Sunday, April 10, 2005


A Petri Dish of National Concern

I meant to link to this piece by Mickey Kaus at Slate. I don't know how often I'll agree with him, but this postscript on the Terri Schiavo case bears remembrance the next time everybody's heads fall off in public hysteria.
P.S.: Part of the problem in the Schiavo dispute, I think, is not so much the "autonomy model" as the shape the autonomy model gives to our thinking on this and other subjects. Specifically, we like to think in terms of "spheres" of action--if not an autonomous "sphere" in which individuals decide their own fate, then a "state" sphere or a "federal" sphere. Within these "spheres" there is really only one boss (be it Terri Schiavo and/or her spouse, or Florida, or the Congress) and this boss decides what to do, whether to pull the tube or not. Naturally, we spend a great deal of effort figuring out to which "sphere" Schiavo-like decisions should be assigned, and we get very upset (as Sullivan and Glenn Reynolds get upset) when it's assigned to what we regard as the wrong sphere. Here's Sullivan again:

[T]his kind of wrenching decision can only be made either by the person herself or by family or spouse or legally-appointed guardian. The idea that the government should have the final say, and that the government could be swayed by powerful political lobbies trying to make headway in the culture wars, strikes me as grossly inappropriate. If limited government means anything, it means leaving decisions like this as close to the person as possible. And if the American principle of federalism means anything, it means that the local state's courts are the only relevant instruments to deal with such a tragedy.

But maybe it's this model--of a person, or jurisdiction, exercising near-absolute control within a sphere, that's wrong. After all, nobody in the debate is saying the federal government should be able to intervene in a Schiavo-like case to pull the tube if everyone in the individual, the family, or the state and local spheres thinks she should be kept alive. Nobody's saying it's the feds' decision ("the final say") either way. The argument is that the government can sometimes intervene in favor of life. It's a unidirectional intervention. Moreover, I'd argue the federal government (as a matter of policy, not constitutionality) should only be able to intervene where there's no living will, no exercise of individual autonomy. The familiar architecture of "spheres" of power isn't adequate to capture the overlapping contours of authority here, just as it is inadequate to deal with the requirement of civil rights, where federal intervention was justified to promote racial equality but not for other reasons. I don't know what a better metaphor is--porous membranes of autonomy in a Petri dish of national concern? And I have a feeling Duncan Kennedy has already written a law review article about all this. 1:41 A.M. link
Kaus' key point is worth repeating: "The argument is that the government can sometimes intervene in favor of life. It's a unidirectional intervention."

In favor of life.

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