Wednesday, March 23, 2005

The ends don't justify the means

Whether Terri Schiavo should be fed or starved, Lithwick is right about federalism and seperation of powers. This is not Congress' call to make. Their hearts may be in the right place (though surely some are just grandstanding), but a few days ago I was ranting (offline) about the importance of the rule of law and judicial usurpation thereof, and I'm not about to cut Congress any slack here. I've not enough medical expertise to determine whether Schiavo is in a persistant vegetative state; I'm not familiar at all with evidence regarding what Schiavo's wishes are/were. Therefore, I've no business second-guessing the Florida courts on this matter. Moreover, since I'm not a fair-weather federalist and I believe in separation of powers, I don't think Congress has any business second-guessing the Florida courts on this matter.

Eugene Volokh has posted a more detailed argument by Rick Hills (as well as links to two other views). Hill's claim is that "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." Follow the link to see him back it up. (Yes, I consider myself an originalist.)


Blogger Erica said...

I'm very happy that you're consistent in your views. I'll also point out that Lithwick has two other excellent articles on the Schiavo case, besides the one you mentioned: (03/23/05) (10/23/03)

I'm taking this situation as a push to investigate living wills - a good option seems to be the "Five Wishes" program:

3/23/2005 8:55 PM  

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