The Volokh Conspiracy

I know nothing about the Schiavo matter, and despite that have no opinion. But I thought I'd pass along three items — (1) in favor of the Congressional action, an interview with Robert P. George, (2) in the middle, a post from my colleague Stephen Bainbridge, and (3) against the Congressional action, a post to a lawprof discussion list (reprinted with permission) from University of Michigan professor Rick Hills:

When in doubt, defer to the states. Consider two general criteria of "doubt" and an application of this point to Schiavo.

1. The criteria:

As a proponent of "strong" federalism, I have a pretty strong stomach for state experiments in policy-making that might arguably be offensive. Indeed, I think that the essence of being a conservative supporter of federalism is what I call Nagelism (after Bob Nagel's book on federalism): we should be willing to tolerate states' enacting laws that we would find pretty unpalatable on moral and political grounds. Moreover, we should be willing to tolerate state laws that come close to some constitutional line — that arguably violate a reasonable conception of the constitution — especially when the constitutional doctrine turns on difficult empirical or moral judgments about which reasonable people can differ.

In general, one can always raise the cry that some state decision burdens some constitutional right under one's favorite theory of the constitution. But I would urge us conservatives to have a stronger stomach for state diversity than our opponents on the Left. In general, I would urge us all to allow states to do what they like unless (1) the state's majority really looks like it is ganging up on some discrete and insular minority repeatedly across the board (Carlone Products note 4 and Federalist #10) or (2) the state has adopted a view squarely at odds with a national consensus on some basic liberty that has sunk into the popular consciousness as a Privilege & Immunity of national citizenship or as an aspect of national due process (Harlan's dissent in Poe v Ullman).

Remember: The 14th Amendment did not enact (1) Herbert Spencer; (2) Ronald Dworkin; (3) John Finnis; (4) Leon Kass; (5) Rawls; (6) Nozick; (7) Name your favorite political, moral, or constitutional theorists.... It was a provision to protect the freedmen and (at a higher level of abstraction) other racial groups suffering from caste legislation or enslavement, and it nationalized some traditional principles of common law concerning due process and probably some norms of constitutional liberty contained in the Bill of Rights and elsewhere in Article I, section 9. (On this last point, I follow Amar). By some big stretch, the 13th and 14th Amendment might also protect a republican principle of "free labor" from 'class legislation' and 'monopoly.' (On this last point, I follow Gillman and William nelson).

For these reasons, I would tolerate a state law that bans theology students from getting a state-financed scholarship, even though one might argue that such a law violates free exercise by discriminating against religious speech. As a voter in a state, I would vote to amend the state constitution to forbid such a prohibition. As a constitutional lawyer, I applaud Rehnquist for deciding Locke v Davey in favor of Governor Locke. Likewise, I support the University of Michigan's right to have broad discretion to enact affirmative action plans: Gratz was wrongly decided in my view, and Grutter was correct. This view is utterly independent of my views on the merits of affirmative action. Likewise, with vouchers: Zelman is correct. Likewise, with the right-to-die: Glucksberg was correct.

I am (personally) a follower of most of what Leon Kass defends in print. I was a student of his, many years ago at Chicago. Thus, physician-assisted suicide sickens me. But (in Holmes' phrase) it does not make me puke, because it violates no national consensus on the proper scope of private liberty. Thus, I would be appalled by a doctrine that said that the state's not prosecuting physicians for assisting in suicides was unconstitutional state action under the 14th Amendment. Such an expansion of the 14th Amendment WOULD make me puke, because it would invite counter-nationalization of the opposite rule by the Hemlock Society. For the sake of social peace, we should not nationalize every cause: That's what Westphalian federalism is all about: picking your battles, reserving the feds for those issues that, in all fairness, We the (National) People have genuinely resolved.

2. The application of these conservative principles to Schiavo:

On this view, the Schiavo bill is unconstitutional. Forget about originalism: The Schiavo bill is obviously DOA on any theory of originalism. But even by any remotely plausible NON-originalist view of the 14th Amendment, it is hard to see how the 14th Amendment's due process clause could bar a state judge acting as guardian from deferring to a comatose woman's spouse in deciding whether to terminate life support. But let's take each clause, one by one.

A. Equal Protection: Does anyone believe that Florida legislators are somehow biased against comatose people? Against parents of such people? Are we seriously comparing Schiavo to segregated school kids under Jim Crow — the suggestion of Alan Meese? Does Ms. Schiavo's parents really belong to a class of some discrete (meaning easily targeted) and insular (meaning incapable of making cross-group alliances) minority? Isn't it obvious that, in a different case, the positions of the parents and spouse of the comatose person could be reversed — that Florida has made a principled decision without bias towards any social group and, therefore, not remotely akin to Jim Crow?

B. Procedural Due Process: Is there some claim that state judges have a conflict of interest amounting to a denial of procedural due process when they serve both as guardians and as judges? This strikes me as truly odd. Maybe — MAYBE — a state judge might have a personal incentive to keep Ms. Schiavo alive to continue to get court fees as guardian. But, so far as I can tell, Ms. Schiavo's parents got a decision-maker biased in THEIR favor, if that decision-maker was biased at all.

C. Substantive Due Process/[Privileges and Immunities] clause: is there some national consensus out there, firmly entrenched in tradition, that state judges should not make these sorts of judgment calls? If you believe that, then you should applaud Roper v Simmons and agree that the US Supreme Court protected a national consensus against executing juvenile offenders.

D. The Thirteenth Amendment: the Schiavo case does not even come close to the core of the 13th Amendment, which, as Justice Miller notes in The Slaughterhouse Cases, is about protecting the freedmen and people in a similar position — say, Chinese coolie labor, Mexican peon labor, etc. — from enslavement. At the outer limits, I'd construe the 13th Amendment and the Necessary-and-Proper clause to allow Congress to forbid racial segregation designed to reduce Blacks to economic dependence (Alfred H. Jones). I'd even support enforcing the 13th Amendment to prevent private violence of any sort against any group that the violent actors wish to reduce to some form of servitude — say, a prohibition on certain types of domestic violence against women.

Now: remind me how, on any minimally plausible theory of the 13th Amendment, a state's good-faith delegation of power to state judges to resolve disputes about a comatose person's intentions constitutes involuntary servitude? Is the judge asking the comatose person to perform unpaid labor for him? Will the judge somehow get more dough if he terminates life support?

I repeat: So far as I can see, this case is a no-brainer for conservatives upset by Roper v Simmons, Roe v Wade, etc. If ever there were a case for deference to states, this is such a case. No prejudice against any litigant. A perfectly traditional state judicial procedure consistent with our traditions of liberty. No forced labor. Help me out here: what am I missing that justifies a national rule here? . . .

[An earlier post by Rick Hills said:]

The Schiavo business in Congress strikes me as an astonishing violation of the most purpose of federalism. In the same way, Ashcroft's attack on Oregon's Death with Dignity Act is a deep violation of principles of federalism. I say "deep violation" advisedly: I believe that a central purpose of federalism is Westphalian (after the famous treaty that ended the 30 Years War): We properly use federalism to defuse quasi-religious political controversies over the meaning of fundamental things — "life," "personhood," "consent to die," "familial autonomy," etc. Such issues are appropriately divisive: their resolution depends on one's acceptance of fundamental systems of belief — acceptance that will almost never admit of much compromise and that cannot be rationally resolved through positive social or "hard" science.

The Westphalian principle decentralizes these issues to lower levels of government to allow each side in the debate to get some chance for their reasonable, heartfelt position to prevail. To centralize such issues simply because one can muster a necessary majority in either Congress or the Supreme Court is repulsive to this view of federalism.

The usual response to this contention is to trot out a parade of horribles in which positions obviously foreclosed by the 14th Amendment are chosen by the states. Thus, Casey notes that the states could not force women to get abortions and then infers that the states cannot ban abortions under the same principle. (505 U.S. 833, 859). But this reasoning strikes me as specious: it is one thing to force someone to get an abortion or to have a baby: it is another thing entirely to prohibit someone from using one method of avoiding childbith when there are a myriad of other ways available (say, contraception). State liberty to define "consent, "personhood," "life," etc., has certain (or rather, uncertain) limits. I tend to favor some Harlan-esque theory rooted in slowly evolving national consensus. But regardless of how one wishes to limit the states, I do not think that there is a plausible theory of federalism that would allow Congress to intervene where the rule chosen by the state is a fairly ordinary rule of family governance: when in doubt, the surviving spouse decides.

I just finished teaching my Harvard students about Roe v Wade. I urge them to consider the position seriously that I happen (privately, of course: I don't foist my own constitutional principles on my students) to be correct — that the constitutionality of abortion, and more particularly the division between the fetus's personhood and lack thereof, is a political question, properly for the states to resolve. I was delighted that principled conservatives abandoned the President on the Federal Marriage amendment, as this amendment struck me as paradigmatically the sort of issue that should be decentralized under the Westphalian principle. One of the reasons why I am a Law Professor for Bush-Cheney is that I adhere to this strong view of federalism-to-prevent-national-cultural-wars.

the merits of whether Ms. Schiavo actually consented seem to me quite besides the point. Is there any reason to believe that some imperfection in Florida's political process has prevented the Florida legislature from properly considering those merits? Just as I would not constitutionalize the anti-abortion rule of Doe v. Bolton (which the West German Constitutional Court arguably did in its 1975 Abortion decision), so too, I would not constitutionalize any rule on guardians and comatose people's intent. All of the thoughtful arguments posted on this list about whether Florida's rule is a wise one, whether guardians can be trusted, what Ms. Schiavo actually wants are great arguments — but ones which can easily be made to the Florida legislature or, for that matter, the Florida people and the Florida courts, both who control the state constitution.

And now the Republicans pull an absurd stunt like this one. I confess that I am distraught. All that "let-the-states-decide-on-abortion" rhetoric has to seem like a bunch of empty hooey if this statute is deemed to be consistent with conservative principles of federalism.

UPDATE: In the original version of this post, I erroneously included a discussion list to which Rick was responding, and which was quoted in his message. Since I hadn't asked the author of that post for permission to republish it, I've deleted that section; my apologies for having inadvertently included it in the first place.

FURTHER UPDATE: Alan Meese, whose post Rick mentions above, responds:

Rick Hills says that I have compared Ms. Schiavo to school children under Jum Crow, and that I am wrong. I'd like to respond. . . .

First, I did not compare Ms Schiavo to school kids living under Jim Crow. Instead, I responded to Professor Hills' claim that Federalism required the National Government to defer to a "fairly ordinary rule of family governance: when in doubt, the surviving spouse decides." As I pointed out, Professor Hills' proposed principle --- that we defer to "fairly ordinary rules" applied by the states --- would have prevented a Senator from voting to ban the "fairly ordinary" practice of segregation in, say, 1945.

Was this a comparison of Jim Crow schoolkids to Ms. Schiavo? I don't think so. Instead, it was an example used to show that the principle I thought Professor Hills was advancing does not withstand analysis. Moreover, the example apparently led Professor Hills to abandon his initial position --- or at least my perception of his initial position --- and create a new one --- we should defer to "fairly ordinary" rules adopted by the states when we think the political process works well to protect the individuals in question. I don't fault Professor Hills for adjusting his position if, in fact, he has --- that's what dialogue is all about.

Second. What about this new position? It's a nice question, isn't it --- who has more political power --- Ms. Schiavo, or Jim Crow Schoolkids (and their parents). I doubt Ms. Schiavo votes or makes many campaign contributions. Maybe one could argue that her parents can protect her in the political process --- something they have been trying to do in the Florida courts. But, at any one time, very few parents have children in Ms. Schiavo's condition. And, very few anticipate that they will in the future. So, while parents have the ability, if they wish, to form organizations to lobby about these questions on a prospective basis, economic theory suggests that they will not. Time is very scarce, and most people have better things to do than engage in letter writing campaigns about issues that they most likely will never face.

But, I am willing to grant that Ms. Schiavo, her parents and people like them have somewhat more political power and realistic potential to exercise it than Jim Crow schoolkids. But, that doesn't really answer the question, which is "how much power must a certain group have before we will leave them at the mercy of the states," which Professor Hills would do here. When a life is at stake, and where physicians who have examined Ms. Schiavo disagree about whether she can recover, I would err in favor of extra review, which is what Congress has done here.

	[Eugene Volokh, March 21, 2005 at 4:37pm] Trackbacks Schiavo: I know nothing about the Schiavo matter, and despite that have no opinion. But I thought I'd pass along three items — (1) in favor of the Congressional action, an interview with Robert P. George, (2) in the middle, a post from my colleague Stephen Bainbridge, and (3) against the Congressional action, a post to a lawprof discussion list (reprinted with permission) from University of Michigan professor Rick Hills: When in doubt, defer to the states. Consider two general criteria of "doubt" and an application of this point to Schiavo. 1. The criteria: As a proponent of "strong" federalism, I have a pretty strong stomach for state experiments in policy-making that might arguably be offensive. Indeed, I think that the essence of being a conservative supporter of federalism is what I call Nagelism (after Bob Nagel's book on federalism): we should be willing to tolerate states' enacting laws that we would find pretty unpalatable on moral and political grounds. Moreover, we should be willing to tolerate state laws that come close to some constitutional line — that arguably violate a reasonable conception of the constitution — especially when the constitutional doctrine turns on difficult empirical or moral judgments about which reasonable people can differ. In general, one can always raise the cry that some state decision burdens some constitutional right under one's favorite theory of the constitution. But I would urge us conservatives to have a stronger stomach for state diversity than our opponents on the Left. In general, I would urge us all to allow states to do what they like unless (1) the state's majority really looks like it is ganging up on some discrete and insular minority repeatedly across the board (Carlone Products note 4 and Federalist #10) or (2) the state has adopted a view squarely at odds with a national consensus on some basic liberty that has sunk into the popular consciousness as a Privilege & Immunity of national citizenship or as an aspect of national due process (Harlan's dissent in Poe v Ullman). Remember: The 14th Amendment did not enact (1) Herbert Spencer; (2) Ronald Dworkin; (3) John Finnis; (4) Leon Kass; (5) Rawls; (6) Nozick; (7) Name your favorite political, moral, or constitutional theorists.... It was a provision to protect the freedmen and (at a higher level of abstraction) other racial groups suffering from caste legislation or enslavement, and it nationalized some traditional principles of common law concerning due process and probably some norms of constitutional liberty contained in the Bill of Rights and elsewhere in Article I, section 9. (On this last point, I follow Amar). By some big stretch, the 13th and 14th Amendment might also protect a republican principle of "free labor" from 'class legislation' and 'monopoly.' (On this last point, I follow Gillman and William nelson). For these reasons, I would tolerate a state law that bans theology students from getting a state-financed scholarship, even though one might argue that such a law violates free exercise by discriminating against religious speech. As a voter in a state, I would vote to amend the state constitution to forbid such a prohibition. As a constitutional lawyer, I applaud Rehnquist for deciding Locke v Davey in favor of Governor Locke. Likewise, I support the University of Michigan's right to have broad discretion to enact affirmative action plans: Gratz was wrongly decided in my view, and Grutter was correct. This view is utterly independent of my views on the merits of affirmative action. Likewise, with vouchers: Zelman is correct. Likewise, with the right-to-die: Glucksberg was correct. I am (personally) a follower of most of what Leon Kass defends in print. I was a student of his, many years ago at Chicago. Thus, physician-assisted suicide sickens me. But (in Holmes' phrase) it does not make me puke, because it violates no national consensus on the proper scope of private liberty. Thus, I would be appalled by a doctrine that said that the state's not prosecuting physicians for assisting in suicides was unconstitutional state action under the 14th Amendment. Such an expansion of the 14th Amendment WOULD make me puke, because it would invite counter-nationalization of the opposite rule by the Hemlock Society. For the sake of social peace, we should not nationalize every cause: That's what Westphalian federalism is all about: picking your battles, reserving the feds for those issues that, in all fairness, We the (National) People have genuinely resolved. 2. The application of these conservative principles to Schiavo: On this view, the Schiavo bill is unconstitutional. Forget about originalism: The Schiavo bill is obviously DOA on any theory of originalism. But even by any remotely plausible NON-originalist view of the 14th Amendment, it is hard to see how the 14th Amendment's due process clause could bar a state judge acting as guardian from deferring to a comatose woman's spouse in deciding whether to terminate life support. But let's take each clause, one by one. A. Equal Protection: Does anyone believe that Florida legislators are somehow biased against comatose people? Against parents of such people? Are we seriously comparing Schiavo to segregated school kids under Jim Crow — the suggestion of Alan Meese? Does Ms. Schiavo's parents really belong to a class of some discrete (meaning easily targeted) and insular (meaning incapable of making cross-group alliances) minority? Isn't it obvious that, in a different case, the positions of the parents and spouse of the comatose person could be reversed — that Florida has made a principled decision without bias towards any social group and, therefore, not remotely akin to Jim Crow? B. Procedural Due Process: Is there some claim that state judges have a conflict of interest amounting to a denial of procedural due process when they serve both as guardians and as judges? This strikes me as truly odd. Maybe — MAYBE — a state judge might have a personal incentive to keep Ms. Schiavo alive to continue to get court fees as guardian. But, so far as I can tell, Ms. Schiavo's parents got a decision-maker biased in THEIR favor, if that decision-maker was biased at all. C. Substantive Due Process/[Privileges and Immunities] clause: is there some national consensus out there, firmly entrenched in tradition, that state judges should not make these sorts of judgment calls? If you believe that, then you should applaud Roper v Simmons and agree that the US Supreme Court protected a national consensus against executing juvenile offenders. D. The Thirteenth Amendment: the Schiavo case does not even come close to the core of the 13th Amendment, which, as Justice Miller notes in The Slaughterhouse Cases, is about protecting the freedmen and people in a similar position — say, Chinese coolie labor, Mexican peon labor, etc. — from enslavement. At the outer limits, I'd construe the 13th Amendment and the Necessary-and-Proper clause to allow Congress to forbid racial segregation designed to reduce Blacks to economic dependence (Alfred H. Jones). I'd even support enforcing the 13th Amendment to prevent private violence of any sort against any group that the violent actors wish to reduce to some form of servitude — say, a prohibition on certain types of domestic violence against women. Now: remind me how, on any minimally plausible theory of the 13th Amendment, a state's good-faith delegation of power to state judges to resolve disputes about a comatose person's intentions constitutes involuntary servitude? Is the judge asking the comatose person to perform unpaid labor for him? Will the judge somehow get more dough if he terminates life support? I repeat: So far as I can see, this case is a no-brainer for conservatives upset by Roper v Simmons, Roe v Wade, etc. If ever there were a case for deference to states, this is such a case. No prejudice against any litigant. A perfectly traditional state judicial procedure consistent with our traditions of liberty. No forced labor. Help me out here: what am I missing that justifies a national rule here? . . . [An earlier post by Rick Hills said:] The Schiavo business in Congress strikes me as an astonishing violation of the most purpose of federalism. In the same way, Ashcroft's attack on Oregon's Death with Dignity Act is a deep violation of principles of federalism. I say "deep violation" advisedly: I believe that a central purpose of federalism is Westphalian (after the famous treaty that ended the 30 Years War): We properly use federalism to defuse quasi-religious political controversies over the meaning of fundamental things — "life," "personhood," "consent to die," "familial autonomy," etc. Such issues are appropriately divisive: their resolution depends on one's acceptance of fundamental systems of belief — acceptance that will almost never admit of much compromise and that cannot be rationally resolved through positive social or "hard" science. The Westphalian principle decentralizes these issues to lower levels of government to allow each side in the debate to get some chance for their reasonable, heartfelt position to prevail. To centralize such issues simply because one can muster a necessary majority in either Congress or the Supreme Court is repulsive to this view of federalism. The usual response to this contention is to trot out a parade of horribles in which positions obviously foreclosed by the 14th Amendment are chosen by the states. Thus, Casey notes that the states could not force women to get abortions and then infers that the states cannot ban abortions under the same principle. (505 U.S. 833, 859). But this reasoning strikes me as specious: it is one thing to force someone to get an abortion or to have a baby: it is another thing entirely to prohibit someone from using one method of avoiding childbith when there are a myriad of other ways available (say, contraception). State liberty to define "consent, "personhood," "life," etc., has certain (or rather, uncertain) limits. I tend to favor some Harlan-esque theory rooted in slowly evolving national consensus. But regardless of how one wishes to limit the states, I do not think that there is a plausible theory of federalism that would allow Congress to intervene where the rule chosen by the state is a fairly ordinary rule of family governance: when in doubt, the surviving spouse decides. I just finished teaching my Harvard students about Roe v Wade. I urge them to consider the position seriously that I happen (privately, of course: I don't foist my own constitutional principles on my students) to be correct — that the constitutionality of abortion, and more particularly the division between the fetus's personhood and lack thereof, is a political question, properly for the states to resolve. I was delighted that principled conservatives abandoned the President on the Federal Marriage amendment, as this amendment struck me as paradigmatically the sort of issue that should be decentralized under the Westphalian principle. One of the reasons why I am a Law Professor for Bush-Cheney is that I adhere to this strong view of federalism-to-prevent-national-cultural-wars. the merits of whether Ms. Schiavo actually consented seem to me quite besides the point. Is there any reason to believe that some imperfection in Florida's political process has prevented the Florida legislature from properly considering those merits? Just as I would not constitutionalize the anti-abortion rule of Doe v. Bolton (which the West German Constitutional Court arguably did in its 1975 Abortion decision), so too, I would not constitutionalize any rule on guardians and comatose people's intent. All of the thoughtful arguments posted on this list about whether Florida's rule is a wise one, whether guardians can be trusted, what Ms. Schiavo actually wants are great arguments — but ones which can easily be made to the Florida legislature or, for that matter, the Florida people and the Florida courts, both who control the state constitution. And now the Republicans pull an absurd stunt like this one. I confess that I am distraught. All that "let-the-states-decide-on-abortion" rhetoric has to seem like a bunch of empty hooey if this statute is deemed to be consistent with conservative principles of federalism. UPDATE: In the original version of this post, I erroneously included a discussion list to which Rick was responding, and which was quoted in his message. Since I hadn't asked the author of that post for permission to republish it, I've deleted that section; my apologies for having inadvertently included it in the first place. FURTHER UPDATE: Alan Meese, whose post Rick mentions above, responds: Rick Hills says that I have compared Ms. Schiavo to school children under Jum Crow, and that I am wrong. I'd like to respond. . . . First, I did not compare Ms Schiavo to school kids living under Jim Crow. Instead, I responded to Professor Hills' claim that Federalism required the National Government to defer to a "fairly ordinary rule of family governance: when in doubt, the surviving spouse decides." As I pointed out, Professor Hills' proposed principle --- that we defer to "fairly ordinary rules" applied by the states --- would have prevented a Senator from voting to ban the "fairly ordinary" practice of segregation in, say, 1945. Was this a comparison of Jim Crow schoolkids to Ms. Schiavo? I don't think so. Instead, it was an example used to show that the principle I thought Professor Hills was advancing does not withstand analysis. Moreover, the example apparently led Professor Hills to abandon his initial position --- or at least my perception of his initial position --- and create a new one --- we should defer to "fairly ordinary" rules adopted by the states when we think the political process works well to protect the individuals in question. I don't fault Professor Hills for adjusting his position if, in fact, he has --- that's what dialogue is all about. Second. What about this new position? It's a nice question, isn't it --- who has more political power --- Ms. Schiavo, or Jim Crow Schoolkids (and their parents). I doubt Ms. Schiavo votes or makes many campaign contributions. Maybe one could argue that her parents can protect her in the political process --- something they have been trying to do in the Florida courts. But, at any one time, very few parents have children in Ms. Schiavo's condition. And, very few anticipate that they will in the future. So, while parents have the ability, if they wish, to form organizations to lobby about these questions on a prospective basis, economic theory suggests that they will not. Time is very scarce, and most people have better things to do than engage in letter writing campaigns about issues that they most likely will never face. But, I am willing to grant that Ms. Schiavo, her parents and people like them have somewhat more political power and realistic potential to exercise it than Jim Crow schoolkids. But, that doesn't really answer the question, which is "how much power must a certain group have before we will leave them at the mercy of the states," which Professor Hills would do here. When a life is at stake, and where physicians who have examined Ms. Schiavo disagree about whether she can recover, I would err in favor of extra review, which is what Congress has done here.