Putting Federalism to Sleep (The wrong way to argue against assisted suicide)

The Weekly Standard ^ | October 31, 2005 | Nelson Lund

[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.

[Mojave]

Same citeless spinning.

WORDING OF THE FIRST PUBLIC DOCUMENT AUTHORIZING THE BEGINNING OF WORK ON THE NATIONAL ROAD

Thomas Jefferson, President of the United States of America.

To all who shall see these presents, GREETING. Know Ye, That in pursuance of the Act of Congress passed on the 29th of March, 1806, entitled "An Act to regulate the laying out and making a road from Cumberland in the State of Maryland to the State of Ohio" and reposing special Trust and Confidence in the Integrity, Diligence and Discretion of Eli Williams of Maryland, I have nominated and by and with the advice and consent of the Senate do appoint him a Commissioner in connection with Thomas Moore of Maryland, and Joseph Kerr of Ohio, for the purposes expressed in the said Act; and to Have and to Hold the said office, with all the powers, privileges and Emoluments to the same of right appertaining, during the pleasure of the President of the United States for the time being.

In Testimony Whereof, I have caused the Letters to be made patent and the Seal of the United States to be herewith affixed.

Given under my hand, at the City of Washington the Sixteenth day of January in the year of our Lord one thousand Eight hundred and seven; and of the Independence of the United States of America, the Thirty-first. (Recorded.)

TH. JEFFERSON,

By the President.

JAMES MADISON,

Secretary of State.

Pesky facts.

[Mojave]

Scalia knew at the time

Psychic friends? Psychotic frauds?

his ruling

The court's ruling.

would be applied to homegrown machine guns for personal consumption

Convicted felon.
Interstate sale of guns.
Out of his house.
Through the Internet.
Thousands of customers.

Lemme guess - slipped your mind.

Again.

Obviously he was not troubled

You previously and falsely claimed to have a quote to that effect from Scalia. Turned out to be a fragment of an unfinished court docket entry by an unnamed clerk instead.

So now it's time for you to spin and beg the question.

[Mojave]

Judge Brown's reference to "positive law" was to law made by majority will bigots; -- and her 'higher law' referred to the Constitution.

The Constitution permitted slavery prior to the Civil War, tpaine.

Read a book.

[Mojave]

provide me with an example of a logically sound defense of the Assault Weapons Ban's Constitutionality

It doesn't even exist. It expired last year.

[Ken H]

From robertpaulsen's post:

"[T]he New Deal Court's own constitutional justification for its radical expansion of the scope of federal power over commerce was that the congressional measures in question were valid exercises of the power granted by the Necessary and Proper Clause and were not direct exercises of the power to regulate commerce among the several states. That is, the Court did not simply and directly enlarge the scope of the Commerce Clause itself, as is often believed. Rather, it upheld various federal enactments as necessary and proper means to achieve the legitimate objective of regulating interstate commerce."

Do you agree or disagree that the New Deal Court expanded the scope of federal power over commerce?

[Mojave]

That is, the Court did not simply and directly enlarge the scope of the Commerce Clause itself, as is often believed.

Do I agree with that quote?

Sounds about right. The scope of federal power exercised over commerce expanded as the nature of commerce generally and progressively became less local in nature.

For example, doctors who violate the Hippocratic oath in order to become hired killers of patients probably won't use leaches or grind locally grown hemlock with a mortar and pestle; they'll use pharmaceuticals regulated and traded nationally.

Now, do you agree with the quote?

[Mojave]

And FYI:

The disinclination of the individual States to yield competent powers to Congress for the Fœderal Government--their unreasonable jealousy of that body & of one another--& the disposition which seems to pervade each, of being all-wise & all- powerful within itself, will, if there is not a change in the system, be our downfal as a Nation.

--George Washington to Benjamin Harrison, 18 January 1784

[Mojave]

And one more.

The following letter was sent by George Washington to the governors of each of the thirteen states:

There are four things, which I humbly conceive are essential to the well being, I may even venture to say, to the existence of the United States, as an Independent Power--

• 1st An indissoluble Union of the States under one fœderal Head.
• 2dly A sacred regard to public Justice. • 3dly The adoption of a proper Peace Establishment, and
• 4thly The prevalence of that pacific and friendly disposition among the People of the United States, which will induce them to forgit their local prejudices and policies, to make those mutual concessions which are requisite to the general prosperity, and in some instances, to sacrafice their individual advantages to the interest of the Community.

These are the Pillars on which the glorious Fabrick of our Independency and National Character must be supported--Liberty is the Basis, and whoever should dare to sap the foundation or overturn the Structure, under whatever specious pretexts he may attempt it, will merit the bitterest execration, and the severest punishment which can be inflicted by his injured Country.

[Mojave]

While we're waiting for you to find your imaginary "millitary road" cite:

So far as pathways of commerce contributed to the creation of this veritable new republic in the Middle West, the Cumberland Road and the Erie Canal, cooperating respectively with Ohio River and Lake Erie steamboats, were of the utmost importance. The national spirit, said to have arisen from the second war with England, had its clearest manifestation in the throwing of a great macadamized roadway across the Alleghanies to the Ohio River and the digging of the Erie Canal through the swamps and wildernesses of New York.

Both of these pathways were essentially the fruition of the doctrine to which Washington gave wide circulation in his letter to Harrison in 1784, wherein he pictured the vision of a vast Republic united by commercial chains.

--Archer B. Hulbert - The Paths of Inland Commerce

[tacticalogic]

Hey, have it your way. The Cumberland Road was no more or less important than any other make work pork project to ever come out of Congress. If tearing down Jefferson is what it takes to make FDR look good, go for it.

[Mojave]

The Cumberland Road was no more or less important

Wrong, as always. The need for the federal government to create those pathways of commerce to unite our new republic was especially critical in the time of Washington and Jefferson.

[tacticalogic]

The scope of federal power exercised over commerce expanded as the nature of commerce generally and progressively became less local in nature.

Are the limits of the scope of federal power over commerce set by the Constitution, or the courts?

[tacticalogic]

The scope of federal power exercised over commerce expanded as the nature of commerce generally and progressively became less local in nature.

So is the Cumberland Road substantially different than the public works projects of the New Deal, or was the precedent abused?

[tacticalogic]

Disregard that last post. I screwed up the buffer.

The legislation is nothing short of "revolutionary", in that it sets the precedent for all future, federal, public works projects.

Now, if the Cumberland Road is the precedent for all public future public works projects, are the make-work projects of the New Deal not substantially different than the Cumberland Road, or was the precedent abused? Or maybe your source is just plain wrong.

[robertpaulsen]

"and her 'higher law' referred to the Constitution."

Baloney. She was referring to natural law.

[robertpaulsen]

I was simply pointing out that if she is going to declare a law as right or wrong (vs. constitutional or unconstitutional), she is making a moral decision based on some floating morality scale.

I was discussing the concept of constitutional laws, not moral ones. If you want to change this to some morality discussion, start a thread in the Religion forum on FR.

[Mojave]

Brown [born 1949]was growing up in the the 50's & 60's.

Non sequitur, tpaine.

A break from the usual fabrications?