Tuesday, March 22, 2005

Of laws, not men

The New York Times eloquently explains that Congress and President Bush are trampling on the rule of law by their interference in the Terri Shiavo case:

The founders believed in a nation in which, as Justice Robert Jackson once wrote, we would "submit ourselves to rulers only if under rules." There is no place in such a system for a special law creating rights for only one family. The White House insists that the law will not be a precedent. But that means that the right to bring such claims in federal court is reserved for people with enough political pull to get a law passed that names them in the text.

The Bush administration and the current Congressional leadership like to wax eloquent about states' rights. But they dropped those principles in their rush to stampede over the Florida courts and Legislature. The new law doesn't miss a chance to trample on the state's autonomy and dignity. There are a variety of technical legal doctrines the federal courts use to show deference to state courts, like "abstention" and "exhaustion of remedies." The new law decrees that in Ms. Schiavo's case, these well-established doctrines simply will not apply.

Republicans have traditionally championed respect for the delicate balance the founders created. But in the Schiavo case, and in the battle to stop the Democratic filibusters of judicial nominations, President Bush and his Congressional allies have begun to enunciate a new principle: the rules of government are worth respecting only if they produce the result we want. It may be a formula for short-term political success, but it is no way to preserve and protect a great republic.

It seems a bit shameful to shove the Schiavo case into the same sentence as the debate over proposed changes to the Senate's filibuster rules, but both are examples of the breathtaking abuse of power that we are witnessing by this nation's ruling party. There hardly are words to describe it.


Anonymous Anonymous said...

I will couch my remarks in the words of that nasty conservative who does all Bush's bidding, Iowa Sen. Tom Harkin:

"There are a lot of people in the shadows, all over this country, who are incapacitated because of a disability, and many times there is no one to speak for them, and it is hard to determine what their wishes really are or were. So I think there ought to be a broader type of a proceeding that would apply to people in similar circumstances who are incapacitated."

Oh. Wait. Isn't that the same progressive Harkin who is a steadfast Democrat and architect of important federal protections for disabled Americans, injured workers and war casualties?

Yes. It is. So why is he doing this?

Harkin makes his case for Congressional intervention based on a FEDERAL LAW, the Americans with Disabilities Act.

Under the ADA, citizens who believe they have not received competent care within the state courts relating to their case can appeal to the federal bench for justice. This woman, unfortunately, can't do that. The Congressional action, albeit momentarily and without much hope of success, afforded the right of Congress to speak on her behalf.

Even a brain-dead woman has a right to not be killed without due process of law, and in this case the relevant law is the ADA.

While it is likely Florida will overcome ADA's prescriptions designed to protect the disabled, it is a burden the state and Schiavo's spooky husband had yet to meet.

Congress has made similar pleas before for INDIVIDUALS denied civil rights, especially African-Americans appealing for the right to vote, seek court protection and, several times, journalists avoiding onerous restrictions arbitrarily placed by executive fiat.

Harkin, for one, wants a vigorous debate about a society that gives an unconscious woman who can breathe on her own the choice of dying by starvation OR thirst. The state of Florida wants her to live. Her parents want her to live. For all we know, she wants to live.

Certainly, her condition isn't "terminal." She doesn't require artifical heart valves or lung tubes to survive. Her vital organs seem to function normally enough to sustain her for 15 years, requiring solely a little food and water, which it appears her parents and the State of Florida have been willing to supply.

Congress didn't say she has to be given water. There is no federal writ demanding that she be fed. The only stipulation is the assurance that the federal courts will consider her rights under the ADA.

Like you, I am very concerned about the extension of congressional power into what are traditionally matters for finders of fact at the state level. I worry about the comity of lawmakers AND the rules of law. I verily worry about the individualizing of this important policy concern in the name of one woman, most likely for the cynical sop to the GOP's religious base.

I, like Harkin, would prefer to see a nationwide policy debate on when federal ADA guidelines should come into play during a case like this. That's why a progressive Dem like me is siding with Harkin on this one.

By the way, I believe this country also needs to have a vigorous debate about all aspects of "life" and its intersection with government power, including the question of abortion on demand, the death penalty and medically assisted suicide.

Of course, I also supported the war in Iraq, so perhaps I'm somewhat inconsistent on these matters.

3:13 PM


Post a Comment

Subscribe to Post Comments [Atom]

<< Home