Thursday, March 24, 2005

When Spineless Pandering to a Vocal Minority Jeopardizes the Rights of All – The Religious Right Fights for a Bill of Attainder

Article 1, Section 9 of the US Constitution - No Bill of Attainder or ex post facto Law shall be passed

Attainder

attainder n. The loss of all civil rights by a person sentenced for a serious crime. [<>

In the context of the Constitution, a Bill of Attainder is meant to mean a bill that has an negative effect on a single person or group (for example, a fine or term of imprisonment). Originally, a Bill of Attainder sentenced an individual to death, though this detail is no longer required to have an enactment be ruled a Bill of Attainder.

From US Constitution.net


In their zeal to pander to the Religious Right, Bush and the Republican congress have passed Terri’s Law which has all of the appearances of a bill of attainder.

The following is from Matt Conigliaro’s Blog, Abstract Appeal which for my money is the best source of objective information on the Schiavo case:

I've already seen much talk of the law being an unconstitutional bill of attainder. Bills of attainder are prohibited by Article I, Section 9 of the federal constitution. A bill of attainder is generally a law that punishes a person (or a class of persons) without a trial. The classic form of a bill of attainder sentenced a person to prison or death.

Is Terri's Law II an unlawful bill of attainder? Well, the one person angle is easy to spot, bringing this challenge quickly to mind, but the other aspects are less clear. Is Terri being punished? It's arguable that her constitutional right to privacy is being negatively impacted by forcing her to receive medical care that a court has determined she would not want. But then the "punishment" here is to have a court review that very determination to ensure her rights have been protected.

The argument likely to get a lot of attention is an equal protection challenge. Simply put, the government is required to treat similarly situated people in the same manner unless a good enough reason exists not to do so. What constitutes a good enough reason in a given case depends on the type of discrimination involved.

If the discrimination implicates a fundamental right, then the only reasons good enough to permit the difference in treatment are the very few that advance compelling government interests by the least intrusive means possible. Racial and religious discrimination, for instance, require this sort of strict scrutiny.

Where no fundamental right is involved, courts generally use what's called rational basis scrutiny, meaning that a good enough reason is anything reasonable, not arbitrary.

Here, it is arguable that Terri's constitutional right to privacy -- specifically, the right to reject unwanted medical treatment -- is implicated. If so, that could be found to trigger the strict scrutiny analysis.

Whether it's strict or rational basis scrutiny that's utilized, the question will be if Congress had a good enough reason to pass this law affecting only Terri and her parents, and not anyone else similarly situated. If this challenge is raised, I look forward to seeing the arguments.

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