January-February 1993

The Ends of Human Life: Med­ical Ethics Ina Liberal Polity.  By Ezekiel J. Emanuel. Harvard University Press. 307 pages. $34.95.

Medical ethics is impos­sible. At least today. In this country. This is the starting point of The Ends of Human Life by Ezekiel J. Emanuel, an on­cologist and philosopher at Harvard. But we can correct this situation, according to Emanuel. All we have to do is deconstruct America. Here is how he reasons.

Medicine is committed to moral ideals -- treating the sick and relieving suffering. How one properly goes about that is the content of medical ethics, which is necessarily based on political philosophy. Only when “the good life” is specified by a political phi­losophy can a system of medical ethics be determined. For example, if “the good life” is defined as only possible when one is aware of others, then medicine is not ethically obliged to spend much time or money on patients who are “vegetables.” But in America our political philosophy es­chews definition of the good life. Hence, we cannot now formulate a system of medical ethics. Emanuel would alter this situation by changing our political philosophy, in effect by disuniting the United States.

He would do this by estab­lishing a series of small com­munities that would define the good life for themselves and thus be able to create their own medical-ethical guidelines. One community might agree that the good life is any life in which the heart is beating and the lungs breathing, and thus be in favor of all treatment of the sick no matter what. An­other community would con­strue the good life as only that existence in which people are “productive,” and thus tolerate euthanasia for the “useless.”

The small communities would decide who could be­long to them. Thus, there could be steel-worker commu­nities, feminist communities, African-American groups, Ukrainian, you name it. To a community of homosexual men, for instance, any strategy to deal with AIDS might be deemed ethical, while spending money on prenatal research might be held unethical.

There are problems with Emanuel's thought. First, the obvious one: Many readers (myself included) will object that much of the medical ethics should not vary from commu­nity to community. Second, a fraction of Emanuel's audience will object to his making med­ical ethics a branch of political philosophy. Third, some may feel that present-day society does espouse a conception of the good life, that America is not nearly as ethically neutral as Emanuel says it is. Fourth, there is no reason why medical ethics could not be founded on negative principles -- e.g., “Don't allow a patient to be in avoidable pain.”

None of this should de­tract from the book's good features. Issues in medical ethics are hard to frame, and Emanuel states them clearly and without jargon. His pro­posals are probing. He recog­nizes that small groups (his “communities”) can make some decisions about proper medical-ethical procedures better than can the large ones (the federal and state governments) that we are ever more employing.

I only wish Emanuel had gone further -- right back into the past of 30 years ago. For even his communities cannot definitively answer many of the ethical questions that con­front physicians like me every day in our practices: Should a patient with a terminal illness in a coma have any infections treated with antibiotics? Should he be artificially resuscitated if his heart stops? These ques­tions -- unlike those having to do with abortion and euthana­sia -- can be answered in an ethically justifiable manner either way depending on the circumstances, which can only be ascertained by the smallest group imaginable: doctor, patient, and family. So that doctors will be able leaders in this endeavor, we should pick med­ical students very carefully, train them in a few simple ethical rules, and then vigorously protect them upon grad­uation from the distractions of endless government regulations and threats of lawsuits. Would this be a flawless system? Of course not. But it worked well in the past. And we would not have to destroy the political fabric of the country to implement it.

- Richard J. Lanham

The Fettered Presidency.  Edited by L. Gordon Crovitz & Jeremy A. Rabkin. American Enterprise Institute. 335 pages. $14.95.

Energy in the Executive: The Case for the Strong Presidency.  By Terry Eastland. The Free Press.. 392 pages. $22.95.

There is a widespread be­lief that the American presi­dency is not working very well. Images of paralysis, grid­lock, failure, limitation, and weakness dominate the litera­ture. After “presidential” wars, scandals, a resurgent Congress, and the public's restiveness, students of the presidency have become more sensitive to the checks and constraints on presidential power: So much separation, so little power.

The two books under re­view here see the separation of powers, combined with divid­ed government (a Republican president with a Democratic Congress), topped by Demo­cratic Party intransigence, as the core problem. Both call for less separation of power, with more power going to the president. Both prescribe what amounts to Presidential Rule.

The Fettered Presidency is a collection of essays that focuses on the legal constraints placed upon the presidency. While there is some scant effort at partisan balance in authors, the list of contributors reads like a Who's Who of the political Right -- Elliot Abrams, Robert Bork, C. Boyden Gray, Jeanne Kirkpatrick, Irving Kristol, William French Smith, and others. Bork engages in Congress-bashing, arguing that the Democratic-controlled Congress has sought to encase presi­dents in a cocoon of legal codes that attempt to place criminal penalties on partisan differences. Surprisingly, Bork shows his ignorance of U.S. institutional relations when he writes that “the Court is not a reliable ally of the presidency even when the president's position is constitutionally cor­rect.” This is just plain wrong. Every study of president/court relations clearly demonstrates that the courts usually side with the president in his claims of power. Too often the book's authors let their axes grind too hard, and important points get lost in ideological invective. This work's theme -- “Who will rid me of this damn Congress?” -- obscures rather than illuminates the otherwise important message that our politics are all too of­ten fought out in the legal arena at the expense of politi­cal accountability.

Terry Eastland gives a more coherent, and slightly less partisan, dimension to the strong presidency perspective in Energy in the Executive. East­land, who worked in the Rea­gan White House, recognizes that it may seem odd for conservatives to advocate a strong presidency, but notes that the best way for conserva­tives to achieve their policy goals is via Presidential Rule. This is of course an “ends justify the means” argument, always a tenuous position. But to Eastland, conservatives should play up the strong presidency model, not merely for self-interest but on a higher ground: the Constitution. Eastland argues -- incorrectly -- that the Constitution created a strong presidency. His inter­pretation, which draws heavily on Alexander Hamilton, was not the view of the Founders when taken in totality. True, the Founders sought a gov­ernment with energy, but Congress clearly was to be the centerpiece of government. The Framers feared tyranny and thus sought to control execu­tive power while also granting it enough power to remain strong. The model was more Aristotelian than Hamiltonian. The Founders could have set up a powerful presidency, but chose not to. Their decision-making model was not Presidential Rule but consensus. Thus, these proposals for Presi­dential Rule are not conserva­tive, but radical.

The problem addressed in both these works is real, but the solution -- Presidential Rule -- is highly questionable, as well as very shortsighted and partisan. It is based pri­marily on whose ox is being gored. When strong Democrats are in the White House, con­servatives decry the power of the presidency as a danger to the republic. At such times, the Right demands that Congress invoke its power under the separation of powers to rein in presidential assertiveness. During the past 24 years, however, when Republicans controlled the White House for 20 years but the Democrats controlled the Congress for most of that time, conserva­tives changed their tune. Cur­iously, calls for a more stream­lined system of presidential government could be heard in the early 1960s from liberals who were similarly frustrated by the limits on presidential power when their chosen one was in power. One wonders if the conservatives in these two books will be so bent on presi­dential power now that a Democrat is to be inaugurated as president.

The real problem is not a fettered presidency but the in­ability of recent presidents to persuade Congress and the public that their vision should be followed. In short, it's a failure to develop a consensus that can mobilize an ordinarily lethargic political system to act. Yes, more efficiency; yes, power to the president; but within the context of democratic control and accountability. Our system can respond to presidential initiatives, but with a system of Presidential Rule, democracy withers.

- Michael A. Genovese

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