FW from Chip Lupu: Schaivo

[Ann Althouse]

You think the Constitution forbids a federal court from considering 
whether the state court violated due process as long as state courts 
gave a "full and fair opportunity" to litigate whether there was a 
violation of due process? An awful lot of habeas corpus law is 
unconstitutional then. I think you're just talking about jurisdictional 
policy then, not constitutional law. Congress defines the jurisdiction 
of the federal courts and this is the policy it adopted.

And are you actually consistent about that idea of jurisdictional 
policy? Do you approve of Stone v. Powell and think the rule of Stone 
v. Powell should be extended beyond Fourth Amendment claims to all 
claims of constitutional right?

Ann Althouse

On Mar 21, 2005, at 9:28 AM, Mark Rahdert wrote:

>  Where's the due process violation?  If it is substantive due process 
> we are talking about, I think Rebecca's observation stands.  If it is 
> procedural due process, the difficulty I have is with Congress 
> reopening the final judgment of a state court, long after the parties 
> in the case had a full and fair opportunity to raise their due process 
> procedural objections, and to have them reviewed (through cert) by the 
> USSC.
>
>  If this statute is constitutional, could Congress authorize the same 
> sort of federal action in a non-diverse tort suit involving punitive 
> damages?  I think the logical conclusion would be yes (since a 
> punitive damages award raises due process issues under BMW v. Gore and 
> State Farm v. Campbell), but my instinct tells me in the punitive 
> damages case that the constitutional answer should be no.
>
>  Mark Rahdert
>  Temple
>
>      At 10:03 AM 3/21/2005, Ann Althouse wrote:
>
> There's at least a right against the state depriving you of life 
> without due process. The argument is that the state courts denied her 
> due process.
>
>  And I don't see how this is like Boerne and Morrison, because it is 
> only addressing a deprivation of one person's life, not regulating in 
> a broad area. Could anything be more "congruent and proportional" to a 
> constitutional right than a law premised on one specific 
> constitutional rights violation that is actually occurring?
>
>  Ann Althouse
>
>  On Mar 21, 2005, at 8:45 AM, Zietlow, Rebecca E. wrote:
>
>
>  Ed and Sandy may be right, but there is a significant difference 
> between this legislation and habeas legislation.  Schiavo is not in 
> state custody nor is the state acting to take her life.  The only 
> state involvement here is the state court's decision not to intervene 
> in the private relationship between the patient and the doctor.  As 
> with Section 1983, the constitutional basis for this legislation must 
> be Section Five of the Fourteenth Amendment, with Congress acting to 
> protect Schiavo's "right to life."  (Our local paper reported that Tom 
> De Lay said what was at issue was the constitutional right to life).  
> However, there is a significant state action problem here since the 
> Court has held that a state's failure to act does not amount to state 
> action.
>   
>  It's highly possible that the members of Conrgess who support this 
> bill don't care whether it is constitutionald this is just about 
> political grandstanding (and deflecting attention from Tom De Lay's 
> ethics problems).  Consider the following possibility, though.  A 
> large number of people in this country believe that there is or at 
> least should be, a constitutional right to life.  Here, Congress is 
> interpreting the constitution on its own and asserting that there is a 
> constitutional "right to life."  Congress is going even further and 
> asserting that the state's failure to act here amounts to state 
> action.  Under the Court's precedents (Boerne, Morrison, etc.) the 
> bill is probably not constitutional.  But isn't this bill arguably an 
> example of "popular constitutionalism" in action, with members of 
> Congress asserting the constitutional vision of a large group of 
> Christian fundamentalists?
>   
>
>  Rebecca E. Zietlow 
>  Professor of Law
> University of Toledo College of Law
> (419) 530-2872
> rzietlo at utoledo.edu
>   
>   
>   
>  -----Original Message-----
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