Wednesday, February 21, 2007

Old (Mar.23,2005): Congress Out of Bounds on Schiavo Case

(This OpEd was written on March 23, 2005.)

To the editors:

There’s no getting around it - the United States Congress is out of control. Its current intervention in the Terri Schiavo case is only the latest example of how uncomprehending Congress is of the proper role of the legislative branch in our constitutional design; and of the proper role of government in general vis-à-vis the private individual.

Congress’s intervention is highly inappropriate. First, Florida state courts have determined repeatedly under the evidentiary standard enacted into law by the Florida state legislature (clear and convincing evidence) that Terri Schiavo would wish not to be maintained in a persistent vegetative state; second, the U.S. Supreme Court has recognized the fundamental right of individuals to avoid unwanted medical treatment. Congress, by interfering with what the courts and legislature of the sovereign state of Florida have determined in their efforts to respect an individual’s fundamental constitutional right, deeply offends the constitutionally-mandated balance of federal-state relations and separation of powers among the branches of the federal government.

More generally, Terri Schiavo has a natural right to determine how to live her life. It is not up to her husband, it is not up to her parents, and it is not up to the United States Congress - it is up to her, and to her alone. She decided she would not want to be artificially maintained in a persistent vegetative state, and her wish should be respected.

The sort of position being taken by Congress and the President in this and other cases would have been unthinkable through much of the nation’s history. The most basic concept among the founding generations for what this new nation of “America” was to stand for was the lofty principle that government of any sort simply lacks the authority – legal, moral, or otherwise - to interfere with individual liberty. The preeminence of this concept was recognized by Justice Louis Brandeis when he stated famously in 1928, “The makers of our Constitution … conferred, as against the government, the right to be let alone - the most comprehensive of rights and the right most valued by civilized men.”

In words that might have been penned directly in response to the actions of Congress and the President in this very instance, Justice Brandeis also cautioned, “Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent…. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”

We’ve come a long way in America since the founding, but unfortunately we’ve come in precisely the wrong direction on matters of individual liberty. One colleague puts it this way: “Instead of a land of individual liberty and … tolerance, America has become a land of public morality and intolerance, all without the benefit of constitutional amendment…. [and w]hile there is nothing wrong with having an opinion based upon one’s culture or religion, there is something wrong with imposing this opinion upon others in a pluralistic society founded upon individual liberty.” [Elizabeth Price Foley, Liberty for All: Privacy Versus Morality in the American Constitution (forthcoming, Yale Press)]

Congress’s actions in the Terri Schiavo case demonstrate yet again its utter lack of understanding of the core principle that government acts legitimately only insofar as it protects the individual’s “right to be let alone” as it does so. As a reminder to Congress, the President and other government officials of this axiom, Justice Brandeis’ “right to be let alone” opinion should be framed and placed in every federal and state building in the land - perhaps in place of the Ten Commandments.