American Lawyer Story on Castle Rock
Federal Powers and Schiavo

Federal Police Power?

You've heard it before: Hard cases make bad law. Few laws can be as foul as the so-called Let's Save Schiavo Act. Call it the end of federalism as we know it, and the creation of a new federal police power.

Terri Schiavo is 41 years old. For the past fifteen years she has been in a persistent vegetative state. Her heart stopped beating one day. Her body remains; the person she once was vanished long ago.

Her husband has stood by her all these years and has persuaded the Florida courts that her feeding tubes may be removed. Classic probate work; the sort of decision for which state courts take evidence and issue rulings.

This was not good enough for her parents. They want her kept alive at all costs; so does the religious right. Forget Terri's wishes; forget the spouse. They attempted to intervene and failed, so they turned to Congress.

In a midnight vote Congress created a new federal remedy, opening the federal courts to "incapictated persons." The legislation is pure hooey, and ought to be declared unconstitutional at the first opportunity.

What is truly terrifying about the law is the rhetoric in which it was spawned. James J. Sensenbrenner, Jr., the Republican chairman of the House Judiciary Committee, said the act is about the "right to life;" nothing is "more sacred," he said.

And the president, no lawyer he, has declared there must be a presumption in favor of life.

This is bass-ackward reasoning. When the federal government acts, its acts are presumed illegitimate unless and until its power is found have been delegated by the people. That's the point of a government of limited powers. That is why we speak of enumerated powers.

The states retain the far broader police power and the ability to govern on matters of health, education and welfare. The right to die is a classic example of state power. The dormant Ninth Amendment makes clear that powers not delegated by the people or the states are retained by the people.

The Schiavo Act is an act of constitutional betrayal. It gives the federal government unprecedented power to intervene in the most personal of decisions -- the manner in which to seek an end to life. The reasoning supporting the act is one step away from the other end of life's spectrum. What next, an amendment to the Act to ban abortion?

Terri Schiavo's fate is important. But even more important is the fabric of our constitution. It was torn to shreds on a sympathy vote this past weekend. Congressmen treated the Constitution's sweeping phrases and majestic language as little more than ad copy for Hallmark cards. They captured a moment at the expense of liberty.

Comments