April 03, 2005

Federalism and Schiavo

Based on the continuing feuding over Schiavo among those on the economic right, I just wanted to remind everyone of the nature of federalism.

Federalism does not mean "states do whatever they want." It means that states are given leeway to do as they will, absent violations of right or constitutional authorizations to the contrary.

In this case, both exceptions apply. In a matter of right, both to life and to due process, the federal government has the obligation to act where states are failing to protect liberty. And the Constitution authorizes the Congress to constitute tribunals (federal Court), to control the jurisdiction of the federal courts and Supreme Court, and to protect the right of habeas corpus. The Congress even has the right to control the trying of both fact and law, so the de novo hearing was explicitly authorized by the Constitution.

Unless suddenly we have a group of people who think the Constitution is too weak and that a return to the Articles of Confederation is needed, I think it's safe to say the principle of federalism served, not rejected, by the Terri Schiavo move.

Federalism is a balance between the feds and states; it's not a blank check to the states. That's why the Fourteenth Amendment and the civil rights laws are there. It's not 'ignoring' federalism to act constitutionally to protect liberty; it's the highest act of federalism.

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