Strengthening Constitutional Self-Government

No Left Turns

Federalism and Schiavo

Andrew McCarthy pens an interesting piece over at NRO about proposals to grant federal review in cases like that of Terri Schiavo. I commend the article to lawyers and non-lawyers alike for its clear description of how the often misunderstood federal habeas process works, and how that process changed in 1996 due to a new law enacted by the Clinton Administration. However, McCarthy was less clear about what the proposed legislation pending in Congress would do. Rather than grant habeas review--a position endorsed by some early bills (and a position which was legally erroneous given that Ms. Schiavo is not in state custody)--the version of the bill which was passed by the House permitted removal of an action to federal court where there were issues of constitutional or federal law at stake following the exhaustion of state court proceedings. Essentially, it permits a federal court to review federal questions after the state court system has completed its review. This is not the kind of serious infringement on federalism that the WaPo editorial suggests (even if the state courts are fully constitutionally capable of adjudicating federal and constitutional issues). There are interesting federalism questions to be asked of any such legislation, but the overblown comparisons made by WaPo are not among them.

Discussions - 2 Comments

Florida, as a death penalty state, should pass a law providing for execution of capital murderers via starvation. Of course that would then be declared unconstitutional, but it would set up quite nicely the following comparison: the state can require the starvation of a perfectly innocent (and incredibly vulnerable) person, yet it cannot do so to the most horrid criminals imaginable.

The 14th amendment exists to protect the rights of American citizens vis-a-vis the states. Congress is specifically empowered to do this.

It is proper for the Congress to intervene if a state’s laws and judicial system are facilitating the murder of the disabled.

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