Schiavo Vote and Federalism Flip-Flops; Same As It Ever Was
Nick Gillespie | March 21, 2005, 9:00am
Last night, the U.S. House of Representatives voted on a bill that would allow Terry Schiavo's parents to argue in federal court that their daughter's rights are being violated by having her feeding tube removed.
Wash Times account here. Reason's own Tim Cavanaugh weighed in on the reality of starving the incapacitated Schiavo to death here and Ron Bailey here.
This case is so rare, strange, and sui generis that I don't think it's worth discussing much as a precedent in terms of medical ethics, euthanasia, etc. In fact, the House law (and its Senate counterpart) are specifically tailored to impact only the Schiavo case.
It's wider import? Quite possibly as yet another marker that discourse about federalism and proper limits to federal power more generally is just bullshit, situational ethics at its worst.
That helps explain why Republicans--whose entire rise to power was based upon rhetroic about devolving power and authority from Washington to state and local governments, to exhorting decentralized "laboratories of democracy," etc.--have consistently worked to augment the federal government since taking it over.
That helps to explain GOP policies such as federally prosecuting medical marijuana clubs that are legal under California state law; passing the No Child Left Behind Act, which centralizes educational policy in D.C.; pushing federal laws, if not Constitutional amendments to prohibit or invalidate gay marriage in individual states; calling Major League Baseball on Congress' carpet; etc.
And it helps to explain why the Dems, who prior to GOP control of Congress sung a very different tune, are now all of sudden upset at D.C. sticking its nose into every nook and cranny in the republic. As the Times reports:
"If we do not draw the line in the sand today, there's no telling what constitutional principles this Congress will trample next," said Rep. Jim Davis, [a] Florida Democrat who opposed the bill.
That's a fair (if slightly hyperbolic) question, but you've got to ask, Where were the Dems back when they had congressional majorities? Surely, they weren't asking that question.
As Arthur A. Ekirch wrote in his great The Decline of American Liberalism, the push and pull between what might be called state's rights and federal power is as old as the country itself (indeed, Ekirch argues that this dynamic between forces of centralization and decentralization was the defining attribute of the original British colonies).
The latest cycle kicked off in full with the contested 2000 election, where as a nation we witnessed the spectacle of Republicans running to the feds for a favorable ruling in Bush v. Gore and the Democrats insisting, no, no, this is a state matter.
For a longer look, check out this great (and controversial) book review by Contributing Editor Charles Oliver, which underscores that appeals to federalism have long been motivated not by principle but expediency.. In looking at The Counterrevolution of Slavery: Politics and Ideology in Antebellum South Carolina, by Manisha Sinha, he writes:
Sinha convincingly argues that Southern "states' rights" ideology was formed with the express purpose of defending slavery. Indeed, antebellum Southerners were quick to use national power, at the expense of states' rights, to defend slavery. From 1789 to 1860, the South dominated the national government, and the "Slave Power," as critics called it, readily used the federal government to protect and advance its interests.
Whole thing here.
Evan Williams | March 21, 2005, 10:52am | #
Andrew asks,
"If tomorrow, after say...a thoughtful reading of Human Action, Atlas Shrugged, or the Road to Serfdom, all nine supremes decided to mandate a perfect free-market utopia for all 50 states, would Nick Gillespie leap to the defence of the Slaughterhouse precedents? Especially if they tossed in nation-wide gay marriage?"
Andrew obviously has little to no understanding of the concepts of "negative rights" vs "positive rights". Perhaps he should read up on them before getting into these discussions.
Secondly, the supposed quandry that you wish to hypothesize is no quandry at all, unless the individual libertarian in question is principly inconsistent when it comes to issues of the Constitutional Republic vs Libertarian Utopia. Surely, there are certain, ahem, shall we say,
adolescent libertarians who wouldn't know a Constitutional Republic if it hit them in the face. But, aside from these particular folks, Andrew's hypothetical conflict of principles is null.
For those who understand the principles of a Constitutional Republic (which is what we are), the answer is clear. The constitution enumerated powers to the federal government. It illustrated individual negative rights which could not be infringed by the federal government. And, short of the 14th amendment muddying the waters with regards to federalism, that is
it. For those libertarians, they would realize that, as long as the federal government is held in check by that constitution, then the goings-on of other states should have no bearing on them, and thus, they should have no direct say in them. On the other hand, the state(s) in which they claim residency are theirs to mold.
Therefore, for one consistent in Constitutional principle, the answer is obvious: if the federal government was pared back to its constitutional bones, and then attempted to pare back individual states' laws, they would object---not on libertarian principle, but on Constitutional principle. Their libertarian principles are then relegated to their own states' laws.
Though, there are others, to be sure, who disagree with the principle of federalism, and would like to see the federal government forcefully restrict every state's laws as it is supposed to restrict its own. I cannot speak for these people, but, this ideology resides in desires; federalism, at heart, has a foundation etched in the Constitution.
So, to get back to the original question, for someone like myself, the answer would be: I would oppose this extra-constitutional paring back of governmental powers. My aim is twofold: 1) restrict the federal government's powers to those enumerated by the constitution, 2) restrict my own state's powers based on libertarian principles of limited government.
I hope that long-winded post answers your little "libertarian quandry".
BillyRay | March 21, 2005, 12:33pm | #
Interesting
article
Didn't know about this part
"The Evidence of Foul Play Ignored by the Court
The conventional wisdom in the case of Terri Schiavo is that a potassium deficiency brought on by an eating disorder caused her heart to stop for several minutes, causing the brain damage that has led to her condition today.
However, there is no evidence of a heart attack. Dr. William Hammesfahr, a neurologist of world renown, examined Terri in 2002 and wrote a comprehensive report on her condition Complete Report of Dr. William Hammesfahr. Among Dr. Hammesfahr's conclusions were:
1. That Terri's heart, EKG's and blood chemistry showed no evidence of a heart attack;
2. A low potassium level would have caused damage to her heart
2. Terri is not in a coma;
3. Terri's neck was rigid indicating unusual trauma to the neck.
With respect to rigidity in the neck, Dr. Hammesfahr noted that he had viewed the same type of injury once before - in a strangulation victim. He also noted that the L-1 injury to Terri's spine was consistent with injuries sustained as a result of being thrown against a table.
Dr. Michael Baden, a world renowned pathologist, has also weighed in with serious concerns about the cause of Terri Schiavo's condition. Dr. Baden had the opportunity to review a bone scan performed on Terri in 1991. Based on his observations, Dr. Baden noted that:
1. It is extremely unlikely that a low potassium level would cause a healthy young woman's heart to start beating. Again, Dr. Hammesfahr ruled out the occurrence of a heart attack;
2. Terri had sustained a serious head injury, the type and degree of which could cause a vegetative state;
3. Terri also suffered from other bone injuries;
4. The type of head injury that Terri sustained was the result of a severe trauma, such as an automobile accident or a beating. "
Gary Gunnels | March 21, 2005, 12:43pm | #
Myths About The Schiavo Case (Including Bogus Foul Play Claim):
1. Terri is conscious
Court-appointed, government-appointed, and private physicians have confirmed that Terri Schiavo is in a persistent vegetative state (PVS). Schiavo suffered massive brain damage as a result of a cardiac arrest 15 years ago, and ongoing neurological degeneration interim.
Patients in a PVS have no higher cognitive function and no chance of recovery.
Terri is neither comatose, nor brain dead. She is in a vegetative state because her higher brain centers have been destroyed and replaced by fluid.
1.' A recent study showed that patients like Terri are more conscious than we thought
A recent fMRI by study found that two patients in a minimally conscious state (MCS) showed slightly more brain activity during speech recognition tasks than would have been predicted based on the severity of their injuries and behavioral observations (Schiff ND, Rodriguez-Moreno D, Kamal A, et al, 2005). When the study was released, some commentators inappropriately cited this result as evidence that Terri Schiavo's level of consciousness might have been underestimated.
Terri Schiavo is not in an MCS. According to the authors of the study, a diagnosis of MCS is reserved for a subset of patients who demonstrate "unequivocal, but intermittent, behavioral evidence of awareness of self or their environment." Unfortunately, Terri is even more severely disabled than the patients in this study.
2. There are new treatments that might help Terri
Despite what Terri's parents say, there are no new treatments that could help their daughter. Anyone who claims that he can improve Terri's level of consciousness is a quack. You can't treat a brain that isn't there.
3. Terri's collapse is unexplained and/or suspicious
In an attempt to discredit Michael Schiavo, Terri's parents and their supporters are circulating unsubstantiated rumors of abuse and even accusations of attempted murder.
Former chief medical examiner for the city of New York and co-director of the Medicolegal Investigation Unit of the New York State Police, Dr. [Michael] Baden is often quoted in news reports and interviewed on television. [...] Dr. Baden, who has written three books on forensic pathology, told [Greta]van Susteren: "It's extremely rare for a 20-year-old to have a cardiac arrest from low potassium who has no other diseases . . . which she doesn't have. . . . The reason that she's in the state she's in is because there was a period of time, maybe five or eight minutes, when not enough oxygen was going to her brain. That can happen because the heart stops for five or eight minutes, but she had a healthy heart from what we can see." [Village Voice]
Terri Schiavo was not a healthy young woman. Her heart stopped because of a potassium imbalance induced by severe bulimia nervosa.[AP]
Hypokalemic cardiac arrests are rare in the population at large, but they all too common in young women with severe eating disorders. Michael Schiavo successfully sued Terri's doctors for failing to diagnose her condition. If there had been an alternate explanation for Terri's condition--like attempted murder by the plaintiff--you would think the doctors Schiavo sued would have brought it up.
Here's a transcript of the Greta van Susteren's interview with Dr. Baden on FOX News.
In the interview Baden alludes to Terri's alleged "history of trauma" and suggested that her brain damage might have been caused by a "head injury." Dr. Baden's insinuations don't hang together. Both Terri's bulimia and her potassium imbalance are well-documented. Whereas there is no evidence that Terri Schiavo's brain was destroyed by any kind of trauma.
BADEN: Yeah, your staff has provided me with a bone scan that you guys obtained ah from her initial admission in 1991 to the hospital. And that bone scan describes her as having a head injury. That’s why she’s there, that’s why she’s getting a bone scan. And a head injury can cause, lead to the vegetative state that Ms. Schiavo is in now, and it does show evidence that there are other injuries, other bone fractures, that on healing-stage, so that...
Dr. Baden says that the bone scan describes Terri as having a head injury. The implication is that the bone scan reveals that she suffered a head injury. The paperwork requesting the bone scan describes Schiavo as having had a head injury, but the bone scan didn't show any evidence of head or neck trauma.
The head injury hypothesis is utterly far-fetched. Believe me, if Terri had been bleeding into her brain on the night in question, the ER would have noticed.
An even crazier theory of Terri's collapse is phantom strangulation. This one got a sympathetic hearing from both Hannity and Colmes. The evidence is that Terri was admitted with a rigid neck. So far, no one has claimed that Terri had any of the classic signs of manual strangulation. Patients who have been strangled tend to have bruises on their necks, petechiae in the whites of their eyes (blood spots), and bits of their assailant's flesh under their fingernails. Manual strangulation doesn't always leave marks, but why attribute to phantom stranglers what can be explained by hypokalemia?
4. Michael Schiavo abused Terri
There is no firm evidence that anyone abused Terri. A judge ruled the abuse allegation irrelevant years ago, but Terri's "supporters" are determined to keep meme alive just to destroy Michael Schiavo's reputation.
Dr. Baden alleges that a bone scan taken in 1991 showed that Terri had suffered trauma. Here is the deposition of the radiologist who analyzed Terri's bone scan, Dr. William Campbell Walker.
During the deposition, Walker acknowledges that the abnormalities on the bone scan could have been caused by Schiavo's collapse, vigorous CPR, an earlier car accident, prolonged immobility, or aggressive physiotherapy. Contrary to Dr. Baden's insinuation, the scan revealed no abnormalities in the head or neck.
By the time the scan was taken, Terri had already been in the care of a nursing home for several months. For all anyone knows, Terri's bones may have been damaged by neglect or abuse at the nursing facility.
5. Terri's brain damage was caused by a closed head injury
The head injury claim has been repeated over and over in the right wing media. Here's the only evidence I was able to find for this bold claim: In his deposition, Dr. Walker says that Dr. James Carnahan, Terri's rehabilitation physician, wrote "closed head injury" on a form requesting a radiological trauma work up. Maybe Schiavo has a history of closed head injuries, but it is absurd to think that a closed head injury caused her current vegetative state.
6. Michael Schiavo just wants to inherit Terri's fortune
What fortune? Even the pro-tube Terri Schiavo Foundation reports that of the nearly one million dollar malpractice settlement earmarked for Terri's future medical care, less than $50,000 is left.
The TSF is righteously indignant that a fair chunk of that money has gone to attorneys' fees. A judge authorized Michael Schiavo to spend that money on legal representation for himself and his incapacitated wife. It's odd that the TSF is so indignant, seeing as they picked the legal fight that depleted the account.
The TSF also acknowledges that Schiavo offered to donate whatever money he stood to inherit to charity if Terri's parents would stop trying interfere with his right to make medical decisions on behalf of his wife.
I just hope that these character assassins can be discredited before they ruin another person's life. Michael Schiavo has suffered enough.
http://majikthise.typepad.com/majikthise_/2005/03/index.html
BillyRay | March 21, 2005, 2:17pm | #
Best of the Web Today - March 21, 2005
By JAMES TARANTO
Till Death Do Them Part?
Congress has granted Terri Schiavo a reprieve. In an extraordinary midnight session, the House voted 203-58 to approve a bill to restore her feeding tube--removed last week by order of a Florida judge--and grant the federal courts jurisdiction over her case. The Senate had earlier approved the measure on a voice vote, but some Democrats obstructed the effort to pass it the same way in the House, forcing Republicans to assemble a quorum for a roll-call vote. President Bush, up well past his bedtime, signed the bill into law just before 1:30 a.m.
Supporters of Michael Schiavo's effort to end his wife's life have asked how conservatives, who claim to believe in the sanctity of marriage, can fail to respect his husbandly authority. The most obvious answer is that a man's authority as a husband does not supersede his wife's rights as a human being--a principle we never thought we'd see liberals question.
But why do those of us who aren't right-to-life absolutists side with Mrs. Schiavo's parents, who want to keep her alive, over her husband, who wants her dead? It's a fair question, and it raises another one: What kind of husband is Michael Schiavo?
According to news reports, Mr. Schiavo lives with a woman named Jodi Centonze, and they have two children together. Surely any court would consider this prima facie evidence of adultery. And this is no mere fling; a sympathetic 2003 profile in the Orlando Sentinel described Centonze as Mr. Schiavo's "fianc�e." Mr. Schiavo, in other words, has virtually remarried. Short of outright bigamy, his relationship with Centonze is as thoroughgoing a violation of his marriage vows as it is possible to imagine.
The point here is not to castigate Mr. Schiavo for behaving badly. It would require a heroic degree of self-sacrifice for a man to forgo love and sex in order to remain faithful to an incapacitated wife, and it would be unreasonable to hold an ordinary man to a heroic standard.
But it is equally unreasonable to let Mr. Schiavo have it both ways. If he wishes to assert his marital authority to do his wife in, the least society can expect in return is that he refrain from making a mockery of his marital obligations. The grimmest irony in this tragic case is that those who want Terri Schiavo dead are resting their argument on the fiction that her marriage is still alive.
Gary Gunnels | March 21, 2005, 4:38pm | #
BillyRay,
Then why the fuck would you post to wholly unrelated articles? Relevancy, fucktard, relevancy.
__________________________________________
The interview w/Dr. Baden (note that it is not remotely as damning as the pro-tube crowd makes it out to be - indeed, it is, as he clearly implies, largely conjecture):
“On the Record” with Greta van Susteren
Interview with Dr. Michael Baden, Forensic Pathologist, New York , October 24, 2003
Greta: Dr. Baden, a potassium imbalance, let’s first talk about if you have a potassium deficiency, can that cause the condition that Terri Schiavo has?
Baden: Um, can, but unlikely. Potassium is very interesting. It’s probably the most lethal poison we have when it’s injected rapidly, and that’s why it’s the poison that kills people, capital punishment by lethal injection. And it stops the heart from beating properly — too much of it. But also too little of it., hypo-potassium, can also cause the heart to stop beating properly and lead to lack of blood flow to the brain and death of brain cells by lack of oxygen. But that’s very unusual, Greta, extremely unusual.
Greta: A normal healthy woman, I assume, would have no reason, for instance, to take potassium supplements unless, perhaps, she’s on a diuretic or some other medication that would cause a potassium depletion. Is that right?
Baden: That’s correct. That’s right.
Greta: Is there any explanation then in your mind, and I realize you were not her team physician, but why would a woman at her age have a potassium imbalance?
Baden: Extremely unusual unless she had certain kinds of diseases, which she doesn’t have. She was in her twenties. The reason that she’s in the state she’s in is because there was a period of time, maybe 5 minutes or 8 minutes, when not enough oxygen was going to her brain. That can happen because the heart stops for 5 or 8 minutes, but she had a healthy heart, from what we can see. The other thing, though. . . I’m sorry Greta?
Greta: No, go ahead.
Baden: Yeah, your staff has provided me with a bone scan that you guys obtained ah from her initial admission in 1991 to the hospital. And that bone scan describes her as having a head injury. That’s why she’s there, that’s why she’s getting a bone scan. And a head injury can cause, lead to the vegetative state that Ms. Schiavo is in now, and it does show evidence that there are other injuries, other bone fractures, that on healing-stage, so that....
Greta: So, let me back up a second. Head injury. Could she have had, could she have passed out from a potassium imbalance causing a falling head injury? Is that what you’re talking about, or are you suggesting some pre-existing head injury to her passing out?
Baden: Something totally different. That it’s extremely rare for a 20-year-old to have a cardiac arrest from low potassium who has no other diseases. So the other issue is could it have been due to some other cause, which is raised by the family, has to be looked at.
Greta: Alright, other injuries and bone injuries, what does that suggest to you?
Baden: Some kind of trauma. The trauma can be from an auto accident, the trauma can be from a fall, or the trauma can be from some kind of beating that she obtained from somebody somewhere. It’s something that should have been investigated in 1991 when these findings were found, and….
Greta: They were fresh.
Baden: Maybe there were, Maybe they were investigated by police at that time.
Greta: Alright. Dr. Michael Baden, thank you.
Baden: Thank you, Greta.
http://www.zimp.org/stuff/15%20-%20DrBadenOntheRecord.htm
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