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Terri's Bill Unconstitutional?

A friend writes the below post on a listserv I am a part of. Interesting, and I tend to agree. To save Terri, respect for the (positive) law is being mutilated. Read for yourself...


I really don't think that Terri's bill before Congress is constitutional.  As an originalist, I do not see what due process or substantive right under the bill of rights was violated in her case.

Of course, I think she is being murdered.  However, she is being murdered with "due process."  Her case was fully litigated, and Judge Greer made a decision under Florida law.  It was the wrong decision, but does the fact that I disagree with him mean that she didn't get due process?  She got the process, just not the substance I would want.

I think the proper remedy here is in the hands of the Florida legislature, which since the time of the first Terri's bill, should have made clear that Florida law states that to starve someone to death is a violation of their fundamental human rights, and that giving someone food and water is not medical therapy because it is a need common to all humans, and all humans at least at some point in life depend on others for satisfaction of that need (i.e., the unborn, infants, and many ill, disabled, and elderly).

I watched a speech by Justice Scalia this weekend on C-Span where he was talking about the "Living Constitution."  Isn't this the constitution we are seeking to use to save Terri?  Not the real constitution, but the fake one made up federal judges -- the fake one that also gives us a right to kill babies and engage in unspeakable sexual acts.
I'm not as concerned with the worry about this being a private bill because the Congress has authority to fix the jurisdiction of the federal courts.  There is an argument, I think, that this violates the Bill of Attainder prohibition in Section 9 (in so far as it undermines the legally adjudicated rights of Terri to die under Federal law -- which are bogus but legally valid).

Having said all of that, I'm pretty sure that if I were in Congress I would vote for the bill.  That is because we have to work with the legal reality that exists, and not just the one in the sky.  The truth is that we have a living constitution, whether that is right or not.  And Terri is going to die, whether that is right or not.  Granting a federal court jurisdiction will not further the living constitution, but only work within its existential parameters.  The sin is, in other words, the fault of the Supreme Court, which has invented the living constitution, and not the Congress, which though in principle opposed to it uses it to save an innocent life.


UPDATE: Here is an interesting response to the above post, from another friend on the listserv:

Two thoughts:

1. Your criticisms have nothing to do with the actual bill that was passed by Congress.  All that bill does is extend federal court jurisdiction to any federal law claims that might be lodged on behalf of Terri.  This is clearly within any living or non-living reading of Article III.  It also eliminates the prudential standing concerns that might otherwise prevent Terri's parents from exercising third-party standing in asserting Terri's personal constitutional or federal law claims.  So if you are right that the federal constitution doesn't protect Terri in this case, then your arguments are not with the bill that passed (perhaps you would argue that it is futile, but not unconstitutional) but rather at a potential decision made by a federal judge in the C.D. of Florida that might say that Terri's starvation is unconstitutional.

2. As far as your substantive concerns, I don't think it takes that much living Constitution activism to say that the federal courts probably should at least take a second look at whether the process of the Florida courts was proper.  First of all, assuming there is state action involved in this case (which I see as perhaps the most difficult issue in this case, and I'd love to hear some people try to take a crack at that problem) it is clear that this is a procedural due process issue, not a substantive due process issue.  Terri is being deprived of life, and everyone, even faithful originalists, can read that the 14th Amendment means that states cannot deprive people of life without due process.  So the only question is what process is due?  I admit that I am not as versed on the specific factual situation as a lot of the others on this board, but the basic framework for analyzing procedural due process involves balancing the private interest that is at risk of being deprived (in this case Terri's life) plus the risk of erroneous deprivation (the weakness of the evidence that Terri wanted to be starved to death, and the conflict of interest between her and her husband) against the governments financial and administrative interest in denying a certain procedural protection.  So in this specific context, for example, I think a pretty strong argument could be made that the TEXT of the 14th Amendment, without much, if any living Constitution activism, requires court-appointed independent counsel. 


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Comments (3)


It is unfortunate that the term “living constitution” has been appropriated by the Left and, therefore, maligned by the Right over the last fifty years or so. That image is actually quite succinct, connoting as it does both the ordered structure and environmental adaptation that coexist in organic life. The Constitution has been evolving from before the ink dried in Philadelphia, and this was in fact the hope of the Founders. If I get a minute tonight I will try to spin this out more coherently for a post, but in addressing the Schaivo situation, Congress has done is what it saw as right. It is their role to act on the good as they see it, and I have no doubt that many in Congress know that this is a stretch of Congressional power and an encroachment on State law that is, in general, dubious. But the Constitution is not there to act as a permanent barrier to certain actions. It is there to establish reasonable parameters for the interplay of the federal government, the States, the people, and the three political branches. If Congress has overstepped its bounds here, they will be answerable to the people on Election Day.

But we have become so used to life under an absolute judicial oligarchy that we have lost the ability to see republicanism when it actually moves. Based upon the political breakdown of Congressional seats, it is safe to assume that many, many men and women in Congress would not have been moved to linger after a vacation recess to deal with a “no win” situation like this if it weren’t for the massive outpouring of national outrage. This is how it is supposed to work. It wil not be hard for the “right to die” lobby to find a federal court willing to strike down this legislation as unconstitutional, but that is for another day. There is obviously no strong national consensus in favor of a “right to die.” The ball is now in their court (no pun intended) to find the activist judge or forge the legislative consensus.

If a federal court strikes down this law, or later orders Terri’s feeding tube removed, Congress will be pressed to pass more general legislation to combat the judiciary. This tension is not to be avoided; indeed, it is to be embraced. The Constitution assumes that the three branches are in conflict. Though the Founders never imagined the judiciary we have today, the political conflict would make sense to them. Congress is pushing back, claiming a little power to itself from State judiciaries. If Congress did nothing, their inaction would simply be yet another concession to judicial supremacy. In this case, we have an executive and a legislature united to oppose a State. Under a functioning political structure, this alignment ought to withstand opposition. Sometimes this can lead to bad things, as with the Alien and Sedition Acts, Japanese internment and Indian affairs (off the top of my head), but those issues can be remedied at the polls.

This might seem an inefficient arrangement, but efficiency and automatic answers are not the goal of the Constitution.

Jason A.:

Yes, you are quite right. The Founders intended that judges would put a gloss on ambiguities in the text. And I like your description of the separation of powers interplay. But I'm not sure that "living constitution" is a term that is worth resurrecting. Less than meaning that judges should have a strong intepretive role, the term "living constitution" means that the Constitution should be intepreted with whatever comports to societal needs, wants, or sentiments, or what one commentator has called the "complexities of modern, post-industrial civilization." Whatever that means. No, I favor a dead constitution, because a living constitution is designed to find whatever rights the elite can conjure up to fit their fancy. To the extent the Marshall court solved the technical ambiguities, fine (read Joseph Story here). Additionally, we have to reckon with the constitutional revolution fostered by the 14th Amendment. But forget this nasty little thing called substantive due process. That is your living constitution.


Agreed. I suppose it is not the Constitution itself that is "living," but rather the political machinery energized through the fixed baseline of the Constitution. The irony is that the "living" Constitution of liberal yearnings is a kind of Frankenstein with will and substance artificially injected into it, and this process has served to atrophy the actual living systems of executive prerogative and legislative supremacy. Thus, we more and more run to the Courts for our legislation and bow down to judicial authority.

It is time to reclaim the initiative from the Courts. It is time for a radical change.

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