Thomas wrote:Debra_Law wrote:Would you agree that a state may not infringe upon a fundamental right unless the state has a compelling interest in doing so and the means used are necessary and narrowly tailored to serve that compelling interest?
What do you mean by "fundamental right"? I don't know how you would tell whether a right is fundamental or not -- other than looking up whether it is mentioned in the Bill of Rights. But even assuming that the constitution guarantees substantive due process in that sense (which isn't clear to me): What fundamental right is being served by treating Terri Schiavo unlike everybody else? And why is this discrimination in favor of her, and against everybody else, narrowly tailored to serve said state interest?
Just a quick note. FEDERAL--Congress enacted a law concerning Terri. Congress vested the federal courts with jurisdiction to hear, on a de novo basis, any claims that Terri may have that the STATE of Florida violated her constitutional rights regardless of whether those claims had been heard or not by any other court. The law gave the Schindlers standing to bring suit on behalf of themselves and Terri so long as they did so within 30 days.
When we talk about this CONGRESSIONAL enactment, it is constitutional. There are probably "policy considerations" that make this type of private bill an affront to people's sensibilities, but the politicians who voted for the bill and the president who signed the bill into law are answerable to the electorate. I cannot find where the law itself is unconstitutional.
I'm trying to figure out how to make this simple (because it's not simple).
I think you're trying to argue that this "private bill" passed for Terri and the Schindlers was a violation of equal protection because other persons similarly situated were not given the same right to go into federal court and litigate that some state court(s) had ordered the removal of their feeding tubes in violation of their constitutionally protected right to life.
The thing is, if these other "similarly situated" persons challenged the application of the law, they wouldn't be asking for the law to be declared unconstitutional as applied to Terri . . . they would ask that the law be declared unconstitutional as applied to them because THEY were excluded and hence denied equal protection under the law. Just because some other person could feasibly argue that they didn't get the same benefit that Terri received, that doesn't mean that the law itself is unconstitutional on its face or as applied to Terri.
[This issue is what 40 page law review articles are intended to cover, so I'm trying to make it simple . . . not easy.]
With respect to Terri's case, the law is for Terri's benefit. She cannot claim that the law has caused her any injury at all. She would never challenge the law as unconstitutional.
Michael could not argue that the law is unconstitutional on equal protection grounds because he wouldn't have standing to assert the rights of third parties who are similarly situated to Terri.
The State of Florida would not have standing to challenge the law on equal protection grounds. I mean, what would the State's argument be?
"May it please the FEDERAL court: The state of Florida doesn't just violate Terri's substantive due process right to life in the circumstances of this case, the State of Florida violates the substantive due process rights to life of all persons in the state's jurisdiction who are similarly situated to Terri and therefore, we ask the FEDERAL court to find the federal law unconstitutional on its face on equal protection grounds because it doesn't allow all the state-oppressed persons to litigate their federal claims on a de novo basis in a federal forum. . . ."
Well, that was silly.
I have a really difficult time figuring out how anyone could possibly have standing to challenge the FEDERAL law as unconstitutional on equal protection grounds.
