Rule of Law

In an article Activist Legislators - The boundless overreaching behind Congress' new Schiavo bill. Slate takes issue with Congress and President Bush authorizing new federal legislation that will obliterate years of state court litigation, and justify re-inserting a feeding tube into Terri Schiavo.

I personally thought the new legislation was a mistake, and indicated so here, here, here, here, and here, but I think that Slate's article goes a bit over the top.

The phrase Activist Legislators is obviously a dig at Conservatives who complain about Activist Judges who ignore precedent, written law, or federal or state constitutions to arrive at a decision that they personally want.

But it is my understanding that Separation of Power calls for the Legislative branch to enact laws, the Executive branch to see those laws are enforced, and the Judicial branch to decide what the law says, based on precedent, written law, and federal or state constitutions.

So I believe that judges should not make new laws, or "find" new rights to be "implied" in something, but rather it is the legislature that should make laws. I personally think that S.686 was ill advised, but I don't dispute the right of the Legislature to pass laws, or the right of the President to sign them. It is the job of the Judicial Branch to determine whether the law is constitutional and what it means. So far Judge Moody denied petitioners’ Emergency Petition for Temporary Injunction and Petition for a Writ of Habeas Corpus, saying "Having reviewed the Petition, the Court finds that there is not a substantial likelihood that Petitioners will prevail on their federal constitutional claims." Further decisions from the US District Court in Tampa will be posted under Notable Cases here. According to ABC News Schiavo's parents, Bob and Mary Schindler, immediately appealed to the 11th U.S. Circuit Court of Appeals in Atlanta. Any decision there will be posted (I believe) here.

Update 3/23: The court decided 2-1 to deny the petition, and the decision is here

The case was appealed en-banc to the entire 11th Circuit, but they decided 10-2 not to hear it, and the Florida Senate decided 21-18 not to pass a bill that would have prohibited patients like Schiavo from being denied food and water if they did not express their wishes in writing. See this.

Getting back to the Slate article, they said the action of Congress and the President has nothing whatever to do with the rule of law. The rule of law in this country holds that this is a federalist system—in which private domestic matters are litigated in state, not federal courts. The rule of law has long provided that such domestic decisions are generally made by competent spouses, as opposed to parents, elected officials, popular referendum, or the demands of Randall Terry. The rule of law also requires a fundamental separation of powers—in which legislatures do not override final, binding court decisions solely because the outcome is not the one they like. The rule of law requires comity between state and federal courts—wherein each respects and upholds the jurisdiction and authority of the other. The rule of law requires that we look skeptically at legislation aimed at mucking around with just one life to the exclusion of any and all similarly situated individuals.

Rule of Law -- we hear a lot about it, but what is it really? LectLaw says Rules of law are general maxims, formed by the courts, who having observed what is common to many particular cases, announce this conformity by a maxim, which is called a rule; because in doubtful and unforeseen cases, it is a rule for their decision; it embraces particular cases within general principles.

That is clear as mud. Let us look elsewhere.

Answers.com says Rule of law is an authoritative legal doctrine, principle, or precept applied to the facts of an appropriate case (as in adopting the rule of law that is most persuasive in light of precedent, reason and policy), and it is adherence to due process of law

In an article "Building Rule of Law: From Buzzword to Reality" CIPE says Although “rule of law ” is frequently cited in the development field few understand it well at the level of implementation. This article (PDF File) sketches the essential framework of a functioning democratic society based on rule of law and highlights successful private sector-led approaches to building such societies.

In Constitutional Keywords Canada says "Rule of Law" comprised of three “kindred conceptions”: (1) that government must follow the law that it makes; (2) that no one is exempt from the operation of the law - that it applies equally to all; and (3) that general rights emerge out of particular cases decided by the courts.

Marci Hamilton said on FindLaw By that phrase ["Rule of Law"], I mean the ideal under which every citizen is governed by the same law, applied fairly and equally to all; government favors may not be bought; and justice is administered blindly, in the sense that it never stoops to favoritism. Under this ideal, government decisions are not the whims of individuals. Rather, they are duly enacted into laws, that are then obeyed as they were written.

In a discussion on abortion David Forte said For his part, Justice Scalia tells us that he must stick to the text of the Constitution with only the most specific level of historical example to illuminate the text. Why? To uphold the rule of law. Justices Kennedy and O’Connor embrace the school of "legal process" that binds judges within the interstices of the technique of judging. For them, that is the rule of law. Chief Justice Rehnquist often defers to the legislative judgment, lest he substitute his own view of appropriate policy for those who have legitimate discretion in deciding such matters. Otherwise, he would be violating the rule of law. And Judge Bork famously decried the use of the unwritten natural law as a source for a judge s decision-making. That too would violate the norms of the rule of law.

H. G. Wells said: "Beauty is in the heart of the beholder." It looks like Rule of Law means different things to different people. As Humpty Dumpty told Alice, "words mean whatever I say they mean".

Getting back to the Slate article, they said Evidently, Congress has a secret, super-textual constitutional role as the nation's caped crusaders—its members authorized to leap into phone booths around the world and fly back to Washington in a single bound whenever the "culture of life" is in peril. Republicans acknowledged this weekend that their views on "the sanctity of life" trump even their convictions about federalism. Or, as Tom DeLay put it, when asked how he reconciles this bill with conservative calls to keep the federal government out of state matters, "We, as Congress, have every right to make sure that the constitutional rights of Terri Schiavo are protected, and that's what we're doing."

This congressional authority to simply override years of state court fact-finding brings with it other superpowers, including the power of gratuitous name-calling: Members of Congress unable to pronounce Schiavo's name just last week are denouncing her husband as an adulterer and common law bigamist who withheld proper medical care from her. I wonder what they'd say about my parenting—or yours—if they decided to make a federal case out of every domestic-custody dispute currently resolved in state court proceedings.

Let me be sure I understand. Members of Congress are name calling when they refer to Michael Schivo as an adulterer and common law bigamist but it is OK for Slate to talk about Congress as being the nation's caped crusaders—its members authorized to leap into phone booths around the world and fly back to Washington in a single bound whenever the "culture of life" is in peril. I guess it is name calling when you use short words, and OK if use long phrases meant to bring up the idea of Superman.

Slate said Members of Congress have apparently also had super-analytical powers conferred upon them, as well. Senate Majority Leader, and heart surgeon, Bill Frist felt confident last week—after reviewing an hour of videotape—in offering a medical diagnosis of Schiavo's condition, blithely second-guessing the court-appointed neurologists who evaluated her for days and weeks.

I don't have the quote handy, but I am almost certain I heard others complaining that the court appointed neurologists had not spent enough time evaluating Terri, or run enough tests. You can't have it both ways.