The flap about Fred Thompson’s inexplicable non-answer about the Terry Schiavo case provides an opportunity to try to correct the record about that case — a record that the media myth has so completely screwed up that even conservatives I have been reading in the past few days have been confused about it, in terms of what the issue actually was. This is the FACT: The Schiavo case was not about federal intervention in a state case. All that Congress did, which is what Congress has an absolute constitutional right to do, was to expand the jurisdiction of the federal courts in order to give the Schiavo family appellate ACCESS to the federal courts to try to make the case that a federally guaranteed right was at least arguably involved enough to warrant a temporary injunction against pulling the feeding tube. It was not an intervention to direct an outcome; it was an attempt, in light of extraordinary circumstances, to ensure rights to due process. (By which I mean actual PROCEDURAL process–forgive the repetition, but crazy modern constitutional “law” necessitates it–rather than the wackily expansive substantive due process that gets bandied about so often in modern times). Congress never tried to make itself a judge in the case; never tried to guarantee an outcome; never overruled a state court…but merely provided an opportunity for the family to ASK federal courts to take a look at a de novo argument about federal rights. As it happened, the 11th Circuit declined the family’s request — a fact that itself shows that Congress’ “intervention” was merely a mild procedural safeguard. All other “news” stories to the contrary, to the effect that Congress tried to play doctor or to play judge or whatever, are utter, complete balderdash. (Which is why, by the way, I fully expect to see it reprinted in the news pages or the New York Times and repeated on CBS News for years to come, anytime the case is mentioned.)
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