"Death with Dignity," "Compassionate Care," and federalism.

The NYT, reporting reporting on yesterday's Oregon v. Ashcroft case (which I discussed at some length here), quotes Dr. Greg Hamilton, of Physicians for Compassionate Care, a group opposed to doctor-assisted suicide:

"It's amazing when a federal court allows any state to nullify federal laws ... Vulnerable people in the state of Oregon are deprived of the protections available to people in 49 other states."

It would be amazing if a federal court recognized a power of a state to "nullify federal laws," but of course that didn't happen. If the federal law, the Controlled Substances Act, had clearly stated its intent to bar doctors from prescribing drugs to enable a person to commit suicide, the court would have recognized that federal law preempts state law. The problem was banning doctor-assisted suicide by virtue of the opinion the Attorney General alone, rather than having a decision thought through by Congress. It's obvious that Congress never went through the exercise of deliberating about physician-assisted suicide, and it's also obvious that the people of Oregon, acting democratically through a ballot measure, did think about this specific subject and reach a decision. The question is whether Attorney General Ashcroft should be permitted to use the Controlled Substances Act, which Congress passed while contemplating other sorts of drug problems, to impose his ideas about physician-assisted suicide over the decision reached by Oregon. Nothing prevents Congress from taking up the issue now and providing the necessary clear statement of intent to prevent doctors from prescribing drugs for suicidal purposes, nothing except all the political disincentives. If the national legislature cannot get up the nerve to address this question, why shouldn't the view adopted by the people of a state prevail?

Dr. Hamilton expresses concern that the people of Oregon have a law different from the laws in all the other states. He characterizes the structure of federalism as a lack of protection for people, as if uniformity of law is in itself beneficial. But it is traditional in American constitutional law to regard federalism as a device to protect individual liberty. Why should we think that there is a loss of liberty if the law varies from state to state, rather than to think that the ability of one state to break away from the others and try something new holds some promise of bringing new benefits to people? Hamilton's group has a policy preference, and he may very well have the better answer about physician-assisted suicide. But to analyze the federalism problem, we need to picture it the other way around: what if all the states permitted doctors to prescribe drugs for patients to commit suicide and one state decided to ban it? Would you still believe in the benefit of requiring the whole country always to move in one hulking pack? Permitting one state to engage in a policy experiment is not "amazing." It is fundamental consitutional law and a time-proven way to generate good policy (though it necessarily leaves room for bad policy too).

If the policy adopted by Oregon is really so bad, presumably Hamilton's group can convince Congress to make a clear federal law. If he can't do that, the shortcut of accepting Ashcroft's view of the matter should not be enough to override the policy the people of Oregon adopted.