Writing in <a href=http://www.andrewsullivan.com/main_article.php?artnum=20050326?yesterday’s Sunday Times of London, Andrew Sullivan argued: “The idea that government should have the final say, that the government could be swayed by political lobbies, strikes me as grossly inappropriate. If limited government means anything it means leaving decisions like this as close to the individual as possible.”

That’s certainly one argument, but government has always had lobbies and those who persuade and advise it from the outside. Nonetheless, Sullivan misses the major point: the decision of the individual here, Ms. Schiavo, is precisely what is in dispute–”ambiguous at best” Dr. Bernadine Healy former Director of NIH has said.

Sullivan continues: “If the American principle of federalism means anything it means that the local state’s courts are the only relevant instruments to deal with such a tragedy. But that is not what American Republicanism now thinks. It has a religious drive that puts theological certitude before prudential or legal reasoning and a growing contempt for an independent judiciary.”

Really? How? Tom Harkin and Joe Lieberman supported congressional intervention–were they putting theological certitude before legal or prudential reasoning? Was Bill Frist or Dave Weldon, who made medical-ethics arguments? I will forgive Sullivan for not understanding American principles of federalism, perhaps he wasn’t on the scene here in America or perhaps he was too young to remember how they were hammered out during the civil-rights struggles, when it was precisely his argument the segregationists made–leave the feds out, this is our local decision, they argued. Well, sorry, there’s something called a 14th Amendment.

Sullivan then goes on to write: “That is how Bill Bennett, a leading conservative activist, could write last Thursday in the conservative National Review, that Jeb Bush, the Florida governor, should simply overrule the courts, break the law and send armed guards to insert the feeding tube by force. This attack on the basis of constitutional liberty in the name of religion is usually called theocracy. Polling shows that large majorities do not think the federal government should get involved.”

Sullivan either misreads or distorts my piece with Brian Kennedy, and couldn’t be more wrong. First, we didn’t say it would be breaking the law for Governor Bush to act, but following the law, and why. We didn’t write that Gov. Bush should “simply over-rule the courts,” we wrote that he should use his executive authority to challenge what he thinks is an unconstitutional act based on the local Florida constitution–what Sullivan said we should look to in the first place: local law. We did not write Gov. Bush should send in “armed guards,” although that rhetorical flourish of Sullivan serves his purposes to marginalize our argument. Governor Bush can simply switch the posture of the police, the very police who are now armed and protecting Terri Schiavo from receiving food and water. And nowhere did we appeal to religion, nowhere did we argue for theocratic principles but, rather, democratic principles. Finally, I find it odd that of a sudden Sullivan cites large majorities. He wasn’t concerned about them when he celebrated Gavin Newsom as a model of civil disobedience in our time for his flouting the law and large majorities by ordering gay marriages be recorded in San Francisco.