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Kerr to Hewitt: Can you make a constitutional case for Schiavo?

Update: Professor Kerr posted on 3.24 that he was scheduled to appear on Hugh Hewitt's radio show Thursday afternoon -- did anyone catch it?

The Volokh Conspiracy's Orin Kerr has issued a gentlemanly challenge to conservative commentator Hugh Hewitt to make a constitutional case for reinserting a feeding tube into the comatose Ms. Schiavo.

And as near as I can tell, Hewitt has responded with a gut-level value judgment -- rather than a strong articulation of the legal merits Ms. Schiavo's parents' case.

To this observer, as Kerr narrates here and here, Hewitt rather surprisingly seems as willing as Congress to circumvent the current American judicial process, not to mention the constitutional roles of the three branches of government.

Here's what I mean: Hewitt writes,

"The crucial problem with the proceedings to date is that the people who ought to [be] Terri's guardians -- her parents -- are not, and the man who is, Michael Schiavo, holds that position by operation of his status as Terri's "husband," when from the facts known to all, he has lived his life in recent years in such a way as would be conclusive evidence of estrangement in any divorce court in America. I think this strange and troubling situation is at the root of all the dismay with these proceedings, and that Michael Schiavo's illegitimate status as guardian by operation of Florida law raises a claim under the 14th Amendment that ought to have been examined fully and ruled upon, and that there is at least an arguable claim of unconstitutionality of any "guardianship" statute that ignores such facts.  I cannot say "substantial likelihood of success" as I haven't researched all the relevant law and precedent ..."

Um, what? What would the ramifications of this argument be for any divorce after a long separation? For custody? How for community property?

The entire back-and-forth between Hewitt and Kerr -- which is being conducted in a wonderfully professional tone, I'd like to note for the record -- is a perfect example of why judicial precedent and the Constitution exist.

And that is Kerr's bailiwick, as he demonstrates:

"The problem with having courts follow the statements of individual lawmakers and commentators is that their views are not subject to the constitutional lawmaking processes. Being outside of the lawmaking processes, these individualized expressions of intent cannot provide a sound standard for interpreting statutory commands. Legislation is usually the product of compromise, and different legislators and commentators have different goals, hopes, and aspirations. Following the expressed views of any one individual or faction would allow that person or group to bypass the Constitutional lawmaking process and get their version of what they hope or wish the law did enacted into law without being subject to the Constitution's requirements. The Supreme Court expressly counseled against this in Circuit City Stores v. Adams, 532 U.S. 105, 120 (2001):

'We ought not attribute to Congress an official purpose based on the motives of a particular group that lobbied for or against a certain proposal -- even assuming the precise intent of the group can be determined, a point doubtful both as a general rule and in the instant case. It is for the Congress, not the courts, to consult political forces and then decide how best to resolve conflicts in the course of writing the objective embodiments of law we know as statutes.'

  A sensible approach, I think."

Then Kerr gives the last word to Friedman, whose frustrations with politicians and commentators runneth over on today's op-ed page of The New York Times.

Kerr's open to comments here. What do you think?

Posted by Laurel Newby on March 24, 2005 at 01:55 PM | Permalink | Comments (0) | TrackBack (1)

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» Transcript: Orin Kerr, Hugh Hewitt talk Schiavo from Legal Blog Watch
The Volokh Conspiracy's Orin Kerr posted a transcript of his on-air conversation with commentator Hugh Hewitt and former assistant U.S. attorney Andrew McCarthy. Here's a pre-quiz for discerning readers: Guess who said this? [Read More]

Tracked on Mar 28, 2005 3:12:23 PM

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