The way to lead your readers upward, it seems to me, is to begin by reading the Constitution and the Federalist Papers, then continue by reading a contemporary work on the U.S. Constitution. George Anastaplo is probably a good choice, because he treats the Constitution as a unity, rather than merely as a collection of sentences to be quoted as proof-texts by this side or that side. Really, the way to lead, Ace, is, well, to lead.

"The Florida Supreme Court voided that law on a whim."

Oh, please. If you're serious about asking the question, then don't be stupid. I'm not disagreeing that the FSC is more activist, but to make a statement like this is simply absurd.

The law was ruled unconstitutional in the district court. The appellate court referred it directly to the FSC, who upheld the ruling. The U.S. Supreme Court declined review, which pretty much suggests they didn't see any constitutional issues at stake.

So let's not call it a "whim". You are engaging in exactly the behavior you're condemning in others: if you don't like the result, you piss all over the judges.

Cal,

Please explain the basis for invalidating the law. I'm all ears. Put me some fuckin' knowlege in here.

Well, I was horrified by the Schiavo killing, and I had no problem with the law that Congress passed, but the issue with federal meddling with state courts is sorta different.

Regardless of what some of the libertarian bugaboos would say, the proper position would be to not interfere, because the crucial fact is that it's not the federal government's job to enforce separation of powers at the state level. State legislatures have a lot more power than Congress to act in their state. If a state is willing to let its local courts rum amuck, such a thing would only happen at the sufferance of the legislature (and hence the people) because the legislature is free to tinker with its courts in ways Congress isn't.

because the crucial fact is that it's not the federal government's job to enforce separation of powers at the state level.

Ummmm... as the Florida Supreme Court invalidated a constitutional amendment which would have limited their ability to invalidate laws on "constitutional" grounds, what exactly do you propose?

Who else, exactly, is capable of checking SCOFLAW?

Ace,

The idea of federalism in the area of individual liberties was dealt a serious blow by the 14th amendment. As discussed by Akhil Amar, the 14th amendment removed the presumption implicit in the Constitution to that point that the states were going to be the final protectrs of the individual's rights of life liberty and property.

Once states proved (through state sanctioned terrorism of blacks during reconstruction, and by slavery before the War) that they would let some people just fall by the wayside, the 14th amendment was enacted to make the federal gov't the fallback defender of the citizen's rights.

That's why the Bill of IRghts (for the most part) has been "applied" to the states "through" the 14th amendment. Incorporation is the philosophical oiutcome of the 14th amendment's shift in emphasis on the protections of the Consitution.

So the libertarian's point is more the point of the anti-Lincoln, pro-antebellum arch-conservative faction that's been most at home around the Birchers than the Cato Institute.

The libertarians are chucking the ideas of Harry Jaffa out the window (to the extent they cared about Jaffa at all) and rejecting the spirit of the Declaration of Independence for the hollow formalism of the strict constitutionalists.

The problem is that the strict constitutionalists cannot understand what the 14th amendment says so long as they view it through their own limited scope. If the core of federalism remains unchanged after the Civil War, then the 14th amendment is "unconstitutional." Of course, as part of the constitution, it must mean something (as no part of the Constitution is "surplussage"). Thus the old line "federalists" are in an untenable position.

Either the Congress and fed courts can defend the life, liberty and property of the citizens via the 14th A, or the 14th A doesn't mean anything.

I was referred to this essay by Orson Scott Card by someone who disagrees violently with his statements in it. I happen to agree and believe that it is a concise explination on the problems of judicial over-reach ( although it is primarily concerned with the Gay-Marraige issue.)

http://www.ornery.org/essays/warwatch/2004-02-15-1.html

Be sure to read the LTE (Letter To the Editor) and OSC response.

Ace, you've posed a good question. Your question uses stem cell research as the issue, and I come down on the side of letting the state court get away with it, because (a) it is a state matter whose effects don't go outside the state (except, of course, as an example other states might follow) and (b) the people of the state can act to deal with their own court system. If the Feds step in, it kind of takes away a major part of the motivation for the people of the state to get their courts back in line. I come out differently where the action of the state has a direct legal effect on people outside the state -- I am thinking here of Bush v. Gore -- because people outside the state have no power to redress the court system that has acted to change their government or laws. All that said, I liked what the Feds did in providing federal court review in the Schiavo case, because Schiavo was a United States citizen not just a citizen of Florida, so the United States government as well as the Florida government had a legitimate interest in protecting her life. The United States government tries to protect us in certain ways when we are traveling and under the jurisdiction of foreign governments; this is what the U.S. passport symbolizes. The same applies when the U.S. citizen is within the U.S. and under the jurisdiction of a state government. Although most of our rights derive from state government, not all do; and when the right at issue is one that derives from federal law as well as state law, the federal government may act to protect it even if the state can also act, without infringing on principles of federalism.

TIP!!!!

KIM RICHARDS IS ON AN EPISODE OF MAGNUM P.I. RIGHT NOW!!!!

Its on WGN chicagos Superstation right now.

Good non-rhetorical question, Ace. One reason I'm becoming a little disenchanted with the Republicans these days is that some of the folks who championed federalism when they were opposing a basically liberal federal court system and executive branch seem to be a lot less interested in the principle if they can impose their own values through federal action.

On Schiavo specifically, one point that I haven't seen discussed much was that Congress passed a private law, not a public law--it dealt solely with Terri Schiavo, not with other, similar cases. Moreover, all they did was reopen the case, not mandate an outcome. Compared to the Elian Gonzalez affair, where Reno's Justice Department did exactly what some of Terri's more hardcore supporters were demanding, this seems like a pretty modest infringement of federalism in a pretty extreme case.

You don't have to be hypothetical, Ace. Look at the federalist case inculcated by Carter regarding speed limits. He supported a law to keep the limit at 55. Various states (including Arizona) eventually got tired of the federal yoke, and openly broke the law for the purposes of creating a precedent. The law was rescinded with the result that the states' regained the right to regulate their own portions of interstate traffic.

Federalism cuts both ways, but the issue is the same, viz., what right does the federal government have to legislate in the many states? The limits of this is the ongoing national debate.

I would point out two things:

1) Generally speaking, Democrats are proceduralists and republicans are structuralists. This is a broad brush, but pretty accurate in that democrat strategy is usually reduced to using procedure to achieve its ends, as opposed to a republican strategy that determines a substantive, principled outcome and then seeks to achieve that outcome. So contrary to your excellent example above, it was the (Republican) structuralists who used the procedure to get an outcome that they sought, viz., passing a federal law to intervene on a individual case before the state court. They were willing to bend their principles a bit to achieve an outcome that they thought was significant. It is interesting in that there is a pretty good logical argument to be made regarding hypocrites. The logical argument falls apart, as we are all aware, when you realize that there are bigger issues here than proceduralism vs. structuralism. And the point is that THIS is why principle is important - people will pursue whatever means necessary to achieve what they believe to be worthy ends. We the people need to be damned sure that "Necessary" is construed similarly above and below.

2) To take this discussion down another road by induction, the power of Federalism was advanced by the 17th Amendment. Election of senators to the federal government was removed from the state governments and passed to a popular vote. This redundantly tied the federal government directly to the US population, instead of to the various states' populations, and disenfranchised the state governments from the federated chain of command. Logically, you can tie this amendment to (among other things) the judicial activism that you see today. There is no redress for bad federal court appointments, no mechanism whereby the national government may be held to account for poor judges (or poor judicial decisions). It is, in other words, a different form of tyranny that is most famously denoted by the cry, "No Taxation without representation."

DDG

utron,

I'd submit that you're just used to a court doing this type of thing instead of the Congress.

However, Section 5 of the 14th Amendment says that Congress can pass "appropriate legislation" to safeguard the life liberty or property of any person who is being deprived of such under "state law"

It's fully within Congress' authority to pass laws like the Schaivo bill (though not a wise or efficient use of resources), as it's not a bill of attainder (declaring one person a criminal).

Weird, sure, but not wrong or "anti-federal"

Funny you should ask, Ace. I was just thinking about this earlier today. You should go read Ann Coulter's column because she talks about this in her latest.

I'm a constructionist myself and have some libertarian leanings, and what these libs seem to be forgetting is that constructionism is NOT anti-Federalism, it's pro-Constitution. What we've seen lately is that the judiciary branch, which is supposed to be beholden to the other branches of government, get more powerful than it's supposed to get. In the Shiavo case, the "checks and balances" notion that the Constitution is supposed to guarantee was getting trampled on, hence the executive branch tried to level the playing field by passing a law...which got trampled on by the judiciary.

Obviously, there's a problem with "checks and balances" when one branch of the government can't be checked or balanced.

The folks saying the attempt made by Congress is Federalism has lost sight of what Federalism is and what it's not. There is a time for the federal government to intervene, and that is when it can be demonstrated that one or more of an individual's rights guaranteed by the Constitution is being denied. Apparently these anti-Feds don't think the federal government should step into a state matter under ANY circumstances, and that's not being a constructionist.

I think you know how I'd answer your hypothetical, but what I'd want to know is how these anti-Feds would answer this; what circumstances, if any, should the federal government intervene with a state's actions? Maybe that question has already been answered by those you mentioned, but their writing is so deathly dull and lacking in humor I don't read their blogs.

Later,
bbeck

bbeck, Congress, or the federal courts, or perhaps even the president (that's untested), can intervene whenever state actors attempt to deprive someone of their life, liberty, property, or other "fundamental right" without due process of law.

Federalism no longer applies with the same force to individual liberties as it did before July 9, 1868 (the enactment date of the 14th Amend)

Hobgoblin, I tend to favor the small government position on most issues, so my real preference would be to: a) see people promote their agendas without drawing the government into it; and b) under the Tenth Amendment, handle these matters as much as possible at the state level. The notion of states as the "laboratory of government," where some of these notions can be road-tested before being adopted on a national level, hasn't received enough attention in the last few decades.

On the weirdness issue I pretty much agree with you. That was my point: Congress's intervention was unusual and more than a little inelegant, but there are no constitutional grounds for people to get their undies in a wad over it.

High five, Hob...

On the flip side...

Don't leave me hangin'....

Later,
bbeck

You're all such constitutional scholars here at the ACE of Spades - I'm impressed! Though I've read a bit about it in college (which means almost nothing) I can't pretend to really understand the system of checks and balances and the seperation of powers between the branches, something that all three branches do on a regular basis, and which they actually couldn't care less about. The Supreme Court has many times refused to hear cases which they know, or should know, have meritorious consitutional issues that they should address, like say affirative action against white people and men. I hate to restate the obvious but Supreme Court decisions have been wrong many times as in upholding slavery in the Dread Scott decision or seperate but equal schools in Plessy v. Ferguson. We need a Clintonian-style purge of all Liberals everywhere.

"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?

Hey, good question. This is one racist segragationist who would like to hear the anwer.

Ahem.

We need a Clintonian-style purge of all Liberals everywhere.

I can only quote John Lennon: "And if you go carrying pictures of Chairman Mao/You ain't gonna make it with anyone anyhow."

Lot's of good discussion on this thread. It's nice to have a counterweight to all the Bob Dole penis references. I did not know that Constitutional scholars were such a jocular bunch.

As Duncan stated, it is hard to go wrong by reading the original texts:

Historic documents
Founding.com

"Please explain the basis for invalidating the law."

Read the decision

But in short, it found the law violated separation of powers twice. It encroached on the judicial branch and delegated legislative authority to the executive branch. Like it or not, how is that a "whim"? And if it was so whimsical on the issue of separation of powers, why did the USSC deny review?

The law enacted by Florida to specifically protect Terri was unconstitutional on two grounds - separation of powers and right to privacy based in Florida law and recent case precedence. The Florida Legislature gave unbridaled discretion to Gov Bush to enforce the enacted law with no legislative guidelines, thus granting the executive branch legislative powers. Also, previous Florida cases set precedence for 'right to privacy' issues dealing with guardianship powers exercised by Michael Shiavo. So the judge/court ruled that the law was unconstitutional and threw it out.

Cal,

Courts are supposed to interpret the law. The legistlature wanted to change the law. The court said, "No, we like the old law, and we'd like to continue interpreting that law."

I have little respect for the judgment of the SCOFLAW on its judicial prerogatives. Remember-- a constitutional amendment was passed, legally, and they ruled that constitutional amendment itself 'unconstituional" (how can the constitution itself be unconstitutional?) citing their belief that the people weren't sufficiently informed to pass judment on the issue.

And not to open a can of worms, but this is the same court that found that the legislature's law that a recount could go on for 10 days meant it could actually go on for 17 days, or 21 days, or however long it took to discover enough votes to make Al Gore president.

I just read the Coulter piece on judicial overreach. I love that woman, and I usually agree with her (like I do this time), but I'm really glad she doesn't live anywhere near me. I've always thought Ann would have been perfect for Sandra Bernhard's role in "The King of Comedy."

Off Topic, unless the topic is "hypotheticals" and "libertarians" and "Schiavo-inspired arguments". Yeah, it'll stretch:

I'm guest blogging at Patterico's Pontifications this week, and I've posted a hypothetical about libertarians' (and really anybody's) willingness to prevent suicide. Here's a link to that post.

As for federalism, I'm all for it, but if an innocent person is going to die you gotta move on it.

The problem is that the strict constitutionalists cannot understand what the 14th amendment says so long as they view it through their own limited scope.

Hobgoblin, this is only partially correct. The 14th Amendment did not destroy federalism. It may have done so in practice, but it does not, on its face, mean as much.

Also, it's important to remember that the 14th Amendment was passed when half the Union was locked out of Congress. The Union kept the southern states in the club by force of arms, but then locked them out of the political process for many years. The whole justification for the war in the first place was that the southern secession was ineffective -- null and void because it was not legally possible to do so. So, if the states never effectively seceeded, they should have participated in the ratification of the constitutional amendments. They did not.

On its face, the 14th Am. only says: nor shall any State deprive any person of life, liberty, or property, without due process of law.

Even if the 14th Amendment says what you say it does with regard to an expansion of the scope of the enumerated rights, this is not what's at issue here. As you said, section 5 of the 14th amendment is what matters -- whether Terri's Law qualifies as an exercise of the power to enforce the 14th Amendment.

The unfortunate reality is that Terri's life was taken with due process of law. It is horrible, and no one could disagree more with the substantive decision that was made. But due process was observed.

I'm sorry to say that the Constitution is a nullity. Congress has any power it wants. The courts no longer offer any protection against it.

Three things happened to end our constitutional protections:

1. The so-called Civil War. We once had the power to secede if things got too bad, but Lincoln's war put an end to that. It was not a "civil war" any more than the American Revolution was a civil war. It was a war to prevent southern independence. It succeeded. (And my ancestors were Northerners at the time.)

2. Congress assumed power to dictate the form of our money via the Federal Reserve.

3. FDR ended any limitation on federal power over economic activity. Since just about everything qualifies as "economic activity," their power is now virtually unlimited.

So, Ace, I'm a libertarian, and I'm with you on Terri Schiavo. It was a travesty. But after studying the sordid history of lies and self-serving rationalizations that it took to get us to this point, I no longer expect state or federal governments to exercise the high degree of honesty and (dare I say?) integrity it takes to observe their own laws faithfully.

Ace

The Florida legislature could have passed a law directing state troopers to go get Schiavo. The judiciary would have been powerless. The governor could ordered her rescue.

The timid legislature did no such thing. The governor demurred.

Simply put, the judiciary is the final say, until some legislature has the balls to say, "Wait, this is a 33% pie slice for all of us here." An executive - Nixon - almost had the balls on his tapes, but he knuckled under.

Why? The big bad judiciary can only issue opinions and levy fines that it has no power to collect. Or deploy its marshal service.

The answer is either dishonesty or no balls.

There are folks who accept the judiciary's larger pie slice but like to make political hay out of their victimized status (oh, the tyranny of the courts, with their inability to do anything but issue opinions).

But the bitches who wail about the mean courts today are

a) Full of it, but getting the natives restless

b) bemoaning their own gutlessness

c) bemoaning the fact that most folks prefer the tyranny of the judiciary to the tyranny of the executive or legislature.

And on shit that matters, like war, the judiciary either shuts up or, as with Lincoln, is ignored.

bbeck *on the down low*

and utron: The notion of states as the "laboratory of government," where some of these notions can be road-tested before being adopted on a national level, hasn't received enough attention in the last few decades.

Like I said above, the "labarotories of liberty" idea truly dies with respect to what the state can DO to you (as opposed to leaving you alone more) with teh 14th Amendment.

And Virgins, yes I am a constitutional scholar.

Ammobob, the privacy argument is trumped by the hierarchy of rights that reaches its apex with "life."

Especially when someone is not speaking for themselves (except through a legal fiction like "guardianship"). State attempts to deprive TS of her life are well within the ambit of the 14th amendment, and thus Congress had the power to act. Federal law always trumps state law where they overlap.

You're right about the latest attempts, but you forget about the previous effort to spare her life, which the SCOFLAW ruled unconstitutional.

Part of the legislature's hesitancy this time around might be due to the previous rulings that changes in the law that the SCOFLAW didn't like would be deemed "unconstiutional."

Hob

Congress acted, but only in a tepid, mealy manner. The mean, tyrranical federal courts (loaded with good, grey conservative appointees) than said, "Go blow."

And Congress, talk show opportunities over and the big, fat pander completed, when on vacation.

Ace

So what? So the Court calls any law unconstitutional. The legislature can say, "No. It's not."

Who trumps?

The dudes with the wallet and the guns.

So, what makes them so deferential?

Do courts, like Dr. Evil, have a big bag of shssssh that cows legislatures?

No.

Legislatures accede to courts. Then, legislators get reelected and news coverage moaning about it.

Please. You are talking stupid. You're talking about provoking a full constitutional crisis-- legislatures openly defying the court, Jackson-like -- in order to settle this matter once and for all using the arguably "right" process.

It's a nice thing to bullshit about, but it's never going to happen.

I know. Which leaves endless, pointless kvetching about what to do about the "runaway judiciary" which - unless you're willing to challenge even your own preconceptions - is exactly nothing.

You posited a question but reject the only viable challenge as too crazy to countenance.

The right process being, as you suggest, open interbranch political warfare.

George,

you wrote: "I'm sorry to say that the Constitution is a nullity."

I agree with that part, but not the rest of that paragraph. It's not the Congress that has nullified the Constitution, but the Court in teh first instance, through the "unenumerated rights" farce.

Now, more to your first statement, the 14thA didn't just destroy federalism in "practice" as you say, it destroyed (really shifted to a one-way liberty ratchet) the philosophical underpinning of the Constitution.

Specifically, the states can now afford more individual liberties than the federal constitution but not less. That was not always the case, obviously, but in ways separate from slavery---i.e. the Established Churches of New Hampshire, Connecticut, and Massachusetts come to mind.

Now plenty of libertarians are of the mind that Lincoln was an evil power-hungry dictatro and destroyed the nation. If that's your opinion, you're entitled to it. I personlly believe that where historical facts demonstrate that the state governments are unable or unwilling to protect their citizens, then the federal gov't has a role to play. The spirit of the Declaration means something substantive in the legal framework of this country.

Now I don't disagree with your critique of FDR---he was literally enamored of Benito Mussolini. Literally. FDR was an American fascist of the more benign variety, to be sure, but the fascistic model wasFDR's goal).

I will disagree with you on this "Congress assumed power to dictate the form of our money via the Federal Reserve" Congress has the authority under Art I section 8 which states Congress shall have the power to "coin money and regulate the value thereof."

And what is "due process of law" when it comes to an incompetent person's life George? Notice and oppt'y for a hearing are considered due process for property, but how much is a life worth. The courts you love so much might have a flip answer, but how can you be so certain that the word of an interested, adulterous spouse is enough to guarantee "due process"?

I don't think the 14th A changed the scope of unenumerated rights," quite the contrary. I think it guaranteed those rights against what used to be considered the ultimate defender of them, the citizen's state. It's a philosophical change that was wrought, and trying to fit the post-bellum constitution into the antebellum philosophy is like trying to understand the irony of Plato's republic without understanding the Athenian revulsion of all things Spartan.

Ace

For a time, yes. But that occurred in Jefferson's first term, and again in Lincoln's term, and neared in Nixon's term.

I guess I don't understand the point of the hypothetical. Right or leftist activist courts do what they will, and the only recourse short of challenging their supremacy is political (appointees or elections in states where judges are voted in).

Otherwise, go balls to the wall or eat it.

And many folks were asking Jeb to go balls to the wall (i.e., invoke a constitutional crisis).

I suggest that the mere terror at such a crisis reveals the weakness of the inquiry. Ring the bell, hoot and holler, and then get back and plow your black-robed master's field.

Hobgoblin, I don't care how much you dislike it, I'm going to insist on agreeing with you. The Schiavo case was botched on so many levels that it would set a terrible precedent for action of any kind. Hypothetically, I can imagine a state right-to-die statute that might survive a Supreme Court challenge, but I can't imagine one that would cover Greer's actions in this case.

On the issue of federal law trumping state law, I would suggest--respectfully, I'm no constitutional scholar--that the Tenth Amendment does set clear limits ot the scope of federal law, and that federal law and legislation may have overstepped those bounds. I believe there have been court challenges that ruled in favor of the Feds, but those decisions can be overturned. It didn't take a constitutional amendment to overturn Plessey v. Ferguson.

Well, damnit utron, if you're just goingto insist on being agreeable, I guess we'll hav eto agree.

Except for one thing.

The 10th A could provide a check on the scope of federal power, especially in the areas of "non-commerce" activity (specifically med in-state marijuana). But in practice, it's been quite limited of late in cases like Printz (feds can't commandeer local cops for background checks)

here's a good discussion of 10th/11th Amendment cases http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/tenth&elev.htm

I'd rather not go into the Commerce Clause stuff, as thatt part of federalism seems alive and well (for now) and is not implicated by the Schaivo mess.

And I would argue that Plessy DID require a constitutional amendment, the 14th. The court just had to enforce the terms of the 14th amendment seriously.

BTW, Hobgoblin, excellent argument on the impact of the 14th Amendment, which I hadn't really considered before. I've read that, historically, blacks have looked to the federal government as their guarantor of liberty vis-a-vis the states. In that context, it makes sense that the black vote (outside of the South) began to go Democratic when FDR made a massive lurch in the direction of federal activism, and the Republicans discovered a previously unknown taste for federalism--which goes back to the point Ace originally raised.

To clarify my point above, I think your 14th Amdmt argument would certainly apply to the Schiavo case; a more general application is a little more questionable. I'm not arguing the point; I'm just saying I thought Judge Greer's conduct was amazingly egregious.

Now plenty of libertarians are of the mind that Lincoln was an evil power-hungry dictatro and destroyed the nation. If that's your opinion, you're entitled to it. I personlly believe that where historical facts demonstrate that the state governments are unable or unwilling to protect their citizens, then the federal gov't has a role to play.

The War to Prevent Southern Independence was not fought to end slavery. That, at least, would have been a more noble and justifiable explanation. But it wasn't.

The federal gov't was defending its power to collect taxes, specifically its newly-enacted Morill tariff. Lincoln promised in his first inaugural address a military invasion if the new, tripled tariff rate was not collected. The import-dependent South was to pay 80% of the revenues under it.

So, they wanted out. They wanted to pick up their marbles and go home.

But the feds locked the door. It is no accident that Ft. Sumpter was a tax-collection station.

Even if it were fought over moral outrage over slavery (which it was not), such a war would be no more justified than if we were to invade Mexico, where deprivations of liberty are, to say the least, common. Or any of the African countries that practice slavery to this very day.

And I'm not simply belly-aching about a 150 year-old injustice. It was an event that changed the law of the US forever, which affects us to this day. Do you not think that if the states had the ability to secede that it would provide a check on the growth of federal power? Of course it would!

The very same issues we are discussing here over Terri Schiavo over state-federal legal supremacy originated in that one moment over 150 years ago.

Congress shall have the power to "coin money and regulate the value thereof."

Sure, but not a monopoly. It has the power to coin, but not to the exclusion of everyone else's right to do the same. Coining was a private enterprise for centuries. Free markets selected these metals as a commodity currency, and private busineses arose who would melt it, and stamp the coins and certify their weight. That clause gave the US government the power to open such a coining business.

It is similar to the way the gov't has the power to run a mail-delivery business. That does not mean it also the power to forcibly shut down all competing delivery services. That's what modern currency is -- a government-granted monopoly.

And what is "due process of law" when it comes to an incompetent person's life George? Notice and oppt'y for a hearing are considered due process for property, but how much is a life worth. The courts you love so much might have a flip answer, but how can you be so certain that the word of an interested, adulterous spouse is enough to guarantee "due process"?

Incompetent people have to have a guardian speak for them. The court in Terri's case appointed one, and it chose badly.

Due process was observed because notice and opportunity were given to that dirt-bag in Terri's stead. The court applied the standard regarding whether it was likely that she would regain consciousness, or whatever words it used. It relied on expert testimony. The end result was a crappy evidentiary hearing where essential facts never made it in, and the appellate courts abided by those findings thereafter.

In other words, the problem wasn't a lack of due process. It was a poor application of substantive standards of: (a) her husband's fitness to act as guardian, and (b) what Terri's medical condition was.

I do not love the courts. I do not know where you got that. They have written many of the bullshit post hoc rationalizations and lies about the erstwhile limits of gov't power that I have complained of here.

George, the love the courts comment was sarcastic. Obvously you do not.

And you assume what due process is without reflection. The very system that would allow such a travesty as MS's guardianship to occur brings the concept of "due process" into question.

Also, you fail to understand the nature of federal supremacy. Where the federal gov't has a power, it has the power to make a monopoly under the supremacy clause.

Your problem isn't really with Lincoln, your problem is with Madison, Washington, Adams, and the rest of the Federalists. Your libertarian paradise has never existed in this country and could not, under the general laws of human nature. I wish that it could myself, but I am not so foolish as to believe it could. The anti-Federalists lost, to my regret, but they could have never run this country successfully. It would have broken down into quasi-anarchy, with 3 or 4 more sovereign nations on this continent all vying with one another.

Last, while slavery wasn't the sole rationale for teh Civil War, it was a major causal factor. The Missouri Compromise rankled the abolitionists, they were getting no help from the Court. Lincoln spoke long and eloquently about abolition, though it wasn't a short-term political goal. It's foolish to say the Civil War was only about taxes and tarrifs. Really.

And the "moral justification" of war is not a question for politicains, but for ethicists. War happens. Usually for very practical reasons. You're talking about "should" and "justification" like they mean something. That's all well and good for a 19 year old poli sci major, but not very helpful in the real world.

In this real world, the 14th amendment altered the philosophic underpinnings of the federal system vis a vis individual liberites.

It's over.

Done.

The Constitution was changed.

Now, the issue becomes how do we use this new system most effectively. The 14th Amend gives much authority to the federal government. The best way to counter that authority is not to carp about how the "System" has been polluted by Lincoln's tyrannical acts. That sounds like those hippy-dippy fools who claim communism hasn't "really" been tried yet.

Instead, one must recognize that a constitutional convention isn't coming again any time soon. Two choices from there: (1) advocate revolution (a sure way to end up dead or in jail), or (2) try to make the system work as well as possible.

I'm all about option 2. Life in the US is nowhere near bad enough to even consider as a remote possibility option 1. Obviously some with a less firm grasp on reality are closer to option 1 but blessedly they're few and relatively powerless. The fact remains that we are not being "oppressed" anything like our founding fathers. So we need to understand the nature of the new system and work from there.

The Left for decades made up the new system as conservatives fought about what the old one meant in a post-bellum world. Now we have a chance to exercise political power in a much more strongly unitary system. Federalism can be advanced in economic areas, but you'd be a dupe to think the individual rights libertarianism of the founding can translate into the "federal" system of today.

If using that system means that we can curb the worst excesses of the liberal/left culture of deconstruction, so much the better.

Ace,

All you need to refer to is Article IV, Section 4 of the Constitution:

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.

So, it would seem to be very constitutional for the U.S. Congress to call these judges, state or otherwise, out with laws such as Terri's law when it would seem that the people are no longer be represented.

Russell said, many comments ago:

"... the crucial fact is that it's not the federal government's job to enforce separation of powers at the state level."

What about the Republican Form of Government Clause? Does that mean absolutely nothing? Could, say, a state constitution vest all power in a dictator without that being a violation of federal law? If not, then you have to logically extrapolate why not and take it from there.

Which was exactly the argument the Florida Legislature made in our cert. petition to the US Supreme Court after the Flordia Supremes struck down a state constitutional amendment: not, BTW, on constitutional but STATUTORY grounds, which is even more insane. I could rant about the Armstrong decision from here to eternity. Suffice it to say, I wish the 2000 election hadn't come along to get in the way, or Tom Feeney would've had every justice who was in the majority in that case impeached.

"State legislatures have a lot more power than Congress to act in their state."

In theory, maybe. In practice, that requires a state judiciary who recognize that separation of powers cuts both ways.

"If a state is willing to let its local courts rum amuck, such a thing would only happen at the sufferance of the legislature (and hence the people) because the legislature is free to tinker with its courts in ways Congress isn't."

Again, it's really all well and good to say that in the abstract, but in reality it don't work that way...and especially not in Florida. First off, as a legal matter, most state legislatures don't have the same kind of power with regard to their state courts as Congress does regarding the federal courts because the structure of their state courts is spelled out, often in minute detail, in their state constitution, rather than being left to be shaped by statute. Having done a national survey on the subject when I worked for the Florida House, I came to the conclusion that the Sunshine State really is the most extreme outlier on this. It's probably the ONE thing where California, New York and Texas could all look down on Florida as insane for the same reason.

And then, in practical political terms, there's the fact that (infuriatingly) most of the people have this naive deferential attitude toward judges they rightly don't have for (other) politicians, which means they regard any legislative or executive action with respect to the courts as "meddling" but don't perceive any encroachment on separation of powers by the judiciary in that same way, if at all.

I am a fairly new, but becoming frequent, browser of this site....first time poster.

BUT - I had to post. Who knew guys that can tell endless "fart jokes" could speak so intelligently?

Shocked, I tell you. I am shocked.

Bah. Bring back absolute monarchy and the divine right of kings.

Dazed, I think Ace posted this topic for the purpose of getting us to talk intelligently again. :)

Later,
bbeck

I'd rather talk about Ann Coulter's legs. The go all the way up.

bbeck-

I think you spoke too soon. They are having some sort of droolfest over the Bush girls on another thread. That Allah dude really scares me =)

Here, to help out Dazed, I offer the following:

kbiel, you are full of shit.

; P

Not that I disagree where you're coming from, but just an FYI, in a constitutional discussion, don't cite the "republican form of gov't" clause.

It makes you look dumb or like a crank.

The clause was ruled essentially non-justiciable during the Rhode Island troubles in the mid 1800s. Luther v Borden, discussion here:

http://conlaw.usatoday.findlaw.com/constitution/article03/12.html

The problem with just relying on the "text" of the Constitution is the fact htat it's been interpreted 8 ways from Sunday over the last 2 centuries.

Lots of very intelligent people do the same thing, so this really in't a slam, I just wanted to inject some more Ace-o-Spades flavor into the thread.

Thanks goblin....you were actually one of the ones who came to mind when I was speaking about the fart jokes vs intelligent convo. No offense...

Just out of curiosity...anyone here actually PRACTICE law or is this just a bunch of jailhouse lawyers?

The very system that would allow such a travesty as MS's guardianship to occur brings the concept of "due process" into question.

No, it doesn't. It demostrates that although due process is an extremely important concept for liberty, it is not a magic-bullet solution to every problem.

It provides that the government agents must follow the law. That's a hard-won principle, believe me. But it only ensures that adequate procedures are followed. It has been tortured (mostly by those eager to justify an increase of gov't power) to mean that "bad" results should not ever occur.

Again, Terri's death was not the result of a lack of due process.

Where the federal gov't has a power, it has the power to make a monopoly under the supremacy clause.

That is incorrect. It's not really germaine to this discussion, so I'll leave it alone for now. But it is 100% wrong.

Your libertarian paradise has never existed in this country and could not, under the general laws of human nature. I wish that it could myself, but I am not so foolish as to believe it could. The anti-Federalists lost, to my regret, but they could have never run this country successfully. It would have broken down into quasi-anarchy, with 3 or 4 more sovereign nations on this continent all vying with one another.

First, do not go down the road of "utopian" with me. It is a bizarre challenge, no matter who you levy it against. I despise communism, but even communists are trying to improve things, warped and destructive as they define 'improvement.' It's an obvious strawman.

Also, libertarianism has existed, briefly, in various degrees, and in many countries throughout recorded history. It has always created such prosperity that some thugs come in to seize it for themselves.

Take the US, for example, in the period after the Revolutionary War, and again from about 1845-60. These were periods of tremendous economic prosperity, since the government wasn't stealing quite so much as now.

[slavery was] a major causal factor ... It's foolish to say the Civil War was only about taxes and tarrifs. Really.

Really yourself. It was a "factor," but not in the way you were discussing. It was only a "factor" in economic terms, and had virtually nothing to do with the cause of the ensuring the slave's liberty. It was not for the slave's benefit.

Instead, it was a "factor" because it gave the southern landowners a huge economic advantage over the non-slave states. That was the reasoning behind the tariff -- to take back for the North what the South took in the form of unfair competition via slavery. It is strikingly similar to modern protectionist dogma which says that US manufacturers can't compete against countries that allow workers to be paid below the American minimum wage, or below union rates, or whatever. This is still the rationale for equalizing tariffs.

And the "moral justification" of war is not a question for politicains, but for ethicists. War happens. Usually for very practical reasons. You're talking about "should" and "justification" like they mean something. That's all well and good for a 19 year old poli sci major, but not very helpful in the real world.

What on earth are you talking about? Justifications have everything to do with the real world, because they are the means by which politicians and their supporters (or opponents) pursuade the populace into either supporting (or rejecting) some official act.

The fact remains that we are not being "oppressed" anything like our founding fathers.

Really? What was the effective tax rate in the colonies, with all taxes combined in consideration? What was it under the hated Stamp Act? Has it gone up or down since then?

So we need to understand the nature of the new system and work from there.

I'm all for being practical, sure, but let's understand the genuine nature of the problem first.

Federalism can be advanced in economic areas, but you'd be a dupe to think the individual rights libertarianism of the founding can translate into the "federal" system of today.

Why exactly is that? What is it about liberty that makes it so impossible to "translate"?

It would have broken down into quasi-anarchy, with 3 or 4 more sovereign nations on this continent all vying with one another. ... Now we have a chance to exercise political power in a much more strongly unitary system.

And that is a good thing?

Seriously -- what is it about having a single, strong, centralized state that is so appealing?

Besides, I thought that we had a lot more than 3 -- we had 50 free and independent states. You know, These United States. As in plural. The states that ceded a specific and narrowly defined portion of their sovereignty over to a federal government, and nothing more.

These were great ideas, once. I hate to say it, but it really doesn't exist any more. Expecting a court, or any representative of modern government to protect your rights is just foolish. They have become the problem. It really doesn't make any difference whether you are being victimized by a person in his private capacity or a person acting as an agent of government. The result is the same.

Terri was killed by an act of an individual -- her would-be husband. (actually, it was an omission, but since he had the duty to protect her, it's the same thing). He killed her, pure and simple.

The State protected him while he did it. The State's role was to PREVENT her parents from saving her, and told them they'd be the criminals if they tried to save her, which they offered to do voluntarily .

Dear "Dazed & Confused" yes, I am a lawyer in private practice for 12+ years (litigation partner in a 400+ lawyer firm).

Well, that settles that.....

I'm no lawyer, Dazed&Confused. But I've worked as documents librarian for a top corporate law firm in NYC, as well as for a branch of the Tenth Circuit Court of Appeals. So I'm expected to know something about this stuff. Just not enough to, you know, actually represent you or anything.

D&C Ummm...let's just say I've seen the inside of a courtroom a few times and leave it at that.

George, seriously nothing personal, but I hate the "fisking" thing, as it is not debate but rather tedious.

Whether a libertarian political system is a good thing is not in dispute. I personally find Frank Meyer's fusionism the best possible theoretical system devised. But the point is that such systems cannot survive. IMO it stems from the assumption of the perfectibility of man aat the heart of the Enlightenment. As such, it shares certain flaws with the distopian systems such as communism.

Like Homer J. said, "In theory Marge, communism works."

That's why I agree with you 100% when you say, "These were great ideas, once. I hate to say it, but it really doesn't exist any more. "

You're damn right they don't.

So what's one to do?

A) revolt or B) attempt to improve the system with the nonviolent tools we have. Again, I'll stake out my support for (B).

And because as you noted "The State's role was to PREVENT her parents from saving her," I'll posit that the 14th amendment is completely appropriate to this case. The tensoin in your thought process (that I can see) is being unable to square your antebellum attitude with Florida's utter failure to protect Terri.

So how comprehensive a system is libertarianism?

It will always and everywhere be abused and tortured into shapes and forms that serve the powerful. There's no adequate cheks ever devised to fully limit political power. A strong, centralized state makes it even worse. But guess what? that's what we have. A strong central gov't.

George, we probably don't disagree philosophically on a whole lot. I'm just trying to get you to see that "libertarianism" is an unattainable goal. The only time it truly arose was after the Revolution. The libertarian ethos was far more ugly and evil in practice when it occurred later in France. The American colonists were a special breed---classically trained, incredibly erudite, strong in the traditions of English liberty, and strongly religious---and this is why the libertarian impulse succeded here. Our country is no longer populated by men like that, or if it is, they are not the men in charge.

So, back to the 2 options. The 14th amendment has fundamentally altered the ature of individual right protection in this country. Unless libertarians are wanting to remain isloated cranks talking about the "good ol days" (and looking frankly like a bunch of racists in relation to slavery), an acceptance of the changed roles of the federal and state governments is needed.

The Constitution has CHANGED. It is NOT the same as it was. A repeal of the 14th Amendment is not likely to happen any time soon.

If you just want to bitch and moan about it, fine. I did that for the first 29 years of my life. A few years later, I'm realizing more and more that theoretical purity won't get one anywhere.

So, your orignial counterpoint that the 14th amendment didn't destroy federalism is false. It did, in every practical sense of the word. We now have a radically different system of baseline federal protections and federal monitoring of state activities. Libertarian inclined folks can use this, but not when they're just bitterly crying in their cups about how great it "used to be."

And carping about the civil war (war of norther aggression, indeed) won't do much to help a woman who was essentially enslaved by an unjust state system.

Dazed, the answer is, "it depends . . . "

goblin - I was looking forward to retaining you for counsel for a "friend" who has gotten into ....let's say some "trouble" for stopping at a house "looking for directions" and it turned out to be a home of "ill repute"....but I'm thinking Dubya is more "qualified" ...seeing he has actually seen the inside of a courtroom. I realize my code my be difficult to follow.....bear with me.

Sissoed is an obvious choice...but I know how upstanding and moral most litigators are and I wouldn't have enough nerve to approach s/he with such a slimy request.

and one of those things it would depend upon is whether you are in Oregon (seemingly no) and whether it was a civil matter (again no)

now if you had been molested by one of my own Church's priests back in the 1950s or 60s, or maybe you needed some help on a land use matter then maybe the answer would be yes.

Otherwise, it would be a rather expensive waste of money.

My friend said he said he didn't want some greenpeace, granola nut eating freak representin' him.

I, on the other hand, am not so picky.....can I sue the state of Oregon?

George and Hobgoblin,

You guys feel like doing a debate, hosted here, on these issues?

Ace,

What have I been doing? Public masturbation again? Damn the mad cow, I just can't remember to keep it in the pants.

i don't know what the "debate" would be about. The only difference of opinion I have with George is whether a strident libertarian philosophy is pragmatic in modern centralized America.

I agree that the libertarian ethos is the basis for the Founding, and that we've strayed far, far from it. I even think it's a good philosophy (internally consistent, liberating, etc). I also think it's flawed inasmuch as the human tendency to concentrate power prevents an effective check on the centralization of authority.

That's why Jefferson penned his famous line about the tree of liberty and the blood of tyrants and patriots.

Can the two of us debate whether the US will ever embody a libertarian gov't again? I'm a pessimist on this and George hasn't said whether he thinks it's possible. I'm also a bit apprehensive of the logical conclusions (i.e. the blood of tyrants and patriots).

But hell, if you want me to formalize my rants and plop em in a post, who the hell am I to say no?

Your wish is my command (outside of any Pat O'Brien stuff, that is)

And dazed, Oregonian does not equal greenpeace, believe you me. I'd be right wing in Alaska.

Retard,

Well, you're debating in the comments. I mean a debate on the main page, where you each get to say something every day.

Just seems to me this is an important discussion, and you too morons seem like you're able to handle it, despite the drool-cups.

Plus, as I've retired, I can't post any more myself.

Sure ace, give me a topic (you got my email) and I'll whip something up (not out) and email you back to post.

and if the asperger's was a little more advanced, i might actually resent you calling me a retard. as it is, I just look at the funny colored lights, coo, and smile.

Ace: I'm in. All we need is a topic. Is it a live thing?

We seem to be dividing on the issue of conservative v. libertarian. I'd vote for some neutrally-phrased topic along those lines. I'd prefer it if you choose something other than "Are libertarians really just a bunch of barking lunatics, or could it be possible they actually have something valuable to say?"

Dazed: I admit -- I'm a lawyer, too. Class of '97, constitutional criminal law and appeals some of the time, commercial litigation the rest. Whatever your "friend" may have done, believe me, I've seen worse. But, alas, my plate is full, and so I'd have to refer you to someone else. Sorry.

Hobgoblin: I wasn't fisking to be rude. It's the only way I know of to ensure we're talking about the same thing.

I have never understood how libertarianism was transformed in people's mind as "an unattainable goal." I don't even criticize communists for being utopian. I criticize them because they are wrong. I criticize them for advocating theft and slavery.

Really, it perplexes me. All I am interested in is reforms that increase liberty. That's it. Most people pay lip service to the idea. Most leftists harp on it all the time, but have a peculiarly warped definition of the term. But libertarians take it seriously.

What most people have trouble understanding is that we do not distinguish between an infringement of our lives, liberty and property committed by a private actor (e.g., crime) and that committed under the color of government authority.

That means looking at the government and the society that we have now and taking specific action. I don't see how that is "impractical." Typically, "impractical" is a euphemism for some other result that somebody doesn't want but is reluctant to admit.

The libertarian ethos was nowhere to be found in revolutionary France. Liberty means freedom from aggression. There was plenty of aggression in those times. As with many such events, new aggressors simply took over for the old ones.

I will not be tarred as a racist in relation to slavery. My ancestors were abolitionists in this country for over 200 years before the so-called Civil War.

How often have non-libertarians agitated for an end to slavery in East Africa, as it exists TODAY? Or sexual slavery as it exists in Thailand TODAY? I have NEVER encountered a single libertarian who has ever said that slavery is anything other than a direct, immediate deprivation of the one thing we care about.

What we are talking about is governmental policy -- it is quite possible for someone to be both abolitionist and a secessionist. Some of us even have the audacity to think that the result of such a policy would have led to both an end to chattel slavery AND avoided the Civil War.

The whole "theoretical purity" is just another way of saying "impractical." I submit that if we explored that further, we'd find that something else is driving that sentiment.

My orignial point is that the 14th amendment didn't destroy federalism on its face, or at least as it was intended to mean and be applied by those who voted for it at the time.

It was, of course, used as the principle instrument for destroying the independence of the states, but I also submit that the use of war to not only prevent secession but foreclose it as even a possibility was even more effective in that regard. The threat of peaceful secession had been a far more effective PRACTICAL check on centralization of power than any amount of legalisms.

The story of the abuse of the 14th Amendment is not all that different from any other clause. Take the 1st Am for example: "Congress shall make no law respecting an establishment of religion" is transformed into a mockery when applied to a judge hanging the 10 COmmandments in his court: a judge becomes "Congress," and hanging a sign becomes "making a law."

Or the Commerce Clause goes from meaning the power to charge a tax when goods cross state lines to justifying any law controlling any activity that "touches" on interstate commerce, which is of course everything.

The end result is that the government gets to be the arbiter of the scope of its own power. One cannot be surprised that this power has steadlily expanded.

well, no, it would not be live. It would be a one post every two days sort of thing. Long response, wait a day, long response, etc.

Or at least it would have been.

I'm retired.

George, you outrank me by 4 years, so I guess under the "Lawyer Code of Conduct" I have to stand down.

As I suspected, you and I are in near total agreement on the basics. Hell, I was a registered Libertarian until 2000, and I still consider myself a small "L" one in most things. I think where we're at cross purposes is whether the libertarian ethos can ever again animate American political life to a measurable degree (i.e. besides talking points in a political campaign).

You're complaining a lot (and believe me, I think rightfully so) but not a lot of solutions are found in complaining. I think Amar was right about the fundamental shift representedby the 14th Amendment. So, in light of thatr shift, my question is: what do we do?

"Not that I disagree where you're coming from, but just an FYI, in a constitutional discussion, don't cite the "republican form of gov't" clause.

It makes you look dumb or like a crank."

That or desperate, and desperate was and is where the political branches are in Florida. Pinning our hopes on the prospect of the US Supreme Court overturning or at least undercutting lots of contrary authority on the non-justiciability of that language was just the tail end of what little in the way of options we were left with, because after Armstrong, the Florida judiciary essentially placed themselves above the people: having ousted the electorate from its authority to amend the state constitution, they are the sovereigns now and, as such, legislative and executive power such as there is exists purely at their sufferance. You think I exaggerate, but it really IS that bad.

Or maybe I'm just bitter; I don't know.

Regarding one of George-at-Snapshot's remarks, I say that, as far as it goes, keeping states from seceding does in fact help preserve federalism.

Although I think his point #3 about the use of the commerce clause is on the mark, I think it's important to notice the institutional change that allowed the Congress and, thus, the federal government to untether themselves from state supervision: the amendment that took the election of Senators out of the hands of state legislatures and made senatorial elections popular elections much like those for Representatives. When Senators were chosen by state legislatures, the Senate must have been quite resistant to federal encroachment on the powers of the state legislatures. I don't know what led the state legislatures to give up their control of the Senate, but I think the choice was effectively a long, slow abdication that's still taking place. It's painful to watch.

I say that the decline of federalism is painful to watch because I think federalism corrected a great defect of republican Rome that contributed to Rome's getting an Emperor. The limitation of our federal government to certain powers made control of the federal government less of a plum and made loss of control of it less of a danger. It surely must be understood that a root of the very great hatred in our national politics is the fact that the party in power controls $2 trillion in annual taxation and $2 trillion in annual spending (in very round figures). The loss of federalism has turned the "federal" government into an unimaginably humongous, ginormous robber baron to be feared and cash cow to be worshipped. When, not if, but when we get our Caesar, he is going to be unparalleled in his power and splendor. That, of course, is why we're going to get our Caesar. Fix federalism or start carrying a little pillow: Every knee shall bow and every tongue confess that the coming ruler of what used to be the United States is Lord. For some of us, the nth degree of the bitter comedy will be that he'll still call himself "President," so everyone else will, too.

Duncan wrote:

When, not if, but when we get our Caesar, he is going to be unparalleled in his power and splendor.

I think you mean she and her.

The "end of life" industry is already consolidating in anticipation of "It Takes a Village to Ice Grandma."

Post above by me, sorry.

Sue: That's an interesting point. It does seem possible that we'll end up with a Czarina instead of a Caesar. (I don't think HRC fills the bill, though.)

But just to be clear, my prediction that the federal government must fall to a dictator in the coming decades is contingent on our continuing to actively change the federal republic into a nation with 50 administrative districts. If we somehow manage to revert to a limited federal government, then we'll probably have gained ourselves and our posterity another hundred years.

- - - - -

I somewhat regret that I can't enter into the spirit of the Schiavo controversy. I know that matters of life and death are, well, matters of life and death, so I understand that the Schiavo case requires attention. I have tended to ignore the details, however, because the case has brought my fears about the decline of federalism to the fore. My positions on federalism are only incidentally positions on the Schiavo case.

Duncan, you're about 140 years too late. Lincoln crossed the Rubicon long before we got here.

You can cry and moan about the structure and the process all you want, but that doesn't make it plausible to revert back to a loose union of former colonies, if that were even desirable.

I don't see how a government fighting to save a citizen's life can be equated with tyranny.

At the same time, I don't see how a government taking away a citizen's life in a probate court, without a jury can be anything but tyranny. Or how it could possibly be construed as "due process."

If you don't think Hillary fits the bill, you either haven't been following her moves and philosophy, or you're one of the people who's going to vote for her in 2008.

She wants nationwide socialized health care. Once that's instituted, the pressure will be on the government to hold down medical costs. Guess where that leads?

We got lucky with Billy Jeff. He was too busy comforting his rod with his staff to screw up the country too much. His wife isn't going to have that problem. She's going to be focused like a laser beam, and it's going to make Waco, Ruby Ridge, and the Elian Gonzalez incident look like a tiptoe through the tulips.