FW from Chip Lupu: Schaivo
bobsheridan at earthlink.net
Sun Mar 20 18:53:21 PST 2005
On the question whether this proposed Act, affecting a class of one, by
name, no less, meets the congruence and proportionality test of Boerne,
I'm puzzled. Isn't everything proportional to one? Isn't everything
congruent to one? Where would the limit be on singularities? The
Boerne test is defeated, or at least obviated, by a singularity if this
Act meets it.
OK, so Congress says, as has been pointed out, that we're not
regulating substance, we're regulating procedure by creating a new one,
for one person.
But substantively, as has been pointed out, Michael S., as husband of
Schiavo, and, apparently, the designated (by the Florida courts)
authority to make the decision whether to remove the tube, has succeeded
in establishing his point, and his authority, in the Florida court, and
has exercised it.
As has also been pointed out, he is now being deprived of the fruit of
his litigation efforts, burdening him further, increasing his expense
and the difficulties attendant upon litigation on behalf of Terri,
presumably according to her wishes. This Act seems to be an undue
process to me, like the referee deciding to extend the length of the
game after the winning shot goes in at the buzzer by the disfavored
team. Talk about changing the rules of the election (process) after the
voting (process) starts! That, if I understand correctly, was the
winning EP violation complained of so fervently by the same
conservatives, in Bush v. Gore, also in Florida. I'd add Bush v. Gore
to the mix on that ground, in favor of unconstitutionality.
Which brings me back to Romer, which exists to deal with such
legislative flyers, as I read it.
How much harder Con-Law is to do looking forward than looking back!
This string looks a bit confused, perhaps even "confounded," at a higher
level, of course.
Mark Tushnet wrote:
>And I think that Chip has put *his* finger on the problem,
>which turns out to be one of circularity: The rational basis
>for singling out this case is that there is (some) reason to
>believe that the Florida courts erroneously determined
>what her wishes were (and less reason -- so far -- to
>believe that other courts have made similar mistakes); and
>(therefore) it's really hard to invoke her right to terminate
>treatment if she chooses when there's a rational basis for
>questioning the Florida courts' determination of her
>I'll have to think some more about Lynne Henderson's
>questions about Cruzan, but my first reaction is that
>there's no Boerne problem if all that Congress is diong is
>providing a federal trial level forum for determining whether
>the Florida procedures were constitutionally permissible
>under Cruzan (and -- here's where I have to think some
>more -- it may be that a de novo determination of her
>preferences will shed some light on the question of the
>permissibility of the procedures chosen from within the
>range of constitutionally permissible ones).
>To post, send message to Conlawprof at lists.ucla.edu
>To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
-------------- next part --------------
A non-text attachment was scrubbed...
Size: 73 bytes
Desc: not available
Url : http://lists.ucla.edu/cgi-bin/mailman/private/conlawprof/attachments/20050320/b4cd3eb2/bobsheridan.vcf
More information about the Conlawprof