March 19, 2005
Terry Schiavo and State's Rights
[disclaimer - this post is essentially identical to my comment on a Jack Balkin post which made the same overall point I try to make here and there, only better]
Watching Congress's contortions/attempts yesterday to wield its federal might to prevent the removal of the feeding tube from Terry Schiavo, it really hit me how the federalism question is a double-edged sword. (They sought to use their investigative subpoena power to have Terry Schiavo to 'testify', thus triggering various federal protections for federal witnesses. It obviously didn't work.)
The Republicans (at least the loudest ones, like Tom DeLay) have disingenuously and hypocritically undercut their decades-old reliance on 10th Amendment as a preventative roadblock to Congressional overreaching. If their multiple attempts to circumvent Florida law isn't overreaching, then what is? (And wasn't Florida law good enough for these same people in Bush v. Gore?)
What I'm slowly beginning to understand through this all reading (I'm taking Constitutional Law at the moment) is how inherently difficult (impossible?) it is to remain 'constitutionally consistent' with regard to the friction between judicial review and political procedure in deciding the constitutionality of particular laws.
I find myself rooting for Congress in issues I believe would be good for the country, and rooting for the Court to overrule Congressional Acts I think would be bad. Which is how I suppose most people approach these issues, and it doesn't necessarily make them (or me) bad people.
But I'm also not one to allude to the Constitution as a document imbued with bibli-mystical qualities of natural rights handed down by the Intelligent Designer. The far right does this often (as do some on the far left - ACLU) in public discourse.
While the far right who support the Congressional attempts to intervene on behalf of Terry Schiavo's parents couch this issue as a fundamental 'right to life' issue (a right they would view as having subsumptive power over the lesser issue of State's rights), it hardly seems so clear when you consider that that so many states have passed laws that refute their definition of life as being protectable by the state.
Indeed, their position even flies in face of one of its current pet issues - the sanctity of marriage. By seeking to undermine a state granted right of a husband to decide his spouse's intent in such a situation, isn't Congress infringing on a right they're planning on arguing is fundamental enough to merit its own Amendment?
Congress has been Democratic throughout most of Rehnquist's tenure. Presumably, if both houses continue to be Republican led, the judiciary will soon have to confront laws promulgated by Republicans and somehow reconcile their original positions. Do they hold their original lines or do they contort to distinguish on immaterial factors?
It's also worth noting that the safety and security of our judges has unfortunately become a 'need to address' issue with the recent murders of federal judge Lefkow's husband and mother and Atlanta state judge Rowland Barnes. Tom DeLay's pledge to hold Florida state judge Greer in contempt of Congress does little to douse the heated rhetoric that has led to numerous death threats and requires Greer to travel with a security detail. Indeed, the grass-roots opposition to Greer derives, organizationally, from the anti-abortion movement, members of whom have hypocritically justified killing as a suitable means to ends on prior ocassions.
posted by scott pilutik at March 19, 2005 03:47 PM
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