Monday, March 21, 2005

With all the controversy about Terri Schiavo's medical case, it's worth taking a look at the bill Congress passed itself. A glance reveals the bill has strange features of its own:


The United States District Court for the Middle District of Florida shall have jurisdiction to hear, determine, and render judgment on a suit or claim by or on behalf of Theresa Marie Schiavo for the alleged violation of any right of Theresa Marie Schiavo under the Constitution or laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life.


Any parent of Theresa Marie Schiavo shall have standing to bring a suit under this Act. The suit may be brought against any other person who was a party to State court proceedings ...

This is a bill that applies only to particular, named individuals. The founding fathers had a name for bills like that, in which the legislature stepped in to decide particular cases, usurping the role of the courts: they called them bills of attainder. The constitution forbids them. As Susan Madrak notes, they didn't like them very much.

Never mind what you think of the particular case. If Congress has the right to pass a bill like this -- allowing particular individuals to sue for a particular cause in a particular court -- then they can also pass taxes which only particular individuals have to pay, grant tax breaks that apply only to folks who are particularly favored; heck what's to stop them from passing particular crimes?

By the way, no matter what you've seen on teevee news, the people understand there's something wrong with this. Or at least seventy percent of them do.

But going on with the bill:


After a determination of the merits of a suit brought under this Act, the District Court shall issue such declaratory and injunctive relief as may be necessary to protect the rights of Theresa Marie Schiavo under the Constitution and laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life.

Among her rights, as several bloggers have pointed out, is the right to refuse treatment -- exercised in her stead by her spouse, according to the law. And numerous courts have already found strong evidence that she would have refused treatment. (Her parents claim otherwise, but their testimony is dubious at best). But never mind that. Let's look at the bill.

The bill gives the judge no guidance as to how to balance competing claims as to her rights, or who speaks for her. But this case has been litigated all over Florida, and the rulings have uniformly favored her husband, who wants to spare her the indignity of her present living death, in which her lungs keep breathing while the vast bulk of her brain has literally rotted away. A judge who evaluates the same evidence according to the same laws is not going to come to a different conclusion. But the bill gives the judge no new law to apply. The Congressmen who passed this bill -- all soi-disant opponents of "judicial activism" -- clearly desire in this case for the judge to pull something novel out of his ass.

At this point, it's worth stepping back, and trying to figure out what's really going on here. The Schiavo case is tragic, but it's a kind of tragedy that's enacted in the United States several times a day. In fact, as has been well-chronicled on liberal blogs, Dubya himself signed a bill in Texas allowing hospitals to discontinue treatment for patients in Mrs. Schiavo's condition over the objections of their relatives, if any are offered. So, given that the vast Republican propaganda machine is pushing this case, now, it's worth asking what agenda they're pursuing in doing that.

Well, let's look at the line they're pursuing. First off, they are pushing the notion of the courts as heartless -- in fact, as murderers. Second, they are establishing the right of Congress to intervene in particular cases, undermining 200 years of American political tradition. And third, they are demanding that judges rule in opposition to established law. The effect, in each case, is to undermine rule of law -- a single, consistent law that applies to everyone.

It's been said that any academic discipline that has to call itself a science ("Social Sciences"; "Computer Science") isn't. It's been said that countries that call themselves democracies ("Democratic Peoples' Republic of Korea") aren't. It's been said that when athletes say it's not about the money, it's about the money. They call themselves Republicans, but they sure don't want to live an a Republic.


Blogger Unknown said...

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6:06 AM  
Blogger alkali said...

Actually, Congress passes laws relating to particular people all the time. They are called "Private Laws" (as opposed to "Public Laws") and they typically do things like fix unusual government pension issues or immigration problems. The laws are usually titled something like "For the relief of John Doe."

Bills of attainder single out individual people for punishment, and those are unconstitutional. The merits of the Schiavo law aside, I don't think it can fairly be characterized as intending to inflict punishment.

8:53 AM  
Anonymous Anonymous said...

Actually her brain hasn't literally rotted away. That would imply some sort of decomposition by microorganisms. Her brain has literally dissolved.

10:34 PM  
Anonymous Anonymous said...

Poll after poll has large majorities of the public disapproving what Bush and the Republicans do with war, the environment, morality, and more. Do you suppose these folks can somehow be persuaded to vote for cnadidates who agree with them?


10:27 PM  

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