It is deeply disturbing that the courts did not err on the side of allowing Schiavo to live given the possibility of Michael's mixed motives, as well as the family dispute over Terri's wishes, wishes unfortunately not reduced to writing.
Did the federal government overstep its bounds in passing this special law?
UCLA law professor Stephen Bainbridge thinks so. "Under Article 5 of the 14th Amendment," Professor Bainbridge told me, "Congress does have pretty expansive powers to protect human rights from state action. But there are some serious problems. One is that this is, in a sense, an ex post facto law designed to overturn a judicial decision that had already been made, and technically the Constitution only prohibits ex post facto laws in the criminal context. . . . When you pass a law that's designed to deal with a particular case, and here Congress is explicitly trying to limit this to Ms. Schiavo, and not offer similar protection to other people who may be similarly situated, so I said on my blog . . . that I think Congress probably shouldn't have done this, and probably didn't have the authority to do this." (Even the federal district judge questioned the constitutionality of the law giving him jurisdiction!)
This places states' rights Republicans in an awkward position.
House Rules Committee Chairman David Dreier, R-Calif., explained his support for Congress's actions: " . . . [S]o I came down on the side, even though I may take some political heat for it, of doing what I think is favoring giving them a chance to be heard. . . . if you just focus on our responsibility for the protection of life, liberty and the pursuit of happiness, if you look at that goal that we have, argument can be made [that] to at least allow a federal court to hear this case as a last resort is not unreasonable."
Polls show most Americans, including self-described evangelicals -- oppose Congress's intrusion into this extremely emotional, private family matter. How can limited-government types object to the Fed's involvement in education, welfare and health care? What do you say to the taxers and spenders -- to those who call the Constitution a "living, breathing document" -- when they say, "This tax hike protects the poor, the downtrodden, the minorities, the ignored. Help us -- like you helped Terri."
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