Fat Steve's Blatherings

Thursday, March 24, 2005

Prof. Bainbridge on the Schiavo Case, or Another Post Too Long

      Professor Stephen Bainbridge, who teaches law at UCLA, has a post on the Schiavo case, a mixture of what I think is sense and nonsense.  It nicely illustrates the different ways the legal and moral issues have been thought about in this tragedy.  I'll try to summarize his position accurately, then indicate why I agree or disagree.

      The Professor discusses the implications of the case from four "first principles."

      Firstly, there's "The Culture of Life."  Bainbridge is a believing Catholic, and agrees with the Church that life is sacred.  My own religious convictions can only be described as "confused," but I largely agree with him here.  As he puts it:
Abortion, assisted suicide, and euthanasia. What next? Solving Social Security's woes by putting the old folks out to sea on ice floes?

      No, we won't put old folks out to freeze -- that would be too honest.  But I very much fear we'll find ways of doing the killing while pretending its something other than murder.

      Secondly, Prof. Bainbridge believes in limited govt:
I am no libertarian. Like most conservatives, however, I do believe in a limited government. . . . If government does not have a legitimate role in protecting someone so vulnerable, of what use is government at all?

      Here I also agree with Prof. Bainbridge, about limited govt., protecting the vulnerable, and not being a libertarian.

      The Professor's third principle is federalism.  He says:
The national government is, as the 10th Amendment to the Constitution makes clear, a government of limited and enumerated powers. To be sure, the Civil War and the post-War amendments de facto expanded the scope of the national government's powers. Likewise, the infamous "switch in time that saved nine" de facto eviscerated the 10th Amendment. Of late, however, we seem to have been slowly recovering some aspects of what might be called the Constitution-in-Exile.

      But since the Tenth Amendment doesn't list the powers delegated to the States, we have to look at the rest of the Constitution to decide if the Federal Government has the power to act.  (By the way, I don't understand what Bainbridge could mean when he writes of "de facto" Amendments.  An Amendment to the Constitution is de jure, by definition.)

      From the Fourteenth Amendment to the Constitution:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. . . The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

      The Professor's fourth point is "rule of law."  Here's where we get down to brass tacks.  He says:
I believe that the rule of law is a serious obstacle to federal intervention.

      How does the 'rule of law' prohibit Congressional intervention, especially in light of the Fourteenth Amendment's apparent grant of power to override the acts of State governments that deprive citizens of their rights?

      The Professor says
the rule of law prohibits ex post facto legislation.

      Well, actually, the Constitution prohibits it.  For those who have forgotten, an ex post facto is "A law that makes illegal an act that was legal when committed, increases the penalties for an infraction after it has been committed, or changes the rules of evidence to make conviction easier."

      But what has this to do with the Schiavo legislation?  No act previously legal is declared illegal at the time it was committed.  Neither does it create a wrong over which someone may be sued.

      Next, Prof. Bainbridge claims "the rule of law counsels against crafting laws that apply to an individual case."  Since when?  They have a long history in the United States (one came before Congress when Davie Crockett was a Congressman; did the rule of law expire in 1836?) and are a recognized procedure:
A private bill provides benefits to specified individuals (including corporate bodies). Individuals sometimes request relief through private legislation when administrative or legal remedies are exhausted. Many private bills deal with immigration, granting citizenship or permanent residency. Private bills may also be introduced for individuals who have claims again the government, veterans benefits claims, claims for military decorations, or taxation problems. The title of a private bill usually begins with the phrase, "For the relief of. . . ." If a private bill is passed in identical form by both houses of Congress and is signed by the President, it becomes a private law.

      So the argument appears to be that they may be traditional and constitutional, but it's bad public policy to ever, under any circumstances, pass a private bill.  Why?

      I see private bills as useful and appropriate.  Reality is messy, and circumstances vary greatly.  I ceased to be a libertarian in large part because I decided that libertarianism was disconnected from any possible real life.  A principle that tells a legislator that he must ignore all individuals, and only think about abstract groups, has nothing to do with human beings as they really are.  And if there are people who think only of groups, never of individuals, I wouldn't want them to be making laws.  Neither would the voters.

      And by the way, as a believer in limited govt., I'd frequently rather have the legislature making laws that affect one person at a time, rather than whole groups.  I think of farm subsidies, and shudder.

      We come at last to what I suspect is the really important objection to the Schiavo bill:
Finally, the rule of law requires the separation of powers. It is the job of Congress and state legislatures to pass laws of general applicability. It is the job of courts to apply those laws in particular cases.

I'll grant you that the judges in Florida often seem more concerned with enacting personal policy preferences (and getting favorable mentions from the NY Times) than following the law. See, e.g., Bush v. Gore. I'm reliably informed by an attorney who was involved in the Schiavo cases that the presiding judge committed two structural errors: (1) the judge compromised his judicial independence by assuming inconsistent roles and (2) Terri was denied effective representation because of her husband/guardian's conflict of interest.

If so, the rule of law was compromised by the presiding judge. The solution to such judicial errors, however, is an appeal within the judicial system. Ex post facto laws limited to a single case are not an appropriate solution.

      As we've seen, the Schiavo bill didn't make any ex post facto law, technically.  You can regard it as punishing Judge Greer, and the Florida state court system by overruling them, and taking the case out of their hands.  That's sort of stretching the meaning of punishment.  But I suspect that's what really bothers Bainbridge about this bill.  Mere legislators have refused to kowtow before a court system.

      Prof. Bainbridge gives his frank opinion that Judge Greer failed to do his duty as a judge, and one can infer that the Florida state courts failed to do theirs, since they upheld the ruling.  His answer as to what we are to do about this is -- well, nothing, I guess.  If Judge Greer violates Terri Schiavo's rights to life and due process, and if the Florida state courts go along with it, there is nothing to be done.  Of course, if a law permitting appeals to the federal courts had been in existence already, it would presumably be all right.  But for anyone but a judge to stop the abuse of power by another judge is verbotten.

      Perhaps I've mistaken Prof. Bainbridge's argument, but in the end, the only thing I can see he has is a personal preference for no private bills, and another personal preference for making court decisions untouchable.

      Prof. Bainbridge referred to the "Constitution-in-exile," the notion that our legal arrangements routinely include laws forbidden by the U.S. Constitution, if I read him correctly.  How, I wonder, does he think we got into this mess?  It was by treating courts as supreme over the legislature and executive.  By regarding their decisions as imperatives to be obeyed even when they clearly violate the law.  By making their whims untouchable except by Constitutional Amendment.

      It's interesting that, in a part of his post I skipped over before, Bainbridge said:
Yet, like most virtues, federalism is capable of becoming a vice if we make a fetish of it. Would the rest of the country really stand by and watch if Florida adopted a Logan's Run-like policy of euthanizing anybody over a certain age? If Appomattox proved anything, it proved that the national government can (and should) override state's rights to protect the basic human rights of the weak and vulnerable.

      So, fighting a war to overturn the decisions of eleven conventions called by the citizens of their states is ok, even though that war kills hundreds of thousands of people, destroys huge amounts of property, disrupts an economy, abolishes a form of property that was Constitutionally recognized, and creates sectional hostilities that last for generations.  Extending a previously all-state appeals process to the federal courts can't be countenanced.  I think the Prof. has made a fetish out of 'rule of law.'

      I regard the idea of a written Constitution 'binding' a govt. as a fantasy, for no words on paper can prevent an act.  Your mileage may vary.  But the Prof.'s principles won't attain his alleged goals.  They will serve, however, to kill Terri Schiavo.  Of all the things that bother about this case, it's the fact that so many people don't really care about that.  Prof. Bainbridge thinks the atrocity of Terri Schiavo dying of thirst is less important than maintaining the status of judges as demigods.  I disagree.

      Update: Jerry Pournelle points out an example of the fallcy of the "ex post facto" argument -- the legislature could abolish the death penalty tomorrow.  No one would argue that people sentenced before the penalty was abolished had to be executed anyway.

THE HOUSE OF SAUD MUST BE DESTROYED -- AND WILL BE!

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