A sad fact nonetheless lies at originalism's heart. For all its virtues, originalism has failed to deliver on its promise of restraint. Activism still characterizes many a judicial decision, and originalist judges have been among the worst offenders. They may sincerely strive to discover and apply the Constitution's original understanding, but somehow personal preferences and original understandings seemingly manage to converge. The fault lies with the theory itself. Originalism, like any constitutional theory, is incapable of constraining judges on its own. And instead of recognizing this flaw, originalism provides cover for significant judicial misadventures. The result is too often a new breed of judicial activism masquerading as humble obedience to the Constitution.
Note from KBJ: Judge Wilkinson, bless his modest heart, conflates the theory itself with its application. As John Stuart Mill pointed out in Utilitarianism (1861), any theory conjoined with universal idiocy (or, we might add, political bias) is bound to work ill. No theory can constrain a judge who is bound to evade its strictures. The theory should be evaluated as though it were going to be perfectly and honestly applied, not misapplied. Another problem with Judge Wilkinson's book is that he opposes all extant theories: living constitutionalism, originalism, political process theory, and pragmatism. It's impossible to work without a theory. The question is not whether a judge should have a theory, but which theory a judge should have, and whether the judge should be conscious of it. Judge Wilkinson himself has a theory. He appears, however, to be unaware of it. We might call it the Judicial Modesty Theory.
You work for the Bureau of Health, a government agency. You are deciding whether or not your agency
should encourage the use of a certain recently developed vaccine. The vast majority of people who take the
vaccine develop an immunity to a certain deadly disease, but a very small number of people who take the
vaccine will actually get the disease that the vaccine is designed to prevent.
All the available evidence, which is very strong, suggests that the chances of getting the disease due to lack
of vaccination are much higher than the chances of getting the disease by taking the vaccine.
Is it appropriate for you to direct your agency to encourage the use of this vaccine in order to promote national
Lenore Skenazy ("'Lean In' and the Era of the Inconvenienced Mom,"
op-ed, March 25) writes that "Society is leaning on mothers to go the
extra yard," using examples such as reading to fetuses and carrying
80-pound children in baby carriers. These extremes make for fun reading
but aren't typical. What I find, as a college-educated, stay-at-home
mom, is that society is leaning on mothers to: raise hundreds of
thousands of dollars for struggling school districts, teach art in
public-school classrooms, drive on field trips, coach school science and
math teams, lead scout troops and organize sports teams. Encourage me
to go back to work? OK. But don't complain when rich academic, social
and athletic opportunities for your free-range kids dry up.
Liana K. Neyer
Parenting is supposed
to be inconvenient. If you don't have the money for a chauffeur to
drive your children to music lessons, sporting events, doctor's
appointments, or the zillion other places they need to go, the job falls
to you. If you don't have the money for a private tutor to actually
teach your children the things they should be learning in public school
but aren't taught, the teaching job falls to you. Most children need
direct instruction—they use their computers for entertainment. And
unless you have family living nearby with a vested interest in your
child, spending time reading to them falls to you as well. Reading to a
child does engender a love of reading. It does make a difference.
Inconvenient? Time consuming? Yes.
What happens to
careers due to these inconvenient demands? They won't be as stellar as
they might have been if we had chosen to live alone and pursue a
self-oriented life. It is called choice. We all have to make choices. If
you chose to have children, it is about sacrifice.
Is it fair that many
women have to sacrifice their career ambitions because of the
inconvenience of parenting? No. But, what about fairness to our
children? Is it fair to be born into dual-career households and raised
by hired help who couldn't care less whether the children are doing
homework or stuffing Oreos and playing videogames as long as they're
quiet? Is it fair to children, who when they turn the ripe old age of
12, to be left to navigate the roughest years of their life,
adolescence, alone? With an empty house, YouTube, Twitter, iPhones and
their friends to guide them, they will surely be just fine, right? Maybe
it is about time that society has started leaning on mothers and
fathers to go the extra yard, spend those extra hours even if it means
compromising when it comes to careers. Our children really do need us.
And they usually need us the most when it is inconvenient.
Mary M. Glaser
Why not have a parent
at home, encouraging age-appropriate freedom with responsibility and
morality? It takes a lot of hard work and time but produces for the most
part responsible adults.
Toms River, N.J.
Brava! Ms. Skenazy
hits the nail on the head. I recently asked Jim DeMint at an American
Heritage event how we can empower and encourage conservative women and
mothers to get more visibly involved in policy as the Democratic Party
does so well. His answer defines the problem with the Republican Party
as well as the conservative groups that seek to reform it. He said,
"Being a mother is the most important job you can do. Focus on that."
When I tried to explain that my youngest is now 17 and should be fully
parented by now, he gave his handler the high sign and we were quickly
Stop coddling and
patronizing stay-at-home moms and start harvesting our superior skills
of organization, fundraising and local pulse-taking if you want your
conservative agenda to succeed. I and many like me have worked full time
while staying home with our kids. Have you done that, you men who spout
conservative policy and family values?
Fabian Cancellara of Switzerland won today's Tour of Flanders. Here is the winning move. Here is the joyous finish. Raw power.
Addendum: Second-place finisher Peter Sagan (of Slovakia) disrespected one of the podium girls after the race. The Guardian is going all political over it, even calling for an end to the tradition of podium girls. Isn't political correctness great?
Wichita State did what my Arizona Wildcats could not: beat Ohio State. There goes my prediction that the Buckeyes would win it all. Don't get me wrong: I'm happy. I'll be rooting for the Shockers the rest of the way.
I had a nice training ride this morning with my friends Phil and Scott. We parked in downtown Fort Worth (11.6 miles from my house) and rode along the Trinity River to Benbrook Lake. We returned along the same route, except that Scott threw in some hills for climbing practice (on one of which—very steep—my heart rate reached 160).
Believe it or not, I have never ridden these trails, though I ran some of them in footraces over the years (including a half marathon at Benbrook Lake in January 1998, in which I won a trophy for first place in my age group [men 40-44]). It rained overnight, so there were patches of water and mud on the trail. Sometimes we were riding through forests and sometimes on residential streets. There were few stops for traffic.
We would have gone faster had we had the trails to ourselves, but we shared them with pedestrians, dogs, strollers, runners, and other cyclists. I ended up with 44.04 miles at an average speed of 15.37 miles per hour. (Elapsed time = 2:51:52.) No hail this week. Ha! If you click the image in this post, you'll see the Tarrant County Courthouse (built in 1895) in downtown Fort Worth. I snapped the picture with my iPhone from my car as I was stopped at a traffic light.
Should it be legal for doctors to help end dying patients’ lives?
To the Editor:
The end of my grandmother’s life proved to be a nightmare when her
physicians could not treat her intractable cancer pain. I would have
done anything to end her suffering, but hadn’t the means or knowledge.
Legal “aid in dying” might have spared her such overwhelming pain.
She has been gone nearly 20 years, and little in the arguments for or
against physician-assisted dying has changed, although it is legal now
in three states (Oregon, Washington and Montana), and on the legislative
agenda of several more. Wherever it comes up, as it did in
Massachusetts last year (it was defeated), the issue raises controversy
and, for a while at least, forces public discussion of what we fear
most: suffering, dependency and death.
In this modern world, millions of us will live for two or three years
with a condition that ultimately kills us; millions more will have our
minds fail from dementia or stroke. In the course of such illnesses,
people want to live as well as they can, despite increasing dependence
on others for basic care, and the subsequent loss of dignity and
independence. But we do not have services adequate to meet their needs,
or their families’. Creating such a system requires much more than
modest Medicare reforms; it requires fundamental changes in how medical
treatment and supportive services collaborate.
In general, where it is legal, physician-assisted dying is available
only to people who are competent, who have physicians’ verification that
they will die soon and who can wait for a period of time before
receiving a lethal prescription. For those few, having a sense of
control can ease fear and anxiety.
But for those of us on our way to a less predictable end, urgent issues
remain to be solved. The inadequate and disconnected services we have
now will fail us. We need to find better ways to care for the dying and,
ultimately, for ourselves.
JANICE LYNCH SCHUSTER Washington, March 25, 2013
Ms. Lynch Schuster is a senior writer at the Center for Elder Care and Advanced Illness, Altarum Institute.
While I agree that we need better ways to care for the dying, assisted
dying creates more questions than it does answers, even for atheists
Is aid in dying about autonomy (choice) or compassion? If autonomy, why
restrict it to those with a terminal illness? The wishes of a
26-year-old who does not think life is worth living should surely be
respected, too. But compassion implies euthanasia rather than assisted
Might legalization devalue the lives of the elderly? In the Netherlands,
where it is legal and has been tolerated for decades, a mainstream
initiative supported by more than 100,000 people seeks aid in dying as
an option for all those over 70 who are “tired of life.” Could this be
the future for the United States if assisted dying is widely legalized?
Finally, won’t it threaten, with its legal spotlight on the deathbed
scene, the time-honored tradition of doctors hastening death when
nothing else can be done?
KEVIN YUILL Durham, England, March 28, 2013
The writer is the author of “Assisted Suicide: The Liberal, Humanist Case Against Legalization.”
Days before I helped my mother die in 1983, when physician-assisted
suicide was neither an issue nor a movement, I noticed a change in her.
She became herself again. Once she knew she would be able to “get out of
life,” as she put it, her terror about suffering through an impending
cancer death left her, and she was suddenly calm. Her sister thought she
was getting well.
This is the point of what we now call death with dignity: to give the
dying person a choice about when, exactly, to die. Many people in Oregon
and Washington, where one can legally die with the help of a physician,
get the lethal medication and wind up not using it. They don’t need to.
They have what they need without actually taking the final step: peace
of mind, a sense of being in control.
BETTY ROLLIN New York, March 28, 2013
The writer is a board member of Death With Dignity National Center
and the author of a book about her mother’s death, “Last Wish.”
There is a “better way to die,” and it is legal in all 50 states. It is
commonly called Voluntary Stopping of Eating and Drinking or Patient
Refusal of Nutrition and Hydration. My mother chose this way to end her
life when she was informed that her chemotherapy and radiation treatment
for oral cancer had failed and she faced a death marked by pain and
occlusion of her windpipe by the tumor that grew in her jaw. She was
depressed when she was told her prognosis, but her demeanor reversed
when she took control of her life and decided to die on her own terms,
without having to suffer the final stages of her disease.
She decided to stop eating and drinking completely when she learned that
hunger and thirst abate after only a day or two and there is no
additional pain. She received visitors and dozed off and on for 10 days;
on the 11th day she became less responsive, and on the 12th day she
The question is: Why don’t doctors inform patients of this option?
SUSAN SCHAFFER Durham, N.C., March 27, 2013
Our cats, our dogs, our horses and cattle can have a compassionate death, but not ourselves? What is wrong here?
CAROLYN PAGE Spearfish, S.D., March 27, 2013
Intractable cancer pain is a treatable condition if the physician and
the health-care team are committed to addressing it. Physician-assisted
death is not the answer for the lack of appropriate health care.
We do need to revamp the health care system to allow patients with
end-stage disease to spend the rest of their time in the comfort of
their homes and with their families, armed with appropriate nursing
As a registered nurse in an acute-care facility, I am often advocating
for the appropriateness of palliative care and, at the end of life,
hospice care. We owe it to ourselves to focus more on care of the dying,
rather than on a quick solution.
LUANN ROWLAND Sayville, N.Y., March 27, 2013
Our current system is terrible for the family and for the loved one who is dying. I would propose a different system:
Dying should be treated as a life event and planned for, just like
births, weddings and anniversaries. Ideally, the dying person would
choose a date on which he would die. This would be announced to family
and friends. A celebration-of-life event would be held so that family
and friends could tell the person how he or she affected their lives and
celebrate a life well lived.
On the day of the death, those who have been selected would be with the
person as he or she died. The death would be assisted by medical
specialists specifically trained in facilitating a peaceful, pain-free
Such a system is now illegal but would be infinitely better than the
barbaric one we now experience, which all too often leads to prolonged
suffering for the person and the family.
BRUCE HIGGINS San Diego, March 27, 2013
I have practiced medicine for 33 years. I have seen my parents grow old
and die. I have seen people suffer for long periods before they die.
While I understand the arguments for allowing assisted self-termination
of life, I do not believe that this should ever be legalized because of
the risk of abuse. There will be those physicians who find it too easy,
who find it in vogue, who confront the issue with too little
consideration of options or ramifications. It is too dangerous a license
to give to anyone: the license to end a life.
But there are many ways that a physician can help a patient die without
actually providing the trigger. “Benign neglect” can shorten lingering.
And when a patient is truly terminal, heavy sedation will often suppress
breathing, and life will end in its own way, as nature takes its
I often ask families of patients who are struggling with what to do
about their loved one’s condition whether we are prolonging life or
prolonging death. The answer is usually apparent on a visceral level, to
medically trained people and lay people alike. Nature speaks to us.
DAVID BLAZER Dickson, Tenn., March 27, 2013
As one who has fought for 35 years for meaningful, safe and lawful
medical assistance in dying for terminally ill adults, I am encouraged
to see that America has now opened a dialogue where once it was silent.
The time has come for more states to enact similar laws to the ones that
are working well in Washington and Oregon.
Church leaderships will continue to strongly contest such law reforms,
but nobody is asking them to participate. The right to choose to die is
the ultimate personal and civil liberty.
DEREK HUMPHRY Junction City, Ore., March 27, 2013
The writer, who helped his terminally ill wife to die in 1975,
founded the Hemlock Society USA and is the author of “Jean’s Way” and
Those who oppose legalizing aid in dying assert several reasons for
doing so. One is that it is inhumane and immoral to take the life of
another person. Another is that there will be abuse. A third is that
pain and suffering can always be medically relieved.
Similar arguments were made almost 40 years ago when the Karen Ann
Quinlan case arose. That was the first case to assert that there should
be a legal right to have life-sustaining medical treatment withheld or
withdrawn. In that case, opponents claimed that discontinuing life
support was the equivalent of murder or manslaughter and that it would
violate medical ethics for doctors to participate.
The New Jersey Supreme Court wisely ruled otherwise. Subsequent history
has shown that doctors, in consultation with patients or their families,
are able to make the fine discriminations necessary to assure that
there is no abuse. Consequently, patients whose life-sustaining medical
treatment can be withheld or withdrawn are now spared the pain,
suffering, dependence and indignity of being kept “alive” indefinitely
against their will.
While palliative medicine has improved tremendously in the last decade
or two, there are still cases in which it is not up to the task of
relieving pain and suffering, and it will never be able to end the
dependence and indignity of many end-of-life situations.
ALAN MEISEL Pittsburgh, March 26, 2013
The writer is a professor of law and bioethics at the University of
Pittsburgh and co-author of the legal treatise “The Right to Die: The
Law of End-of-Life Decisionmaking.”
As a physician with 50 years of practice behind me, I can sympathize
with Ms. Lynch Schuster. Assisting a patient who faces certain death and
who is plagued with constant pain is not an easy job for a physician,
given the constraints of our laws.
It is not a medical problem but rather a societal one. The arbiters of
our morals and ethics are our judges and our clergy. It is time for them
to convene a congress to clarify this issue.
What I foresee is a set of rules like this: The patient must be
conscious and lucid, as attested to by a board of three psychiatrists.
If the patient professes any religious preference, he must first undergo
counseling with a religious counselor of his choice. Written requests
for euthanasia signed by the patient and the next of kin are then
submitted to a judge; the judge reviews the testimony of the
psychiatrists and impanels a committee of three physicians whose
specialties are appropriate to the illness involved. These physicians
review the case, and if they all agree on the lack of any prospect for
amelioration of the disease process, make such a report to the judge.
The judge then issues an order permitting the attending physician to
administer medication in doses sufficient to produce sleep and
eventually a peaceful death.
SANFORD A. FRANZBLAU Arlington Heights, Ill., March 27, 2013
The Writer Responds
Reader responses confirm my claim that little has changed in the debate
over legalizing aid in dying: Yes, Ms. Page, we can choose to kill our
cats and dogs when their suffering (or costs) overwhelm us. Yes, Ms.
Schaffer, forgoing life-sustaining treatment is legal and, if desired,
accessible. And yes, Mr. Higgins, we need cultural practices that
celebrate and honor our deaths.
People living with advanced aggressive cancers are the most likely
patients to meet the strict criteria required to obtain a lethal
prescription where the practice is legal. For them, having this option
can ease anxiety. But most of us face a much less predictable end, or a
protracted period of dementia. Laws authorizing physicians to order
lethal drugs will not help us.
We need more reliable support and better options. Ms. Rollin and others
write that aid in dying is mostly about self-determination, dignity and
peace of mind. Indeed, attention to these issues must shape fundamental
reforms in care for frail elders. Although some people (very few, from
Oregon’s experience) will want to “opt out,” millions will want services
that promote dignity, comfort, meaningfulness, relationships and
reliability as our health fails us. Finding these is hard.
We must not let care be so bad that people routinely choose death. Our
care system must provide better options, trustworthy solutions and
And each citizen must help build that system, so we can live well, despite illness and frailty, in our old age.
Justin Verlander of my Detroit Tigers replaces Felix Hernandez of the Seattle Mariners as the highest-paid pitcher in Major League Baseball. Thank God, because Hernandez is a high-paid dud who has (1) won more than 14 games only once in his career (Verlander has won more than 14 games six times) and (2) never led his team to the playoffs (Verlander has led his team to the playoffs three times).
You are at home one day when the mail arrives. You receive a letter from a reputable international aid organization. The letter asks you to make a donation of two hundred dollars to their organization.
The letter explains that a two hundred-dollar donation will allow this organization to provide needed medical attention to some poor people in another part of the world.
Is it appropriate for you to not make a donation to this organization in order to save money?
Let’s get serious about “having it all.” Of course working from home and
“flex time” make it easier to combine a career and a family. But they
are, for the most part, privileges of the few: the college graduate, the
editor, the software developer.
But how about the waitresses and sales clerks, the women on the
production line in a factory or working in a warehouse? For the most
part they aren’t working because they want to—they’re working because
they have to. I’d like to hear elite women writing about making a better
life for these women, not obsessing about the travails of a career and a
life that the poor can only dream of.
ARTHUR O. ARMSTRONG
Manhattan Beach, Calif., March 24, 2013
To the Editor:
Thanks to Michael Winerip for pointing out that the question is not
whether women can have it all, but whether any of us can, or whether any
couple, collectively, can manage to combine careers, children, a
comfortable income and a satisfying life.
Most of us work vastly more than our parents did, with less job
security, less retirement security and less ability to educate our
children well. Who among today’s child-rearing generation had parents
whose jobs required them to keep working past midnight?
A generation ago, families could live better on one income than most of
us live today on two incomes. Except for the very highest earners, life
is just harder now than it was for our parents.
New York, March 24, 2013
To the Editor:
I live in what was once the traditional American household. My mom has
devoted her life to staying home; my father seems to work endless hours.
Michael Winerip said that seeing his wife and kids snuggled up watching
“Ace Ventura: Pet Detective” one night tipped him toward becoming a
stay-at-home dad. He was lucky enough to be able to do that, but not all
I think kids really know their parents’ affection by more than time
spent together. Personally, I know how my dad drops everything when I
really need him. Many of my friends at school have parents who can’t
afford a good balance between work and parenting, but they are still