Recently in church + state = religion x politics Category

I'm sure my illustrious co-blogger (and rbc heavy lifter) Scott will be along shortly to discuss this story in more detail, but in the meantime, I thought we all deserve to enjoy a nervous, halting giggle over the latest round of covert theocratic hostility towards the idea of an unbiased judiciary, courtesy of the LA Times:

Evangelical Christian leaders, who have been working closely with senior Republican lawmakers to place conservative judges in the federal courts, have also been exploring ways to punish sitting jurists and even entire courts viewed as hostile to their cause.

An audio recording obtained by the Los Angeles Times features two of the nation's most influential evangelical leaders, at a private conference with supporters, laying out strategies to rein in judges, such as stripping funding from their courts in an effort to hinder their work.

The discussion took place during a Washington conference last month that included addresses by House Majority Leader Tom DeLay and Senate Majority Leader Bill Frist, who discussed efforts to bring a more conservative cast to the courts.

[...]

"There's more than one way to skin a cat, and there's more than one way to take a black robe off the bench," said Tony Perkins, president of the conservative Family Research Council, according to an audiotape of a March 17 session. The tape was provided to The Times by the advocacy group Americans United for Separation of Church and State.

[...]

Perkins said that he had attended a meeting with congressional leaders a week earlier where the strategy of stripping funding from certain courts was "prominently" discussed. "What they're thinking of is not only the fact of just making these courts go away and re-creating them the next day but also defunding them," Perkins said.

He said that instead of undertaking the long process of trying to impeach judges, Congress could use its appropriations authority to "just take away the bench, all of his staff, and he's just sitting out there with nothing to do."

These curbs on courts are "on the radar screen, especially of conservatives here in Congress," he said.

Dobson, who emerged last year as one of the evangelical movement's most important political leaders, named one potential target the California-based U.S. 9th Circuit Court of Appeals.

"Very few people know this, that the Congress can simply disenfranchise a court," Dobson said. "They don't have to fire anybody or impeach them or go through that battle. All they have to do is say the 9th Circuit doesn't exist anymore, and it's gone."

[...]

Perkins and Dobson laid out a history of court rulings they found offensive, singling out the recent finding by the Supreme Court that executing minors was unconstitutional. They criticized Justice Anthony M. Kennedy's majority opinion, noting that the Republican appointee had cited the laws of foreign nations that, Dobson said, applied the same standard as "the most liberal countries in Europe."

"What about Latin America, South America, Central America? What about China? What about Africa?" Dobson asked. "They pick and choose the international law that they want and then apply it here as though we're somehow accountable to Europe. I resent that greatly."

DeLay has also criticized Kennedy for citing foreign laws in that opinion, calling the practice "outrageous."

As part of the discussion, Perkins and Dobson referred to remarks by Dobson earlier this year at a congressional dinner in which he singled out the use by one group of the cartoon character SpongeBob SquarePants in a video that Dobson said promoted a homosexual agenda.

Dobson was ridiculed for his comments, which some critics interpreted to mean the evangelist had determined that the cartoon character was gay.

Dobson said the beating he took in the media, coming after his appearance on the cover of newsmagazines hailing his prominence in Bush's reelection, proved that the press will only seek to tear him down.

"This will not be the last thing that you read about that makes me look ridiculous," he said.

(Emphasis added to give us some much needed snarkbait to alleviate the creeping terror over what fresh hell these madmen could wreak upon the rule of law.)

Commenting on the must-read Max Blumenthal article in The Nation, in which Blumenthal recounts how his time as a sureptitious attendee to the "Confronting the Judicial War on Faith" conference, Billmon ponders the reasoning behind the "Constitution Restoration Act," which would

...make it an impeachable offense for a federal judge to hear any complaint that any government agency or official had violated the constitutional separation of church and state.

Now I had thought of this as essentially the "Ten Commandments" bill -- a political reponse to 2003's Christian cause celebre: the showdown over Judge Moore's 2 1/2 ton statement of courthouse faith. But I also thought it was obvious, even to the wing nuts, that filing the bill was a purely symbolic gesture -- a classic example of the kind of "prayer service" Christian conservatives typically get from their allies in Congress -- and that the bill itself was going absolutely nowhere, except maybe a file drawer in the Senate Clerk's office.

But now we're being told that this feeble excuse for a legislative protest (a kind of written raspberry blown at the Supreme Court) is the primary objective for the Great Conservative Cultural Revolution's grand offensive.

This seems unlikely. I'm no lawyer, and I've never even played one on TV, but it seems to me the chances of this bill passing are still about 1-in-100,000 -- even with the religious Red Guard baying down Congress's neck. And if by some miracle the bill did pass, and Rove swallowed hard and told Shrub to sign it, I suspect the Godless tyrannical judges would quickly find a way to stuff it right back in his face -- just as they did with the Schiavo special legislation.

So we're back to the question I raised in my last post: Are these people simply clueless -- a political Children's Crusade perpetually doomed to be swindled both by their money-grubbing fundraisers and by their "friends" in the GOP? Or is this another clever stratagem -- a way of firing up the troops for an assault that will actually be launched on a different objective?

The answer is the latter. Starting in the early 1980s, Jerry Fallwell's Moral Majority (and those connected) began filing scores of hopeless lawsuits. The idea wasn't to win - the goal was rather to grab headlines that would fire up the base. One of the key lawyers in this strategy was Michael Farris (a number of Farris' greatest hits at that URL), whose involvement continues to this day.

No one can claim proprietary ownership to the idea of using the courts to achieve long range constitutional goals. Brown v. Board of Education was basically the final straw in a long campaign by the NAACP to break the back of the federal court system. And it worked. The first suits in those campaigns were doomed to fail for a variety of reasons, but the end goal was finally met.

In 1954, Brown's essential argument was that the Constitution (with specific regard to the equal protection clause) was meant to be interpreted more broadly - equal protection meant equal protection under one tent, not the legally fictitious 'separate but equal' construction. And this interpretation, which C.J. Warren adopted, is entirely plausible - and it would not be questioned by a single Supreme Court jurist today. It's plausible because our conception of equality finally caught up with the actual meaning of the word as it appears in the Constitution.

But it is also generally understood that the drafters of the 14th Amendment would've laughed long and hard if one were to suggest that the 14th Amendment demanded integrated public schools (This is due to a number of factors, chief amongst them was that public schools were not mandatory much less even prevelant in 1868, especially in the south. Also recall that after the civil war, many southern states were bullied into passing the 14th Amendment as a precondition to regaining a congressional voice).

So it's more than somewhat ironic that the Dominionist Christians have essentially adopted a tactic of the Civil Rights era and perverted it to argue that the Constitution should be interpreted more strictly. Indeed, what they're actually arguing is that the Supreme Court should be precluded from hearing cases brought forward under the Establishment Clause. The line of cases involved with judicial stripping by Congress is admittedly muddy, but no one has ever had the gall to simply propose that substantive parts of the Constitution should be beyond judicial review. It's an insane position to take, with zero likelihood of success.

But that doesn't make it stupid. Because legislation is largely a matter of compromise, setting yourself so far outside the margin, while you have even a modicum of support, is a tactic that, geometrically speaking, pulls the center towards you.

And again, realize that we're dealing with some long-term thinkers here (even if, for some of them, the rapture is nigh). They've got patience and time. And they don't give a shit about anything else. But the vocal opinion leaders certainly know what they're doing, especially in calling for the heads of the judiciary (however, they may have finally bit off more than they can chew - the 'stop the activist judges' argument isn't quite as populist as they thought, and apparently still think).

The point is simply that the Jesublicans are more clever than clueless and have been using this tactic for years.

But both traits are necessary for the game to work. You need a liar and a believer. (Homer: "It takes two people to lie, Marge - one to lie and one to listen.")

The cleverness is rooted to the fact that, unlike civil rights litigation (where the goal was to win), this game relies, nay, depends on losses. Only with legal defeats can you appeal to the basest of Christian instincts - persecution (just ask Mel Gibson, who took this lesson to the bank).

And while it seems a difficult argument to make, that a group comprising 85% of the population is somehow a persecuted minority, it's one with great appeal and has been used to maximum effect for years, even though it has no basis in fact. Christians in this country have pretty much done whatever they want in the name of their religion provided they don't impose it on the rest of us, which is what the Establishment Clause is all about.

And so yes, their end goal is to remove judicial review as to all Establishment Clause cases by this Act and I don't doubt that it's not a sincere one. But you don't get there without lots of losses in court. Losses in court produce two things: headlines and judicial targets, and both feed on each other to produce devoted followers... with a hatred of judges and the entire judicial system.

The average evangelist who thinks it'd be a good idea if this country was run by God or those self-ordained by him probably don't have a clue how legally implausible this is under our Constitution. And that ignorance makes it that much easier to instill in them an antagonistic belief system that can germinate into something else over time. As I noted, they've nothing but time.

So on one hand, you really do have to be clueless to believe that this Act has any chance of passing, but you'd have to be pretty clever to snow people into thinking it does.

May we all live in interesting times. So interesting that I can barely keep up. Just so it's down for posterity in the spam-littered Movabletype database, I want to quickly note a few posts from other blogs that caught my eye.

Billmon, perhaps the best writer in all of blogospheria, touched on religion a few times this week, first as a reconsideration of the pope's tenure (he had earlier called it a 'wash'), and then in his hilarious Unitarian Jihadist parody.

James Wolcott warms my heart in dissecting CNN's pope coverage from last week:

Although Hunt joked about Bob not signing on to the "Blessed are the poor" part of the Bible and Dionne facetiously said he now was hoping for a political conversion as well, the truth as any CNN viewer knows is that Novak's Catholic conversion has made him no more compassionate to the poor, weak, and infirm, no less smarmy and reputation-slurring than he was as a young punk sneering at Commie-symps and rummaging Martin Luther King. Catholicism has just provided him with a church organ for his natural pomposity.

I wonder how much airtime CNN or any other cable outfit would give to one of its correspondents who converted to Islam or Buddhism, or, sacre bleu, renounced religion and declared him or herself an atheist. I have a feeling that in the latter case they wouldn't dispatch a camera crew to the New York Historical Society to film the correspondent studying reverently the texts of the Thomas Paine: Patriot and Provocateur exhibit currently on view. No, the personalization of on-air talent only goes so far.

There's also a really interesting article in Rolling Stone (!) of all places (via Gadflyer), which cautions us to distinguish between your garden variety Evangelical and the far more dangerous strain of Christianity - the Dominionist. The 'africanized' version of the Christian honeybee.

Meet the Dominionists -- biblical literalists who believe God has called them to take over the U.S. government. As the far-right wing of the evangelical movement, Dominionists are pressing an agenda that makes Newt Gingrich's Contract With America look like the Communist Manifesto. They want to rewrite schoolbooks to reflect a Christian version of American history, pack the nation's courts with judges who follow Old Testament law, post the Ten Commandments in every courthouse and make it a felony for gay men to have sex and women to have abortions. In Florida, when the courts ordered Terri Schiavo's feeding tube removed, it was the Dominionists who organized round-the-clock protests and issued a fiery call for Gov. Jeb Bush to defy the law and take Schiavo into state custody. Their ultimate goal is to plant the seeds of a "faith-based" government that will endure far longer than Bush's presidency -- all the way until Jesus comes back.

You'd be wrong in marginalizing them too - they have inordinate pull:

It helps that Dominionists have a direct line to the White House: The Rev. Richard Land, top lobbyist for the 16-million-member Southern Baptist Convention, enjoys a weekly conference call with top Bush advisers including Karl Rove. "We've got the Holy Spirit's wind at our backs!" Land declares in an arm-waving, red-faced speech. He takes particular aim at the threat posed by John Lennon, denouncing "Imagine" as a "secular anthem" that envisions a future of "clone plantations, child sacrifice, legalized polygamy and hard-core porn."

And onward they march with their pitchforks to the court house steps. From Congress Daily via Atrios:

Christian conservatives and a core group of congressional supporters are launching a significant new push to restructure the federal judicial system to reflect a more explicitly biblical world view, in the hopes that these changes will pave the way for broader social and political changes, leaders of the movement said.

Some of the most prominent conservative leaders in the country -- including Vision America's Rick Scarborough, Coral Ridge Ministry's James Kennedy and the Free Congress Foundation's Paul Weyrich -- launched the effort Thursday in Washington.
Members of the new coalition said they would immediately focus on bringing an end to Democratic filibusters of President Bush's judicial nominees before pushing Senate Majority Leader Frist to enact sweeping changes in the judiciary.

They also warned that Frist and other politicians who have thus far been reluctant to force a confrontation with Senate Minority Leader Reid over the nominations would be held accountable if Democrats continue to block conservative judges.

Participants at this week's Judeo-Christian Council for Constitutional Restoration meeting said the group also will focus on forcing Congress to begin impeachment proceedings against any judge who does not conform with their biblically based interpretation of the Constitution, as well as permanently curb judicial authority over matters of church and state, marriage and governmental acknowledgement of a Christian deity.

"What it is time to do is impeach justices," Texas Justice Foundation President Allan Parker extolled a crowd of a hundred or so conservative lobbyists, attorneys and activists. "The standard should be any judge who believes in the 'living constitution' should be impeached."

First of all, a quick word on the 'living constitution' - while the term wasn't coined until much later, the idea goes back much farther, and is a far more accepted mode of interpretation, with varying degrees, than the strict originalism espoused by Parker above. In 1819, Chief Justic John Marshall said in McCulloch v. Maryland:

'We must never forget that it is a Constitution we are expounding...intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs'

Now whether this judge impeachment talk has any chance in hell is a separate question that I've been pondering for the past week and I'll try to make my thoughts more clear on these pages as things heat up. And they will heat up. But I think that high tide may have come and gone for the Jesublicans on this issue, and they simply aren't politically subtle or attuned to admit it to themselves. Unfortunately for them, much of the rhetoric the public heard on 'judicial imperialism' came from the mouth of Tom DeLay in the context of Terri Schiavo. The judges who upset DeLay so much obviously didn't have the same effect on the people polled at that time, however, and there's no good reason to think that the the public will change its mind when the expected fillibuster debate comes up. Indeed, there's every reason to think that DeLay is simply digging a deeper hole.

And while I may be naive as to the capacity of the media to make intelligent observations on the matter, won't it be hard for the Republicans to get away from DeLay's remarks insofar as it was their own conservative judges in the 11th Circuit that crashed their party? Just what kind of judge are they imagining will do their bidding?

**shiver**

While I've spent a high percentage of this blog's space to the evolution/ID faultline, let's not forget that this administration's attack on science is fought on many fronts. And while sad tales from those battle lines appear each day in the emm ess emm, no one has pulled all the atrocities under one tent as well as Carolyn Abraham of the Globe and Mail in this piece today: American scientists say the Bush administration is interfering with research, especially on sexuality and the environment. Religion and ideology are involved -- but so is a public disenchantment with science itself. [reg. req'd - but so well worth it]

While the story is notable for its investigatory zeal, I take minor issue with her casual and disproportionate reference to "public disenchantment with science" in the headline - because: a) it comprises so little of her story; and, b) assuming there is indeed widespread disenchantment, Abraham fails to address possible reasons why that might be. Indeed, it's reasonable to connect the fact that this administration has spent so much energy attacking science to any disillusionment on the public's part.

There seems to be a disconnect between the sides in the Terri Schiavo case as to what 'de novo' means. The term is most commonly found at the appellate level, describing the degree of deference given to the lower or previous court's findings. 'De novo' is the least restrictive - the reviewing court can literally 'look anew' at the findings and rule accordingly. But even as 'de novo' is most commonly associated with deference of 'review', the term has an interesting sibling. Although I've never come across the exact phrase, it appears that 'de novo trial' is a term of art distinct from 'de novo review'.

The DC Circuit (J. ROBINSON) said in NOW, Washington, D.C. Chapter v. Social Sec. Admin. of Dep't of Health & Human Services, 237 U.S. App. D.C. 118 (D.C. Cir., 1984). "When I speak of "de novo review," I refer to the distinction between a de novo trial, where the case is tried a second time and the record is made up in the district court, and a court's review of findings of an administrative body, where the record is solely that of the administrative body.'" Local 777, Democratic Union Org. Comm. v. N.L.R.B., 195 U.S. App. D.C. 280, 310, 603 F.2d 862, 892 (1978), quoting Globe-Union, Inc. v. Chicago Tel. Supply Co., 103 F.2d 722, 728, 41 U.S.P.Q. (BNA) 366 (7th Cir. 1939).

The Act does not specify which use of de novo it intended:

"In such a suit, the District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings."

One inference is that as the jurisdiction has been given to the district court, it could only mean 'de novo trial' because district courts are trial courts, not appellate courts.

On the other hand, the district court is basically performing an appellate function, as the matter has already been adjudicated. Also, the term 'de novo' is most commonly used in the appellate context - indeed, I've never even heard the term de novo trial before I just now researched it to see if there was a distinction (but I'm only a law student - it may indeed be more common than I know).

Because the term has a commonly understood meaning, the legislature voting on it most likely attached that meaning as opposed to the more arcane one. Arguing for this is the fact that the bill represented a compromise - comments from the House floor support this ('It merely confers jurisdiction; that's all' - to paraphrase numerous bill supporters). In other words, congressional intent has conveniently shifted from 'merely jurisdictional' while they were selling the bill to 'retrial' after it became law. It would be interesting to hear from the democrats who supported the bill as to what they thought it meant, as we already know what DeLay et. al. think 'de novo' meant. I don't believe the bill would have garnered as many votes if democrats thought that there would be an entire retrial from scratch.

This interpretation favored by DeLay and the DOJ (and the dissent in the 11th Cir.), of course, might raise all sorts of other constitutional questions, as Terri Schiavo's constitutional rights (as Defendant) become that much more trampled upon.

The district court was constrained to the determine whether the new claims by petitioners had a likelihood of success, and those claims were each constitutionally based - entirely unlike the state claims that began this dispute. If the petitioner's wanted the case retried as the case first existed, it should have brought up the state claims, and simultaneously argue that no federal question was necessary because it was bestowed by Congress. In other words, force the district court to treat it like a diversity case. If this is what Congress intended, the petitioner's pleadings do not honestly reflect that understanding.

Because the new claims are constitutional in nature, 'retrying the case' implies a whole new ballgame. An entirely different fact-finding mission would be necessary and because so much of it revolves around Judge Greer's involvement, one that opens up a whole new can of worms. It's not hard to conclude that the DeLay/DOJ/Dissent interpretation of the statute would add years to this litigation.

And again, this brings you back to the bill's passage. Would they have gotten the votes if the voters knew that the bill intended to retry the entire matter from scratch?

Steve M of No More Mister Nice Blog does a much better job of summing up exactly why Democrat politicians have been so reluctant to take a stand in the Terri Schiavo case:

Why the hell does it seem that no one in the Democratic Party does what I do? Why didn't anyone see this coming? Why were no Democrats prepared for this possibility?

Did any Democrat even know the facts of the case before this week? How many Democrats know, even now, that this is hardly an unprecedented case, that Terri Schiavo can't possibly recover, that she won't suffer agony as she dies? Republicans know all the Christian conservative Schiavo talking points. Has any Democrat in D.C. ever even looked at the exhaustive Terri Schiavo information page at Matt Conigliaro's Abstract Appeal to learn the truth about the case?

When Terri Schiavo became Congress's priority #1, Democrats -- as usual --
buckled under pressure.

Credit where credit is due, however -- the very few House Democrats who spoke out against the Frankenstein "compromise" bill during last night's debate did a fantastic job of debunking some of the most flagrant lies being told by their Republican opponents, starting with my personal favourite, "She's not brain dead -- She smiles, and laughs!"

A round of applause, then, for Debbie Wasserman Schultz (D - Florida), Jerry Nadler (D - New York), Robert Wexler (D - Florida), Michael Capuano (D - Massachusetts)and David Wu (D - Oregon).

And, of course, a standing O for Barney Frank (D - Mass.) for leading the charge against both a bad law, and bad law.

A lot of law talking guys are attempting to figure out whether the bill granting Terry Schiavo's parents standing in federal court is constitutional. The short answer is that it's extremely unconstitutional - the question isn't so much whether it's constitutional, but rather: which part of the veritable buffet of unconstitutionality will the district court opt to base its decision on? And after it does that, how quickly can the 11th Circuit affirm the district court so that the matter can arrive at the Supreme Court? And then, what basis will the Supreme Court reject this complaint?

The immediate question, however, is whether the district court will order the tube back in while the case runs the federal gamut. We should find that out in a few hours.

Here are some good constitutional ponderings from various blogs and especially their commenters: Volokh, Balkin, Balkin, Bashman, Bashman, NPR (real player audio) (including interview with Akhil Amar).

With deep apologies to Monty Python and minor apologies to Billmon (for appropriating his recontextualizing thing), I re-present the following suddenly relevant sketch comedy act in the most tasteful light possible (which I acknowledge may indeed not be possible):

Mr. Praline: 'Ello, I wish to register a complaint.

(The owner does not respond.)

Mr. Praline: 'Ello, Miss?

Owner: What do you mean "miss"?

Mr. Praline: I'm sorry, I have a cold. I wish to make a complaint!

Owner: We're closin' for lunch.

Mr. Praline: Never mind that, my lad. I wish to complain about this parrot what I purchased not half an hour ago from this very boutique.

Owner: Oh yes, the, uh, the Norwegian Blue...What's,uh...What's wrong with it?

Mr. Praline: I'll tell you what's wrong with it, my lad. 'E's dead, that's what's wrong with it!

Owner: No, no, 'e's uh,...he's resting.

Mr. Praline: Look, matey, I know a dead parrot when I see one, and I'm looking at one right now.

Owner: No no he's not dead, he's, he's restin'! Remarkable bird, the Norwegian Blue, idn'it, ay? Beautiful plumage!

Mr. Praline: The plumage don't enter into it. It's stone dead.

Owner: Nononono, no, no! 'E's resting!

Mr. Praline: All right then, if he's restin', I'll wake him up! (shouting at the cage) 'Ello, Mister Polly Parrot! I've got a lovely fresh cuttle fish for you if you show...

(owner hits the cage)

Owner: There, he moved!

Mr. Praline: No, he didn't, that was you hitting the cage!

Owner: I never!!

Mr. Praline: Yes, you did!

Owner: I never, never did anything...

Mr. Praline: (yelling and hitting the cage repeatedly) 'ELLO POLLY!!!!! Testing! Testing! Testing! Testing! This is your nine o'clock alarm call!

(Takes parrot out of the cage and thumps its head on the counter. Throws it up in the air and watches it plummet to the floor.)

Mr. Praline: Now that's what I call a dead parrot.

Owner: No, no.....No, 'e's stunned!

Mr. Praline: STUNNED?!?

Owner: Yeah! You stunned him, just as he was wakin' up! Norwegian Blues stun easily, major.

Mr. Praline: Um...now look...now look, mate, I've definitely 'ad enough of this. That parrot is definitely deceased, and when I purchased it not 'alf an hour ago, you assured me that its total lack of movement was due to it bein' tired and shagged out following a prolonged squawk.

Owner: Well, he's...he's, ah...probably pining for the fjords.

Mr. Praline: PININ' for the FJORDS?!?!?!? What kind of talk is that?, look, why did he fall flat on his back the moment I got 'im home?

Owner: The Norwegian Blue prefers keepin' on it's back! Remarkable bird, id'nit, squire? Lovely plumage!

Mr. Praline: Look, I took the liberty of examining that parrot when I got it home, and I discovered the only reason that it had been sitting on its perch in the first place was that it had been NAILED there.

(pause)

Owner: Well, o'course it was nailed there! If I hadn't nailed that bird down, it would have nuzzled up to those bars, bent 'em apart with its beak, and VOOM! Feeweeweewee!

Mr. Praline: "VOOM"?!? Mate, this bird wouldn't "voom" if you put four million volts through it! 'E's bleedin' demised!

Owner: No no! 'E's pining!

Mr. Praline: 'E's not pinin'! 'E's passed on! This parrot is no more! He has ceased to be! 'E's expired and gone to meet 'is maker! 'E's a stiff! Bereft of life, 'e rests in peace! If you hadn't nailed 'im to the perch 'e'd be pushing up the daisies! 'Is metabolic processes are now 'istory! 'E's off the twig! 'E's kicked the bucket, 'e's shuffled off 'is mortal coil, run down the curtain and joined the bleedin' choir invisibile!! THIS IS AN EX-PARROT!!

My co-denizen Scott has, as usual, succinctly summed up the myriad of legal controversies and contradictions in which the Terri Schiavo spectacle has become entangled, and far be it from me to gild the lily. However, what's also worth pointing out is that the sordid ongoing struggle has become a perfect storm for the religious right wing and their political allies in congress -- and the White House.

Not only does it give the right-to-lifers an easily exploited posterchild -- She "smiles!" She "laughs!" The only thing she can't do is speak for herself! -- but it also pits the forces of pro-life righteousness against a favourite whipping boy of talk radio's America. Who is to blame? Why, those dastardly "activist judges" who stubbornly insist on enforcing the law, rather than bending to the will of whichever side presents the slickest, most soundbite-friendly public relations campaign. While there has been no shortage of grumbling about "judicial activism" in right wing circles in recent years -- just do a search on FreeRepublic if you need a couple of thousand examples -- a case like this puts the question squarely in the centre ring of public policy debate.

One could expect that the usual social conservative Republican suspects would be only too happy to drag a morbidly incapacitated woman into the spotlight to score political points, but the silence of elected Democrats on the potential consequences of this attempt by legislators to flout the rule of law speaks volumes.

[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.