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March 17, 2005

Terri Schiavo and the Constitution

I find the case of Terri Schiavo to be an extremely sad one. Ms. Schiavo has been in a coma for the past fifteen years due to severe brain damage. Her husband is seeking to have her feeding tube removed so that she will die. Her parents are working to keep her alive. It is uncertain whether Ms. Schiavo is in a persistent vegetative state or if there is some remnant of her personality still extant. Even if her life is preserved, she will remain hospitalized for the rest of her natural life. If her husband gets his way, she will die of dehydration over the next few days. There is no way to be certain whether or not Ms. Schiavo would have wanted to go on living this way. I would not want anything to do with deciding the issue.

But what concerns me today is not the unfortunate issue of Ms. Schiavo, but the response being made to her imminent death by the United States Congress. Both the House and Senate are considering bills that would keep Ms. Schiavo alive and address the question of what to do with people in states similar to Ms. Schiavo. I'm sure many of the sponsors of the bill are quite honest in their belief that it is wrong to allow Ms. Schiavo to die of dehydration, such as the many authors at The Corner who are following the debate closely. Yet in their zeal to protect a woman they perceive as defenseless against her fate, we see once again the failure of so many conservatives to worry about the Constitution when it conflicts with their personal desires.

As I've argued again and again, the Constitution was written to serve as the governing law of the United States. All law in this country is supposed to derive from it, and any law that conflicts with the Constitution is null and void (i.e., unconstitutional). The Constitution was written a very long time ago, when scientific knowledge was less advanced and social mores were decidedly different, so over time certain amendments have been required. After fighting a brutal civil war over slavery, we created the 13th Amendment to abolish slavery. When we realized that it was illogical to restrict women from voting, we passed the 19th Amendment to give women the franchise. But in the 20th Century, we decided that passing amendments took too long, so we moved on to simply rewriting the Constitution so that it said what we want it to say. I agree with many of the ends of these decisions, but the fact remains that we shortcutted the process in order to reach laudable goals. And, unfortunately, when you shortcut a process for a noble goal, you open the door for people to shortcut the process for far less benign goals.

Let's take a look at what the Constitution says about Congress's powers and how they relate to Ms. Schiavo's case.

The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;

To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;

To provide for the punishment of counterfeiting the securities and current coin of the United States;

To establish post offices and post roads;

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

To constitute tribunals inferior to the Supreme Court;

To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;--And

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

It's arguable that worrying about this particular bill is akin to locking the barn door after the horse has left. Congress long ago abrogated almost all power to itself, with the acceptance of the courts. A law that will keep a woman alive a few more years hardly seems like a big deal.

And yet, conservatives are supposed to be the ones who stand up for the sanctity of the Constitution against depredations like this. Even if the Constitution is little more than a dead letter in many arenas, the power it holds as an almost-sacred object in America forces even those who are doing the opposite of what it says (read President Bush and CFR, for example) still claim that they're upholding it. Each time conservatives shortcut the document they claim to be defending, they make it that much easier for others to do the same thing. Whenever the Constitution is set aside for a goal, no matter how laudable, the door is then open a little wider for it to be set aside for less laudable goals. If the Constitution didn't apply in Case A, why should it apply in Case B?

I don't know whether Terri Schiavo should continue to receive nutrition or be allowed to die from dehydration. But I am quite sure that the United States Congress has no business taking up the question, and that they have no power under the Constitution to affect her fate. I'm equally sure they will not let that stop them. Remember that the next time conservatives claim they're trying to defend the Constitution against activist judges. It's not the activism they really mind, just the outcome.

Update: Congress outsmarts me and passes a law that simply gives jurisdiction in the case to a federal court. That is within Congress's enumerated powers and therefore avoids the Constitutional trap I anticipated. It would appear that their efforts may yet go for naught, however.