Notes and Rants

10 June 2005

Op-Ed
The New York Times,
via electronic submission, http://www.nytimes.com/

A number of recent Supreme Court decisions have played against a broader tableau than may be obvious to many observers. The hidden victim in the recent Supreme Court decisions on interstate wine sales and medicinal marijuana use is federalism. Once again hung on the cross of the Commerce Clause (Article I, Section 8: "The Congress shall have Power To regulate Commerce . . . among the several States[;]"), the independent and separate discretions of the states have again been abridged by the Federal judiciary.

In the case of wine sales, the diminution of federalism was done in the face of the explicit wording of the 21st Amendment (duly noted in the dissent): "The transportation or importation into any State . . . of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited." (And this is not to mention the more ephemeral, yet no less legitimate, Tenth Amendment, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.") In the matter of medicinal use of marijuana the argument challenged the court to affirm previous decisions in the past decade that Congress's power to make laws in the name of regulating interstate commerce had become overly intrusive on local governments.

Today, the sale of alcohol in and of itself is not troubling in and of itself (it may be to some people, but -- constitutionally -- that battle has already been fought and decidedly lost), while the medicinal use of marijuana is a deeply divisive issue. Nevertheless, the broader issue of the enlargement of the scope of Federal oversight of the states is deeply troubling.

The Teri Schiavo case also -- painfully and, thus, unfortunately -- exposed the debate over the role of the state and federal governments, their rightful places in the lives -- and deaths -- of individuals, and the broader overall debate on the relationship between the various States and Federal government. It was certainly disingenuous for Schiavo's supporters to believe that an increasing conservative Federal judiciary, and especially this Supreme Court, would find grounds to enter the debate. Not only would one expect the court to shun gratuitous oversight of state matters, but also in recent years the Supreme Court has held due process so central to the appellate process that even innocence, even in capital cases, might not be viewed as a sufficient basis for review. (For example, Justice Scalia has written that "The text of the Due Process Clause does not protect individuals against deprivations of liberty simpliciter [i.e., without qualification]. It protects them against deprivations of liberty 'without due process of law.'") Clearly, Terri Schiavo was provided with due process of law, conservative judicial principals were upheld, and the principals of federalism were not violated (and this case was not used as a convenient platform upon which to strike at federalism).

But while the Court held fast in supporting federalism in the Schiavo case, just a matter of weeks later we find that same Court has delivered -- twice -- a very different message. This is especially troubling in the manner in which the Court has used a seemingly cafeteria approach to the Constitution: if the 21st Amendment is troubling, then ignore it, and rest one's hat where it is most comfortable.

Fifty years ago, when the nation was riven with the spectre of racism, Federal intervention was appropriate, even essential (even to the spectacle of an ostensibly conservative Republican president using Federal troops to enforce a U.S. Supreme Court decision: "Whenever normal agencies prove inadequate to the task and it becomes necessary for the Executive Branch of the Federal Government to use its powers and authority to uphold Federal Courts, the President's responsibility is inescapable"; as President Eisenhower continued, ". . . it would be difficult to exaggerate the harm that is being done to the prestige and influence, and indeed to the safety, of our nation and the world"). A clear and compelling national interest existed for Federal action in what was clearly no longer a State matter. But how often can such a case be made, and even in that case was it really so obvious to all?

The point is that we, as a nation, have not entertained a truly informed and critical debate on federalism even as we argue its impact on our day to day lives. While actions may make it obvious ones take on the issue, for example, the majority in the U.S. Senate is clearly opposed to federalism and the independent purview of the various States, those on the federalist side lack a clear constituency and clear advocates, even, now, to the muddled messages sent by the U.S. Supreme Court.

The role of the various States was never intended to be that of a convenient administrative sub-unit of a broader national political entity. The relationship between the States and the Federal Government was never intended to be analogous to the relationship between counties and their State governments. The framers of the Constitution made that distinction clear, and subsequent revisions of the Constitution have maintained that distinction. However, in our public discourse we appear to be hedging on that point, if not failing outright to grasp it.

The Interstate Commerce Clause was intended, as the court has written, to preclude an unmanageable patchwork of laws effectively confounding trade within the country. However, reasonable accommodations have always been permitted (think of disembarking in Honolulu still carrying a bag of carrots for a snack). Especially when latitude is provided within the Constitution itself, these accommodations are the core of what makes the various States separate and equal entities. To allow this most basic element our Federal structure to be eroded over something as trivial as the trade in wine diminishes us all as citizens, citizens of our country and citizens of our States.

Signed:
Steve Sconfienza, Ph.D.,
Albany, N.Y.

31 March 2005

Letters to the Editor
Albany Times Union,
via electronic submission, http://www.timesunion.com/

With the passing of Terri Schiavo, a terribly long, terribly sad chapter in our history comes to an end. While repercussions of the Schiavo case are undoubtedly yet to come, her death brings with it some finality. First of all, the bitter struggle between those purporting to love her most no longer has its central player. To that end, the unfortunately painful debate over the role of the state and federal governments, and the rightful places in the lives -- and deaths -- of individuals, comes, at least in the immediacy of the Schiavo feeding tube, also comes to an end.

It was certainly disingenuous for Schiavo's supporters to believe that an increasing conservative Federal judiciary, and especially this Supreme Court, would find grounds to enter the debate. In recent years the Supreme Court has held due process so central to the appellate process that even innocence, even in capital cases, might not be viewed as a sufficient basis for review; for example, Justice Scalia has written that "The text of the Due Process Clause does not protect individuals against deprivations of liberty simpliciter [i.e., without qualification]. It protects them against deprivations of liberty 'without due process of law.'" Clearly, Terri Schiavo was provided with due process of law, and conservative judicial principals were upheld.

The motivations of those who advocated on both sides of this issue are less clear than the actions of the judiciary. The Associated Press has reported that "In Rome, Cardinal Jose Saraiva Martins, head of the Vatican's office for sainthood, called the removal of the feeding tube 'an attack against God.'" Clearly, many religious persons would agree; however, even the devout might wonder how engaging in this terrible spectacle could advance any coherent agenda. Alternatively, the Fifth General Assembly of the Pontifical Academy for Life stated that "When a doctor is aware that it is no longer possible to prevent the patient's death and that the only result of intensive medical treatment would be to add suffering to suffering, he must recognize the limits of medical science and of his personal intervention and accept the inevitability and unavoidability of death." Might this not also describe the Schiavo case? Under such circumstances, it is a highly problematic step for the state to intervene and choose sides in this as both a medical and a theological debate. Certainly a vibrant, alert individual who requires a medical assistance to function -- the Pope comes to mind -- is entitled to the most aggressive treatment, but what about those who are indeed at a point of no return?

To honor the memory of Terri Schiavo we might best step back from pontificating, from choosing sides, from assuming omniscience, and instead take stock of what we have faced. Apart from fodder for a media feeding frenzy, what do we know now that we did not know before?

Signed:
Steve Sconfienza, Ph.D.,
Albany, N.Y.

26 February 2005

Letters to the Editor
New York Times Magazine,
The New York Times
229 W. 43 St.
NY NY 10036
via email: magazine@nytimes.com

Before Pell Grants were denied to inmates in 1994, there were many flourishing educational programs in prisons, as Ian Buruma indicated. We were involved in the SUNY New Paltz College program at Eastern Correctional Facility during that time (1970s-early 90's), and can attest to the significant impact it had on its student inmates and participating faculty.

Although it is true that some of the guards resented the "free ride for criminals" it is also true that many of them recognized that Eastern was a better place because of the prestige of the college-student inmates, who were occasionally called upon by guards and the prison administration to settle some potentially nasty situations. (Had they wished, prison employees could have attended classes on campus, and also asked that their union provide tuition benefits.)

Many of the inmates were unsure of their academic abilities, but all were respectful and enthusiastic students. They participated in class eagerly and perceptively, so prison classes were often more lively and intellectually stimulating than many on-campus classes of that time. The college-level classes changed their own self-perceptions and improved their employability after release. Today, these students, some of whom have earned advanced degrees, are employed in academic, government, and business positions.

Much of the credit for the college program at Eastern, then as now, goes to David Miller, then Education Director, and also to SUNY New Paltz Professor Aaron Bindman, who was instrumental in setting up the SUNY New Paltz prison programs.

We hope that Buruma's article will help make prison college programs again a part of the options for rehabilitation. If faith based programs are being supported with public funds, we submit that reason-based programs like College also deserve a place.

Signed:
Susan Lehrer, Ph.D., New Paltz, N.Y.
Steve Sconfienza, Ph.D., Albany, N.Y.
Dorothy K. Jessup, Ph.D., New Paltz, N.Y.