A call for more federal intrusion
I always enjoy reading Bill Hobbs' site. He and I live in the same town. You'd think we'd get together and have lunch or something, but alas, we never have.

Like me, Bill is a latecomer to writing about the Terri Schiavo case. He starts off well, echoing my own thoughts,

I have not written about the Terri Schiavo case because it is too complex, too multilayered, and too steeped in unknown or unknowable facts for me - indeed for most people - to have a fully informed opinion.

I don't know - and neither do you - if Michael Shiavo is trying to murder his wife or trying to fulfill her stated wishes for just such a scenario. I don't know what Terri Schiavo would want - and neither do you - because she didn't tell us via a living will. We have only the word of her husband who assures us that his wife once said she wouldn't want to be kept alive this way, and we have her parents, who love their daughter and desire only to care for her.

I do know that the Congress did the wrong thing, intervened where it had no Constitutional right, and solved nothing.

I posted yesterday that I opposed federalizing this case. I understand the moral/religious issues involved, but like Bill, I see no federal interest in it (but the Congress did not act unconstitutionally, just unwisely).

But in reading the rest of Bill's post, I think his cure is worse than the ailment. Having denounced the Congress' move to federalize legal jurisdiction for appeals by Terri's parent, Bill actually proceeds to call for an even more heavy-handed federal role in Americans' health care:

I would like to see Congress pass and the President sign a second law - call it the Terri Schiavo Living Will Act of 2005 - that would require all Americans age 18 and up have a signed, notarized, legal living will, and update it every five years. The law also would require courts, doctors and families to follow the directives of a patient's living will without deviation. [italics added-DS]

As I commented on Bill's post, there is presently no legal requirement for someone to have even a post-mortem will. How on earth can a conservative support a federal mandate requiring a living will? Smacks of nanny-ism government to me.

None of this - Terri's present case or Bill's proposed remedy - is federal business. If the Congress should have stayed out of Terri's case - a point Bill and I agree on - then it has no business micromanaging who has what kind of will.

We used to think our government is one of delegated powers, but apparently almost no one believes that anymore. I know of nothing in the Constitution that grants the Congress the authority to require me to have a will of any kind. I do not presently have a living will. That may be stupid, but correcting the stupidity of 300 million Americans is simply not the Congress' business and is beyond its ability, anyway. That kind of intrusion has no logical end.

Yes, the Schiavo case is a mess and Terri almost certainly will become a victim thereby. Yes, it is a tragedy all around. But that doesn't make it a federal matter.

In a comment to his own post, Bill wrote,

Some commenters have raised the objection that Congress doesn't have the authority to mandate every American have a living will. I disagree. I think it would fit nicely under "provide for the general welfare."

But everything you can think of fits under that rubric. Congress could pass a law prohibiting anyone from weighing more than 110 percent of NIH recommendations - hey, why not? It "provides for the general welfare." The idea that the Founders had in mind federal micromanagement of personal decisions when they signed the Consitution is just untenable.

Update: Commenter Dougger on Bill's post makes this point (no direct permalink exists):

The Constitution does NOT specify that the Congress sets the jurisdiction of the federal courts. Appellate jurisdiction is NOT one of the enumerated powers of Congress in the Constitution.

Article 1 section 8 of the constitution states that "The Congress shall have the power to constitute tribunals inferior to the Supreme Court". This does not allow the Congress to set jurisdiction, only to establish the appellate courts.

Article 3 section 2 states that "The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, treaties made..." This establishes the jurisdiction of the Federal Courts as limited to Constitutional matters and Federal law (which must also pass Constitutional muster).

Thus the law passed by Congress and signed by President Bush is unconstitutional.

Interesting. I would assume there could be convoluted arguments about what matters of "equity" are in relation to this case - the 14th Amendment comes to mind in relation to deprivation of life. But if Dougger's argument is valid then it undercuts Congress's action even more, except that no one is going to make a case out of it.

Former Rep. Bob Barr, R-Ga.:

To simply say that the 'culture of life,' or whatever you call it means that we don't have to pay attention to the principles of federalism or separation of powers is certainly not a conservative viewpoint.

Food for thought.

by Donald Sensing, 3/22/2005 04:14:00 PM. Permalink |