ABSTRACT
In Glucksberg, the Court’s reasoning bore no resemblance to the broad and openended rhetoric that characterized its decisions in Griswold, Roe, and Planned Parenthood.1 Rather than adopting a nebulous and imprecise definition of liberty “in its more transcendent dimensions,” the Court relied primarily on the historical record regarding the permissibility of assisted suicide. In doing so, the Court retained the
flexibility to recognize new rights in appropriate circumstances, yet simultaneously avoiding a rights-creation enterprise that is based solely on subjective values or normative considerations. The Court’s decision in Glucksberg underscores the importance of process-based decision making and shows that legitimate decision-making processes need not prevent judges from considering the utility of a particular outcome. Most importantly, the decision promotes bottom-up lawmaking as a cornerstone of American constitutionalism – a desirable outcome in and of itself.
