Thursday, March 31, 2005

Summa Contra Sarnath

Terri Schiavo, requiescat in pace.

I concur in part and dissent in part with Sarnath's March 21st entry about the Schiavo case.

I agree that the party in power in the federal government will generally operate to increase the size and influence of that level of government, and that a party in control of a certain branch will tend to work to increase the power of that branch. The Democrats emasculated the executive branch during the Nixon years because they seeemed to be under the impression that Republicans would dominate that branch throughout the future. Conservative and moderate legal theorists who excoriated the Supreme Court for its activists liberal decisions were often quite happy to have the Rehnquist Court overstep its bounds to further more conservative goals. Republicans in Congress during the Clinton years wanted to reduce the size of the federal government, and devolve power to the states, local governments, and people; now some Republicans want to set up federal rules for education and other things most conservatives see as manifestly not the business of the federal government.

I think this tendency stems from the desire to have things done right. Everyone naturally thinks he has the correct plan for anything, and once someone gets in power, he finally has the means of implementing his solution. The temptation to do this is quite strong, especially because conservatives see much wrong with the established way of doing things and can justify intervention as a necessary remedy for past ills. This attitude is wrong but understandable. I think it is unfair to say that the conservative position is not essentially different from the liberal position as regards federalism, because conservative ideology does truly respect separation of powers, delegation of authority to federal, state, and local governments as appropriate, and individual rights over and against state power. Liberalism does not even pay lip service to these ideals, and while conservative politicians sometimes make themselves hypocrites, I think you will find federalism still supported by most Republicans most of the time.

The Schiavo case involved government intervention as the source of the controversy. Had a judge not intervened, Mrs. Schiavo would never have been deprived of her life. I think it is worth asking how due process was ever served in the case. Did she commit a crime, to have had the state order her to be starved and to use police enforcement to keep her from being fed? She had no living will and the case Michael Schiavo could present that it was her wish to be allowed to die in her condition seemed to me to be incredibly weak. Are we now to fear making an offhand comment about coma victims, since a friend may remember this comment and it could be used to pull the plug on us, so to speak?

A state court ordered a woman to be killed; it did not deny state support of her upkeep, but rather forced her to die. If anything justifies special intervention...


At 5:13 PM, March 31, 2005 , Blogger Hunter said...

If anything justifies special intervention...

...this was not it. The Supreme Court had ample opportunity to review the actions of the FL state courts.

By giving federal district courts the power to review the actions of FL state courts, Congress showed a complete lack of respect for federalism. One of the well-established tenets of the American legal system is that state supreme court rulings must be appealed to the Supreme Court.

Even worse, Congress gave those courts the ability to completely re-hear the facts. Such an action is essentially saying Congress disagreed with the outcome, and therefore granted a new trial. At worst, that is a blatant violation of separation of powers.

At 7:14 PM, March 31, 2005 , Blogger Auskunft, the Lion Hearted said...

Such an action is essentially saying Congress disagreed with the outcome, and therefore granted a new trial.

This is the part that confuses me, because the media always left out the part about the crime that Terri committed, which justified death (and a death at odds with the 8th amendment at that!). Lo, I didn't even realize that she was on trial and found guilty! If only that Peterson prick could get his death sentence so quickly...

At 10:37 AM, April 01, 2005 , Blogger Hunter said...

This comment has been removed by a blog administrator.

At 1:20 PM, April 02, 2005 , Blogger Hunter said...

Lo, I didn't even realize that she was on trial and found guilty!

Yes, yes, I meant hearing. That doesn't change the nature of what I was saying.


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