As I started to read the recent rulings of two U.S. Courts of Appeals discovering that terminally ill patients have a constitutional right to kill themselves with lethal drugs prescribed by any willing physician, I was reminded of Judge Learned Hand’s line about "Platonic Guardians."

I looked it up: "Each one of us must in the end choose for himself how far he would like to leave our collective fate to the wayward vagaries of popular assemblies," Hand wrote in 1958. "For myself it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not."

Some of the nation’s best minds think that a legal rule authorizing physician-assisted suicide "erases a fundamental ethical line and opens medical practice to unconscionable abuse," in the words of the columnist (and lapsed psychiatrist) Charles Krauthammer. He adds that any such rule would open the way for intolerable pressure from self-interested relatives and others for "the elderly and infirm to take drugs to hasten death."

On the other side, some of the nation’s best minds stress that thousands of suffering patients desperately want and need the kind of help in hastening the end that-under current law-some doctors cannot provide, and others will provide only in secrecy, for fear of being prosecuted as criminals.

It is an agonizing public policy dilemma, and one of vast importance. Both elite and popular values on the subject are evolving at warp speed, as one ethical line in the sand after another is washed away by racing medical technology and soaring medical costs, and as ever more diabolical choices are inflicted on us all.

So why should the ultimate decision on this matter come from a bunch of judges, in the guise of divining some fixed meaning for all time from a 128-year-old amendment that has nothing explicit to say about any "right to die"?

After all, this is everyone’s problem. We may not trust majoritarian democracy to be fair to what the Supreme Court once called "discrete and insular minorities" But why not trust the voters and those they elect to govern on an issue like this? Why not wait and see whether others will follow the example of the voters of Oregon, who approved a limited right to physician-assisted suicide in a referendum last year? At least such laws have the virtue of popular legitimacy.

Krauthammer and the ghost of Hand seemed to be having the better of the argument as I started to read Judge Stephen Reinhardt’s massive March 6 opinion and its 140 footnotes.

A crusading liberal, Reinhardt wrote the 8-3 decision of the U.S. Court of Appeals for the 9th Circuit striking down a Washington state statute. He derived a "right to die" for competent, terminal patients-with a doctor’s help-from the due process clause, as illuminated by the Supreme Court’s abortion precedents.

Judge Reinhardt also made stops along the way to consider modern poll data and the views of Homer, Sophocles, Socrates, Plato, the Stoics, Justinian, the Donatists, Shakespeare, Voltaire, Bracton, Coke, Blackstone, Mitterand, the American Medical Association, and just about everyone else except the Beatles and Janis Joplin.

Reinhardt was less than clear in explaining details like how the due process "liberty interest" in killing oneself could be confined to terminal patients (rather than, say, depressed teens), or to those who want the help of physicians (rather than, say, relatives), or to those who are still conscious and competent at the end.

What about my mother, 1 wonder. At what point, during the eight years when her mind was being ravaged by Alzheimer’s disease, did she become "terminal" or "incompetent"? And might she still have been suffering in those last days, as we sat in my sister’s living room, watching her lie there, unconscious and shriveled, waiting for her to die? And what would we have done, or thought, if the law had told us that it would be OK to give her a lethal injection?

The 2nd Circuit took an approach superficially different from the 9th in striking down a New York statute, in an April 2 opinion by Judge Roger Miner (a Reagan appointee). He rejected the same substantive due process arguments that Reinhardt had adopted, as having "no cognizable basis in the Constitution’s language or design."

But then Judge Miner proceeded to the same destination via a more scenic route: He held that it violates equal protection for a state to bar some terminal patients from getting lethal drugs from their doctors, while allowing other terminal patients to direct removal of life-sustaining machinery.

"Physicians do not fulfill the role of ‘killer’ by prescribing drugs to hasten death any more than they do by disconnecting life-support systems," Miner wrote, noting that the latter approach brings death "through asphyxiation, starvation and/or dehydration."

This logic is not without force. But it smacks of bootstrapping, given the Supreme Court’s quasi-holding in Cruzan v. Missouri Department of Health (1990) that states have no choice but to allow patients to direct removal of life-support systems as a matter of substantive due process. Moreover, Miner’s logic is at war with the concerns of many thoughtful experts that (in Krauthammer’s words) "the great moral barrier protecting us from… monstrous God-doctoring is the one separating passive from active euthanasia…. [P]ulling the plug simply prevents an artificial prolonging of the dying process. Prescribing hemlock initiates it."

Who is right, Miner or Krauthammer? Damned if I know.

And before the courts give a definitive answer, maybe we should learn more about what’s been going on in the Netherlands, where laws allowing doctor-assisted suicide have apparently fostered psychological pressures on the elderly and infirm- as in, "Everyone’s doing it, Mom, and we’d all feel better knowing you were at peace"-and even involuntary euthanasia.

But on my way to dismissing the constitutional right to die as judicial imperialism, I read something else, toward the end of Judge Reinhardt’s opinion- something a bit more compelling than the reference to the Stoics and the quotations from Justice Harry Blackmun. I read about some real cases:

"[A] 34-year-old man dying from AIDS and lymphoma… asked his physician for drugs to hasten his inevitable death after enduring four excruciatingly painful months…. His doctor… refused because he feared prosecution…. Denied medical assistance, the patient ended his life by jumping from the West Seattle Bridge and plummeting to his death….

"Like many terminally ill patients, one individual killed himself in a secretive and lonely fashion, in order to spare his family from possible criminal charges…. He… went down to his basement, and shot himself with his 12-gauge shotgun. He was 84."

And, according to this man’s daughter, her son-in-law had "the unfortunate and unpleasant task of cleaning my father’s splattered brains off the basement walls."

Someone ought to make it legal for people like this to get lethal drugs, with appropriate safeguards to minimize abuses. This appears to be the view of most Americans. But inertia is a powerful force in the law, and assisted suicide is still technically a crime almost everywhere, under laws dating back to the 19th century.

Does fidelity to popular rule require the courts to wait for the statute books to catch up with public opinion? Is Judge Reinhardt’s brand of judicial activism the only alternative to standing aside while thousands more people die in unnecessary agony, and more brains are splattered on basement walls?

Perhaps not. Judge Guido Calabresi of the 2nd Circuit has suggested a way out. Calabresi, the former dean of Yale Law School, calls it a "constitutional remand." In an opinion concurring in the result reached by Judge Miner, Calabresi contended that when an apparently anachronistic law "comes close to violating" substantive due process or equal protection, the courts should pass only interim judgment on the ultimate constitutional issues.

Noting that "[t]he statutes at issue were born in another age" and have "fallen into virtual desuetude," Calabresi said he would strike them down to the extent that they bar "a physician from prescribing lethal drugs to be self-administered by a mentally competent, terminally ill person in the final stages of that terminal illness." But he said he would "take no position on whether such prohibitions, or other more finely drawn ones, might be valid,… were New York to reenact them while articulating the reasons for the distinctions it makes in the laws, and expressing the grounds for the prohibitions themselves."

That makes sense to me, at least at first blush. And if Calabresi’s creativity makes him a judicial imperialist, well, he’s in good company-including (on one issue or another) all nine members of the current Supreme Court.