Speaking of judicial activism, it occurs to me that the present argument before the Supreme Court over assisted suicide (Gonzales v. Oregon, 04-623), shows a glaring inconstistency on the part of many who think that judges ought to interpret and apply the law, not create it. The brilliance of this inconsistency is revealed by the fact that many of these also believe in states' rights.

Here is a simple fact condition. The sovereign state of Oregon passed a law in 1997 permitting physician assisted suicide. Personally, I find this law repugnant and would be opposed to a similar measure here in Colorado. But the people of Oregon have spoken. That's the end of it.

Now the crux of the matter isn't properly a constitutional one. It is, as Gina Holland puts it, a bit of a turf war. "Former Attorney General John Ashcroft...decided in 2001 to pursue doctors who help people die," reasoning that "[h]astening someone's death...violates federal drug laws." ("Supreme Court showdown begins over assisted suicide,"
5 October 2005 [accessed 6 October 2005], here) As a federalist and republican, I believe federal drug laws are, for the most part, unconstitutional--at least insofar as they would not permit physician-assisted suicide in a free state. ("Free State" -- that's how the Constitution refers to them. [See U.S., CONST. Amend. 2]). Of course I also believe that courts do not really have their self-asserted authority to declare legislative acts void because unconstitutional. The Congress should repeal the law, or at least those provisions which curb the freedom of the citizens of a free state to pass such laws as they think necessary.

According to Holland: "Solicitor General Paul Clement, the Bush administration's Supreme Court lawyer, has told justices in a filing that 49 states, centuries of tradition and doctors' groups agree that assisted suicide is fundamentally incompatible with a physicians role as healer" (internal quotation marks deleted). This is irrelevant to the court. What is relevant is this question: What is the law? The Solicitor General offers, arguably, a good rationale against physician assisted suicide, but the proper place for his argument is either the American Medical Association or the (free) State of Oregon. Of course, as Solicitor General, he is arguing the adminstration's case, not his own, but my point remains the same.

The administration lost this same case at the 9th Circuit Court of Appeals (the one in San Francisco), which said that former Attorney General Ashcroft's "unilateral attempt to regulate general medical practices historically entrusted to state lawmakers interferes with the democratic debate about physician-assisted suicide." I really, really, really hate to say this--and I hope it's the last time I'm put in this postion--but I agree with the 9th Circus--I mean Circuit. (Besides, it is not as if the 9th Circus really cares about anything "historically entrusted to state lawmakers" [i.e., states' rights]--except when, as in the present case, those state lawmakers make laws that fit the left leaning views of said 9th Circus.)

I believe one of the reasons for much of the rejection of federalism is simply that some of its loudest proponents retreat from it when it is clear that federalism will result in free states passing laws that they (these pretended federalists) merely happen not to like. In other words, many so-called federalists are federalist when federalism is convenient for them, or comformable to their passions. But federalism means just this: that a state just may pass laws that we personally do not like.

Let's get real. If the Supreme Court ever does overturn Roe, this will not automatically outlaw abortions nation wide. It will return the issue of abortion to where it truly belongs in a federal republic, the free states. This means that your state may outlaw abortion. It also means that your state may permit abortions. If your state permits abortions and you don't like it, what are you going to do? Take it all the way to the Supreme Court?