Stephen Bainbridge [UCLA Law School]:

"Now that Congress has approved the legislation to give federal courts jurisdiction over the Terry Schiavo case, I am finding myself oddly unable to reach a definitive assessment of that action. As I see it, Congress' act implicates four first principles I hold dear: The culture of life; Limited government; Federalism; The rule of law.

Unfortunately, I do not see how we can reconcile the four in this case.

The culture of life. As a Catholic, I accept as binding the Church's magisterial teaching on the Gospel of Life. Of particular relevance to the Schiavo case, of course, is Pope John Paul II's statement that the removal of feeding tubes from people in a persistent vegetative state is immoral and "euthanasia by omission." (For a useful explication of the context in which the statement was made, see this analysis from the Archdiocese of Denver.)

But I also believe that even non-believers can (and many do) embrace a culture of life. We live in a society that offers fewer and fewer protections for the weak and vulnerable. When another's life becomes inconvenient, we seem increasingly willing to end it. Abortion, assisted suicide, and euthanasia. What next? Solving Social Security's woes by putting the old folks out to sea on ice floes?

Limited Government. I am no libertarian. Like most conservatives, however, I do believe in a limited government. If Terry Schiavo had left a living will directing that feeding tubes be removed once she was in a persistent vegetative state, I would regretfully counsel that we respect her wishes. But she did not. Instead, the courts have chosen to believe the potentially self-serving testimony of a husband with serious conflicts of interest. If government does not have a legitimate role in protecting someone so vulnerable, of what use is government at all?

But which government?

Federalism. The national government is, as the 10th Amendment to the Constitution makes clear, a government of limited and enumerated powers. To be sure, the Civil War and the post-War amendments de facto expanded the scope of the national government's powers. Likewise, the infamous "switch in time that saved nine" de facto eviscerated the 10th Amendment. Of late, however, we seem to have been slowly recovering some aspects of what might be called the Constitution-in-Exile.

Federalism is important both for pragmatic and moral reasons. As to the former, Justice Brandeis famously opined that: "It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of country.

As to the latter, federalism is closely linked in my analysis to the principle of subsidiarity.

"This tenet holds that nothing should be done by a larger and more complex organization which can be done as well by a smaller and simpler organization. In other words, any activity which can be performed by a more decentralized entity should be. This principle is a bulwark of limited government and personal freedom." (Link)

Yet, like most virtues, federalism is capable of becoming a vice if we make a fetish of it. Would the rest of the country really stand by and watch if Florida adopted a Logan's Run-like policy of euthanizing anybody over a certain age? If Appomattox proved anything, it proved that the national government can (and should) override state's rights to protect the basic human rights of the weak and vulnerable.

Rule of law. To this point in my thinking, I find that neither the principle of limited government nor that of federalism poses a serious bar to Congressional interference in the Schiavo cases. Only the seemingly exiled notion that Congress may exercise solely those powers enumerated in the Constitution appears to be a bar to federal intervention. In contrast, I believe that the rule of law is a serious obstacle to federal intervention.

The rule of law proscribes ex post facto legislation. To be sure, the Constitutional proscription of such laws has been interpreted for over two centuries as extending solely to the criminal laws. As a prudential matter, however, there is a strong case to be made for extending that same principle to civil laws. As Madison explained in Federalist No. 44, for example:

"Bills of attainder, ex-post facto laws, and laws impairing the obligation of contracts are contrary to the first principles of the social compact, and to every principle of sound legislation…. [T]he sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more industrious and less informed parts of the community. They have seen, too, that one legislative interference is but the first link of a long chain of repetitions, every subsequent interference being naturally produced by the effects of the preceding. They very rightly infer, therefore, that some thorough reform is wanting, which will banish speculations on public measure, inspire a general prudence and industry, and give a regular course to the business of society."

Or, as Justice O'Connor observed in General Motors Corp. v. Evert Romein (1992):

"Retroactive legislation presents problems of unfairness that are more serious than those posed by prospective legislation, because it can deprive citizens of legitimate expectations and upset settled transactions."

Likewise, the rule of law counsels against crafting laws that apply to an individual case. If public policy counsels for prohibiting the removal of feeding tubes from persons in a persistent vegetative state or, more precisely relevant to this case, giving federal courts jurisdiction to review such cases, the principle of equal protection under the laws counsels that such legislation should be available to all similarly situated persons, not just those who have become the poster child for a particular cause.

Finally, the rule of law requires the separation of powers. It is the job of Congress and state legislatures to pass laws of general applicability. It is the job of courts to apply those laws in particular cases.

I'll grant you that the judges in Florida often seem more concerned with enacting personal policy preferences (and getting favorable mentions from the NY Times) than following the law. See, e.g., Bush v. Gore. I'm reliably informed by an attorney who was involved in the Schiavo cases that the presiding judge committed two structural errors: (1) the judge compromised his judicial independence by assuming inconsistent roles and (2) Terri was denied effective representation because of her husband/guardian's conflict of interest.

If so, the rule of law was compromised by the presiding judge. The solution to such judicial errors, however, is an appeal within the judicial system. Ex post facto laws limited to a single case are not an appropriate solution.

Conclusion. In sum, the culture of life and the rule of law appear to be in unavoidable conflict. Both are central values of a free and just society. All of which makes it extremely difficult to decide where one stands on this issue.

Ultimately, I think we need to get past this case to deal with the broader issues. How should we as a society regulate end of life decisions? That's the real question and its one that nobody in power seems very interested in dealing with. [March 1, 2005: ProfessorBainbridge.com has the post]