Holy cow, does Jesse ever nail this one on the head:

This cartoon brings to mind something that's been bugging me about the whole Terri Schiavo thing. (Besides, well, everything.) In a Republican world, Schiavo, whose medical care is being paid for by a medical malpractice case, would have likely run out of money long ago. In a Republican world, after that money ran out, Schiavo's medical care would likely have gone unpaid-for, as there would have been no allowable declaration of bankruptcy.

Schiavo's case wouldn't have been picked up by the Christian right, as the operative line would have been concerned with her trying to get malpractice awards for a self-inflicted state, she and her husband would have been shoved together as unscrupulous exploiters of the med mal state, and she would have been dead before the Republican Revolution ever began. This isn't even discussing the fact that Medicare would have been slashed to the point that any award Schiavo got would have been likely the sole fund for her medical support.

Something to think about.

There are so many reprehensible political things going on here that it's almost impossible to comment on them all:

• The "defense of marriage" party inserting themselves between an opposite-sex husband and wife to overturn what something like 19 courts have found to be her wishes

• The "culture of life" party persistently lying about the medical prospects of a woman who has no cerebral cortex

• The "save every life" party suddenly being concerned about sustaining the lives of brain-dead, vegetative, or terminal patients when George W. Bush himself signed a 1998 Texas law allowing hospitals to pull the plug on awake, aware, terminal patients simply because they run out of money)

• The "states rights" party passing a law specifically designed to overrule one state's own courts and their eight years of decisoins, in the hope a federal court gives them a ruling they like better - the exact same procedure they just outlawed for you and me in the bankruptcy bill

Procedurally, and less emotionally, if our court system were sane, this new law Congress just passed would be thrown out instantly because it is a Bill of Attainder - a law passed by the legislature that applies only to specific, named people (in this case, Terry Schiavo). Such laws are prohibited by both Article I, Section 9, paragraph 3, and Article I, section 10 of the United States Constitution. The same sections prohibit ex post facto laws - laws "passed after the occurrence of an event or action which retrospectively change the legal consequences of the event or action."

Unfortunately, the courts usually try to ignore this clause in the Constitution, restricting the definition of "Bill of Attainder" to laws that not only punish individual people but do so by naming a "crime." Even Chief Justice Rehnquist, who wants to read things narrowly, doesn't seem to call for a "crime." Read these quotes from Tech Law Journal:

The Bill of Attainder Clause was intended not as a narrow, technical (and therefore soon to be outmoded) prohibition, but rather as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function or more simply - trial by legislature. - U.S. v. Brown, 381 U.S. 437, 440 (1965).

These clauses of the Constitution are not of the broad, general nature of the Due Process Clause, but refer to rather precise legal terms which had a meaning under English law at the time the Constitution was adopted.  A bill of attainder was a legislative act that singled out one or more persons and imposed punishment on them, without benefit of trial.  Such actions were regarded as odious by the framers of the Constitution because it was the traditional role of a court, judging an individual case, to impose punishment. - William H. Rehnquist, The Supreme Court, page 166.

Bills of attainder, ex post facto laws, and laws impairing the obligations of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation. ... The sober people of America are weary of the fluctuating policy which has directed the public councils.  They have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more-industrious and less-informed part of the community. - James Madison, Federalist Number 44, 1788.

Madison is describing the Schiavo case 217 years ahead of the facts. This law fits the prohibition, because it punishes Terry Schiavo by denying her will not to be kept alive artificially in this state, a decision clearly determined by every single court that heard the case in eight years of litigation. The US district court currently hearing the case - again - should throw out the law that allows it as a Bill of Attainder, but without a "crime," it probably won't.

It's like the Eighth Amendment, which the courts have all but written out of the constitution:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

• Bail is supposed to be no more than to insure that a defendant - innocent until proven guilty, remember - shows up in court for his trial. Yet every day in this country, judges set bail that vastly exceeds not only a defendant's entire net worth but also all the money he could borrow if he weren't accused of a felony. If a defendant is a danger to society, he's supposed to be remanded without bail, but courts use excessive bail every day as the equivalent of remand without having to show any kind of danger.

• When was the last time you saw any fine overturned as excessive - except against a corporation?

• The only punishments the Supreme Court have ruled out as "cruel and unusual" in the past few decades have been executing teenagers (in two stages - Oklahoma is one of the states that executed a murderer who was 17 years old and strung out on drugs at the time of his crime during that period when executing criminals who were older than 16 was acceptable) or amputating body parts (like forced castration of rapists, though the sex-obsessed ultra-right is still trying on that one).

  The following are not "cruel and unusual," according to US courts:

  • Life in prison without parole for shoplifting $80 worth of merchandise in three events over 24 years

  • A 312-year prison sentence

  • Life in prison for non-dangerous defendants in "supermax" custody that keeps them indoors for years at a time and in an 8-foot-square cell for all but 3 hours per week

  • And to date, arresting people and sending them to other countries to be tortured, all without being charged with any crime or allowed counsel

  And remember - nearly half the Supreme Court said that executing minors wasn't "cruel and unusual," either. Other than prohibiting amputations, the Eighth Amendment has pretty much been eliminated.

So many of the wingnuts keep invoking the "founding fathers" in support of draconian laws, saying they were common at the time and couldn't be unconstitutional. Yet a clear reading of the text shows that the founding fathers were far more concerned about not letting the government have too much power to imprison individuals on a whim or for emotional reasons. They didn't want the government to get away with too much. Today's wingers are instead obsessed with making sure you don't get away with anything. More on that another time.

1. Go watch my sister get worked up about nothing.
2. Speculate on how this explains so much about me.