Terri Schiavo and federalism.

I've avoided writing about the Terri Schiavo case so far, and I could do a post about why I've done so. At this point, beginning to write about the subject is especially difficult because the subject is so complex and many events have already take place. But I'm going to jump in very late in the discussion and talk about federalism – which is a subject I've taught in law school for over twenty years. [ADDED: You can read a fairly elaborate article of mine on the subject here.]

Over the weekend, with Congress enacting its law designed to put the federal courts in position to override the work of the state courts, much of the commentary turned to the subject of federalism. I didn't make a careful analysis of each commentator, but I would expect that those who had already decided one way or the other about what should happen to Terri Schiavo found themselves with an opinion about federalism that supported the position they'd already taken. Most people don't adopt a stance about the proper role of federal law and the federal government and then stick to it regardless of the issue, but they do tend to criticize their opponents for changing their stance on federalism. People like to defer to the states when they are doing something one approves of and to demand federal action when they aren't.

Today's Wall Street Journal editorial makes some observations in this vein:

A Florida court has twice before ordered Mrs. Schiavo's feeding tube removed--in 2001 and 2003. Six days after the latter episode, the Florida legislature passed "Terri's Law," which allowed Governor Jeb Bush to intervene. Last year the Florida Supreme Court ruled that Terri's Law was unconstitutional.

We review this history both to show how poorly Florida's legal system has served Mrs. Schiavo, and to explain the reasons that Congress is taking the extraordinary step of intervening in what normally would be considered a matter solely for a state's judicial system. The conservative Republicans leading this effort--Senators Bill Frist and Rick Santorum, Representative Tom DeLay--are taking hits for supposedly abandoning their federalist principles.

We'd have more sympathy for this argument if the same liberals who are complaining about the possibility of the federal courts reviewing Mrs. Schiavo's case felt as strongly about restraining the federal judiciary when it comes to abortion, homosexuality, and other social issues they don't want to trust to local communities. In any event, these critics betray their lack of understanding of the meaning of federalism. It is not simply about "states' rights." Conservatives support states' rights in areas that are not delegated to the federal government but they also support federal power in areas that are delegated.

Think of an analogy to the writ of habeas corpus. As John Eastman of the Claremont Institute points out, "We have federal court review of state court judgments all the time in the criminal law context." The bill before Congress essentially treats the Florida judgment as a death sentence, warranting federal habeas review. Mrs. Schiavo is not on life support. The court order to remove the feeding tube is an order to starve her to death. Moreover, Mrs. Schiavo is arguably being deprived of her life without due process of law, a violation of the 14th Amendment that Congress has the power to address.

Surely, many of those who oppose what Congress did in the Schiavo case do generally approve of intruding on the state to impose a higher standard of individual rights – including the rights for the disabled. They would not normally stand back and allow the states to innovate and experiment with the narrowing of individual rights. Certain matters have traditionally belonged to the states, but there is a long modern trend of re-visualizing these matters in terms of the rights of the individual. Whether one agrees with the conception of rights reflected in Congress's Schiavo law, one should not deny that Congress has an important, well-established role enforcing the rights of the individual and displacing choices made at the state level. And who does deny this role? The disagreement is about what rights are, not what federalism is.

One more thing about federalism: the democratic branches of the state government had a conception of the rights of Terri Schiavo that the state court trumped, relying on state constitutional law. Arguments about federalism need to take account of the fact that the state is not a monolithic entity. Congress is now aligning with the position taken by the state legislature and the state governor. One could say that the new federal statute embodies federalism values, because it attempts to restore the choice made by the democratic branches of state government and to remove the obstacle set up by the state court.