Posted by Eugene Volokh:
Schiavo:
I know nothing about the Schiavo matter, and despite that have no
opinion. But I thought I'd pass along three items -- (1) in favor of
the Congressional action, [1]an interview with Robert P. George, (2)
in the middle, [2]a post from my colleague Stephen Bainbridge, and (3)
against the Congressional action, a post to a lawprof discussion list
(reprinted with permission) from University of Michigan professor Rick
Hills:
When in doubt, defer to the states. Consider two general criteria
of "doubt" and an application of this point to Schiavo.
1. The criteria:
As a proponent of "strong" federalism, I have a pretty strong
stomach for state experiments in policy-making that might arguably
be offensive. Indeed, I think that the essence of being a
conservative supporter of federalism is what I call Nagelism (after
Bob Nagel's book on federalism): we should be willing to tolerate
states' enacting laws that we would find pretty unpalatable on
moral and political grounds. Moreover, we should be willing to
tolerate state laws that come close to some constitutional line --
that arguably violate a reasonable conception of the constitution
-- especially when the constitutional doctrine turns on difficult
empirical or moral judgments about which reasonable people can
differ.
In general, one can always raise the cry that some state decision
burdens some constitutional right under one's favorite theory of
the constitution. But I would urge us conservatives to have a
stronger stomach for state diversity than our opponents on the
Left. In general, I would urge us all to allow states to do what
they like unless (1) the state's majority really looks like it is
ganging up on some discrete and insular minority repeatedly across
the board (Carlone Products note 4 and Federalist #10) or (2) the
state has adopted a view squarely at odds with a national consensus
on some basic liberty that has sunk into the popular consciousness
as a Privilege & Immunity of national citizenship or as an aspect
of national due process (Harlan's dissent in Poe v Ullman).
Remember: The 14th Amendment did not enact (1) Herbert Spencer; (2)
Ronald Dworkin; (3) John Finnis; (4) Leon Kass; (5) Rawls; (6)
Nozick; (7) Name your favorite political, moral, or constitutional
theorists.... It was a provision to protect the freedmen and (at a
higher level of abstraction) other racial groups suffering from
caste legislation or enslavement, and it nationalized some
traditional principles of common law concerning due process and
probably some norms of constitutional liberty contained in the Bill
of Rights and elsewhere in Article I, section 9. (On this last
point, I follow Amar). By some big stretch, the 13th and 14th
Amendment might also protect a republican principle of "free labor"
from 'class legislation' and 'monopoly.' (On this last point, I
follow Gillman and William nelson).
For these reasons, I would tolerate a state law that bans theology
students from getting a state-financed scholarship, even though one
might argue that such a law violates free exercise by
discriminating against religious speech. As a voter in a state, I
would vote to amend the state constitution to forbid such a
prohibition. As a constitutional lawyer, I applaud Rehnquist for
deciding Locke v Davey in favor of Governor Locke. Likewise, I
support the University of Michigan's right to have broad discretion
to enact affirmative action plans: Gratz was wrongly decided in my
view, and Grutter was correct. This view is utterly independent of
my views on the merits of affirmative action. Likewise, with
vouchers: Zelman is correct. Likewise, with the right-to-die:
Glucksberg was correct.
I am (personally) a follower of most of what Leon Kass defends in
print. I was a student of his, many years ago at Chicago. Thus,
physician-assisted suicide sickens me. But (in Holmes' phrase) it
does not make me puke, because it violates no national consensus on
the proper scope of private liberty. Thus, I would be appalled by a
doctrine that said that the state's not prosecuting physicians for
assisting in suicides was unconstitutional state action under the
14th Amendment. Such an expansion of the 14th Amendment WOULD make
me puke, because it would invite counter-nationalization of the
opposite rule by the Hemlock Society. For the sake of social peace,
we should not nationalize every cause: That's what Westphalian
federalism is all about: picking your battles, reserving the feds
for those issues that, in all fairness, We the (National) People
have genuinely resolved.
2. The application of these conservative principles to Schiavo:
On this view, the Schiavo bill is unconstitutional. Forget about
originalism: The Schiavo bill is obviously DOA on any theory of
originalism. But even by any remotely plausible NON-originalist
view of the 14th Amendment, it is hard to see how the 14th
Amendment's due process clause could bar a state judge acting as
guardian from deferring to a comatose woman's spouse in deciding
whether to terminate life support. But let's take each clause, one
by one.
A. Equal Protection: Does anyone believe that Florida legislators
are somehow biased against comatose people? Against parents of such
people? Are we seriously comparing Schiavo to segregated school
kids under Jim Crow -- the suggestion of Alan Meese? Does Ms.
Schiavo's parents really belong to a class of some discrete
(meaning easily targeted) and insular (meaning incapable of making
cross-group alliances) minority? Isn't it obvious that, in a
different case, the positions of the parents and spouse of the
comatose person could be reversed -- that Florida has made a
principled decision without bias towards any social group and,
therefore, not remotely akin to Jim Crow?
B. Procedural Due Process: Is there some claim that state judges
have a conflict of interest amounting to a denial of procedural due
process when they serve both as guardians and as judges? This
strikes me as truly odd. Maybe -- MAYBE -- a state judge might have
a personal incentive to keep Ms. Schiavo alive to continue to get
court fees as guardian. But, so far as I can tell, Ms. Schiavo's
parents got a decision-maker biased in THEIR favor, if that
decision-maker was biased at all.
C. Substantive Due Process/P&I clause: is there some national
consensus out there, firmly entrenched in tradition, that state
judges should not make these sorts of judgment calls? If you
believe that, then you should applaud Roper v Simmons and agree
that the US Supreme Court protected a national consensus against
executing juvenile offenders.
D. The Thirteenth Amendment: the Schiavo case does not even come
close to the core of the 13th Amendment, which, as Justice Miller
notes in The Slaughterhouse Cases, is about protecting the freedmen
and people in a similar position -- say, Chinese coolie labor,
Mexican peon labor, etc. -- from enslavement. At the outer limits,
I'd construe the 13th Amendment and the Necessary-and-Proper clause
to allow Congress to forbid racial segregation designed to reduce
Blacks to economic dependence (Alfred H. Jones). I'd even support
enforcing the 13th Amendment to prevent private violence of any
sort against any group that the violent actors wish to reduce to
some form of servitude -- say, a prohibition on certain types of
domestic violence against women.
Now: remind me how, on any minimally plausible theory of the 13th
Amendment, a state's good-faith delegation of power to state judges
to resolve disputes about a comatose person's intentions
constitutes involuntary servitude? Is the judge asking the comatose
person to perform unpaid labor for him? Will the judge somehow get
more dough if he terminates life support?
I repeat: So far as I can see, this case is a no-brainer for
conservatives upset by Roper v Simmons, Roe v Wade, etc. If ever
there were a case for deference to states, this is such a case. No
prejudice against any litigant. A perfectly traditional state
judicial procedure consistent with our traditions of liberty. No
forced labor. Help me out here: what am I missing that justifies a
national rule here?
Rick
At 03:22 PM 3/21/2005, Alan Meese wrote:
Professor Hills:
Hasn't the national government properly intervened to overturn
"fairly ordinary" state rules in the past? The 13th Amendment is an
example. Certainly that offended deep principles of Federalism as
you have defined them. Let's say that, in 1945, Congress had used
its Section 5 power to desegregate public schools. Would you have
objected on the ground that segregation was, to paraphrase you, a
"fairly ordinary rule of [school] governance?" in the North and the
South? (While many Northern States had desegregation laws "on the
books," they often did not follow them. Hence the litigation in
Boston, for instance.) Certainly the dispute over Segregation was
the topic of a culture war, and not the sort of thing susceptible
of compromise. Would you say that a Senator who voted for such a
law was pulling "an absurd stunt?" I doubt the black students in
Alabama would have thought so.
In other words, I don't see why the fact that a practice, e.g.,
allowing a husband to starve his wife to death while her parents
are trying to bring her food, is widespread should itself place the
practice beyond the jurisdiction of Congress as a matter of
Federalism. If mandating abortion or owning slaves were widespread,
would a Senator have to say: "Sorry, that's really none of my
business." Would those who tried to ban slavery be engaged in "an
absurd stunt?"
I agree with you that the reasoning of Casey is specious, but for
the simpler reason that protecting potential life is a compelling
interest that would justify a state restriction on fetus-killing.
No similar interest would justify requiring someone to obtain an
abortion. So, if you do buy Harlan's approach to substantive due
process, then one could readily strike down a law requiring
abortion but sustain the law banning abortion. Just a thought from
an Antitrust Professor.
Alan Meese
At 02:17 PM 3/21/2005 -0500, Rick Hills wrote:
The Schiavo business in Congress strikes me as an astonishing
violation of the most purpose of federalism. In the same way,
Ashcroft's attack on Oregon's Death with Dignity Act is a deep
violation of principles of federalism. I say "deep violation"
advisedly: I believe that a central purpose of federalism is
Westphalian (after the famous treaty that ended the 30 Years War):
We properly use federalism to defuse quasi-religious political
controversies over the meaning of fundamental things -- "life,"
"personhood," "consent to die," "familial autonomy," etc. Such
issues are appropriately divisive: their resolution depends on
one's acceptance of fundamental systems of belief -- acceptance
that will almost never admit of much compromise and that cannot be
rationally resolved through positive social or "hard" science.
The Westphalian principle decentralizes these issues to lower
levels of government to allow each side in the debate to get some
chance for their reasonable, heartfelt position to prevail. To
centralize such issues simply because one can muster a necessary
majority in either Congress or the Supreme Court is repulsive to
this view of federalism.
The usual response to this contention is to trot out a parade of
horribles in which positions obviously foreclosed by the 14th
Amendment are chosen by the states. Thus, Casey notes that the
states could not force women to get abortions and then infers that
the states cannot ban abortions under the same principle. (505 U.S.
833, 859). But this reasoning strikes me as specious: it is one
thing to force someone to get an abortion or to have a baby: it is
another thing entirely to prohibit someone from using one method of
avoiding childbith when there are a myriad of other ways available
(say, contraception). State liberty to define "consent,
"personhood," "life," etc., has certain (or rather, uncertain)
limits. I tend to favor some Harlan-esque theory rooted in slowly
evolving national consensus. But regardless of how one wishes to
limit the states, I do not think that there is a plausible theory
of federalism that would allow Congress to intervene where the rule
chosen by the state is a fairly ordinary rule of family governance:
when in doubt, the surviving spouse decides.
I just finished teaching my Harvard students about Roe v Wade. I
urge them to consider the position seriously that I happen
(privately, of course: I don't foist my own constitutional
principles on my students) to be correct -- that the
constitutionality of abortion, and more particularly the division
between the fetus's personhood and lack thereof, is a political
question, properly for the states to resolve. I was delighted that
principled conservatives abandoned the President on the Federal
Marriage amendment, as this amendment struck me as paradigmatically
the sort of issue that should be decentralized under the
Westphalian principle. One of the reasons why I am a Law Professor
for Bush-Cheney is that I adhere to this strong view of
federalism-to-prevent-national-cultural-wars.
the merits of whether Ms. Schiavo actually consented seem to me
quite besides the point. Is there any reason to believe that some
imperfection in Florida's political process has prevented the
Florida legislature from properly considering those merits? Just as
I would not constitutionalize the anti-abortion rule of Doe v.
Bolton (which the West German Constitutional Court arguably did in
its 1975 Abortion decision), so too, I would not constitutionalize
any rule on guardians and comatose people's intent. All of the
thoughtful arguments posted on this list about whether Florida's
rule is a wise one, whether guardians can be trusted, what Ms.
Schiavo actually wants are great arguments -- but ones which can
easily be made to the Florida legislature or, for that matter, the
Florida people and the Florida courts, both who control the state
constitution.
And now the Republicans pull an absurd stunt like this one. I
confess that I am distraught. All that
"let-the-states-decide-on-abortion" rhetoric has to seem like a
bunch of empty hooey if this statute is deemed to be consistent
with conservative principles of federalism.
References
1. http://www.nationalreview.com/interrogatory/george200503211140.asp
2. http://www.professorbainbridge.com/2005/03/terry_sciavo_co.html
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