Asymmetrical Information

Ah, but nobody can simply be wrong anymore, particularly in blogistan; they must be the servants of Beelzebub.

The problem with this whole argument is that federalism isn't a value. It's a Constitutional requirement. If Congress can violate the Constitution just because some congressmen think it's important, then we no longer have any meaningful limits on government.

And then there's the utterly ridiculous analogy. "If Florida, for example, were taken over by a rogue regime that was literally planning to launch a nuclear attack on Washington, D.C.," then the clauses giving Congress and the President the power to deal with insurrections and invasions apply. There's nothing in the Constitution clearly giving Congress the authority to intervene in matters of medical treatment, or in the application of state law by state courts.

It is claimed that Mrs. Schiavo/s due process rights were violated. However, she (or rather her parents) have had their day in court and then some. It's possible to execute someone in Texas whose lawyer didn't bother to put on a defense, as long as he had a pulse and didn't snore too loudly in court. It's possible to execute someone in Virginia whose lawyer wasn't even paid enough to cover a couple of days in court, let alone preparation, investigation, or pay for expert witnesses. It's rank hypocrisy to claim that indigent criminal defendants are receiving due process, but that all the hearings with high-priced lawyers and paid experts in the Schiavo case were insufficient.

It's also possible to claim that the single judge who did all the fact-finding in the Schiavo case is either corrupt or biased. The internet is no place for sorting out all the conflicting claims in this case, but it does sound like there were tests that could have been run and were blocked by Mr. S with the concurrence of the judge - like "my mind is made up, don't confuse me with the facts". The law as it is presently interpreted doesn't give higher courts much room to overrule the trial court on issues of fact - but the Schiavo law does not fix that.

The succinct answer to Buck's post and your endorsement of it is: "That which should be obvious to all, is obvious to few."

This is not a states' rights issue; it's a Congress vs. the Courts issue. Congress can't tell the courts what cases to hear, or who has standing in the court. Period. A state where the legislative branch has such influence over the courts would be callled the Soviet Union.

Didn't President Lincoln violate the Constitutional principle of Federalism and, thus, States Rights, in his efforts to abolish slavery?

Not every balancing of competing interests is hypocritical nor is blind consistency virtuous.

John -- Congress has regulated the jurisdiction of federal courts ever since the Judiciary Act of 1789. Under Article I, section 8 of the Constitution, Congress is empowered "to constitute Tribunals inferior to the supreme Court," a phrasing that is usually taken by scholars to indicate that Congress actually never had to create lower courts in the first place. And as to the Supreme Court, the Constitution itself says in Article III that "the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."

Markm: There is no such thing as a generic "Constitutional requirement" of "Federalism." There are specific instances where the Constitution preserves state power (the 10th Amendment), but there are also specific instances where the Constitution provides that federal law trumps state law (e.g., the Fourteenth Amendment, the Supremacy Clause).

If Florida, for example, were taken over by a rogue regime that was literally planning to launch a nuclear attack on Washington, D.C., hardly anyone would maintain that the federal government should not interfere due to federalism principles.

Of course not, since we all know that the Constitution gives the federal government the power to deal with “insurrections and invasions” dealing with a rogue regime that plans to launch a nuclear attack on the seat of government certainly falls within that authority.

Didn't President Lincoln violate the Constitutional principle of Federalism and, thus, States Rights, in his efforts to abolish slavery?

No, because once they fired on Fort Sumter it fell with in the power of the federal government to deal with insurrections. Or if one believes that States do have the right to secede from the Union, it was an act of war by a foreign power in which case they (the Confederacy) would no longer have any “State’s rights” under the Constitution.

Of course, the Constitution authorizes Congress to protect against insurrections. But the Constitution also authorizes Congress to make legislation governing the way in which states give their own citizens due process or the way in which states protect their citizens' lives (section 5 of the 14th Amendment). In either case, the question is one of balancing generic federalism principles against a constitutional grant of authority.

Anyway, those of you who object to my example are completely missing the point. The point is that for virtually any principle that you claim to hold dear, there is some conceivable instance in your principle would lead to so much harm that you would allow a competing principle to win. And that's not even my central point, which is that even if you really do hold a given principle with unwavering absolutism, you have no right to call someone else a hypocrite simply because they believe in that principle most of the time but occasionally weigh competing principles.

Stuart: The Constitution's whole basis is that the federal government has only the powers expressly given to it in the Constitution. "The powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States respectively,
or to the people." Can you point out one power delegated to the federal government that applies to the Schiavo case?

What purist pap. When we make arguments against your actions (or vise-versa), we're generally arguing that either (a) you don't share our basic principles (amoral), (b) you share our principles, but are too incompetent do to your sums right and order those principles properly, or (c) both. The more egregious your actions or claims, the stronger our arguments against them. If you don't like the word "amoral," you've only yourselves to blame; it wasn't us who made it uncomfortable to claim that large mistakes were made apart from Original Sin. If you don't like "idiot," give us arguments; slogans like "Culture of Life" coming from a man who mocked a condemned woman's desire to live and who thinks there is not sufficient likelihood of a wrongful death penalty conviction to "err on the side of life" are less than fulfilling.

Claims of hypocrisy are calls to account - we want to know which of the three categories you fall into, because only then can we make more basic arguments. Back before Republicans became complete hippies, our calls for some sort of accountability wouldn't have been deemed so shocking. Welcome to a New World Order, I guess.

Gee whiz Mark...try 4 amendments later, the government tried to address that some. Amendment XIV Section 5.

Tim -

Were you responding to markm? Or Stuart Buck?

markm,

"nor shall any State deprive any person of life, liberty, or property, without due process of law" (14th Amendment, section 1)

"The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." (14th Amendment, section 5)

Congress _has_ the power to defend the lives of persons from their state courts.

I'm all for Constitutionally limited government, but let's try to remember that some acts of government really are Constitutionally legitimate. It's not hard to figure out which ones.

Matt, go back and read my first post.

Markm -- you're still not comprehending the basic point if you think that I was arguing that Congress definitely had a constitutional right to get involved in the Schiavo case. Assume for the sake of argument that Congress has no constitutional power here. My point is that you (and everyone else) are still balancing competing principles here.

Federalism is a process value, which I think cannot be evaluated in the same way as an outcome value. Everyone when supports federalism when it happens to coincide with their desired policy outcomes. Federalism only has any relevance if you're willing to support it even when you don't like the policy outcome. In that sense federalism is like support for rule of law or strict construction. You might be able to weigh those process values against other process values, and you might be able to argue about the proper application of those values to particular policy disputes, but if you're willing to weigh outcome values against process values, you don't really believe in the process values.

The Terri Shiavo case is a particularly poor case to make the argument federalism should yield when other concerns are more important. If this case ranks as a 9 or 10 on a ten-point scale of importance, what could possibly rank 5 or lower? A kitten stuck in a tree? Even if we accept the most extreme pro-life interpretation of the case, we're only dealing with the murder of one individual. That's hardly a crisis. You can claim that you value federalism at 8, but that's meaningless if you rank every other issue at 9 or 10. You need to have some reasonable distribution of values across the spectrum. If federalism can be trumped in a case this trivial, it's utterly meaningless.

Xavier, if you work outward from the concept that every noteworthy action in a society -- particularly where the courts are involved -- sets a precedent by which future similar opportunities will be acted upon, then it IS possible to believe that more than "one person" is at stake in the outcome of the Schiavo case, and thus believe that it is something greater than "trivial."

I also don't think you have even come close to understanding the "most extreme" prolife view, which would hold the value of an innocent life as superseding every other principle, process or outcome.

Tom DeLay, grandstanding about Teri Shiavo but insisting his own family's decision to pull the plug on his dad was a private matter: hypocrite.

George W. Bush, who as governor of Texas signed into law a bill that lets doctors pull the plug as soon as the money runs out, flying back to the White House to sign into law a bill to protect Teri Schiavo: hypocrite.

Or have we reached the point where "respect for human life" and "political gain" are just competing principles that decent people can assign differing values to -- no harm, no foul?

I'm not calling anyone a servant of Beelzebub.

I agree, not morally bankrupt. But politically inept, regardless of the arcane Constitutional principles. Let's face it, they are pretty damned arcane and trivial in the minds of most who have watched this case 24/7 before PopeWeek(TM) started this morning.

I heard a radio interview with Scott Schhiavo, brother of Terry's husband. According to his version of events, the Schindlers are really terrible people. Now, I'm willing to concede that everyone involved might be terrible, but if Scott's testimonial is even halfway in line with the truth, these are rotten, petty people. Rotten and petty to the end, past the end. NRO is making a stink that Terry was cremated despite the wishes of her parents (ok, place your bets on what the parents wanted to do with the body) that she be (everyone got their bets in?) burried.

Stuart Buck writes "Assume for the sake of argument that Congress has no constitutional power here. My point is that you (and everyone else) are still balancing competing principles here."

I agree with your general point... I dislike the idea that many hold that when someone disagrees with then, their opponent is either stupid, ignorant, or immoral. Or some combination of the three.

That being said, I believe that many -- not all -- who supported Terri Schiavo's parents were and insincere. I won't believe in their sincerity until they are just as vocal in the case of Spiro Nikolouzos.

Stuart also wrote: "The point is that for virtually any principle that you claim to hold dear, there is some conceivable instance in your principle would lead to so much harm that you would allow a competing principle to win."

Isn't it Rehnquist who said that tough cases make bad laws? (A quick search shows it to be an old maxim. He may have repeated it.) Your "some conceivable instance" is the tough case.

I think if you (generic you, not you specifically) need to break your principles to deal with the tough case, then perhaps your principles aren't principles but general guidelines.

We'd all like to think we're rational. But more often, we're rationalizing. And think what we want is what's right.

The violation of federalism wasn't the tubers' main error. They mistakenly hold on to the belief that a heartbeat is the primary signal of human life, when most of us agree that it's a brainwave. Having made this error and mistakenly attributed human life to a dead woman, they then showed themselves willing to destroy our entire system of government on the basis of their hallucinations, their imaginary friend in Heaven, and the marching orders of Randall Terry.

Federalism is a system of firewalls that's meant to contain such damage, and it's not negotiable.

Stuart's post is retarded.

I think Stuart's point is axiomatic -- and is proven by some of the comment reactions.

My problem is that those at the far ends of the "competing principles" so quickly resort to name calling and hyperbole to attack the other side -- and "hypocrite" is a mild rebuke compared to others I have read over the past week. Richard's comment is a fair demonstration -- "retarded?" Don't be silly.

I'm happy to call Congress' action on this matter ill-considered, politically stupid over-reaching -- even an excessive emphasis on the "value of life" principle. But it was not hypocritical.

What I also find amusing is that the support that Terri's people (and Congress) received at the appellate level came from Clinton appointees, not conservatives. That should give Delay and Frist something to ponder.

Parker:

I was replying to Jane, and by reference, Stuart.

I think there were very valid points by both sides. But with Tom Delay as the front man, the motives of the reps as a party are very questionable. The insurance money was gone, Terri was on medicaid, does anyone think if not for the evangelicals and the publicity that the fiscal conservative reps, that just voted to cut medicaid, would have supported Terri's ongoing "treatment"? Delay's home state of Texas has just passed a law that puts the lives of people on ventilation and other more heroic measures of sustaining life in the hands of their MD's, rather then their families or guardians.
I respect the beliefs that motivated the evangelicals to fight to sustain Terris life, but I hate the in your face political bs that brought Delay and his ilk into this debate. If I were an evangelical I would be asking why congress chose to not go all the way in drafting a bill to save Terri, and why Jeb Bush sabatoged his own injunction by announcing it in advance.

The comments to this post make a good argument for the premise of the post, especially those that disagree.

"We hold these truths to be self evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness." - Thomas Jefferson

Hypocrisy abounds on both sides of the Shiavo tragedy. Perhaps the first was Mr. Jefferson thinking he and a batch of criminals could “form a more perfect union”.

It is my opinion that the death of the most innocent and vulnerable among us does not raise the level of our society, nor advance the cause of our humanity.

Does this mean if we comb through Jane's and Stuart's posts, and find one of them referring to someone as a hypocrite, and we make the meta-claim that Jane (or Stuart) is thus a hypocrite, they will then make the meta-meta-claim that we ought not to have done that?

Stuart's point about competing rights is a truism in politics, but it just doesn't have much to do with this case.

The reality is that Terri Schiavo died 15 years ago, and nobody in Congress genuinely believed they had the power to resurrect her. It was all showboating from Washington, and if you need more evidence consider this: as soon as the polls came out saying the vast majority of Americans disapproved of Congressional resurrection, they backed off. Way, way, way off. Except for Santorum and DeLay, they all pretended the Palm Sunday Overreach never happened.

Was that the act of a body attempting to balance two competing principles, or of one that learned that its latest attempt at grandstanding had failed miserably?

Here's another: Tom DeLay, bless his black little heart, made his living as an exterminator before getting elected to Congress. Are exterminators high on your list of people with great "reverence for life?"

So Fabulous writes: "Delay's home state of Texas has just passed a law that puts the lives of people on ventilation and other more heroic measures of sustaining life in the hands of their MD's, rather then their families or guardians."

It wasn't "just passed", it was passed in 1999 and signed into law by George W. Bush.

Suppose Terri Schiavo had been in Texas and further suppose that Michael Schiavo had the same viewpoint as Terri's parents. Too bad, her life support could have been turned off without the consent of *any* family member.

George Bush is a hypocrite. Why isn't he trying to save the life of Spiro Nikolouzos?

And what about separation of powers? Congress put itself in the role of a court, making specific factual determinations, imposing a specific remedy, and creating a specific right for one family only.

That's unconstitutional even without federalism. Now if this were the first time they'd done something like this, we could give them a pass on "ignorance of the law" grounds, but they did the same thing with Elian Gonzalez, throwing family values to the sharks to swim with the Castro-hating Miami Mafia.

By now it's a pattern, and we can't ignore it.

What an utter non-sequitur, Richard Bennett... Is DeLay's having been an exterminator any more relevant to his Congressional role than Byrd's having been a Klan recruiter? What conclusions shall we draw from Byrd's change in careers, given that having killed pests apparently makes DeLay "anti-life"?

How this thread deteriorated into "He's a hypocrite!" "No, they are!" "No, she is!" "They ALL are!" within a mere handful of comments is instructive. And the quarters from which the statements come as well. Should I take it as an axiom that the side making the accusations is ideologically pure (and that that's a virtue), and the side failing to take the bait guilty of the accusation? Or should I go with Buck's analysis?

I'm going with Buck.

Michiganer -- "That being said, I believe that many -- not all -- who supported Terri Schiavo's parents were and insincere. I won't believe in their sincerity until they are just as vocal in the case of Spiro Nikolouzos."

So Fab -- "Delay's home state of Texas has just passed a law that puts the lives of people on ventilation and other more heroic measures of sustaining life in the hands of their MD's, rather then their families or guardians." (correction as to 1999 date of law noted)

I don't think most people are familiar with the Nikolouzos case, and it's hard to get worked up over something you've never heard about. Therefore, I would think it would be hard to attribute insincerity on that basis.

Second, from my very limited reading about that case, the man is not just on a feeding tube, but also a ventilator. You may not think that the line between eating on one's own and breathing on one's own is important, but if someone else does, that's not insincerity.

Finally, I don't like the Texas law (again, based on limited reading), but I am more comfortable (or better, less uncomfortable) with a statutory scheme that provides for decisions to be made by medical professionals, rather than 8-year-old hearsay testimony about what the patient would have wanted, given by witnesses who may have a conflict of interest.

The Florida law doesn't really leave decisions in the family's hands, as So Fab suggests. There is a guardian, but that guardian's job is to uphold the patient's wishes. In many cases (and there's reason to believe this was true in the Schaivo case), the guardian doesn't really know what the patient would want. Nevertheless, rather than making a decision as a health care proxy, he has to go to court to prove her wishes by clear and convincing evidence.

Btw, I suspect the clamoring over the Texas law is merely a way of playing gotcha with Bush and Bush supporters, and is not based on the content of the Texas law.

I posted this as a comment on my own blog, but it is even more apt as to many of the commenters here:

The problem with trying to make an abstract point -- that people are not necessarily hypocrites when they balance competing principles differently --is that if I make the point in the context of a concrete case, or if I provide hypothetical examples, people get hung up on irrelevant objections. Instead of considering the abstract point, they immediately want to start disputing over whether the hypothetical is realistic (even when I already said that it was not), or over the merits of the concrete situation supplied as an example, etc. In other words, they completely miss the point.

From National Review
http://www.nationalreview.com/thecorner/05_03_20_corner-archive.asp#059265

WHAT HAPPENED IN TEXAS [K. J. Lopez]
I'm still hearing the talking point about how Bush is a hypocrite re Schiavo because of a bill he signed in Texas. This post, from earlier in the Week here, I think is helpful:
WHAT PRESIDENT BUSH DID IN TEXAS [K. J. Lopez]
I got into this a little last night, but here’s a little more background on something I suspect you might have heard yesterday and will continue to hear today. During the debate over Terri Schiavo’s life in Congress on Sunday, Democrats in the House of Representatives argued that President Bush is inconsistent in his support for Terri Schiavo because when he was governor of Texas he signed a bill that was recently used in a terrible case in Texas to deny lifesaving treatment to a baby against the child’s family’s wishes.
But according to a source familiar with what went down in Texas, the then-governor signed into law the best bill he could get at the time, improving an already bad situation. Here’s some background explained:
In August 1996 the Journal of the American Medical Association published an article describing procedures then in effect in Houston hospitals. Under these procedures, if a doctor wished to deny a patient lifesaving medical treatment and the patient or the patient's surrogate instead steadfastly expressed a desire for life, the doctor would submit the case to the hospital ethics committee. The patient or surrogate would be given 72 hours notice of the committee meeting would be allowed to plead for the patient's life at it. During that short 72 hour period, the patient or surrogate, while preparing to argue for life, could also try to find another health care provider willing to give the lifesaving treatment, food or fluids.
If the ethics committee decided for death, under these procedures there was no appeal. There was no provision that the food, fluids, or lifesaving treatment be provided after the decision while the patient or family tried to find another hospital willing to keep the patient alive.
So under these procedures, the hospitals in Houston were denying life-saving treatment, food and fluids against the wishes of patients and their families, when the hospital ethics committees said their quality of life was too poor. Patients and families were being given only 72 hours after being notified of the proposed denial to find another health care provider.
In 1997 there was an advance directives bill going through the Texas legislature that would have given specific legal sanction to such involuntary denial of life-saving treatment. An effort in the Texas legislature to amend the bill to require treatment pending transfer to a health care provider willing to provide the life-saving treatment had been defeated. When that bill reached Governor George Bush’s desk, he vetoed it, and said he was vetoing it precisely because it authorized hospitals to deny lifesaving medical treatment, food, and fluids against the will of the patients.
But even without that bill, these procedures were still going on. So there was an effort in the next sitting of the legislature, in 1999, to pass protective legislation. Unfortunately, the votes just weren’t there to require lifesaving treatment, food, or fluids be provided by unwilling hospitals. So there were negotiations that resulted in a bill that gave partial protection. That 1999 bill:
first, formalized more protections for in-hospital review
second, gave patients 10 days of treatment while seeking transfer, and third, authorized court proceedings to extend the 10 days for reasonable additional periods to accomplish transfer.
Now this was not what patient advocates wanted and it wasn’t what Governor Bush wanted. However, it was an important advance over the existing situation of no legal requirement of treatment pending transfer, for any period of time. The votes were not there in the Texas legislature to accomplish a more protective bill. So Governor Bush signed it because it was an improvement over the existing law.

Sytrek, thank you for posting that piece from the Corner. That pretty much confirms what I had heard about the Texas law and then Governor Bush’s reason for signing it. Not that the troll(s) who brought it up could be bothered to provide any context for it.

Of course, the Constitution authorizes Congress to protect against insurrections. But the Constitution also authorizes Congress to make legislation governing the way in which states give their own citizens due process or the way in which states protect their citizens' lives (section 5 of the 14th Amendment). In either case, the question is one of balancing generic federalism principles against a constitutional grant of authority.

That’s a gross mischaracterization of the “due process” clause of the Fourteenth Amendments. The purpose of said clauses was to provide protection for the individual against State-initiated actions (e.g. criminal proceedings) rather than protection against actions brought about by individual (e.g. a family member no longer wishing to provide life prolonging procedure). It does not give Congress carte blanch to legislate on any private dispute that might conceivably come before a State court simply because a judge might be required to issue a ruling or apply State-law to a case.

Thorly, since Im the troll that brought up the Texas law, a few points you either lied about or missed. First, I never called Bush a hypecrite or even tied him to this law in anyway. Second, what you call "context" is in reality nothing more then a rationalization that seeks to distance Bush from whats now a very unpopular law. Maybe if Bush was dealing with a dems dominated state legislature this sort of bad law could be excused as a compromise, but thats far from the reality in Texas.

Stuart,

Professor Bainbridge had a similar comment on his blog, which was that it wasn't that the principle of federalism was disregarded, but that there are principles which also compete and one must do a balancing test in one's mind - lest one make federalsim an irrational fetish that knows no limitations.

Clearly, the Constitutional structure does not make Federalism into a fetish. The Supremacy Clause alone should disavow one of such an illision. But you're also right to point to Section 5 of the 14th Amendment, which was passed specifically to deal with state instances of continued repression of (black, but also northern Republican) peoples' rights after the civil war.

Re Stuart Buck's last comment: I think that when you make a general point in the context of a particular, highly charged set of facts, you ought not cry foul when people challenge whether the general principle has anything to do with the set of facts in question. It's certainly true that it's legitimate to balance competing values and that people ought not be accused of hypocrisy for doing so. But when you do so, you need to be able to explain why you're striking the balance the way you did, and if your argument is completely implausible, others may be justified in suspecting that you were doing something other than a principled balancing of values.

And in the Schiavo case, it's fair to point out that someone who believes that federalism must give way to allow a one-time federal remedy for claims that a state court has made incorrect factual findings just doesn't believe in federalism much at all.

You wrote:

"Example: Do you believe in free speech? Yes? Well, then, do you believe that someone can post your social security number, checking account and credit card information, and your complete medical history on the Internet? No?"

What nonsense. The Free in Free Speech means Free from government restrictions, not freed from legal responsibilities relating to privacy issues.

If you give your social security number to an employer, in return you are given a promise that your social security number will remain confidential. If that confidence is broken, you have legal remedies. If, however, you do share important personal information with an entity not bound by confidentiality, well, your personal data may fall into more hands than you'd like.

But the aforementioned has nothing to do with the legal issue of Free Speech.

Richard Bennett wrote:

They mistakenly hold on to the belief that a heartbeat is the primary signal of human life, when most of us agree that it's a brainwave. Having made this error and mistakenly attributed human life to a dead woman, they then showed themselves willing to destroy our entire system of government on the basis of their hallucinations, their imaginary friend in Heaven, and the marching orders of Randall Terry.

People on lifesaving measures who are effectively "completely" dead (whether or not they stand a reasonable chance of reviving later) typically don't respirate under their own power.

Are you basing your brainwave argument on some sort of specific standard (and if so, please give a cite or other pointer) or just a personal interpretation? The brain stem may be a very primal organ, but try living without one even while the hemipheres remain intact.

I think Thorley provides a good example of Stuart's point by calling troll.

Thorley, perhaps if President Bush is so opposed to the situation, you could outline for us the steps he's taken to change the situation now that he's president?

sytrek, you provide an interesting post. But the Nation Review doesn't quite provide an objective point of view.

Let's consider a source not interested in politics, an article written in 2000.

http://www.baylorhealth.edu/proceedings/13_2/13_2_fine.html

''If either the family does not seek an extension or the judge fails to grant one, futile treatment may be unilaterally withdrawn by the treatment team with immunity from civil or criminal prosecution. (This is the “legal safe harbor” for physicians, institutions, and ethics committees, the first of its kind in the country.) ''

And you can read an actual case history:

"Still more than a month before the new law was to take effect, the attending physician was unwilling to withdraw treatment in the face of a daughter who was hostile to such action with its attendant potential for legal liability. [...]

"As the September 1 beginning of the new Texas Advance Directives Act came into effect, the treatment team and ethics committee again attempted to achieve consent for withdrawal of treatment with a shift in goal to comfort care only. When such consent was again not forthcoming, the 10-day process was put into place."

So the law in actual practice made it easier to discontinue life support. By making for the first time anywhere, legal safe harbor for the doctors.

Props to Chris.

The original Stuart post is disingenuous well past the point of insulting.

"Chris" demonstrates the very phenomenon that was addressed in my last comment. (Not to mention being completely wrong: any legal obligations as to privacy obviously conflict with an absolutist notion of free speech).

Michigander:

The worst thing one can say about the '99 Futile Care Act, it seems to me, is that it may have had the unintended consequence of making doctors more willing to withdraw life support in the face of family opposition, since the prior situation was indubitably worse, on paper at least. Ten days to prepare for a hearing and to find an alternative care facility is better than 3 days, isn't it? Neither is as good from a sanctity-of-life standpoint as "indefinite care independent of ability to pay, scarcity of resources, and futility of treatment," but this is not utopia we live in here. (I'm well aware that for most commenters it ain't Texas either.)

Coming full circle back to the point of the post, does not the '99 Act illustrate a Texas attempt to balance the competing values of sanctity of life and fiscal responsibility, by seeking to ease the task of a patient-surrogate in a case where doctors and ethicists have determined that treatment is futile? (I can't recall how they defined "futile" - whether the patient had to be terminal, or just unable to recover or improve - and that definition does matter to me. I'll have to go back to it.) As such, is it hypocritical for a state's then-governor to have signed it, noting that it wasn't the bill he wanted but did represent an improvement over the status quo?

Heavens, is it not acceptable to compromise on anything? Compromise can be ideologically dangerous, but it's an underpinning of our system. I can see how Bush's compromising tends to fly in the face of the idiot-ideologue meme, but can't we all just let that tired old thing go now? This example is a black swan - and you can say all day long that they don't exist, but the groundskeepers at Leeds Castle will show you a shovelful of scat from 'em.

It wasn't ever my intention to blame Bush for the 99 futile care act, or Richards if she previous to Bush signed an even more harsh version of the law. The Texas Gov has limited powers compared to other Govs. My point was that the 99 Texas futile care act was much more represenitive of conservative thought on end of life issues then Delay and the other reps out in front of the Schiavo case statements indicate. This is not a step back from my contention that Bush could have forced other Texas reps into crafting a bill in 99 that showed the type of interest in preserving life as he demonstrated in the Schiavo case. I don't think Bush overplayed his hand in the Schiavo case to the extent of having to hit him with it, but if your going to call me a troll...

Someones medical records are private property and unless one has consent, one must use force to obtain them (by breaking into a file cabinet or its electronic equivalent). To say that publishing this illegally obtained information is a violation of free speech is a gross misunderstanding and application of the principle of free speech – and doesn’t do much good in the service of protecting it from its detractors.

Principles, if properly formed, understood and applied, do not conflict.

Sorry, I meant to say.. "To say that banning the publishing of this illegally obtained information..."

My Bad

Principles, if properly formed, understood and applied, do not conflict.

I generally agree with this statement. It seems to me that much of the need for “balancing” in the previous examples came as a result of an improper formation, understanding, and/or application of the underlying principles involved.

Believing in federalism does not necessarily mean that any and every issue gets left to the States particularly not when certain issues (e.g. insurrections) are enumerated powers of the federal government.

Supporting the “due process” clause of the Fourteenth Amendment as a check on the power of the States when they initiate an action against a citizen (e.g. criminal charges), does not mean that the federal government now has a blank check to intervene in any and every dispute between private citizens of the same State so long as they appear in a State court.

Believing in freedom of speech does not mean that someone can commit an otherwise criminal or tortuous act (e.g. theft of personal information) and then claim immunity on the grounds of speech.

Even in the case of the TX law signed by Governor Bush, it wasn’t necessarily a “compromise” of any principles for Governor Bush to sign an imperfect bill that was closer to his ideals than the status quo, particularly if he reasonably thought that was the best deal he could get at the time and it was a net improvement. Nor is it somehow “hypocritical” to try to get the most bang for your political buck by then going on to invest finite political capital on other issues if you think you can make more progress in those areas than you can on that issue.

Or, maybe we're conflating a principle with its application. The strict idealist will fight for absolute enforcement of the principle heedless of the cost. The strict pragmatist will apply a cost/benefit analysis and apply the principle only to the extent that a relative maximum feasible good is obtained at a relative minimum feasible expense. And most people invariably fall somewhere between the extremes for any given principle, although some are indeed near or at one of those two poles.

Thereafter, we can identify a large subset of people that suffer from the condition of PBD (Political Bipolar* Disorder) -- when "their" party is in charge, they tend pragmatic; when the "other" party has power, they lean idealistic.

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* Yes, I know the in-vogue term is now Multiple Personality Syndrome/Disorder or some such. Why say a mouthful when three staccato syllables will suffice?

Hence the distinction between meaningful discourse, and rhetorical sewerage. One is vital to the maintenance of the Republic. The other is discarded pending treatment.

You're right, very good post.

So Fab:

I'm sorry, you're right, I was out of line. I made the foolish assumption that your motive in bringing up the Futile Care Act was a Bush-gotcha, as I've seen it applied that way an *awful* lot lately. Please accept my apology for tarring you with the same brush.

That said, I don't think I agree that the Act is "much more represenitive of conservative thought on end of life issues then Delay and the other reps out in front of the Schiavo case statements indicate," as you stated. I don't see how conservatives (if there IS such a bloc on this issue) could possibly be happy with the terms of the Act; it doesn't (and can't) go far enough on the side of either fiscal responsibility or preservation of life. I don't see how ANY kind of compromise concerning these particular competing values could truly please anyone.

As others have said much better than I, medical technology has outstripped our ability to deal with the quandaries it puts us in. In my own case, my principle is that human life is so valuable that, where its owner wants it preserved, it should be preserved at any cost for as long as the owner wants. But reality stomps all over that principle, requiring me to recognize that "at any cost" is a mighty high number these days and can involve diminishing returns. So my conservative viewpoint is that no one can win in a case where the Futile Care Act is applied; it exists to balance - painfully - a guiding principle with a fiscal reality. I don't have to like it, and I don't, but I have no better or more viable idea how to handle it... so I accept it grudgingly.

Stuart's post in a nutshell:

(1) When people say or do things that appear inconsistent they are often just balancing principles differently.

Therefore:

(2) It's unjustifiable to ever call people hypocrites?*

(1) is fine. (And the world would be a better place if people remembered it more often.) But (2) doesn't follow from it. Of course, it's always *possible* that people are just balancing things differently. It's also possible that they're hypocrites. Which of these possibilities is the true state of affairs will depend on the case, and is open to a fair degree of judgement.

People seem to be talking past each other here.

* Apologies if this isn't actually what you intended, but it seems to be what a lot of people have ended up defending, at least implicitly.

on the broader issue of thinking people who disagree with me are amoral hypocrites, i never used to think that way till ruch limbaugh ann coulter and sean hannity showed me the way.

Another take on the "Republicans are hypocrites for playing fast-and-loose with federalism in the Schiavo case" theme:

Republicans generally value the Constitutional principle of federalism more than Democrats. However, in practice, it is largely the Democrats' vision of expansive federal power that has prevailed. If Republicans were to restrict their tactics to those that would be appropriate under their understanding of the Constitution's federal structure, they'd be at a huge disadvantage vis-a-vis their Democratic opposition, who, being under no such constraint, would eat their political lunch.

By all means, Republicans, strive to restore the rules of the game to what you believe they ought to be under the Constitution's true meaning. Until then, though, play the game as the rules stand. To do otherwise would be like a football coach, who was trying to eliminate the forward pass from the rules, as foreign to the True Spirit of Football, refusing to use the pass as long as it was in the rules. That would be a recipe for a losing season (unless he happened to play in the SEC).

Since when have Democrats ever hesitated to involve the federal government when it produced a Democrat-favored outcome, federalism be damned? Their charge of hypocrisy is pure cynicism; they hope, by impelling Republicans to limit themselves more than the present state of Constitutional law requires, to secure for the Democrats a political advantage.

OTOH, Duck, the type of behavior you impute to Democrats definitely supports Chait's side of the ongoing liberal/conservative empiricist/idealist debate at NRO.

Well, there you have it. The GOP doesn't have to stick by its principles, because, hey, they might lose some ground to the Democrats. Of course, they articulate the principles of federalism when they want votes from the "get the gov't off my back" crowd, but then get to repudiate it because politics is hard work.

Red,

Now that's just silly. Take your argument to its logical conclusion: You're essentially saying that fidelity to one's political principles require you to act as if the law had already been changed to reflect those principles. That would mean that a person who advocated a flat tax must decline to take deductions under the present tax code, or that a person who advocated higher marginal tax rates must voluntarily pay higher rates than the law presently requires. How many Democrats in the top tax bracket would voluntarily pay a 45% marginal tax rate? Are those who don't being untrue to their principles?

Jamie,

I've only briefly glanced at the NRO Chait/Goldberg exchange. As I understand it, Chait's position is that Democrats are pragmatists; they only believe in "what works."

Now, it's true that Democrats typically take a pretty pragmatic, or quasi-pragmatic, approach to issues of legal or Constitutional procedure: Whatever advances left-of-center ends is good. But all this really means is that establishing or preserving a particular constitutional framework is not a liberal ideological objective, not that there ARE no liberal ideological objectives. And there are plenty of those: equality (of opportunity or of result, depending on whom you ask); aiding the poor (EXCEPT when doing so might impinge on the advantages of favored special interests like teachers' unions); defining human life as narrowly as possible; promoting a secular worldview, etc. Whatever advances these objectives is what "works" to a liberal. The filibuster is an outmoded, undemocratic relic when a Democratic president is trying to get judges confirmed, but a Pillar Of The ConstitutionTM when it's t'other way 'round. Piling procedure upon legal procedure is the thing to do when we're trying to keep multiple murders from being hanged, or kangaroo rats from being bulldozed out of the way of California strip malls, but when it comes to pulling some vegetable's feeding tube, by all means, strip the procedures down to the bare bones.

Although I generally agree with Stuart Buck's take on hypocrisy, these turnabouts are so drastic that I have to work really, really hard to see them simply as honest balancing of competing interests rather than actual, cynical hypocrisy.

To conservatives, on the other hand, issues of federalism ARE among their ideological objectives; the Constitution is one of the social goods conservatives want to conserve -- which is why they should at least hesitate before taking pages from the liberal playbook (even if that playbook happens to be consistent with the present rules of the game) as they did in the Schiavo case.

Indeed, Duck... I agree with every darn thing you said, I think. My observation was an idle one to keep my fingers awake. (I share your whiplash from trying to follow the switches, too.)

Duck, you've basically made a form of a prisoner's dillemma argument:

Federalism

              R - Uphold it      R - Don't
==============================||=============
D - Uphold it ||  even fight  || R win/D lose
              ||==============||=============
D - Don't     || R win/D lose ||  even fight
              ||==============||=============

Just one small problem. In the first square, Federalism is alive and well; in the second and third squares, it suffers but can still make progress; in the fourth square, it ceases to have meaning.

I think you state correctly that once one party other fails to support a given principle, both will buck to avoid being at a disadvantage. Pretty rational and pragmatic, actually.

But given the current political climate, I think you are quite mistaken to suggest that the Republicans value it more. First, while you will notice that the fourth square makes for an even fight, federalism is effectively dead; what good is that if federalism is actually an important principle?

Second, what advantage are they trying to avoid giving the Democrats? The Republicans control both houses of Congress, the presidency, and a not-insignificant fraction of state governorships.

Let's avoid sugarcoating here: the Republicans have a lot of power right now, and they like the taste of it. Federalism can take a hike until the inevitable future power switch, when it will suddenly become a relevant issue again. Or maybe the Democrats will suddenly decide it's a good idea, in order to try and expedite said power switch.

whoops, minor mistake. Panel three of the Prisoner's Dillemma should read, obviously, "D win/R lose."

I would like to see some actual evidence that Republicans place a non-zero value on federalism. Could someone cite an example of a government program that Republicans wanted, but opted not to push for on the grounds that it fell outside the accepted bounds of federal government power?

Because it seems to me that Republican support for federalism amounts to: if we don't want it, and federalism forbids it, then federalism is good, but if we DO want it, and federalism forbids it, then federalism is of no concern.

Dan,

The problem faced by supporters of federalism is that our system has conceded virtually the entire field of defining the Constitution to the courts. Legislators no longer worry about whether their legislation is constitional; they throw those questions into the hands of the courts, as with McCain-Feingold, which President Bush inexcusably signed while expecting the Supreme Court to strike portions of it down as unconstitutional.

Given the fact that the rules of the separation-of-powers game are now exclusively defined in the federal courts, the one and only area where the Republicans give any real support to federalist principles is in their support for judges who have the proper federalist understanding of the Constitution. (Who are promptly branded "outside the mainstream" and filibustered by the opposition.)

Anony-mouse -- See the above, and refer to my earlier post about why it would be absurd for a football coach to refuse to use the forward pass because he was trying to have it eliminated. The federal courts are the "rules committee" where any substantive changes to the federalism rules will have to be made. And it does appear that Republicans are willing to go to the mat, or go "nuclear", to get people on that rules committee who are dedicated to federalism.

but when it comes to pulling some vegetable's feeding tube, by all means, strip the procedures down to the bare bones.

A full trial, court-appointed medical experts, and repeated review is "stripped to the bone?" What metaphor would you use for INS proceedings, pray tell?

You're clearly an intelligent person, but you have drunk deep of the KoolAid.

I like Kool-Aid. Especially the blue kind that resembles nothing in nature.

I'm not terribly impressed with a "full trial" in front of a probate judge (in my experience, too often a second-tier intellect stuck in a judicial backwater) as an effective procedure. Every subsequent court review of the initial pull-the-tube decision accepted Judge Greer's initial finding of fact. The evidence underlying that finding was equivocal at best, yet the judge determined it was "clear and convincing." The procedural fault in the system, I believe, is that there was really no way of reviewing that finding, or really any concrete test for determining that the evidence met that standard. It honestly looked to me like the judge had his own opinions as to whether a person in Terri's state would ordinarily want to die, and tailored his findings of fact accordingly.

When I said the pull-the-tube side wanted to strip the procedures to the bare bones, I was contrasting their insistence that death-penalty defendants get not only both state and federal review of their cases, but also unlimited appeals (remember the fuss over the 1990s habeas corpus reform limiting capital convicts' appeals?), yet protest that it's a sign of impending theocracy and the betrayal of the Constitution to allow federal review of a different kind of life-or-death proceeding.

I'm not an immigration lawyer, so I can't really respond to your cryptic question about INS procedures, which I know virtually nothing about. What exactly are you trying to ask me?

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