what should be done. Among the things to be reckoned with are accounts of instructive...

    • 7. Time and the Constitution
      (pp. 46-51)

      An awareness of human mortality is evident throughout the Constitution of 1787 and in its Amendments. Such an awareness is implicit in the traditional civic trinity of “Life, Liberty, and Property.” The conversion of “Property” into “Pursuit of Happiness,” as in the Declaration of Independence, may acknowledge further the transitory aspects of human existence.

      The Preamble, in expressing the concern of the Framers to “secure the Blessings of Liberty to [them] selves and [their] Posterity,” attempts to build upon he stable elements in our ever-changing lives. To speak of “posterity” suggests that although one may not personally endure forever, at...

    • 8. Fyodor Dostoyevsky and the Modern Project
      (pp. 52-57)

      Niccolò Machiavelli can usefully be regarded as critical to the development of modernity in political (and hence in constitutional) principles. At the foundations of even the most exalted regimes, he argued, have been deeds that tend thereafter to be kept out of sight. Two of Fyodor Dostoyevsky’s most remarkable characters—Rodion Romanovitch Raskolnikov ofCrime and Punishmentand the Grand Inquisitor ofThe Brothers Karamazov—exhibit a Machiavellian “understanding” of things.

      These two characters, though obviously unalike in station and reputation, are yet deeply similar in the killing they are willing to do in order to advance their respective causes....

    • 9. Public Health and Private Consciences
      (pp. 58-64)

      Our lives do not depend solely on our decisions. Certainly, we do not seem to haveanycontrol over the beginnings of our lives (unless human souls preexist their incarnation on Earth). And control over the termination of our lives also can be significantly limited.

      Thus, we are accustomed to attempted restraints by governments upon activities that are likely to cut short human life. Prohibitions of homicide are routine. Also familiar are prohibitions both of suicides and of efforts to assist in suicides.

      We are accustomed as well to measures designed to minimize accidental deaths. Highway traffic laws are familiar...

    • 10. The Flag Salute Cases (1940, 1943)
      (pp. 65-73)

      The Opinion of the United States Supreme Court inMinersville School Districtv.Gobitis(1940), in which seven Justices joined, opens with this sober recognition:

      A grave responsibility confronts this Court whenever in course of litigation it must reconcile the conflicting elements of liberty and authority. But when the liberty involved is liberty of conscience, and the authority is authority to safeguard the nation’s fellowship, judicial conscience is put to its severest test. Of such a nature is the present controversy.

      Concerns about “safeguard[ing] the nation’s fellowship” were very much in the air in early 1940, considering the grave perils...

    • 11. Conscientious Objectors and Military Conscription
      (pp. 74-81)

      There has never been any substantial doubt but that the Government of the United States can conscript citizens to serve in the military forces of this Country. The power to conscript is not expressly provided for in the Constitution, but it has long been considered available to a government authorized to “raise and support Armies.” Systems of military conscription, it is noticed by theEncyclopedia of the American Constitution,have been employed during the American Civil War, the First World War, the Second World War, the Korean War, and the Vietnam War.

      However exalted the status may be of personal...

    • 12. Obliteration Bombing, Civilian Casualties, and the Laws of War
      (pp. 82-90)

      John C. Ford, a New England Jesuit, published in the September 1944 issue ofTheological Studiesan article titled “The Morality of Obliteration Bombing.” He was evidently moved to do so by the steady pounding that the by-then virtually undefended German cities were being subjected to by the American and British air forces. The civilian casualties from these air raids could not help but be substantial.

      Father Ford did not, in this article, speak as a pacifist. He was willing to consider the war against Nazi Germany a just war. But he condemned as unlawful the systematic killing of noncombatants...

    • 13. Do All Somehow Aim at the Good?
      (pp. 91-96)

      Hypocrisy, it has been observed, is the tribute that vice pays to virtue. This is particularly evident when leaders of dubious character attempt to guide their communities with respect to life-and-death issues. It is then, when the stakes seem the highest, that public discourse tends to be the most moralistic.

      Consider, as examples, how Adolf Hitler and Josef Stalin spoke during the great public crises in their careers, especially when war began between their countries. Their respective publics—the people at large in Germany and Russia—had to be appealed to by moral exhortations. Similar language was used in appealing...

  5. Part Two

    • 1. Shakespeare’s Hamlet and the Elusiveness of the Good
      (pp. 99-103)

      Death is very much in view throughout William Shakespeare’sHamlet.There is, at the outset, the Ghost of the recently deceased King Hamlet. Because he believes himself to have been murdered by his brother (his successor as King), he will not “stay” dead.

      In the course of the play, Polonius, the statesman, and Ophelia, his daughter, die. So do Rosencrantz and Guildenstern, former associates of Prince Hamlet. Hamlet is responsible, directly or indirectly, for these four deaths.

      Then, at the end of the play, the stage is littered with corpses. On display are King Claudius, Queen Gertrude (Hamlet’s mother), Laertes,...

    • 2. Unconventional Religious Duties and the Good Life
      (pp. 104-114)

      We can see, in the career of Henry VIII, how the marital status of a ruler can affect the political fortunes of a people. This kind of effect is dramatized in William Shakespeare’sHamlet,where an assassination is said to have been motivated, in part, by the usurper’s desire to possess his ruler’s wife. That sexual relations continue to have political consequences was testified to by the ill-conceived impeachment of a recent President of the United States.

      The social consequences of such relations is testified to by one of the most influential of American novels, Nathaniel Hawthorne’sThe Scarlet Letter....

    • 3. Griswold v. Connecticut (1965) and the Prevention of Conception
      (pp. 115-121)

      “Seen in the perspective of the development of constitutional doctrine,” it is suggested in theEncyclopedia of the American Constitution,Griswoldv.Connecticut(1965) stands among the most influential [United States] Supreme Court decisions of the latter part of the twentieth century.” Under attack on that occasion was a Connecticut law forbidding the use of contraceptive devices to prevent pregnancies. InGriswold,the Supreme Court, by a vote of 7–2, held the law invalid after “operators of a birth control clinic had been prosecuted for aiding married couples to violate the law, furnishing them advice on contraceptive devices.”


    • 4. Roe v. Wade (1973) and the Law of Abortion
      (pp. 122-128)

      Two abortion-related cases, one from Texas and the other from Georgia, were decided on January 22, 1973, by the United States Supreme Court. The fateful Opinion of the Court, in the Texas case,Roev.Wade,opens with a description of the two cases:

      This Texas federal appeal and its Georgia companion,Doev.Bolton[1973] . . . present constitutional challenges to State criminal abortion legislation. The Texas statutes under attack here are typical of those that have been in effect in many States for approximately a century. The Georgia statutes, in contrast, have a modern cast and are...

    • 5. Planned Parenthood v. Casey (1992) and the Persistence of the Abortion Issue
      (pp. 129-137)

      The number of United States Supreme Court Justices permitting most abortions in this Country was reduced from seven in 1973 to five in 1992. This reduction reflects the steady efforts of pro-life people to organize themselves. Their efforts have contributed to the shaping of the Supreme Court for more than a quarter-century.

      This shaping followed upon that mobilization of voters which contributed to recent Republican Presidencies. This development contributed in turn to the nomination of Justices with a view to curtailingRoev.Wade(1973). It contributed as well to Congressional initiatives to curtail financial and other support for abortions...

    • 6. Capital Punishment and the United States Supreme Court
      (pp. 138-146)

      The opening paragraph of the Essay “On Capital Punishment” in myAmerican Moralistcollection recognizes the enduring issues that can be confronted here:

      The argumentsagainstcapital punishment in the United States today are in many respects rather dubious. But perhaps even more dubious has always been the caseforcapital punishment. Why is that so? There does seem to be something about this issue which makes it difficult for advocates to be completely persuasive one way or another. One consequence of this is that the issue is never really settled. Even in the days when the issue was hardly...

    • 7. Capital Punishment Reconsidered
      (pp. 147-155)

      Once American executions resumed in 1977, the principal efforts of abolitionists were devoted to piecemeal critiques of the uses of capital punishment rather than to its complete elimination. It was not likely, after the United States Supreme Court’s 7–2 ruling inGreggv.Georgia(1976), that capital punishment could soon be stopped altogether, not even temporarily. “The three statutes upheld in 1976 (those from Georgia, Texas, and Florida),” it is recalled in theEncyclopedia of the American Constitution(second edition),

      permitted jury sentencing discretion but attempted to reduce the likelihood of abuse to a tolerable minimum. All three statutes...

    • 8. Nancy Cruzan and “The Right to Die”
      (pp. 156-164)

      An Opinion of the United States Supreme Court, of June 25, 1990, recalls that Nancy Cruzan had been severely injured in an automobile accident on January 11, 1983. She “was discovered lying face down in a ditch without detectable respiratory or cardiac function.” “Paramedics,” it is further recalled, “were able to restore her breathing and heartbeat at the accident site, and she was transported to a hospital in an unconscious state.”

      She “remained in a coma for approximately three weeks and then progressed to an unconscious state in which she was able to orally ingest some nutrition.” Then, it seems,...

    • 9. Washington v. Glucksberg (1997) and Assisted Suicide
      (pp. 165-171)

      It seems to be generally agreed among medical doctors, at least in this Country, that the deliberate withholding or withdrawing of life-sustaining treatments from a terminally ill patient may be neither euthanasia nor assisted suicide. Our State laws regulating medical practice among us generally distinguish between “killing” (which is forbidden) and “letting go” (which is permitted). Furthermore, the American Medical Association guidelines with respect to these matters also seem to permit the use by doctors of “terminal sedation,” the administration of an amount of sedation for intense pain which is likely (but which is notsaidto be primarily intended)...

    • 10. The Legislation of Morality and the Problem of Pain
      (pp. 172-179)

      What can the General Government of the United States properly do to regulate health-and safety-related matters? In what ways may governmental measures take moral issues into account? What, in the development and assessment of such measures, is the status of life-and-death issues?

      The concerns here can extend over a wide range of matters, as illustrated by concerns about food safety, the use and abuse of narcotics, medical procedures, firearms possession, and transportation safety. It seems to be generally accepted today that the General Government can substantially regulate activities relating to these and like matters. It is debated, however, whether and...

    • 11. Evolution and the Law
      (pp. 180-192)

      The evolution controversy, which finds its way into our courts from time to time, is in large part about how to understand and deal with life, death, and the prospects of human beings generally. Such inquiries are at the heart of this constantly recurring controversy, which bears upon intriguing questions about the meaning of life, questions noticed in my 2007 Essay (appended to myBiblebook) “Yearnings for the Divine and the Natural Animation of Matter.” What, if anything, can be done to settle this issue, or at least to “contain” it, perhaps even putting it thereby to good use?...

    • 12. Life and Death in Abraham Lincoln’s Gettysburg Address
      (pp. 193-198)

      Abraham Lincoln’s speech upon the dedication in 1863 of the cemetery at Gettysburg, Pennsylvania, can remind us of the funeral speech that was said by Thucydides to have been given, for those who had died in battle, by Pericles in Athens at the end of the first year of the Peloponnesian War. Pericles’ speech, we have seen in Part One of theseReflections,keeps death out of sight. He, in a speech several pages in length, refers explicitly to death only once, and even then (we have also seen) to no more than an “unfelt death.”

      Lincoln, in a speech...

    • 13. The Unseemly Fearfulness of Our Time
      (pp. 199-204)

      A proper caution, particularly in the form of defensive measures, is to be encouraged in our affairs. We do tend to be enough aware of our mortality to take precautions. Recklessness is certainly to be avoided.

      There is provided in my 1971 treatise,The Constitutionalist,a detailed examination of principles vital to the American regime. The sources and applications of these principles are examined. Those principles, especially with respect to the First Amendment guarantee of “freedom of speech [and] of the press,” seemed to be undermined then because of desperate Cold War concerns in recent decades.

      The apprehensiveness exhibited at...

  6. Appendixes

    • Appendix A. The Declaration of Independence (1776)
      (pp. 205-208)
    • Appendix B. The United States Constitution (1787)
      (pp. 209-220)
    • Appendix C. The Amendments to the United States Constitution (1791–1992)
      (pp. 221-230)
    • Appendix D. Pericles, The Funeral Address (431 B.C.E.)
      (pp. 231-237)
    • Appendix E. On Death and Dying: Ancient, Christian, and Modern
      (pp. 238-241)
    • Appendix F. Patrick Henry, Give Me Liberty or Give Me Death (1775)
      (pp. 242-248)
    • Appendix G. Abraham Lincoln, The Gettysburg Address (1863)
      (pp. 249-249)
    • Appendix H. George Anastaplo, On the Ultron and the Foundations of Things (1974)
      (pp. 250-250)
    • Appendix I. Life, Death, and the Systematic Perversions of Law (2000)
      (pp. 251-278)
    • Appendix J. Cases and Other Materials Drawn On
      (pp. 279-284)
  7. Index
    (pp. 285-298)
  8. About the Author
    (pp. 299-300)