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April 04, 2005

A Question For the Federalism Federation on Terri Schiavo

Well, we keep hearing this argument, especially from our more libertarian brethren. We're told that the Republican Congress acted in an unprincipled or even lawless fashion in attempting to spare Terri Schiavo's life.

Fideltity to federalism, we are lectured, demanded that we let the Florida courts decide the case, with no outside intervention at all.

Federalism is important, of course. But there are other parts of the Constitution which are equally important -- for example, that state law will be made by elected state legislators, not the courts. And the Florida Supreme Court is a very liberal and activist one. They invalidated a lawful act of the Florida Legislature -- Terri's law -- on a typically extraconstitutional basis.

So my question to the Federalism Federation is this-- do you really mean to claim that, in all circumstances, Congress should never act to check a state court?

Certainly Congress should respect federalism when laws are being made by those whom the Constitution authorizes to make them-- by a state's elected, democratic legislators. New Jersey passed a Civil Unions law, the right way-- by, you know, passing it through normal legislative processes. I might quibble here and there with the substance of the law, but I have full respect for the procedure by which the law was passed. And if Congress attempted to undo the law, I would, too, cry "Violation of the principle of federalism!"

But the situation in Florida is a little different. There was a legitimate legislative effort -- a successful one -- to change the law to help protect Terri Schiavo's life. The Florida Supreme Court voided that law on a whim.

One of my biggest pet peeves is the disingenuous strong-form proceduralist argument. Don't get me wrong; I'm big on procedure myself. I think procedure is vitally important to protect the rule of law. But sometimes people will make strong-form proceduralist arguments, claiming that procedure mandates a certain outcome, without admitting that when there is a substantive question that is personally important to them, they're willing to, let us say, bend their beloved procedures just a tad in order to get the substantive outcome they want.

So, a hypothetical: Let us say that a state legislature passes laws that are very pro-stem-cell research. The law allows such research; indeed, it even provides funding for it. And now let us imagine that a right-wing activist court decides to invalidate that law on the thinnest possible of pretexts, that, say, the preamble of the state constitution contains a rote guarantee of "life," and that that vague guarantee trumps the act of the legislature.

Would Reynolds, Sager, Leo, and other strong-form federalists say, in that instance, where federalism actually cuts against their preferred substantive outcome, that an overreaching rightwing state court should have the last word, and that a more-liberal Congress would have no authority whatsoever to check the overreaching court?

This isn't intended as a baiting question. And it's not rhetorical question. It's a straight question, though a hypothetical one. I really am curious if Reynolds, Sager, et al. would champion federalism so strongly were the facts pretty much the reverse of the facts in the Schiavo case, where the state courts they currently champion were acting contrary to their preferred substantive outcome.

So: Answers? How far do you take the principle of federalism? It's no difficult trick to champion abstract proceduralism when that proceduralism results in an outcome you favor, or at least don't care about much either way. It's a bit more difficult to champion proceduralism when it cuts against a substantive outcome you strongly favor.

I'm genuinely curious.

As the libertarian right and conservative right seem to be the only ones hashing these issues out, I'd like to have some sort of actual question-and-answer on them, rather than these unchallenged assertions from either wing.

Ann Coulter's Lovely Legs Update: Well, this has nothing to do with her legs. But she does have them. They go all the way up.

bbeck notes that Ann Coulter makes similar points, albeit, of course, sarcastically and not with the gentle spirit of civil intellectual inquiry I'm so famous for, in her latest column.


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posted by Ace at 02:24 PM

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