The rule of law in this country holds that this is a federalist system — in which private domestic matters are litigated in state, not federal courts. The rule of law has long provided that such domestic decisions are generally made by competent spouses, as opposed to parents, elected officials, popular referendum, or the demands of Randall Terry. The rule of law also requires a fundamental separation of powers — in which legislatures do not override final, binding court decisions solely because the outcome is not the one they like. The rule of law requires comity between state and federal courts — wherein each respects and upholds the jurisdiction and authority of the other. The rule of law requires that we look skeptically at legislation aimed at mucking around with just one life to the exclusion of any and all similarly situated individuals.
And what is the overwhelming constitutional value that supersedes each of these centuries-old legal notions? Evidently, Congress has a secret, super-textual constitutional role as the nation’s caped crusaders, its members authorized to leap into phone booths around the world and fly back to Washington in a single bound whenever the “culture of life” is in peril. Republicans acknowledged this weekend that their views on “the sanctity of life” trump even their convictions about federalism. Or, as Tom DeLay put it, when asked how he reconciles this bill with conservative calls to keep the federal government out of state matters, “We, as Congress, have every right to make sure that the constitutional rights of Terri Schiavo are protected, and that’s what we’re doing.”…
The reason we have courts, the reason we traditionally assign these brutal fact-finding responsibilities to those courts, is that intimate legal custody and life-or-death decisions should not be determined based on popular referenda. They need to be rooted, as much as possible, in rock-solid legal rules.
Amen.
I’m thisclose to being persuaded by the federalist argument despite the grotesquery of Back-Door Michael…but then I remember that federalism has been dead and buried for years already. Tis a laughable conceit seeing it championed by Slate. I suppose Salon will have the next moan about dastardly activist judges.
Contra you and Lathwick, as well — the fact that extraordinary measures were taken to craft the bill to be applicable to this one case in this one instance should set yalls wringing hands to peaceful rest. Federalist problems and complaints about states’ rights come from overly-broad actions, not microscopically small ones.
Under the 14th amendment, if this act is constitutional it has to apply to all similarly-situated individuals and families, even though it says it’s for the Schindlers only. That’s what equal protection means, right?
The Rehnquist Court has done a pretty good job of resuscitating federalism, actually, by limiting the abuse of the Commerce Clause exception, like they did in the Violent Women’s Law.
I bet you’re right — IANAL, just a dude. I’ll give ’em credit for trying to be microscopic.
Procedures in civil cases cannot be regularly appealed on the basis of facts of the case. Those were supposed to be settled earlier. But in capital criminal cases, facts seem to be a common route of appeals.
In the Schiavo case, the civil procedures seem injust, when the end result is the same as that of a convicted murderer.
Past case law seems an inadequate answer to this dilemma.
Seems we should re-examine guardianship matters in this new age.
By the way, I felt proud to be a physician again, after reading the extemporaneus comments from the floor of the Senate by Senator/Doctor Frist about the Schiavo case.
Jim
It sounded like grandstanding from a heart surgeon pretending to be a neurologist to me, but as he’s running for President that’s to be expected.
The difference between Schiavo and death row inmate is that she’s already dead.
No, she’s not, not by law. Or we wouldn’t be having this conversation.
For all intents and purposes, she’s been dead for many, many years.
1. It’s objectively inaccurate to say that Schiavo’s “already dead.” Maybe it was said for dramatic effect. Or maybe the writer means that she’s no longer a “person,” which is a separate issue.
2. Schiavo is clearly alive. At the least, her brain stem must be working, or else she wouldn’t be able to breathe, pump blood, and continue to live if provided with food and water.
3. Among other things, we need to know (1) whether she’s in a persistent vegetative state (PVS) and (2) whether she’s irreversibly lost all higher-brain function.
As I understand it, PVS does not always involve irreversible loss of higher-brain function.
In turn, irreversible loss of higher-brain function is not the same as total cessation of ALL brain function (i.e., including the brain stem).
4. At worst Schiavo is in a PVS. I can’t tell from news accounts whether she retains some higher-brain function, and it appears that she may.
5. Bottom line: this is complex and I don’t claim to have all the answers. There is a legitimate debate over whether someone who has irreversibly lost all higher-brain function should be accorded “personhood” as a moral and legal matter.
Arguably the “person” is gone once the higher-brain function is permanently gone.
However, if we can’t determine with confidence that someone has irreversibly lost all higher-brain function, shouldn’t we err on the side of not starving her to death?