Saturday, April 02, 2005

Competing Principles

One of the odd things about the Schiavo affair is the argument that "if you care about federalism, you wouldn't favor Congress's involvement in granting federal jurisdiction for Schiavo's parents to have one more day in federal court." One sees this argument in many contexts: "If you really opposed abortion, you'd support the death penalty for women who have abortions," or "if you really wanted to clean up the environment, you'd agree to ban all automobiles," or "if you really supported bringing democracy to Iraq, you'd support war in about 100 other countries," or "if you really supported free speech, you wouldn't be in favor of hate crimes laws." In short, "If you really believed in Principle X, you'd follow that principle to all extremes without ever letting another principle override it."

But that sort of reasoning is often wrong. People often accuse their opponents of being hypocrites when, in fact, they may simply have been balancing competing principles. We all do this constantly. And the mere fact that someone reaches a different balance than you, or that they decline to treat one principle alone as being absolute, does not prove that they are being hypocritical.

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? Then you have obviously reached a balance between the competing principles of free speech and privacy. Could someone else reach a different balance? Sure. Would that person have a right to criticize you for being a hypocrite ("if you really believed in free speech, you'd stick to that principle even at the expense of some other interest")?

Of course not. We all place differing degrees of importance on various principles, and there is hardly anyone who treats any principle as literally never worth violating.1 There are some, for example, who say that the overriding principle of federalism should have governed the Schiavo case. They are entitled to that opinion. But they themselves would probably violate the principle of federalism if the countervailing interest were strong enough. 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.

That's a ridiculous example, one might say. Perhaps it is. But the point is that even the most devout adherents to federalism -- or virtually any other principle -- will find that they are nonetheless willing to strike a balance when a competing principle becomes strong enough.

And so, we have the crux of the matter. It wasn't that those who wanted to preserve Schiavo's life are necessarily fair-weather federalists [update: I should say, "hypocrites."]. It was that in their estimation, preventing Schiavo's forced starvation was important enough to justify overriding the judgment of state courts. This doesn't justify a charge of hypocrisy, unless they -- alone out of all people on earth -- had previously maintained that federalism is so important that it automatically overrides any and all other competing principles in every conceivable situation. As no one on the pro-Schiavo side had ever made such an absolutist contention, that side was merely balancing competing principles, just as all people do in opining about nearly all political issues.


UPDATE: Let me put it this way: Let's suppose that a generic liberal values federalism at 3 (out of 10) and a generic conservative values federalism at 8. Do we know that the liberal or conservative are hypocrites for seemingly switching their position on federalism in the Schiavo debate? No. The liberal might simply think that the value of keeping Schiavo alive, given her circumstances, was worth no more than 2; thus, the value of federalism trumps. The conservative who desired congressional involvement might have simply thought that the value of protecting Schiavo's life was worth a 9 or 10, thus outweighing the value of federalism in this particular case. Thus, it is possible that neither one is being a hypocrite at all: They are merely placing different values on the competing interest of keeping Schiavo alive.

<1>There are a few exceptions, of course, such as the principle that we shouldn't torture an innocent child to death even though it would hypothetically save a city from perishing, etc., etc.

25 Comments:

Anonymous yclipse said...

You can engage in a reductio ad absurdum on any of these points. If the state of Alabama were to set up concentration camps, those of us who believe in federalism would not be content to let them do it. But our system provides a means by which such a result can be avoided, consistent with principles of federalism, in the form of the 14th Amendment.

The closest parallel to the Schiavo situation right now is Oregon's Death with Dignity amendment. Whether or not we who do not live in Oregon agree or disagree that voluntary euthanasia should be available to certain people, federalism suggests that we should not interfere with their internal choice, since there is no federal principle involved.

2:16 PM  
Blogger Jody said...

yclipse:
Is life not a federal principle? Is due process not a federal principle?

As Stuart says, there's always competing principles and different people weight them differently.

Or as I wrote, improving society is a time-varying nonlinear multi-dimensional multi-objective problem.

4:34 PM  
Anonymous yclipse said...

The Federal government does have the power, under the 14th Amendment, to take steps to ensure that a citizen is not deprived of life without due process of law. The way that this is carried out is to appeal from a final decision of the highest state court to the U.S. Supreme Court, if there is a due process challenge to make. There is not another federal interest that justifies the extraordinary legislation that was passed by Congress.

6:18 PM  
Anonymous Listless Lawyer said...

If I'm understanding him, Buck’s point is that everyone has something they want more than federalism. This, it seems to me, implies that either all federalists are “fair-weather federalists” or none are. This line of reasoning destroys the very intelligibility of “fair weather” federalism.

As it should. General principles arise out of a moral context, and they should be properly discarded when the moral context has changed or when the principles no longer serve their purpose.

At least, that's what I'm arguing here.

7:52 PM  
Blogger JMoore said...

Andrew Sullivan raises a good point. What if Mrs. Schiavo had a clearly drawn out living will which required her removal from the feeding tubes? Should the "value of keeping Schiavo alive" still trump federalism (i.e., should the case have been removed to federal courts)? If the answer is no, then it seems the question isn't whether "value of life" trumps federalism, but whether the "ability of state courts to do their job" trumps federalism.

8:54 PM  
Blogger Chrystal Cain said...

The point is: She didn't draw up a living will. We wouldn't have been placed in the situation that we have been if that were the case. The core issue was whether to adopt Mr. Shiavo's word as to Mrs. Shiavo's verbal "living will" (if we can even call it that), given his anxiousness to get tie the knot with his girlfriend, and then take matters into our own hands despite who was footing the hospital bills (her parents). Aside from all of this, I think this post can be summed up in simpler language: Everyone has the right to ________ until it infringes on the right of another. Simple -- I know -- but it could save us a massive amount of heartache.

12:19 AM  
Blogger Jody said...

Yclipse:

If I read your most recent comment correctly, you admit that there was a federal principle involved, but you just don't like the way it was done.

As far as Congress mucking around with federal jurisdiction - it's not extraordinary - it happens all the time.

The just passed tort reform expands federal jurisdiction.

HR 2028 was intended to block the courts from hearing cases related to the Pledge of Allegiance

They considered legislation to block the courts from hearing DOMA related cases.

HR 1070 would limit federal jurisdiction in religious liberty cases.

And to show that this isn't just a Republican thing (I gotta go back a bit, been a while since the Democrats were in charge), in 1990 Congress passed U.S.C. § 1367 which made supplemental jurisdiction mandatory instead of discretionary.

You may not like the way it was done, but there was a federal principle involved and the application was not extraordinary.

10:29 AM  
Blogger JMoore said...

Actually the state court's decision that she had wanted to die was not based solely on Michael's testimony. There was other evidence including the testimony of I believe it was her brother's wife who had heard her say the same thing. Let me get this right, yclipse. Had she had a living will you do not believe it should have been removed to federal courts? You just believe that in this particular case the state courts had not shown to a high enough standard that her will was that she wanted to die? And when state courts don't do their job well enough they should be reviewed by federal courts because federal courts can review ANYTHING that deals with "life liberty or property"?

4:21 PM  
Blogger Richard Bennett said...

The federalism beef was the least of the problems with Congress' Palm Sunday Overreach. What about separation of powers? What about privacy rights? What about family autonomy? What about brain death rather than heart death as the marker for end-of-life?

You can give Congress a completely free ride on the federalism question and still see they were grandstanding if you simply look at the whole case soberly.

6:31 PM  
Anonymous Anonymous said...

Listless Lawyer's comment is roughly correct. Federalism is supposed to be a mechanism for allocating decision-making authority, where the idea is that having such a mechanism is good on its own terms. (The example of a rogue regime taking over Florida is not only absurd, it is also inapposite because the situation eliminates one of the premises of federalism among the United States.) Buck's post, in contrast, as much as admits that "federalism" is simply a cloak for substantive policy choices that are unrelated to federalism as such. Judge Reinhardt made precisely this point in a speech at Harvard five or six years ago. Interesting that Buck should finally come around to agreeing with him.

6:45 AM  
Blogger Stuart Buck said...

The problem, I see, 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.

And the last anonymous misses the point even more: I do not in the least concede that federalism is just a cloak for substantive policy choices. For a pro-Schiavo person, it is perfectly coherent to say, "I agree with federalism on 9 out of 10 issues, even though state governments may make what I consider the wrong decisions about environmental policy, school curricula, divorce laws, contract law, etc., etc., but the issue of euthanasia is so important that I'm willing to override federalism here." Clearly, federalism is something other than a mere cloak for all of that person's substantive policy views.

10:22 AM  
Blogger Stan said...

I'd like to add another point -- as Wm Buckley once said, it is not hypocrisy for someone who opposed social security to cash the checks. The GOP didn't plow new ground here. They didn't diminish federalism as understood in our current legal system. They didn't change the rules.

A great example of real hypocrisy was how liberals who screamed bloody murder about Clarence Thomas and succeeded in changing the law on sexual harassment, yet claimed that Clinton's repeated harassment of multiple victims wasn't important.

11:30 AM  
Anonymous Listless Lawyer said...

Federalism is supposed to be a mechanism for allocating decision-making authority, where the idea is that having such a mechanism is good on its own terms.

This is your mistake. Who comes out of the womb with a moral conviction that federalism is right in and of itself? It's not that sort of belief. Political theory isn't that sort of belief. All beliefs about political theory are, almost universally, contingent on the belief that the theory will produce a good result. In circumstances when that good result does not obtain, it's only rational to abandon the theory.

11:39 AM  
Anonymous Anonymous said...

The general point is valid, but the application to the Schiavo situation is nonsensical. I would accept the idea that a principled person could say that there should be federal legislation governing end-of-life decisions and the standards by which they're to be made, notwithstanding federalism. But that isn't what happened in the Schiavo case. Instead, Congress passed a one-time-only statute empowering federal courts to review a state-court decision because a lot of people thought the state court found the facts incorrectly. It seems to me that you could support such a statute only if you valued federalism almost not at all, and if you claim to value federalism highly while also supporting such a statute, you need to do more to explain your position than just say "well, it's all about balancing competing values."

4:06 PM  
Anonymous ixroby said...

Stuart: without the Congress offering more than a simple do-over for the party it favors, there simply is no national or paramount interest against which to balance the federalism concerns.

There was no substantive law passed here--the Act was designed only to give the parents another shot. The Act and its legislative history provide no justification for concluding that the national institutions are better suited than the state ones to resolve this crisis--i.e., that some random U.S. District Court judge is better qualified than some random Florida judge to rule on the facts/issues of the Schiavo case, or that the 535 individuals who happen to comprise the national legislature are smarter than, or have any better access to the facts than, the (x) individuals that happen to comprise the Florida legislature.

Because the Schiavo Act identifies or enforces no pre-eminent federal concern, Congress cannot be seen as advancing any interest other than arrogating to itself a particular state's legislative and judicial decision-making. This is the classic harm that the doctrine of federalism was designed to avoid.

Now, on the other hand, there absolutely is a pre-eminent federal interest involved here--the "life" part of the 14th Amendment. So the Congress definitely has power to legislate away the type of result it doesn't like in the Schiavo case, with no federalism problems; but it must LEGISLATE, i.e., call hearings, make legislative findings of fact, issue a broadly applicable standard--in short, it must apply the unique expertise of the national legislative body to draft competent statutes that address this national and specifically state-limiting 14th Amendment interest. Only then is there a justification for intervention that displaces the federalism concerns.

There can never be, in the case of particularized judicial reversals like the Schiavo Act, an interest
that transcends federalism, because by their nature such acts only further the interest of an individual litigant's success in a particular lawsuit.

1:29 AM  
Anonymous ixroby said...

(cont'd)
To state it more simply...there is no interest that can ever justify Congress' displacing state courts and legislatures to save an individual life. The reason is simple: Congress and the fed. courts have no special expertise in fact-finding or applying the law in these individual cases. To argue for intervention in that instance is simply to engage in special pleading; it's nothing more than a claim that that one can be as disruptive as one wants when pursuing interests one considers very important.

On the other hand, when it comes to protecting the general interest in life against undue deprivation, that is one of the many paramount national/constitutional interests that Congress has special expertise in protecting, and which would justify intervention.

2:09 AM  
Blogger Joel said...

Political Issues *do* require balancing. I would agree with Mr. Buck that if the question was simply "Should the states control this area of the law or should the Federal Government create a blanket law for all the states?"

Then I would balance my concern for the autonomy of states with the import of the area of law in question and whether I thought a federal law would effectively address the problems and meet all the ends it was designed to. I would balance federalism principles with those of pragmatism and fairness, and I may well come out on the opposite side of a strict "states rights" federalist.

But when it comes to the fundamental underpinnings of power in our country - the system that is designed to prevent abuse of power by those most prone to do so - it's not a political issue. I don't see balancing anything against the ground rules as a justified course of action.

If the folks I tend to agree with most have the political power, and they can choose to ignore Constitutional restraints on power, I might be OK with their actions in the short term. I might applaud their efforts to "do what we all know is right".

But they won't always be in power.

If one Congress and one President can ignore the Constitution, so can the next, and the ones following. Many of those may not share my ideas, and thanks to our excusing this infringement on SOP, they can do it too. Maybe they pass a law following a state's treatment of an identical case, except that state insists the tube go back in. The new "Culture of Death" Congress favors a presumption that "no one would want to live like that".

All of the sudden we're all strident Federalists again, and we wonder why oh why no one gives a damn about the Constitution anymore.

You have to know when to balance, and know when something must stand undisturbed. For many, Constitutional limitations on power are flexible when their own ends require it. For others they are the fixed, untouchable directives by which all in power must conduct themselves - no excuses.

I dunno. Maybe Ann Coulter would say I'm looking for a "Most Consistent Constitutionalist Award". I can only promise you that Coulter would be screaming the above argument in the streets if my inverted hypothetical came to pass.

For more on this subject, visit Southern Appeal.

9:19 PM  
Anonymous Anonymous said...

The reason why the Republicans have gotten nailed with the term "fair-weather federalists" is that they never, ever support federalist principles unless those principles coincide with something else they want (e.g., abortion restrictions or prayer in schools).

This isn't a matter of the Republicans assigning a value of 8 while the Democrats assign a 3. Both parties assign the same value: 0.

A person who opposes publication of credit card numbers and social security numbers can be said to be balancing free speech versus privacy. But that's not the appropriate example to use here. The appropriate example is that of a person who strongly supports the right to free speech of anyone he agrees with, and opposes that of anyone he disagrees with. The Republicans are big supporters of federalist principles -- when discussing restricting the government from doing something they don't WANT the government to do anyway. But when it comes time to discuss something they DO want the government to do, well, federalism doesn't even factor in to their considerations.

7:49 PM  
Anonymous Listless Lawyer said...

The appropriate example is that of a person who strongly supports the right to free speech of anyone he agrees with, and opposes that of anyone he disagrees with.

Yes! Just so. They are analytically very similar, and that's exactly the point I made in my entry on the subject, here.

HOWEVER, this argument does not come out in your favor. Here is Professor Fish's comment on the First Amendment:

One of the first questions I always ask students and audiences is “What is the First Amendment for?” I ask the question not because I want to recommend a particular answer but because I want to say that if you have any answer to the question, any answer at all, you are necessarily implicated in a regime of censorship. The reason is that when you say that the First Amendment is for something - perhaps for giving the truth a chance to emerge, or for providing the minds of citizens with the materials necessary for growth and self-realization, or for keeping the marketplace of ideas open in a democratic society - it becomes not only possible but inevitable that at some point you will ask of some instance of speech whether it in fact serves its high purpose or whether it does the opposite, retarding the search for truth, stunting the growth of mature judgment, fouling the marketplace.

This is not an empirical but a logical inevitability; for if you have what has been called a consequentialist view of the First Amendment - a view that values free speech because of the good effects it will bring about - then you must necessarily be on the lookout for forms of action, including speech action, that threaten to subvert those effects. Otherwise you would be honoring the means above the end and cutting the heart out of your moral vision. And to continue the logic, at the point you discern such a threat and move against it, you will not be compromising the First Amendment; you will be honoring it by performing the act of censorship that was implicit in it from the beginning.

— Stanley Fish, The Trouble With Principle, pg. 115.


Similarly, when people like Stuart Buck and Professor Bainbridge temporarily set aside their federalist principles in favor of the underlying moral vision which drove them to federalism in the first place, they are not being uncommitted, “fair-weather” federalists. They are, in fact, honoring federalism by remaining committed to the larger moral vision in which federalism rests. Any allegations to the contrary must either be confused or a completely “unprincipled” expression of a competing moral vision; nothing more.

9:34 PM  
Blogger Stuart Buck said...

That's not quite true. I can think of some examples where a lot of conservatives would say that whether a state makes the right decision or not, it's the state's decision to make. For example, some social conservatives wouldn't mind stricter divorce laws. But there hasn't been any conservative push to federalize the matter.

Of course, there are divided opinions on certain issues between pro-business and pro-federalist conservatives. Consider tort law: There are some conservatives who don't mind if the federal government regularly preempts state tort law; they see it as giving an opportunity for isolated jurisdictions (Beaumont, Texas, for example) to put a stranglehold on national industries. But one of the defenders of state tort law on the Supreme Court is Justice Thomas.

9:19 AM  
Blogger Mr. Poon said...

Stuart, excellent post. I think the problem with the "opinions differ, ok?" angle is that it doesn't explain away what makes this case different.

To me, the issue isn't whether someone who believes that Federalism is a good thing could also believe that the federal government can intervene in state processes it believes are unjust, especially where life and death are on the line.

Rather, the issue is whether this intervention can be supported with a straight face by those who believe that "respect for states" should give us things like AEDPA and the procedural default rule, Alden, and the three-ringed circus Congress now has to put on just to allow someone to sue their employer for being wrongfully fired, just because their employer happens to be a State.

Think about it: it's now a given that we balance the possible innocence of habeas petitioners with death sentences against values like "finality" of state court processes.

Note, by the way, that I am not here to debate whether the above points are right or wrong as a matter of constitutional law.

But if one supports a system where the state can put someone to death without federal review because they filed their appeal a day late, can one also support federal intervention in the Schiavo case?

Furthermore, this is not some law of broad applicability creating a habeas-like process in the federal courts for all those in Mrs. Schiavo's situation.

Rather, it was a law seeking to provide federal review of a single case, litigated to finality in the state courts, under a process ordained by the Supreme Court.

And it sought to provide de novo review, wiping that valid and final state court process completely off the books.

Could there be anything more repugnant to those that stump for the state courts than Congress trying to wipe a final state court litigation off the books merely because it doesn't like the outcome?

It's not so much that you can't be for Mrs. Schiavo more than you are for Federalism; it's just that the arguments commonly used in the name of Federalism suddenly ring hollow when it's ok for Congress to wipe valid and final state court processes off the books because they don't like the result.

(I'm off to vacation for a few days, but if you get a chance to respond, I'll certainly stop by when I return.)

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