Abstract: This article explores a disconcerting phenomenon. In recent years, in writing on the subject of assisted suicide, several bioethicists have made extraordinary historical claims. The history of Western moral theories that exhibit disapproval of all forms of suicide is well known. Nevertheless, the bioethicists have claimed that some of Europe's most prominent early modern moral philosophers never believed in the inalienable right to life. This claim is quite controversial because this right is an important basis for secular moral opposition to assisted suicide. Irrespective of whether or not opposition to assisted suicide is philosophically justified, the philosophers the bioethicists write about did in fact believe in the inalienable right to life. Bioethicists can only come to their conclusions concerning the philosophers by employing an improper historical methodology.
In 1995, Martin Flaherty, a leading expert on Anglo-American legal history, published his seminal article on the misuse and inaccurate study of history by modern professional academics. (1) Entitled History "Lite" in Modern American Constitutionalism, (2) the article addressed misrepresentations of the history behind controversial provisions of the American Constitution such as the Takings Clause (3) of the Fifth Amendment (4) and the Contracts Clause (5) contained within Article One. (6) In this excellent work, Flaherty wrote that
Lawyers, judges, and-the ultimate concern of this Article-legal
academics regularly turn to history when talking about the
Constitution, and not merely as a rhetorical trope....
Despite this propensity, or maybe because of it, constitutional
discourse is replete with historical assertions that are at best
deeply problematic and at worst, howlers. (7)
Being preoccupied with the Takings Clause and the Contracts Clause, Professor Flaherty did not address the constitutional legal history that is implicated in medical ethics or end-of-life issues. This article will examine the category of professionals whom Professor Flaherty left out, but who nonetheless have had a great impact on "American Constitutionalism"; bioethicists. Modern American bioethicists often make historical assertions that are patently false. The most glaring example of "history 'lite'" in modern American bioethics (8) can be found by examining how various important bioethicists address the issue of assisted suicide, (9) which is most certainly an important issue in American constitutional law. This disconcerting phenomenon can best be seen in the works of A. John Simmons, Tom Beauchamp, and James Childress.
Therefore, this article will first criticize Simmons' dismissal--based on historical grounds--of what professional philosophers and metaphysicians commonly call "the theory of inalienable rights." Second, this article will criticize the spurious historical claims concerning Immanuel Kant's metaphysics of morality found in Tom Beauchamp and James Childress' Principles of Biomedical Ethics. (10) Last, this article will conclude by looking at how the fruits of history lite threaten the soundness of our constitutional jurisprudence. In order to list these criticisms effectively, the author must begin by explaining what kind of historical methods yield better answers than those that can only be called history lite.
Two Basic Rules For Achieveing Historical Accuracy
Professor Flaherty, in cataloguing the "history lite" created by such important constitutional theorists as Richard Epstein, (11) Cass Sunstein, (12) and Bruce Ackerman, (13) also wrote about proper historical method. He criticized those who "blithely ignore" the "conventions" set up by professional historians. (14) He also criticized those who ignore historical "context" and thereby create "law office history." (15) Nevertheless, Flaherty's concerns in History "Lite" are not the concerns before us now. …