Constant's pations

If it's more than 30 minutes old, it's not news. It's a blog.

Monday, March 21, 2005

Schiavo: Clearly unconstitutional and unenforceable, but where is the 42 USC 1983 claim

The RNC intruded for political gain.

The Federal government asserts an interest when citizens remove their shoes both at the airport and now at home.

Schiavo’s case hinges on whether the court can be persuaded that the bill is unconstitutional. Within moments, we will know what claims are made.

This case is not about one man, Mr. Schiavo against the American Government. It is about the American government against the Constitution.

Although somewhat removed for the moment, it remains to be seen whether the Supreme Court chooses to decline the Writ. One question that will come up is whether the Federal Government has any role. I argue it does not. Rather, I see a great similarity between how the Patriot Act was passed and how Congress has addressed the Schiavo case.

I remain concerned both the President and Congress are playing brinkmanship with the constitution, as if he is in a no-lose situation. There is much to lose, especially when the leadership recklessly drapes themselves in the flag of private rights, all the while ignoring the foundation of those rights. The masses once again quickly celebrate with drums a cause which may ultimately destroy their shields.

Unconstitutional per Article 1, Section 8

Some commentators have focused on a bill of attainder. I take a different view and raise Article 1 Section 8, the commerce clause. Congress only has the power to regulate commerce across states, not between states. Schaivo’s private contract is a state-level marriage license. The rules of evidence afford privilege to communications between a husband in wife.

Congress has no power to afford rights where there is no constitutional authority to do so. The Constitution expressly prohibits Congress from promulgating legislation that interferes with the right to petition the government.

Also, the Tenth Amendment affords to the power to the state those rights not expressly conferred in the constitution.

Unconstitutional per Amendment I

The American Constititutions’s first Amendment further supports Schaivo’s claim that the Congress is interfering. Congress is barred from passing legislation to interfere with someone’s right to bring a grievance.

In this case, Schaivo brought his grievance, the states heard the case, and made their decision. Now, Congress and the President, acting outside their authority, have crafted new authority where the constitution expressly declines this authority.

Unconstitutional per Amendment X

That power not expressly granted to Congress is reserved for the states. In this case, there is no language within Article 1, Section 8 that affords Congress the power to regulate a private state-regulated contract.

Again, the Congress and President have jointly agreed to legislation that grants the bodies the powers they were not expressly granted. The crime is in acting outside the law; the greater crime is for the Federal Courts to assent to this expansive role.

Rules of evidence

The rules of privilege and marriage mean that the acts of one are acts for both. Congress created the rules of evidence to act as guides.

This new act in re Schaivo undoes those rules. Now a private conversation between a husband and wife, that was otherwise protected and a single voice, is now no longer protected and subject to outside intrusion.

This is not a privilege but a burden and at odds with equity. More worrisome is that by exercising the rights formerly protected under privilege, Mr. Schaivo is now being punished.

Such logic was thought to have been checked in the wake of the Guantanamo on the Hudson. Apparently the mischievous demons never left.

Contrasts with the Marriage Amendment

If the courts permit this statute to stand, then all should take note. The Federal Government will unconstitutionally grant itself power to intrude on private affairs -- the private marriage arrangement.

Private contracts are just that --private. Yet in re Schaivo, Congress has unconstitutionally given a seat to multiple non-contracting parties, namely the Federal Government and private individuals.

A marriage amendment may recognize marriage, but Congress and the President clearly show no deference to that private arrangement, going so far as to second guess the parties and the state-level courts.

By injecting the Federal government into private contracts, the White House is on weak ground. If private contracts are to be between consenting parties, I see no language that affords a right or voice to non-contracting parties in a contractual relationship.

  • How is marriage being protected by injecting both the Federal Government and other individuals into a private marriage? That is not a protection, but an invitation for more meddling.

  • How is marriage being preserved when a privileged conversation between a husband and wife is no longer respected? That is not preservation, but a tampering.

  • Why should the country believe the Congress and President are serious about protecting marriage with an Amendment when they second guess the contracting parties? This is not a contract, but a license for others to second guess.

    Another amendment will not protect anything; only create another excuse for the Federal Government to intrude on private matters. The President and Congress are not standing for either marriage or the constitution. They are standing for their own political gain.

    Comparisons to the Patriot Act

    Fast action without deference to the constitution is no different than the legacy of the Patriot Act.

    The President and Republicans assert a position that undermines the constitution as cause for celebration. This is no different than the post 9-11 celebrations.

    We are reminded that joint Congressional-Presidential-action does not create WMD out of thin air, just as does not create authority where it is expressly barred.

    Cracks in the Majority leadership mirror declines in Britain

    Tony Blair has taken quite a beating in the wake of the illusory WMD in Iraq.

    It remains to be seen whether the problems in Britain smell trouble for the President. Yet there have been large swings in conservative states that might have supported the President during the 2004 election.

    Voters in an unscientific poll of voters say that by a margin of 3 to 1 that the Federal Government should stay out of the Schaivo case. It remains to be seen how this inconvenient popular will in a democracy is explained away.

    42 USC 1983

    It remains unclear whether Congress, and more broadly the United States government, will become a target for Mr. Shave’s 42 USC 1983 claim – that of interfering with federally protected and clearly promulgated right to be left along at the state level to engage in private contracts.

    The President says he is for marriage. Clearly, he is only for marriage on his terms, not that of the contracting parties.

    More broadly, Congress wants a role for the Federal governments and parents in a private marriage contract. That is not a private marriage. Rather, it is the same meddling which sparked Europeans to leave for the new world.

    Perhaps Congress hopes to use the Schaivo precedent as a catalyst to prompt private business to fund ventures to Mars, arguably where both Congress and the President belong, safely insulated from the US Constituation.


    We saw in the wake of 9-11 how unconstitutionally expansive Federal intrusions will attempt to outweigh then destroy private rights. Congress and the President have shown no change in their post 9-11 hysteria.

    It remains to be seen whether the Schaivo case is another stone on an already imbalanced scale. Congress and the President continue to chip away at the Constitution in the name of protecting private rights.

    If this legislation is allowed to stand, the President needs to explain how can credibly be for a marriage amendment. Again, what he says is not consistent with what he does.

    No rights are protected when the majority becomes a tyranny. The answers simply lay written on the Constitution, not within the halls of Congress or 1600 Pennsylvania Avenue.

    It took many years after the torture in Abu Ghraib, Guantanamo, and Afghanistan for the courts to recognize that the constitution still does apply. It is a shame that it may take many years for Congress and the President to be reminded once again.

    The American civil war was about the Federal Government asserting power where it was argued the states had not authority to act. In the Schaivo case, the tables are turned. The Federal Government, like the South, chooses to assert a position without any legal authority.

    It is unfortunate that the Congress and President continue to inject itself where it has no constitutional authority. It remains to be seen whether the Courts remedy the imbalance.

    If the Padilla and Hamdii cases are any guide, it is likely the Court will grant the request to have the feeding tube re-inserted while the court reconsiders the case. If Mr. Schaivo successfully pleads unconstitutionality, the case will be likely be appealed.