The Contagion of Constitutional Avoidance

By Gant, Scott E. | Constitutional Commentary, Winter 2005 | Go to article overview

The Contagion of Constitutional Avoidance

Gant, Scott E., Constitutional Commentary

Terri Schiavo passed away on March 31, 2005. In the weeks leading up to her death, what was once a wrenching personal matter for Ms. Schiavo's family and loved ones transformed into a political and legal drama that gripped much of the nation and garnered attention around the world. There was much about Ms. Schiavo's case to sadden any of us, regardless of one's political or religious views. Everyone should be troubled, however, by the fact that virtually all members of the legislative, executive and judicial branches involved in enacting or applying the "Act for the relief of the parents of Theresa Marie Schiavo" (also referred to as "Terri's Law") (1) seemingly ignored serious questions about the law's constitutionality, and in so doing avoided their responsibilities as constitutional interpreters.

Constitutional interpretation by the legislative and executive branches has been the subject of robust discussion by academicians and other commentators in recent years. (2) Some (myself included) have urged non-judicial actors to take more seriously their roles as interpreters of the Constitution and in dialogue about its meaning and application. (3) For us, this aspect of the Schiavo matter should have been disheartening. That the judiciary seemingly joined in the avoidance of hard constitutional questions is all the more disappointing.

Legislators and executive branch officers take oaths to "support" the Constitution, (4) while the President swears to "preserve, protect and defend" the Constitution. (5) As I have argued elsewhere, at a minimum these pledges obligate officials to consider for themselves the meaning of the Constitution and its connection to their work, not simply rely on the judiciary. (6)

In Congress's haste to pass Terri's Law, it gave remarkably little consideration to whether the legislation was consistent with various constitutional provisions and principles. The law provides:

   The United States District Court for the Middle District of
   Florida shall have jurisdiction to hear, determine and render
   judgment on a suit or claim by or on behalf of Theresa Marie
   Schiavo for the alleged violation of any right of Theresa
   Marie Schiavo under the Constitution or laws of the United
   States relating to the withdrawing or withholding of food, fluids,
   or mental treatment necessary to sustain life. (7)

The Senate undertook no substantive evaluation of the law, and passed it without debate after behind the scenes wrangling over the provisions of the bill. (8) A review of the Congressional Record memorializing House deliberation reveals but a few terse references to the legislation's constitutionality, and most of those were by opponents of the bill. The only remotely substantive attention paid to constitutional issues appears in what is described as a "supplemental legislative history" offered by James Sensenbrenner, (9) Chairman of the House Judiciary Committee, who argued that the bill is consistent with Supreme Court precedent because it does not "'reopen [] (or direct [] the reopening of) final judgments in a whole class of cases [or] in a particular suit,'" (10) and "presents no problems regarding retrospective application." (11) Congressman Sensenbrenner did not address any of the other potential constitutional objections to the law, nor does it appear those were given consideration by others in Congress. (12)

Despite the unusual nature of Terri's Law and the circumstances of its enactment, the statement released by the President immediately after he signed the bill mentioned nothing about the constitutional issues, (13) and no White House officials offered public comment on the constitutionality of the new law. Although it is impossible to know what discussions occurred in the West Wing before the President signed it, there is no indication that the President or those who advise him evaluated any of the difficult constitutional questions raised by Terri's Law. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Cite this article

Cited article

Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25,

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

The Contagion of Constitutional Avoidance


Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25,

    New feature

    It is estimated that 1 in 10 people have dyslexia, and in an effort to make Questia easier to use for those people, we have added a new choice of font to the Reader. That font is called OpenDyslexic, and has been designed to help with some of the symptoms of dyslexia. For more information on this font, please visit

    To use OpenDyslexic, choose it from the Typeface list in Font settings.

    OK, got it!

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Author Advanced search


    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.