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Jewish World Review March 24, 2005 / 13 Adar II, 5765 Congressional heat melting free society By Robert Robb
http://www.JewishWorldReview.com |
Recent developments — the Schiavo legislation, the steroids hearing — raise
questions about the appropriate role for Congress in civil society.
The Schiavo case is obviously the most important, literally a question of
life or death.
From afar, it would certainly seem that the most reasonable accommodation
would have been for Terri Schiavo's husband to defer to the hopes and
religious beliefs of her parents, and relinquish custodianship to them.
But in life, what seems reasonable from afar often doesn't happen.
Social conservatives believe that Schiavo should live. They mobilized to
get Congress to prolong that possibility by passing special legislation
giving her parents access to the federal courts.
Social conservatives have put forward various analogies to justify this
extraordinary congressional intervention. This is akin, they say, to
federal court review of state action regarding habeas corpus or capital
punishment.
But all such analogies fail.
Congress did not put in place a general process for federal court review of
state actions about potentially terminal medical decisions. There are tens
of thousands of Americans in a persistent vegetative state. Yet Congress
enacted a law that gave federal court access in only one such case,
Schiavo's.
Moreover, with respect to habeas and capital punishment, there are clearly
federal constitutional issues at stake that can only be ultimately
adjudicated in federal court. There are no such federal constitutional
issues involved in the Schiavo case.
That social conservatives pushed so hard for Congress to act in this case
and in this way is highly revealing in a couple of respects.
In the first place, it illustrates that social conservatives don't have the
same sense of restraint about federal authority that has characterized
traditional conservatism. Like liberals, social conservatives often judge
political actions by their results, not their propriety. Terri Schiavo
should live, therefore Congress should act.
Second, the alacrity with which Congress and President Bush acted — a
special Sunday session of Congress, the president flying back from Crawford
and being awakened at 1 a.m. to sign the bill — indicates that, within the
Republican Party, social conservatives are clearly in the ascendancy.
Republicans supported the special Schiavo legislation with nary a pause to
consider whether their involvement was appropriate.
But by the light of day, the question lingers. The country is full of
family tragedies, conflicts and difficult ethical decisions. Which of these
private poignancies are Congress' business, and which are not?
The steroids hearing was a more mundane example of Congress' expanding role
as a public scold.
The Constitution makes no mention of investigative or oversight functions
for Congress. They have been defended and upheld as necessary for the
performance of Congress' primary constitutional function, which is to
legislate.
But congressional hearings have long assumed a role largely independent of
any lawmaking that might result from them. In fact, they have become
Congress' main business.
They have also become a set piece of political theater: An elevated array
of politicians taking turns lecturing or expressing outrage at whatever
hapless slug happens to be in the dock.
These are not fact-finding hearings, as they are often called. To the
extent questions are actually asked, there is rarely any true interest in
the answers.
Supposedly, Congress has a legitimate interest in baseball's drug policy
because Congress has given Major League Baseball an exemption to the
nation's anti-trust laws. Whether the exemption, which in reality operates
more like the grant of a monopoly franchise, is wise is a subject for
another day. Eliminating such monopoly franchises in professional sports
could go a long way toward reducing their oversized, and not always
beneficial, role in American culture.
But how does granting an exemption to the antitrust laws logically make
baseball's drug policy Congress' business? It's just as logical to say that
it makes the designated hitter rule Congress' business.
In the Federalist Papers, James Madison warned that it was the tendency of
the legislative branch to attempt to usurp the functions of the other
branches.
The system of checks and balances the Constitution established has pretty
well protected against that overreaching. Unfortunately, that has just
deflected Congress' meddling eye toward the private affairs of the rest of
us.
But the insight of the founders remains valid: A national legislature that
believes everything is its business isn't compatible with a free society.
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JWR contributor Robert Robb is a columnist for The Arizona Republic. Comment by clicking here.
© 2005, The Arizona Republic |
Arnold Ahlert | |||||||||
