A good friend recently wrote:
You must be enjoying the Schiavo festivities. Those true principled states rights advocates must be spinning in their graves. The President flies back to DC so he can ceremonially take an issue out of the hands of the state courts and give it to the feds.
I think this is a fair point, probably a 5 or 6 on the “Gotcha!” scale. Conservatives, principled and otherwise, generally do favor states rights, and many of them did seem to place a higher priority on attempting to save Terry Schiavo than honoring federalism.
Fair, but limited. First, conservatives have been at least as critical of federal intervention in this matter as liberals. As Ronald Brownstein pointed out in today’s Los Angeles Times, in one of the myriad articles that have appeared lately on the rift among the Republicans,
In a CBS News survey, opposition was so widespread that even decisive majorities of Republicans, conservatives and white evangelical Christians said Bush and Congress should not have intervened.
A virtually identical article appeared in yesterday’s Washington Post. (One could easily get the idea that the WaPo is gleeful about Republican “rifts.” See here and here.)
More relevant, however, is that throughout American history, starting with the New England Federalists who threw up a states rights argument when it suited their temporary interests, states rights has nearly always been an instrumental argument, not a principled position.
Indeed, Democrats like my friend may want to consider the advice traditionally given to people in glass houses before they start throwing around charges of inconsistency. At the moment they are beside themselves trying to keep the people of Michigan from having an opportunity to decide the fate of racial preferences, preferring the recent pronouncements of the Supreme Court on that issue. Nor were most Democrats heard to complain when the 9 Supremes took the abortion decision away from the states and handed it to the federal courts.
One could reply that, well, the Democrats never claimed to believe in states rights, but one would then have to deal with the embarrassment of the raging Democratic love affair with states rights that blossomed during the controversy over the 2000 election in Florida.
Perhaps there’s a pattern here. Looking at the Democratic positions on racial preferences and abortion (let the federal courts decide) and Terry Schiavo and the 2000 election in Florida (let the state courts decide), the Democrats may indeed have coalesced around a new governing principle that trumps both states rights and nationalism: Let The Courts Decide!
Indeed, for them it appears that courts are the state. In 2000, for example, “the state” was what the Florida Supreme Court said, not what the legislature or the governor said. The reason the Democrats were so incensed by that case (other than the obviously partisan result) was not that it interfered with states rights but that it said there were some limits to how far a court could go in rewriting legislation under the guise of interpretation.
With Schiavo, similarly, you can be sure that they regard “the state” as embodied in what the Florida courts said, not what Gov. Bush did. Imagine if he had sent in the National Guard to take custody!
The eminent American historian David Potter (one of my old professors) was fond of saying that if you scratch a states rights man you will find someone in a national minority. The Democrats appear to have taken their new minority status to a new level, identifying not with states against a national majority but with the courts against both state and national majorities. For them, the independence of the judiciary has become the new foundational principle.
And will remain a fundamental principle … unless and until the Republicans control the courts.
” The Democrats appear to have taken their new minority status to a new level, identifying not with states against a national majority but with the courts against both state and national majorities”
not the schiavo issue.
I think Powerline had a blurb on this mess.
The reason it’s ending this way is because Michael could afford a good atty and her parents couldn’t.
And the courts went right down the line once the decision was made.
Just more nuance for discussion.
“The reason it’s ending this way is because Michael could afford a good atty and her parents couldn’t.”
I have to say, the parent’s federal court pleadings where awful. Talking about miraculous events? Only pleading procedural due process? It was only later at the last hearing on her amended pleading that they finally mentioned a substantive due process right to life.
Are the parent’s attorneys right wing ideologues? I don’t know if they didn’t want to rely on substantive due process like griswold and roe, but it seems at least they weren’t thinking along those lines, weren’t pleading it.
I’ve heard the criticism that liberals allow judicial activism and penumbras and what not to find rights to abortion and contraception, but not here. The answer is simple: the parent’s attorneys didn’t plead those rights.
As is the case with marriage, Republican’s generally support the rights of state legislators to create laws. This case is less about state rights than an out of control judiciary.
Historically, the states rights party was the Democratic party, especially its Southern wing. Both parties have appealed to states rights when convenient, but as a doctrine it has almost always been most associated with the Democratic party.
You may recall from your history that the Civil War was fought by two sides that had rather different views on states rights (and the obligation of the national government to protect individuals).
Those claiming that the Republicans are hypocritical have a better argument when they say that the Republicans used to favor less government activism, at least in domestic policy. That’s true, but since it most often comes from those who favor government action in almost every other case, one can say that hypocrisy can be found on both sides, without much effort.
As for me, I am going to mourn a sad death, rather than make cheap points about hypocrisy.
Republicans had an incredible opportunity IMHO to establish themselves as the dominant party for the next 12 years. I believe that under the Bush/Rove machine they had successfully solidified their winning coalition of cultural conservatives, investment classers and libertarians. The Schiavo case may break it.
It’s not just that Republicans are attacking the Judiciary now…they’re attacking REPUBLICAN appointees!
>>>The vote of a federal appeals court panel was 2 to 1 to reject the Schiavo case. It could be argued that the two judges voting against the Schindlers’ appeal were actually voting the true conservative position
Blogworthies LX
Blogworthies: A weekly round-up of noteworthy entries from a variety of weblogs on a variety of topics.