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Putting Federalism to Sleep (The wrong way to argue against assisted suicide)
The Weekly Standard ^ | October 31, 2005 | Nelson Lund

Posted on 10/23/2005 3:45:57 PM PDT by RWR8189

 

THE BUSH ADMINISTRATION CLAIMS THE authority to stop Oregon physicians from using prescription drugs to implement that state's unique program of physician-assisted suicide. But the administration's effort to use an ambiguous federal drug statute to undermine Oregon's assisted suicide law is a betrayal of conservative legal principles. Gonzales v. Oregon, argued before the Supreme Court earlier this month, may give an early signal about the commitment of the emerging Roberts Court to those principles. And the Court's decision could have unexpected implications for a range of other issues, including future policies about abortion.

Like the administration, I believe that the people of Oregon made a terrible mistake when they voted in two separate popular referenda to authorize Oregon doctors to help their patients commit suicide. Physicians are uniquely empowered by their technical knowledge and the nature of their work either to heal or to kill, and their patients know it. For millennia, the chief safeguard against abuse of this power has been the Hippocratic ethic, which forbids a doctor from seeking to hasten the death of any patient. That ethic was compromised when physicians began to violate a related Hippocratic prohibition of abortion, and it has continued to crumble in the face of pressures for doctors to make moral decisions (masquerading as medical decisions) about whose life is worth preserving. The Oregon law is a step along the path toward a world of legalized euthanasia in which seriously ill people will have good reasons to worry about what their doctors are up to.

Unlike the Bush administration, however, I believe the voters of Oregon are adults who are entitled to make their own decisions about this important policy question, even if they disagree with me. Among the signal achievements of the late Chief Justice Rehnquist was his long crusade to revive the constitutional principle of federalism. That principle demands that the people of each state be allowed to govern themselves as they see fit, so long as their decisions are not forbidden by the Constitution itself (as in certain decisions involving racial discrimination) or by federal statutes covering issues assigned by the Constitution to the jurisdiction of Congress (such as the regulation of foreign and interstate commerce).

The constitutional principle of federalism suggests that Oregon's assisted suicide law should be immune from congressional interference. Virtually all of the people affected by Oregon's law will be Oregonians, and there is nothing in Oregon's decision that will interfere with other states' ability to choose a different policy in regulating their own physicians. In any event, Congress has not clearly authorized the Bush administration to interfere with Oregon's decision. The federal statute generally requires that doctors with state licenses to prescribe drugs be given a federal license as well. Federal authorities do have a vaguely worded authorization to yank the licenses of doctors who behave irresponsibly, which was aimed at allowing federal agents to quickly shut down doctors who set up shop as drug dealers. The Bush administration is using this provision to claim a power to override any state law involving prescription drugs if the attorney general disagrees with that state's chosen policy about the proper use of such drugs.

The drug statute can easily be interpreted to leave policy decisions about medical practice to the states. The statute does not clearly grant the authority the administration is claiming, and it might be unconstitutional if it did. In any event, there was absolutely no necessity for the administration to claim this power (which reversed the Justice Department's previous position). This is a legally gratuitous departure from the principle that the states are free to manage their own internal affairs unless a valid federal law clearly constrains their discretion.

There may be further implications. If the Roberts Court eventually overrules Roe v. Wade, as I believe it should, the abortion issue will return to the democratic processes of each state, which is where it lay before the Supreme Court usurped state authority. We can be sure that interest groups on both sides of that issue--none of which is likely to have enough political support to obtain a clearly worded federal statute, let alone a constitutional amendment--will seek to get future administrations to attack state laws they disagree with, using maneuvers like the one the Bush administration has adopted here.

Assisted suicide is a serious issue. So is abortion. Less visibly, but no less important, this case involves the obligation of judges to be faithful to the constitutional principle of federalism. That principle should be especially significant in guiding the resolution of controversial issues, but the principle seldom has a strong political constituency. For that reason, whatever our views on assisted suicide and abortion, we should all hope that in this case the new chief justice will be true to Rehnquist's spirit rather than to the will of the president who appointed him.

 

Nelson Lund teaches at George Mason University School of Law in Arlington, Virginia.


TOPICS: Constitution/Conservatism; Culture/Society; Editorial; Government; News/Current Events; Politics/Elections; US: Oregon
KEYWORDS: assistedsuicide; chiefjusticeroberts; commerce; commerceclause; euthanasia; federalism; gonzalesvoregon; interstate; interstatecommerce; johnroberts; lopez; newfederalism; originalist; raich; robertscourt; roe; roevwade; statesrights; suicide; wickard; wickardvsfilburn
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To: Mojave; robertpaulsen
robertpaulsen:

It seems to be a running theme on this board that, no matter the federal law or policy, if it's unpopular it must be unconstitutional.

It is indeed a running theme by some communitarian's on this board that, no matter the federal law or policy, if it's popular it must be constitutional.

No knowledge or thinking required that way.
Mojave

161 posted on 10/27/2005 9:17:10 AM PDT by airborne502
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To: publiusF27
"Why am I so much better at finding quotations from that man than you are? ;-)"

Finding? I believe that quotation was presented to you on a platter in post #93.

"Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the non-importing"

Yes, the origin of the interstate Commerce Clause, why it came about, was to stop this kind of abuse

"and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government.

Within the interstate Commerce Clause is the provision for the states themselves to negate and prevent injustice. This provision was given a name by Chief Justice Marshall -- the Dormant (or Negative) Commerce Clause.

It was envisioned by Madison that the states would work out their commerce differences by using this provision, rather than waiting for Congress to pass legislation to correct it. Chief Justice John Marshall affirmed this in his ruling in Willson v. Blackbird Creek Marsh Co., 2 Pet. 245 (1829):

"We do not think that the act empowering the Black Bird Creek Marsh Company to place a dam across the creek, can, under all the circumstances of the case, be considered as repugnant to the power to regulate commerce in its dormant state, or as being in conflict with any law passed on the subject."

162 posted on 10/27/2005 10:07:11 AM PDT by robertpaulsen
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To: airborne502
"... no matter the federal law or policy, if it's popular it must be constitutional."

If it's a federal law, then by definition it's constitutional, popular or not.

163 posted on 10/27/2005 12:15:57 PM PDT by robertpaulsen
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To: robertpaulsen
Finding? I believe that quotation was presented to you on a platter in post #93.

Yeah, and what took him so long to get that to me, anyway? ;-)

(Just for the record, the extra punctuation there at the end is called an "emoticon" and that particular one is supposed to signify a wink, meaning a lighthearded, joking statement preceded it.)

So did you find any quotations which support your point of view yet?

(No emoticon = serious question)
164 posted on 10/27/2005 12:17:27 PM PDT by publiusF27
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To: publiusF27
"So did you find any quotations which support your point of view yet?"

As I stated before, the language of the Commerce Clause itself allows Congress far-reaching powers to regulate interstate commerce.

Also as I stated before, prior to the 1900's, Congress exercised very little of this power -- but this never meant they didn't have the power (which you must admit).

Also as I stated before, yes, Congress' use of the Necessary and Proper Clause to legislate intrastate activity is also an expansion of federal power, but no more so than Congress' constitutional interstate regulatory efforts.

You say you're all concerned about federal expansion of power, and it turns out that most of that expansion is constitutional and allowed by Madison's Commerce Clause.

165 posted on 10/27/2005 12:35:17 PM PDT by robertpaulsen
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To: robertpaulsen

Since the federal government has no legitimate jurisdiction, it matters not a fig whether they approve or disapprove.


166 posted on 10/27/2005 12:36:39 PM PDT by steve-b (A desire not to butt into other people's business is eighty percent of all human wisdom)
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To: robertpaulsen
What are we to do, however, with an arrogant court who believes that the 1st amendment does not allow political speech and that eminent domain allows private businesses to force citizens to sell their property?

What we are to do is appoint judges who will tell Congress, NO YOU CAN'T DO THAT when they attempt to exercise powers not granted to them by the Constitution.

For example, when they attempt to stretch the Interstate Commerce Clause to an extent that makes Mr. Fantastic look as stiff as Al Gore.

167 posted on 10/27/2005 12:43:50 PM PDT by steve-b (A desire not to butt into other people's business is eighty percent of all human wisdom)
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To: robertpaulsen
If it's a federal law, then by definition it's constitutional

You've managed to make yourself sound even siller than before, and that's quite a feat.

168 posted on 10/27/2005 12:45:28 PM PDT by steve-b (A desire not to butt into other people's business is eighty percent of all human wisdom)
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To: steve-b
"Since the federal government has no legitimate jurisdiction,"

The federal government doesn't have the power to regulate the interstate commerce of drugs? Where did you read that?

169 posted on 10/27/2005 12:49:19 PM PDT by robertpaulsen
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To: steve-b
"You've managed to make yourself sound even siller than before, and that's quite a feat."

Then give me one, just one, federal law that isn't constitutional.

Yeah, that's what I thought.

170 posted on 10/27/2005 12:53:02 PM PDT by robertpaulsen
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To: bvw
Life is THE most basic and necessary of all rights. The protection of life (and property and commerce too) need NOT be spelled out in any charter, in any constitution. The duty to propect life exists, implicit in any legitmate charter of government between men.

Nonsense. If "life" were such an absolute right, then a state that legalized the shooting of burglars in one's home or enacted the death penalty would be an "evil and illegimate government" in need of overthrowing.

171 posted on 10/27/2005 12:56:03 PM PDT by steve-b (A desire not to butt into other people's business is eighty percent of all human wisdom)
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To: robertpaulsen
James Madison was still alive in 1824. Why didn't he comment on this?

Given his opinion of John Marshall, I suppose he thought it pointless (in the way the FReepers would find it pointless to note that, yep, Clinton told another lie today).

172 posted on 10/27/2005 12:58:50 PM PDT by steve-b (A desire not to butt into other people's business is eighty percent of all human wisdom)
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To: robertpaulsen
Who, then, shall be the judge of what is true? The court?

Well, duh. If I file a lawsuit to demand that a contractor refund the money I paid him for shoddy and tardy work, and the contractor says that the work was in fact done properly and on schedule, the task of determining what is true falls to... well, whom, since you find it unacceptable that the court should arrogate to itself that function?

173 posted on 10/27/2005 1:02:16 PM PDT by steve-b (A desire not to butt into other people's business is eighty percent of all human wisdom)
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To: robertpaulsen
robertpaulsen:

It seems to be a running theme on this board that, no matter the federal law or policy, if it's unpopular it must be unconstitutional.

It is indeed a running theme by some communitarian's on this board that, no matter the federal law or policy, if it's popular it must be constitutional.

If it's a federal law, then by definition it's constitutional, popular or not.
163 paulsen

Proof positive that you support the democratic 'majority rules' concept, and reject our national concept of a Republic under rule of only constitutionally valid law.

174 posted on 10/27/2005 1:07:30 PM PDT by airborne502
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To: robertpaulsen
It is, and has been, my position that Congress may regulate interstate commerce. IF (and only if) some intrastate activity substantially affects Congress' interstate regulatory efforts, then Congress may use the power of the Necessary and Proper Clause to legislate that intrastate activity.

Well, that's the fundamental error underlying your position.

In order to fall within the "Necessary and Proper Clause", a power must be, well, both necessary and proper. Specifically, in order for a power to be necessary for the regulation of interstate commerce, it must be impossible to effectively regulate interstate commerce without that power.

In Wickard, the Court came up with a bit of judical activism, arguing that in order to regulate interstate commerce, Congress must necessarily have the power to regulate anything that affects interstate commerce. The absurdity of this notion is obvious (e.g. Congress can manage to regulate interstate commerce without the power to control the weather, even though the weather clearly affects interstate commerce), but was papered over for political reasons (the Court was looking for a face-saving way to yield to FDR's demands to effectively set aside inconvenient Constitutional limiations).

175 posted on 10/27/2005 1:12:32 PM PDT by steve-b (A desire not to butt into other people's business is eighty percent of all human wisdom)
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To: robertpaulsen
The subject of the thread is an intrastate activity. Read the original article again.
176 posted on 10/27/2005 1:14:00 PM PDT by steve-b (A desire not to butt into other people's business is eighty percent of all human wisdom)
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To: robertpaulsen
Then give me one, just one, federal law that isn't constitutional.

The "Communications Decency Act".

If you raise an objection that this is an example of a law that is no longer in force (because it was found to be unconsitutional) get your earplugs -- we laugh pretty loud at people who waste our time with circular arguments.

177 posted on 10/27/2005 1:19:40 PM PDT by steve-b (A desire not to butt into other people's business is eighty percent of all human wisdom)
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To: airborne502
"Proof positive that you support the democratic 'majority rules' concept, and reject our national concept of a Republic under rule of only constitutionally valid law."

Is there an existing federal law that's unconstitutional that you'd like me to be aware of? Just one law will suffice.

Proof what?

178 posted on 10/27/2005 1:25:17 PM PDT by robertpaulsen
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To: robertpaulsen

robertpaulsen wrote:

Then give me one, just one, federal law that isn't constitutional






federal laws ruled unconstitutional - Google Search
Address:http://www.google.com/search?hl=en&lr=&ie=ISO-8859-1&q=+federal+laws+ruled+unconstitutional+++


Results 1 - 10 of about 3,820,000 for federal laws ruled unconstitutional . (0.10 seconds) 


CNN.com - Federal judge rules part of Patriot Act unconstitutional ...
A federal judge has declared unconstitutional a portion of the USA Patriot ...

The judge's ruling said the law, as written, does not differentiate between ...

www.cnn.com/2004/LAW/01/26/patriot.act.ap/ - 49k - Oct 25, 2005 -


179 posted on 10/27/2005 1:26:10 PM PDT by airborne502
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To: robertpaulsen
Is there an existing federal law that's unconstitutional that you'd like me to be aware of?

Looks like I called it (Msg#177). Would that I could predict the Powerball numbers one-tenth as well....

180 posted on 10/27/2005 1:28:27 PM PDT by steve-b (A desire not to butt into other people's business is eighty percent of all human wisdom)
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