I have two points.
First, Prof. Reynolds appears to deny that the link I provided shows that he had argued against federal legislation in the Schiavo case, citing concerns about federalism. But if you scroll down to the third post at the link (or simply click on this link to go directly to the relevant post), you’ll see Prof. Reynolds favorably quoting Ryan Sager to this effect:
[I]t was in this last week that the Republican-controlled Congress made it clear that it sees no area of American life — none too trivial and none too intimate — that the federal government should not permeate with its power.
It can all be summed up in two words: steroids and Schiavo. . . .
Putting aside the tangled facts of the [Schiavo] case for the moment — which include some bitter family history and selective science on both sides — the driving question here should be: Does Congress have a role?
And when it comes to a family dispute over a painful medical decision, one which at least 19 judges in six courts have already adjudicated, the answer must be a resounding “no.”
The forums for matters such as the Schiavo case are state courts, upholding state laws.
To this, Reynolds added:
A while back, I wrote about the problem of “fair-weather federalism,” but judging by the past week things look to be getting much worse.
I think it’s fair to cite this post as a clear example that Prof. Reynolds decried federal legislation in the Schiavo case as an example of “fair-weather federalism.”
Instead of referring to this post, Prof. Reynolds quoted a different post with the group, and argued that that post “wasn’t really a federalism argument as such.” True enough, but the one immediately above it was. The fault is at least partially mine, as the link I had provided covered multiple blog posts, and I failed to provide a specific link to which post I was talking about.
My second point is to respond to Prof. Reynolds’s argument in which he tries to turn the tables, and say that if he is being inconsistent, then I must be as well:
At any rate, doesn’t this go both ways? That is, isn’t Patterico inconsistent to have supported the Schiavo legislation while regarding Congressional legislation over no-knock raids as posing troubling federalism problems?
Not necessarily. The reason is that in defending the Schiavo legislation, I have fleshed out in great detail why I believe the Due Process Clause authorizes federal intervention. But having read Prof. Reynolds’s post, I still don’t understand the argument that no-knock raids — even looking only at ones that go bad — violate the Due Process Clause.
The due process argument in the Schiavo situation is, I think, fairly clear-cut. As I have argued, substantial authority (including dicta in Cruzan) suggests that, under the Due Process Clause of the Federal Constitution, cases like the Schiavo case must be decided according to the “clear and convincing evidence” standard. I believe that it was appropriate for Congress to provide jurisdiction to the federal courts to ensure that this federally mandated standard was properly applied.
Maybe there is an equally valid due process argument to be made that no-knock warrants violate due process. But I don’t think Prof. Reynolds has really fleshed out the argument, and it’s not intuitively obvious to me where there is a due process failure — at least in cases where police have a valid warrant.
After all, to obtain a valid search warrant, officers must provide facts that they believe in good faith to be true, showing probable cause to search a residence, and obtain a signature from a neutral and detached magistrate. If there is a no-knock provision, they must provide facts that convince a magistrate that there is a reason that the usual knock-and-announce requirement must be dispensed with.
That doesn’t immediately strike me as a failure of “due process.” It sounds like a fair amount of process — and exactly the amount that is due to the homeowner under the Constitution.
If the raid later goes bad, and someone gets shot, that should probably motivate a discussion of the policies or tactics used. But I don’t see why we must necessarily conclude that there has been a “due process” violation. And under principles of federalism, it seems to me that this discussion — relating as it does to local police matters — should take place on a local level.
In any event, I agree with Prof. Reynolds that we share considerable common ground: we agree that stripping immunity in a section 1983 case is an act that is well within Congressional authority.
P.S. Instapundit’s post has my favorite phrase in blogging history. Speaking of me, he says: “I have great respect for his abilities as a blogger . . .”
I’m not saying that I would ever print out a phrase from a blog post, isolate a single phrase, blow it up to poster size, laminate it, and hang it on the wall. That would be ridiculous.
But if I ever did that with a phrase from a blog post . . . that would be the one.