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Posted on 03/23/2005 8:39:18 PM PST by logician2u
Rule of Law Damaged by Schiavo Bill
by Sheldon Richman, March 23, 2005
The events surrounding the life of Terri Schiavo are tragic enough. Now congressional Republicans and President Bush have made things worse. In one weekend they disabled federalism, the separation of powers, and the rule of law. These principles were embraced by the Founding Fathers because they tend to protect individual liberty. By tearing them down, the Republican leadership jeopardizes our freedom. How ironic that this comes at the hands of the self-proclaimed party of limited government.
It is beyond dispute that the legal issues involved in the Schiavo case are state issues. That has been the rule for more than 200 years. It is what has made the American system a federal system. The point of federalism is to decentralize power, and its rationale is that concentrated power is dangerous -- always and everywhere -- regardless of which political party rules.
Years ago Terri Schiavo went into what many doctors describe as a persistent vegetative state without hope of recovery. She can breathe, but she cannot take food or water on her own. Her husband has sought to remove the feeding and hydration tubes in order, he says, to comply with her express wish not to live this way. Her parents have tried to block him from having the support terminated. The Florida state courts have consistently sided her husband. The U.S. Supreme Court earlier declined to review the case because no constitutional issues are involved.
Last weekend the Republican-controlled House and Senate hurriedly passed legislation permitting Terri Schiavo's parents to request the federal courts to take a fresh look at the case -- as if the state court had never ruled. President Bush signed the bill. The case was heard Monday, but the judge refused an emergency order to reinsert the tubes pending a full hearing. The federal court of appeals affirmed the judge's order and the parents are appealing to the U.S. Supreme Court.
Much could be said about this sad case. Terri Schiavo had no living will directing that she not be sustained artificially. We have only her husband's and a couple of other people's testimony, and he may have a conflict of interest involving money earmarked for her care. Others testified that she never expressed such a desire. Yet a trial judge found "clear and convincing" evidence that she did not wish to live this way. Maybe the Florida law has defects, but that's a subject for another day. My focus here is on Congress's and the president's intervention. It was extraordinary and ominous. The bill singled out one case in an area where federal authorities have no constitutional jurisdiction. This makes no sense. At any given time, many people are in medical conditions similar to Terri Schiavo's. In most of these cases, the family members agree to end artificial respiration, feeding, and hydration. No doubt in some cases there is disagreement, but the matter is settled out of the news headlines.
Will Congress now intervene in all these cases? If not, why not? Aren't those lives precious too? That the Republicans intervened in this case, which has been taken up by the anti-abortion lobby (among others), hints that cynical political calculations were at work. A memo circulated among Senate Republicans called the Schiavo matter "a great political issue," indicating its appeal to the party's religious supporters. Is this payback for 2004?
In the end, the bill probably won't prolong Terri Schiavo's life. But it may well cut short the rule of law. It is no defense of the Republicans to say that a young woman was being starved to death. Congress has no constitutional authority to exercise arbitrary power any time an emergency catches its attention, especially where there are no federal or constitutional issues at stake. That it is legally restrained from doing whatever it wants is part of what we mean by the rule of law. That's why its weekend actions are ominous. We must fear for the precedent it has set.
Both the president and members of Congress take oaths to preserve and protect the Constitution. Any time they pass and sign a law thinking they will leave the matter of its constitutionality to the courts, they violate their oaths. The American system has a division of powers, which was violated in this case, but when it comes to abiding by the Constitution, there is no division of labor.
Sheldon Richman is senior fellow at The Future of Freedom Foundation, author of Tethered Citizens: Time to Repeal the Welfare State, and editor of The Freeman magazine. Send him email.
So you're a compassionate socialist who believes in state sponsored murder? Are you originally from the Netherlands by chance?
When it's wrong it's wrong and needs to be fixed NO MATTER HOW. It's why my ggggrandfather David McGee stood with Washington at Valley Forge. It's why his son fought in the Texas Revolution. When it's wrong it's wrong and there are no two ways about it!
The law and justice are two very different things.
Paraphrasing GWB talking about Faith Based Initiatives.
Procedures are not more important than outcomes - the Salvation Army gets the job done - govt agencies talk about getting the job done.
The system/procedures are not all important - results are.
I am also horrified that the US federal government has so completely interfered in a state issue
I was thirsty, and you gave me STATE'S RIGHTS
The idea that the rule of law has somehow been subverted in the Schiavo case is a misnomer and anyone who suggests otherwise is constitutionally illiterate. Congress on Sunday simply expanded the the judicial power of the federal courts to hear this case. However, Congress did not once step outside of its Constitutional authority to intervene in the Schiavo case. The idea that this was a legislative power grab has essentially been nullifed by the actions of the federal courts.
The Schindlers failed to raise the substantive due process arguments before Whittemore and now Terri is paying a price for it.
That being siad the time for extra constitutional action by the executive (either Bush) is nearing. I'd prefer they restrain from taking such measures but if they did, I would support it based on natural law principles and Terri Schiavo's inherent right to live.
If you disagree, I don't blame you. It is ashame it has come to this.
Congress has the power to impeach judges. (Not that they have used it recently.)
Just because you have gotten used to the idea that the courts write law, does not make it Constitutional. Courts were set up to "uphold" the law, not write it.
The Congress had every right to do what it did in this case. Once the state court violated Terri Sciavo's civil rights (ie. Life, Liberty and the Pursuit of Happiness), the Congress had every right to refer it to the Federal court.
Who is Mr. Richman to decide what is "arbitrary"? I also think that you must be misinformed of the details of this particular case. One judge should not ultimately decide on the fate of a human being, especially, when there are people who will accept the reponsibility for her.
And, if you understand the bill passed by Congress, the Judge ignored them and based his recent ruling on the legality of the previous case. The bill Congress passed was for a completely new trial, not review of the previous case. (Which is what this Clinton appointed judge decided to do)
I agree completely.
Absence of logic, full of emotional appeals, likes to impose beliefs on others. Same reasons I dislike Communists.
If state court judges are lawbreaking usurpers (and let's not forget that many of these were appointed by Republican governors), what do we expect to receive from federal tyrants, a whole slew of which were put on the bench during Clinton's eight years?
Rather than ask for barely constitutional special laws, how about the people who are genuinely fed up with judicial tyranny begin lobbying their legislators -- and congress, too -- for impeachment of these slimeballs dressed in black.
Well, it will certainly solve the social security problem. After all, they've been worried about people living so long they would bankrupt the system. They certainly don't have to worry about that now. When people reach a certain point, we can just starve them (mercifully) to death.
Terri Schiavo's substantive due process right to life pursuant to the 14th amendment has been violated. That is a federal consrtuttional issue.
I sense many of the Freepers in here realize they've been on the wrong side on this....letting their emotions get the best of them.
I'll be glad when this is over. Let's get Iran and North Korea back on the front pages.
Its about taking down the tyrannical judiciary, stupid.
Just because you have gotten used to the idea that the courts write law, does not make it Constitutional. Courts were set up to "uphold" the law, not write it.
Exactly, they should be impeaching judges as they are empowered to do, not passing unconstitutional laws. Two wrongs don't make a right.
There's a difference between people in need and people in want.
If the lazy democrats who can't even work up the energy to get out of bed at noon want health care, they can get off their useless butts and look for a job like everyone else.
Boy...I wish I'd said that! ;^)
"Congress didn't exercise arbitrary power, they set the case to go to Federal court, a power that is specifically enumerated for Congress in the Constitution. Of course you knew that."
Well said ... we already have Federal habeas corpus review and other state action reviews in all areas of our lives ... I get suspicous of these 'sky is falling' claims when the scope of the law is so NARROW. Federalism is now dead when it comes to cases where a state judge orders the killing of a disabled individual... so what, Federalism has died in huge swathes of Government years/decades ago.
To insist against this law is to insist on giving killers more rights in Federal courts than innocent disabled individuals. Feh on that. A bad law can be repealed ... but bad Judicial rulings seem to have no corrective mechanism.
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