Constitutional Law Expert Says Schiavo Case Raises Important Issues about the Separation of Powers and Judicial Activism: News Releases: The Independent Institute

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News Release
March 24, 2005

Constitutional Law Expert Says Schiavo Case Raises Important Issues about the Separation of Powers and Judicial Activism

Thursday the U.S. Supreme Court denied an appeal by the parents of Terri Schiavo to have their severely brain-damaged daughter's feeding tube reinserted. On the same day Florida Judge George Greer also denied a petition of the state Department of Children and Families to take Schiavo into state custody.

A majority of Americans appear to be agreeing with the courts. Fifty-two percent of respondents to a CNN/USA Today/Gallup Poll conducted on Tuesday said they agreed with Tuesday's federal court ruling and more than half said they did not think there was any chance Schiavo's condition would improve even if her feeding tube were left in permanently.

“This is a very sad case between the right to die and the right to life that also raises important issues about the separation of powers in this country,” says Professor Donald Downs, an expert on constitutional law and a fellow at the Independent Institute in California. “Do we really want Congress pushing decisions by private individuals in to federal court on the wings of overwhelming publicity?” says Downs, referring to the unusual law that Congress passed on Monday allowing federal courts to intervene in the case.

Downs, author of a new book, Restoring Free Speech and Liberty on Campus (Independent Institute), points out that the case seems to be yet another example of the unfortunate politicization of American life as liberals and conservatives shift traditional positions on the issue. “Liberals and conservatives are now taking opposite positions from their usual ones when it comes to federalism and judicial activism. The liberals want judicial restraint and states rights to prevail, the conservatives want the opposite.”

Professor Downs is a Research Fellow with the Independent Institute and a professor of political science, law and journalism at the University of Wisconsin, Madison. He is available for interviews.


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