The Schiavo Case and the Red-Herring of Judicial Supremacy
By The Horserace Blogger Posted in Elections — Comments (78) / Email this page » / Leave a comment »
There is a lot of nonsense emanating from the talking heads in regards to the Shiavo case. It proceeds from many directions -- medical nonsense, moral nonsense, and legal nonsense. While I have opinions on all three of these, my knowledge has to do with the third species of nonsense. That is what I would like to discuss. The legal nonsense here is not an issue of case law or of precedent. It goes directly to the separation of powers in our system, and therefore to the heart of American politics itself.
Specifically, the argument promulgated by Michael Schiavo’s lawyer and others in favor of following the state court’s decision is simply incorrect. They are arguing that Congress is turning this into a political matter; that, in fact, it is a purely legal matter, and therefore best left to the courts. Congressional involvement is “thuggery” to be expected only from the “Soviet Politburo.”
This is wrong-headed. I do not know whether the advocates of this position know that it is wrong, and therefore are trying to leverage themselves in the court of public opinion, or whether they are simply ignorant. In either case, this faulty argument must be addressed.
The fundamental flaw in this comes from a failure to recognize that, in our system, the courts are political institutions. Every decision they make is inherently political because every decision they make is one that, at least in theory, the other branches can at least oppose (if not stop) if they so choose. Accordingly, they have no special immunity from the other, so-called political, branches of our government.
The reason for this is deceptively simple. Our three branches of government are co-equal and co-dependent. None has preeminence over any other, none can act wholly independent of any other. Each has legitimate resources at its disposal to oppose any other. Each branch, therefore, is political. The judicial branch is no exception.
While one might argue that this should not be the case, it is undeniable that this is the case in our system. It is a matter of fact. In The Hollow Hope: The Courts and Social Policy, Gerald Rosenberg (on faculty at my department) presents a series of compelling reminders of the truth of this argument. He asserts that American courts, when they attempt to implement social change from the bench, are incredibly ineffective. Their rulings are only generally upheld when Congress and the President are in agreement with them, and therefore only when the public is generally inclined toward the policy change which they seek to implement. In other words, as agents of social change, courts are quite powerless. They are followers, rather than leaders, of social currents. Rosenberg rallies scores of examples -- civil rights policy, women’s rights policy, environmental policy, and criminal policy -- to demonstrate that courts, when they stand against the current of American sentiment, get swept over. (N.B. Rosenberg is not a lone voice on this. This is a mainstream opinion in political science. See for example Robert McCloskey’s The American Supreme Court.)
This implies an important point, one relevant to the Schiavo case. When the courts decide something which Congress or the President do not like, one cannot expect these branches to sit idly by and accept the decision. The reason for this is that the Courts are not independent of the other branches -- they cannot effectively do what they want without consideration of the opinions of the legislature and the executive. The Courts do not have the financial resources to implement policy changes. Only Congress does. The Courts do not have the ability to induce actors to act. Only the President does. Their dependence upon the other branches places them in the midst of the political process. Courts are political actors. Accordingly, Courts have neither the authority nor the ability to declare what is right and wrong without expecting the possibility of legitimate resistance.
For those who might dispute the morality of this situation, an additional point is worth considering. As Rosenberg argues, Americans are of two minds about government. On the one hand, we want certain inalienable rights to be respected, regardless of context. On the other hand, we want our governmental officials to execute the will of the people. These two principles frequently contradict. This contradiction often takes shape in a political battle between the branches that are democratically elected (legislative and executive) and that which is not (judicial). Such battles are the consequence of American bi-polarity.
Rosenberg’s argument indicates why the Schiavo case has reached the level it has. This is an instance where a state court is meddling in social policy, though the argument of the judges and Michael Schaivo’s lawyers explicitly (and incorrectly) deny that this is the case. What seems to be occuring is that the Florida courts have made a determination of fact which is highly controversial, and from that controversial determination rendered a judgment about life-and-death. The key issue is whether such judgments can be rendered when the facts of the case are as hotly disputed as they are today.
This is why the right-to-life movement is intensely involved. The Florida state courts are saying that in a life-and-death case of this kind, the contentiousness of the facts does not benefit the side of life. This rises above the life of Terri Schiavo and it affects all of us. This is not a purely personal matter, or a purely legal matter, to be worked out between the litigants. This is a public matter, for this Florida court is setting public policy. Thus, they are “stepping onto the turf” of the other branches (as a co-equal branch, they are allowed to, but they are not allowed to deny the legitimacy of opposition from another branch).
How, then, can anybody expect the other branches of our government not to involve themselves (including the federal branches, which, thanks to the 14th Amendment, have the right to involve themselves in state matters)? A court is making a political decision, a controversial political decision that goes against the opinion of democratically-elected branches (both in Florida and nationwide). These branches have the power to (at least) try to stop them, and they are so trying. This is how the system works, and has worked since the Founding.
(Incidentally, the solution of Congress is actually quite moderate. They are not denying the ability of the courts to review and judge this case. They are just insisting that another court be brought into the process. They could, if they wanted, simply pass a law prohibitng actions of this kind altogether. Congressional action in this instance, while it opposes the action of the Florida courts, is actually quite respectful of the general role that courts play in our polity.)
Thus, nobody, not the courts, not Michael Schiavo’s lawyers, not the left, can expect the other branches to simply accept this ruling. This is not how the system works. It has never worked in this manner. Both the President and the Congress have tools at their disposal to fight this ruling. They have chosen to use them, and this choice is legitimate. Ultimately, the legislative decision to “meddle” in judicial affairs was induced by the judicial decision to “meddle” in legislative affairs.
(On a related note, the argument of some that the right is being hypocritical here because we are denying our fidelity to federalism is pure balderdash. Conservatives object when leftists try to use the “necessary and proper” clause of Article 1 to meddle in local affairs that bear no logical relation to any constitutionally-mandated authority. The action which Congress is taking today is one that is positively granted to it through the 14th Amendment. Congress specifically has the right to ensure that each citizen shall enjoy due process in matters of life-and-death, even if it is a matter which principally concerns state action. In other words, if Congress thinks that a state is violating a citizen’s due process rights, and there is no existing law that prohibits this violation, they have the power to write a new law. Conservative invocation of federalism is strictly limited to instances where Congress exercises a power which is not positively granted to it. This is not the case here.)
You may not like any of this. You may not like the case that Schiavo’s parents are making. You may not like that Congress is acting. You may not even like the fact that Congress has the power to act. But, you likely agree that the tension between absolute rights and democracy is one which must be handled. This nation has decided that such contests be settled politically, by allowing the three branches to use their leverage over one another to get their way -- rather than giving supremacy to any one branch. We are not Hobbesian, and this is not the Leviathan. If you have another solution that offers a different way to handle it, you should write your Congressman and ask him to draft an amendment to the Constitution itself that implements your alternative. You should not do as Michael Shiavo’s lawyers are doing -- arguing that congressional involvement is somehow out-of-bounds, and that therefore the judicial branch is supreme. In our system, nothing could be further from the truth.
An important lesson from all of this is that our system of government is incredibly complex, and you should be wary of those happy to provide the public with easy answers about it. Our system rests on a number of different tensions, within branches, between branches, and between different levels of government. Situations when these tensions rise to the fore, when the branches are in open conflict, are situations in which the answer is not pre-determined, necessary or obvious. These are not purely legal matters. Inter-branch conflict is inherently extra-legal, for there is no supreme authority to arbitrate between the branches. Inter-branch conflict is political. Congress can use its resources to act on the judicial branch if it so chooses. Whether or not that action will ultimately be successful is difficult to say.
In the meantime, you should be wary of lawyers or “legal analysts” who are so quick to declare judicial supremacy or independence. For they are actually making, whether they know it or not, a “power play” for their preferred branch. They are not telling you the way it is, they are telling you the way they want it to be.
Jay Cost, a graduate student at the University of Chicago, is creator of The Horserace Blog. He may be reached at jay_cost@hotmail.com.
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In response:
(a) I do not know the answer to that question, but it is irrelevant when viewed from the broader perspective. What is relevant is that Congress as an institution, and the President himself, are both concerned that the facts are contentious. This is what is animating the current situation. The key point is that both Congress and the President have the authority to be concerned and to act on that concern. Their authority does not go so far as to enable them to render a different judgment about the facts, or about this particular case, but it does enable them to modify the mechanisms of due process.
(b) This is because, as it currently stands (and to the best of my knowledge), they have not been granted the authority to do so. Or, more precisely, they are not required to do so (and have previously declined). This is precisely what Congress and the President are attempting to do this weekend. (Ultimately, this is not to say that it will be successful. The judicial branch conceivably could strike this law down. I am not sufficiently versed in constitutional law to say either way. But that does not make the attempt of the legislature and executive illegitimate, which is the basic premise of my piece.)
"In the meantime, you should be wary of lawyers or "legal analysts" who are so quick to declare judicial supremacy or independence. For they are actually making, whether they know it or not, a "power play" for their preferred branch. They are not telling you the way it is, they are telling you the way they want it to be." - Jay Cost.
This is our most serious problem right now. The Courts and the lawyers think thier rules and decisions trump the other two branches - to say nothing of the entire American people. We don't need a return to the Star Chamber and we don't need judges and lawyers taking the place of kings and nobles.
a) Our courts are referred to alternately as either the Criminal Justice System, or the Legal System. The difference seems to be whether you've won a case, or lost a case. The fact of the matter is that a Court of Law is not interest in truth, justice, or higher philosophical ends. It is concerned only with ritual, pugilism, and technicality. The technicality we see in Florida is that with no living will, Michael Schiavo is legally the only executor of the her estate once it adjudicated that she is mentally unfit to care for herself. The law in Florida allows for assisted suicide, so if Michael states that it was Terry's wish to be allowed to die in such circumstances, you do not want the government to step in and determine what should be a civil right.
However, the particulars of this case is that Terry is not a 'vegetable'. She is alive, responsive, and reacts to external stimuli. What's more is that she communicates on a very primitive level. Most doctors agree that with therapy, she will be able to speak and swallow. Then there are mitigating circumstances; that Terry is an inconvenience to Michael, an obstruction to his new life, and lastly, her death represents a huge payoff. It may also server to bury with her body the allegations of abuse against Michael. I'm dying for the 'media' to get on the ball and expose all of that.
The problem is that a right to die case, whether Congress will admit it or not, is a test for abortion as well. We have a fully living functioning human being who is a burden for another because of the amount of care necessary. If she is allowed to die, the value of life goes down another point. If right prevails, and worse Terry is rehabilitated in the slightest way, the ramifications for the abortion debate will be devastating.
b) The Supreme Court refused to hear the case simply because they have no jurisdiction. If congress has their way, that will change by moving the matter to Federal Courts.
what that tube feeds is her parent's memory...
I agree with you that it is a problem when partisans of the judicial branch do not recognize their proper place in the broader system. However, I am not so quick to conclude that it is "our most serious problem right now." This is because the Framers expected, even all those years ago, that individuals in different branches would work to make their branch dominant. Thus, Madison et al. endowed the other branches with powers to thwart them. Power against power, interest against interest, so to speak. The legislative and executive branches are well equiped to combat the judicial, and have done so throughout the history of our Republic. And vice-versa. At least formally, the courts have no more power than they have since Marbury v. Madison.
Of course, if you wanted to argue that the informal powers of the courts have expanded too much, you might have a point there. But, being that such powers are informal, it is difficult to quantify, and therefore to evaluate. At the least, Rosenberg's book indicates that, even when the Court thinks it is meddling in what is was previously the purview of the legislative/executive branches, it is not as effective as it thinks it is. Rosenberg, who comes across as a liberal of the 60s ilk, actually concludes with an exhortation to activists to focus their energies on the presidency and Congress if they want to bring about social change. That is surely a sign that, even informally, the court represents a "Hollow Hope."
We can say, at the least, that the Schiavo case, regardless of the merits, indicates that the other branches are willing and able to respond at least some of the time. That, to me, is a good thing.
However, the particulars of this case is that Terry is not a 'vegetable'. She is alive, responsive, and reacts to external stimuli.
Not according to the trial judge, the 2nd Circuit, and the Florida Supreme Court. Over and over again, the medical professionals, including the independent neurologist appointed by the court, and the court-appointed "guardian" for Mrs. Schiavo, have ruled that Mrs. Schiavo is in a Persistent Vegitative State - and that the brain scans from as early as 1996 show a cerbral cortex that has deteriorated to the point that is no longer exists.
Perhaps you could link to an independent medical source that agrees with your point above. I've not been able to find one.
to some extent they do. The courts interpret either laws passed by the legislature, rules implemented by the executive or the constitution (speaking of the fed courts here). The courts generally have the last word on each of these issues until (a) the legislature passes new laws, (b) the executive implements new rules or (c) the constitution is amended. This is the essence of our separation of powers...the branches are co-equal, but each has its own method of asserting its co-equality.
Only the truly ignorant among us think that the courts are ascendant. Every decision that the courts (even the Supreme Court) makes can be undone through a democratic process.
Don't know if that has any relevance to the Schiavo case or not.
is that a conservative congress is expanding the role of the federal judiciary in order to serve an ideological end. Good or bad, the entire concept of limited government is out the window with this bunch. A sad day for conservatism.
The preservation of life is an ideological end??? What ideology do you adhere to?
This entire episode makes me ashamed to be a Republican. The nonsense I have heard, among them suggestions that Terry Schiavo was actually incapacitated as a result of spousal abuse, or that she has any chance at receovery...Really, folks. This is bad. It reminds me of the Democrats' exploitation of Elian Gonzalez.
My family went through exactly this same issue recently with my 13 month old niece. I would not have been happy had Congress intervened.
...but I do agree with you that this aspect of the advocacy being performed by some of those attempting to save Terri Schiavo's life disturbs me as well. As Ace of Spades (a favorite blogger of mine) might say, Let's Be Honest: Terri Schiavo's cerebral cortex really IS gone. She will never recover in the sense that she will regain cognitive capacity. Moreover, the innuendos that are now surfacing (not on Redstate, which must be emphasized) that Schiavo's husband may have abused her into her current state are utterly loathesome; there's absolutely no difference in intent and evidentiary quality between that and your typical "BUSH KNEW!" crazy Lefty argument.
The ethical argument to save Schiavo's life can and should be made independently of any sorts of farcical claims that she has any chance whatsoever of recovering from her injuries. The argument can be made by questioning her husband's severe conflict of interest (in which case mere prudence dictates that the decision must be taken from his hands), as well as respecting her parents' wishes, as well as valuing life, as well as not projecting one's values ("I'd want to die were I in that position!") onto a person who has given no evidence of sharing them, etc. etc.
But I find it distasteful and, again, propagandistically dishonest for people to argue that she has any real form of cognitive capacity. She does not. She never will again, unless a miracle occurs in contravention of all we have ever learned about neurological physiology. And that is completely irrelevant to the issue of whether she should be starved to death or allowed to live in the care of her parents.
Have a complete, well written will in place. And consult with a lawyer about it.
For some reason, many have become accustomed to viewing the judiciary branch as the end-all, be-all arbiter of legal and/or constitutional matters, when, in fact, it is not. As you rightly suggest, the Founders granted each branch of government unique powers with good reason - each branch would serve as a "check" on the other, thus preventing one branch from accumulating too much power. It is only through consensus among all three branches that the law of the land is created. Yet, this has not been the case in recent times, as activist judges have deemed it their right and purview to legislate from the bench (e.g. Roe v. Wade).
Now, we have a judge who has endorsed removing the feeding tube of a woman whose intentions only her unfaithful executor can divine. The fact that Congress is acting to intercede on behalf of Terri Schiavo and her parents to me is heartening, not disconcerting. I will not lose a wink of sleep at night worrying about whether the federalist system is in jeopardy because Congress believes it is within its right to attempt to protect the life of a person, though incapacitated, is clearly alive and whose true wishes are impossible to ascertain. What I will lose sleep over is the willingness of some to allow an individual to die because a judge, a panel of doctors, and a less-than-faithful executor have deemed it her "desire" and in her medical interest even though know legal written documentation exists from Ms. Schiavo to that effect and she is clearly alive as evidenced by her response(s) to stimuli (e.g. smiling).
pro-choice/pro-life are ideologies. Here the republicans are working to advance a pro-life agenda by preventing Terry Schiavo from dying as a result of a removed feeding tube. If you don't think that that is part of an ideological struggle...well, I just don't know what planet you're on.
Personally, I think the courts/doctors/congress/family should strive to follow her wishes (whatever they may be) and not their own. If she would not want to live like this, she should not be made to. If she would want to live like this, then the feeding tube should not be removed. However, I am completely against anyone imposing their own will on her to serve their own feelings, political agenda, ideological agenda or rhetoric.
I don't know all the particulars, but my understanding is that a large part of the med-mal judgment has been spent (dunno on what). Also, if Michael wanted a payoff, the $10mil and $1mil he was offered to waive his rights would probably have won the day.
Also, I'm not sure that "most" medical doctors agree that she will improve. Some may, but it sounds like that issue has been adjudicated up and down the legal system in Florida...partly based on evaluations by four independent doctors brought in by the trial court. If there is new evidence to dispute those findings, that should be brought forward.
at least Congress finally acted in a proper way and put together legislation to address the issue, rather than the sideshow of the subpoenas. You may be heartened right now, but given time that feeling will fade because the federal judiciary will be faced with the same set of facts and the same set of law that the Florida courts were. While there may be some conservative activist judges willing to ignore those facts and that law, I have worked on the 11th Circuit and know that most of the judges on that circuit are faithful to the law and not their own ideologies. At best, this is a temporary reprieve and may not even be that. Good or bad, the law on this issue is pretty clear.
"Personally, I think the courts/doctors/congress/family should strive to follow her wishes (whatever they may be) and not their own."
Therein lies the problem: no one truly knows what Terri wants. No "living will" exists that describes what she would have wanted if she were to become incapacitated as she is now. The only "evidence" that exists is hearsay from a conversation Mr. Schiavo claims he had with her. That is not compelling evidence.
Absent Terri being able to state unequivocally what she wants, which obviously she cannot do, the presumption should be in favor of maintaining an individual's life. If erring on the side of life in a situation such as this can be classified as an "ideological goal," then I would rather support that "goal" than one which is in favor of allowing someone to die under extremely dubious circumstances.
the common loathing I see around here of judicial activism?
If it is OK for Congress to intervene in court cases like this because they are all political animals, then what is wrong with legislating from the bench?
If you want to make the boundary permeable one way, you need to make it permeable the other way, too, or else the branches are no longer co-equal.
that's fair. However, Mr. Schiavo, as her husband and in the absence of direct evidence contradictory to his conversation with his wife, has the right to direct her medical care according to her wishes as he understands them.
"Absent Terri being able to state unequivocally what she wants, which obviously she cannot do, the presumption should be in favor of maintaining an individual's life."
Actually, the presumption should be in favor of the individual vested with the power of attorney over the incapacitated to make the decisions that they are legally granted the authority to make.
This issue is far more personal to me than ideological. I would not want the United States Congress or James Dobson or Gary Bauer or Tom Delay to step in to try to interefere with my wish (which is to not be sustained by life support if I were in a condition similar to Terry's) when the person who I grant power of attorney to acts to carry out my wish...even if my parents and family are howling to the contrary.
Agreed that Courts are political institutions and agreed that "federalism" does not bar Congress from acting -- and also agreed that the Fourteenth Amendment at least suggests as much.* But two problems.
First, the federalism issue is not, as you suggest, whether Congress can or cannot act. The issue is whether Congress should or should not act. Indeed, your post implicitly assumes that "federalism" is purely a matter of court concern. It's not. Federalism is also a matter of legislative concern.
Indeed, responsibility for maintaining our federalist system reside primarily with the legislature. It's almost always a question of "should" rather than "can" -- should the legislature do act X, not can they do act X. I realize that the focus of your post is on the Courts, but you've focused on the Courts to such an extent that you're obscuring the actual issue with respect to the federalism objection.
Second, you're ignoring the second reason why Congress should not act: Separation of powers. You write: "The Florida state courts are saying that in a life-and-death case of this kind, the contentiousness of the facts does not benefit the side of life." What the heck does this mean? The "contentiousness of the facts"? That's a feature of almost every court case that goes to trial. And, in every case where the facts are disputed, you think that the Courts should apply an (unlegislated) rule to "[b]enefit the side of life" (whatever that means)? What a wonderful invitation to the Courts to legislate form the bench. What a wonderful invitation for the legislature to intrude into the trial court's fact finding in hundreds of thousands of cases.
As I understand it, the law applicable in this case is not controversial. (If you think that the law is controversial, provide the cite.) The sole dispute is over the facts. We rely on trial courts to assess those facts. It's one of their core functions in our tripart system.
The trial court's decision is subject to appeal, and this trial court's decisions have been subjected to numerous appeals. Again, that's the system. There is no role for Congress, here.
von
*I don't know if this paranthetical is directed to my prior posts to Thomas on the issue, but my point was that the Fourteenth Amendment alone does not itself bar removing Schiavo's feeding tube.
First, see my two comments, below. Second, as for these comments:
"Their authority does not go so far as to enable them to render a different judgment about the facts, or about this particular case, but it does enable them to modify the mechanisms of due process."
Not necessarily. There is the prohibition on bills of attainder and ex post facto laws to consider. (IOW, the separation of powers issue that I reference below is given teeth by the Constitution.)
"The judicial branch conceivably could strike this law down. I am not sufficiently versed in constitutional law to say either way."
What law? The law is not, as I understand it, in dispute; the dispute is over the application of the law to the facts.
As I said elsewhere, if "conservatism" means that we must acquiesce in the legal structures and precedents that led to the cruel execution of a helpless woman, then "conservatism" is mere wickedness.
The issue is not ideological at all: it is philosophical.
You can play the semantics game all you want, but it comes down to an ideological position. Those who adhere to a pro-life ideology/philsophy/way-of-life/point-of-view/outlook/perspective/etc/etc are engaged in a fight to service that ideology/philosophy/way-of-life/etc.
I would disagree with you only in a small way. I apologize if you see is as picky, but I think it's misunderstood by some.
Michael Schiavo didn't make the decision to remove the feeding tubes for his wife. He favored it. He petitioned the court to do it. However the court made the decision based on his testimony and others.
Michael didn't make the decision and he doesn't have the ability to reverse it. If he changed his mind the court may (probably) follow his lead, but it's not under any obligation to do so.
So he's not directing this part of her medical care...but I realize that my arguement is partly semantics as the court would probably go with his recommendation as guardian.
Pardon me if this seems too picky.
It's hard not to sympathize with Terry's family, but simply pushing through a bill as quickly as you can over one person that effects billions, even if it turns out there is an overwhelming majority that agree with the cause, is all truly for politics. It's to sway their constituents who believe in her parent's plight to keep her daughter alive with disregard to what her quality of life will ever be and what her intentions spelled out to her husband may have been.
This effects too many people. Living will you say? Any will can be contested these days if someone pushes hard enough. The next situation could be parents who don't believe their child would ever sign such a document, therefor their spouse forced them to. A court battle ensues while the person in question lies in a hospital bed clinging to life potentially in constant pain or discomfort because their injuries/illness. Even if they are concious they'd be considered not in the right state of mind to determine their own fate. Leave it to the feds.
What about a couple that truly has made their intentions clear? Go a little further and say what if neither side has family to interfere? This would leave it up to the Gov. to determine the very course of our lives.
Bit of an invasion of privacy isn't it? This is just another step allowing the government to dictate our lives to us. I don't like the prospect of blanket control being imposed on everyone over one court battle in Florida, no matter how many people might agree.
Despite the parent posts insistance that the courts are political tools, that's not what was intended. The courts intent is to uphold the constitution and any laws that are deemed valid when judged against it. The judicial system is there to prevent politics from dictating the law. To further allow it to be used as a political platform to decide out fates is a slap in the face of each of our founding fathers.
...between activism and non-activism is not, interestingly enough, activity. It is, rather, what the activity is grounded upon. Is it grounded upon a positively granted authority? If the answer is no, then that is judicial activism. This is what conservatives object to. If a body does something through an expressly-granted power, then that is not judicial activism.
In this case Congress is passing a law which expands due process. The 14th Amendment specifically and positively grants them the power to do exactly what they are doing.
We are not making any boundaries permeable by approving of this action. We are simply recognizing that they are doing what the Constitution itself explicitly grants them the right to do.
And the pro-euthansia/pro-eugenics movement as evidenced by Michael Schiavo/George Felos' Dr. Dr. Ronald Cranford are NOT?
In published articles, including a 1997 op-ed in the Minneapolis-St. Paul Star Tribune, he [Cranford] has advocated the starvation of Alzheimer's patients. He has described PVS patients as indistinguishable from other forms of animal life. He has said that PVS patients and others with brain impairment lack personhood and should have no constitutional rights.
In the cases of Paul Brophy, Nancy Jobes, Nancy Cruzan, and Christine Busalucci, Cranford was the doctor behind the efforts to end their lives. Each of these people was brain-damaged but not dying; nonetheless, he advocated death for all, by dehydration and starvation. Nancy Cruzan did not even require a feeding tube: She could be spoon-fed. But Cranford advocated denying even that, saying that even spoon-feeding constituted "medical treatment" that could be licitly withdrawn.
In cases where other doctors don't see it, Dr. Cranford seems to have a knack for finding PVS. Cranford also diagnosed Robert Wendland as PVS. He did so in spite of the fact that Wendland could pick up specifically colored pegs or blocks and hand them to a therapy assistant on request. He did so in spite of the fact that Wendland could operate and maneuver an ordinary wheelchair with his left hand and foot, and an electric wheelchair with a joystick, of the kind that many disabled persons (most famously Dr. Stephen Hawking) use. Dr. Cranford dismissed these abilities as meaningless. Fortunately for Wendland, the California supreme court was not persuaded by Cranford's assessment.
Good lord. The more one finds the facts behind the people trying to off Terri the more this case reeks.
Terri has not even had the minimal medical standard to even begin to evaluate for PVS..ie MRI and PET. Michael Schiavo has consistently refused such testing. No responsible medical doctor would ever make such a diagnosis without the scans.
A CT scan is woefully inadequate for any ANY definitive evaluation of PVS.
You're saying that the indendent neurologist, appointed by the court, is not a responsible doctor?
Perhaps you should read the ENTIRE decision by the Florida Supreme Court so you can get a grasp of the facts of the case.
Interesting post, though I cannot imagine how you concluded that I failed to focus on the legislature.
I have responses to both points.
(A) You suggest that "should/should not" is the standard to arbitrate federal questions. Theoretically, this is true. In most situations, an agent, any agent, would face an ethical question like this ("Should I, shouldn't I?), an outcome question ("Can I actually get this job done?") and a cost question ("Is this going to be too expensive?"). However, ethical questions imply an ultimate authority, interior/exterior, upon whom one turns to guidance.
Where is this in the case of American federalism? The branches are co-equal. There is no "sovereign" or Leviathan to whom one can turn. Further, the branches are themselves collective entities, and so cannot turn to their "ethical intuitions" for guidance. Thus, there is neither an internal nor an external judge upon which ethical questions can be predicated.
In inter-branch warfare, ethics does not really enter into it. Decisions of one branch against another are made strictly on the basis of efficacy and efficiency, i.e. the second two questions. Sometimes, these calculations are well made (e.g. Marshall's ruling in Marbury), sometimes they are poorly made (e.g. FDR's court-packing plan). But there is nowhere any of these agents can turn to discover whether such actions are ethically allowable. Certainly not the Constitution, certainly not history (history without interpretation is simply facts on paper, and there is, as I mentioned, no moral rosetta stone to help us interpret history in terms of federalistic morality), not even The Federalist Papers, for it was Madison himself who envisioned this warfare.
Broader point: our system, for better or worse, reflects in many ways the kind of 17th century political thought characterized by the early modernists. We are founded upon a settlement, and insofar as that settlement indicates what should be done, we enjoy a political morality. However, where that morality is absent, there is really a state of nature, which is characterized by a lack of higher authority. In our system, "the space between the branches," so to speak, is like a state of nature (more Hobbesian than Lockean).
(B) I have seen many argue that "this case is just like every other, and so what is the big deal." Yours is, I think, more sophisticated than most, but it suffers from the same problem. This case is not like every other case because people with governmental authority strongly disagree, or at least are strongly skeptical of, this court decision. This happens very rarely -- and this rarity is not just coincidental (i.e. it could not at any moment start happening every day, once the "precedent" is established).
Like I said, the separation of powers does not prohibit Congress from involving itself in a case like this. Congress has the authority to establish proper due process for even purely state matters. This means that the opinions that Congressmen have on cases, be they opinions on the law or the facts, matter. This is where the contentiousness of the facts comes into play. This is what it means. The facts are contentious because powerful people in Washington find them contentious.
Does this mean that the seal is broken, that this is going to become a daily event? I reject this "slippery slope" argument. For four reasons. First, its premise is wrong. Congress is simply not breaking new ground here. They have always been able to "meddle" in this manner. The fact that an instance like this comes around only once in a great long while means that it will likely only come around again once in a great long while. No seal is being broken today, and so why should we expect some new flood of such instances? I am perfectly content saying that, as an empirical matter, Congress will not be getting into "thousands of cases."
The second point is most important. Congress simply lacks the resources to make this a habit. Just as the Courts lack implementation/financial powers, so does Congress lack the unique abilities of Courts to arbitrate individual cases. This cuts against the slippery slope argument, too. How can Congress possibly make a habit out of it when it is so difficult, thanks to its institutional structure, to even respond once? You see what kind of hassle this has been for them, right? Why in God's name would they want to do this all the time? They hate giving up their weekends (I say that flippantly, but it indicates an important point -- Congress as an institution can deal with these cases, but the costs of dealing with them are very high, and therefore it inclines Congress not to turn itself into another judiciary).
Third, I would say that Congress cannot make a habit out of it because the judicial branch is itself endowed with powers to respond. They have their own resources. If Congress steps beyond the well-established ways of doing business, the Courts are not without resources.
Fourth, there is also, and I cannot emphasize this point enough, an informal political settlement in this nation which would simply not allow a fundamental change in our structure. Robert Dahl actually goes so far to argue that this informal settlement, as opposed to our formal mechanisms of government, is what makes the system work. This is why FDR failed to pack the Court. The public, and the other branches, simply rejected this overbearing activity. One branch putting pressure on another once and awhile is fine in this nation. But it cannot become habitual, for then it appears to be an encroachment, and the public will not tolerate that.
The last three reasons are why I generally have problems with "slippery slope" arguments: they fail to appreciate the current "path dependence" (in game theoretic terms) that exists in any given situation. This is because they are inherently analytical, rather than empirical. The way our system works is based both upon formal and informal arrangements. Both place restrictions upon the actions of parties. Informal arrangements can be as ironclad as formal arrangements. They are like the tire track you'd develop if you rode a bike around your house on the same path 1,000 times. It is very difficult to get yourself out of that rut. You still have some wiggle room within it, but you are basically tied to that rutted-down path if you want to ride your bike. So it is with our government. Congress is using its wiggle room here to dispute the court decision, but it is simply impossible that all of this could possibly result in some kind of new, horrifying, slippery-slope manner of doing business wherein Congress would have a vote on everybody in a "persistent vegitative state".
To return to my first point, this path dependence means that the two questions facing Congress -- the efficacy question and the cost question -- usually are answered in a way that taking action against a branch is too costly. So, generally, the fact that we are lacking ethical boundaries does not mean that we are lacking effective boundaries.
Good lord. The more one finds the facts behind the people trying to off Terri the more this case reeks.
The natural state of Terri Schiavo at this point is a dead Terry Schiavo. Feeding tube or no she will never recover to the point of being able to decide her own treatment so the court has decided based on an exhaustive study of what she would have wanted to happen at this juncture.
This is entirely consistent with current law and the only difference between this case and many others is that apparently there is enough money from somewhere to take the decision of whether or not to prolong her 'life' out of an insurance company's hands and a need by some to wage an idealogical campaign over the issue.
Yes, it reeks all right!
and its not like he's onimpotent.
At woman was stabbed to death by her husband two weeks after he found she had no cause to seek a protective order against her husband.
Terri did not receive even the minimal medical standard to determine PVS and Greer accepted a finding of PVS from a pro-eugenics doctor that is published for advocating the stripping of Constitutional rights from all manner of brain damaged people and putting them to death.
If the Law facilitates the killing of someone because their existence is less than the "eugenically sound model" ... which historic society does THAT sound like?
court who themselves rejected Cranford's efforts to have a wheelchair bound man offed for the affront to Cranford's superior sensibilities his existence provided.
You have drunk deeply of the Kool Aid.
Try this thoughtfull peice when the effects begin to wear off, perhaps you too can be made to see reason?
http://obsidianwings.blogs.com/obsidian_wings/2005/03/terri_schiavo.html
Eight years later, after various attempts at therapy and a successful malpractice suit (based on the doctors' failure to diagnose Terri's eating disorder), Michael Schiavo petitioned the court to determine whether her feeding tube should be removed.
From the moment Michael received the malpractice award (based on his 'tearful' promise to take care of her the rest of her life, estimated at 50 years) he refused ALL therapy, even anti-biotics to treat a UTI or allowing her dental care. He has refused even standard therapy of limb manipulation to avoid muscle cramps or even turning to avoid bedsores. This is not CRUEL?? This is not CRIMINAL?
She never even received the standard medical tests necessary for a reasonable determination of PVS. Michael has refused consistently ANY MRI and PET scan.
What is that man trying to hide and why did Greer ONLY consider the 45 minute word of an avowed pro-eugenics doctor?
If a "I support death for Terri" argument is to be made, it might be nice to at least stop making up "facts."
Again and again, the simple right to an individual's life is referred to as an invasion of privacy. If death is no longer viewed as the enemy - indeed it is increasingly seen as the solution - we need far more than Congressional action to resurrect the spirit of this fallen nation.
Read the Florida Supreme Court Decision. It thoroughly debunks the character assassination in which you're engaging.
Either she got it or she did not.
Both those tests are the MINIMAL standard of medical test for a determination of PVS.
that FACT alone shows grievous error in the proceedings.
Cranford advocates stripping brain-damaged people of their Constitutional rights and Greer refuses to even read the affidavits from neurologists that differed one iota from the pro-eugenics Cranford.
Cranford's OWN WORDS about braindamaged people = animals is appalling and citing those words is not "character assassination."
Good Lord! If someone wants to argue "Terri is not a real person and therefore needs to be killed" at least be honest about it, stop hiding from Cranford's dismal record.
or give me death.
The court has given her liberty which in this case will also bring about her death.
The Congressional Republican majority apparently prefer life to liberty in whatever petri dish form it may take.
Death is an inevitable enemy. There is no way to beat it.
If the husband was willing to let her parents take it upon themselves and let her stay hooked to machines. Fine. Obviously he doesn't feel that would be her wish. I'm sorry mom and dad, but maybe you should have done something years and years ago to have a legal say in such a matter other than badgering the court system and trying to get laws passed that effect everyone under the sun for your own agenda.
They say don't let our daughter be the subject of your "right to die" agenda when their actions are moving us in the direction of their own agenda.
If you're willing to go this far, let's open the floodgates. Let's actually do something about saving the lives of millions that could lead productive lives but are slaughtered by dictators, guerilla armies. Everyone concerned over this should start putting up the money to feed billions of the hungry across the world. Oh but we don't have to see them plastered on MSNBC and CNN every day.
Out of sight; out of mind.
In support of life? I hope you're a vegetarian then. I'm no PETA lover, but strictly speaking you are sanctioning the taking of "life" by eating meat. Oh but wait, we dictate what life really means as it matters to us. The definition can flip flop depending on our needs at any given time.
This is about the right to life, my argument is strictly in the "I don't want the Government exerting anymore control over things it should keep its hands out of." Read my original post. This has more ramifications than just Terry -- it can and will invade upon a persons right to decide their own existence.
isn't just damaged it has been destroyed and no longer exists.
Terri is not a real person and therefore needs to be killed
Terry is not a real person in any cognitive sense and hasn't been for going on 10 years now and therefore she needs to be let go physicaly as she has been gone spiritualy for some time.
Why the fascination in prolonging the petri dish phase of Terri's life?
Interesting post, though I cannot imagine how you concluded that I failed to focus on the legislature.
Where did you suggest that the U.S. HoR and Senate bear primary responsibility -- or any responsibility -- for maintaining federalism?
This case is not like every other case because people with governmental authority strongly disagree, or at least are strongly skeptical of, this court decision.
Huh?
Let me try to rephase the issue so that it's clearer to you: Under your logic, an executive could refuse to enforce Court orders with which he disagreed. Or, alternatively, modify the order. Or, alternatively, take action that he thinks the court should take without a Court order.
Yes, I realize it has happened before. (See, e.g., President Jackson.) That does not mean that it wasn't a Constitutional crisis of the first order.
I find Congress's grant of a federal cause of action in this case troublesome; I find the logic of your approach, however, extraordinarily frightening.
Please think this one through.
The state is not the source of liberty, merely a custodian. Furthermore, "liberty" is not a relative commodity as some in the judiciary would argue. The liberty of this nation is imperfectly but admirably crafted upon the virtues set forth by our Creator in scripture. Though some may refuse to submit themselves to the authority of Christ and/or country, they nevertheless enjoy the protections and benefits available to all members of the state, regardless of personal persuasion.
Our chief problem emerges from a sustained campaign to overthrow a state mission rooted in absolute forms of justice. In this effort, traditional (and correct) notions of life and liberty become subject to infinite substitution and individual interpretation. In the process, true liberty dies and the state becomes little more than a rogue entity in opposition to true freedom.
"They promise them freedom, while they themselves are slaves of depravity-for a man is a slave to whatever has mastered him."
2 Peter 2:19 (NIV)
Strange that you support a judge and panel of doctors determining the fate of an incapacitated woman whose wishes no one truly knows since there is no written documentation to that effect. No, no government involvement there. Uh-uh.
the husband already has standing. it's ridiculous to look at this as evil courts versus good Congress.
When the laws of man hit four square solid against the teachings of religion and 'seperation of church and state' gets forgotten.
Please see my comments on the "More Schiavo" diary thread. Imaging studies are not likely to be helpful in sorting out these issues.
how does she breathe??
Just because Michael Schiavo says her brain is liquified, doesn't make it so. He is not a reliable source for anything.
There is a 5 minute video of Terri out there showing her trying to talk, etc. I'd provide the link if I knew how.
Terri is alive, which ought to be the sole reason for letting her live.
Speaking gibberish is seldom sufficient grounds for dehydrating someone to death.
Are you aware that the five minute video of which you speak was edited down from more than 6 HOURS of taping. If you read the Florida Supreme Court decision, you'll see that Terri Schiavo WAS NOT ABLE to replicate ANY of the "concious movements" from the video tape.
Damn. Read the decision and stop being so ignorant of the facts of the case.
What's to fear from death if an all-loving God is waiting to take us in? Would not 'death' be the more desirable choice? I'm not trying to sound like I sanction murder, but if you or a family member were suffering through a slow, painful, incureable end, wouldn't you rather be allowed to let go and step through the pearly gates?
Oops, sorry, you forgot to write that down on paper, and someone who's perfectly healthy is having a hard time letting you go. We'll plug you into this machine and keep you alive, in pain, unable to speak, care or do anything for yourself; meanwhile us healthy, free to do as we please folk wax intellectual about the nature and meaning of life. It's in your best interests. Even if it is documented, you're in no position to argue your wishes, and since I couldn't stand to see you die, I will contest the decision you made when you were healthy and able.
This legislation basically ensures that this example, I guarantee (though we may never see it on CNN), will take place.
http://obsidianwings.blogs.com/photos/uncategorized/schiavo_ct_scan.jpg
Nice Sig. by the way, scammers for Schiavo?
"Under your logic, an executive could refuse to enforce Court orders with which he disagreed. Or, alternatively, modify the order. Or, alternatively, take action that he thinks the court should take without a Court order."
Ethically, yes. There is simply no ethical authority to stop him. If you mantain there is such a standard encoded into our formal documentation, show it to me. Upon viewing it, I will gladly cede the point. But I simply refuse to defer to this argument if it is based upon intuitionism. I think such references result in incoherence, given how Congress's role has evolved over time (and therefore any reference to timeless ethical standards of deference fail to explain how that body has changed over time) and how Congress is not a human being, but a multitude of people (to maintain that a human collectivity somehow possesses singular intuitions about right and wrong really requires a reference to a Freudian type of group consciousness...you will lose me here).
It is certainly true that Congressional restraint is a good thing. It is also an empirical fact which must be explained. I maintain, and I am not really outside the fold in the scholarly literature on American political development (see, for e.g. Robert Dahl's Preface to Democratic Theory), that this restraint comes not from any ethic (so that Congress X was acting immorally, Congress Y morally) but through the calculations that come from questions of effectiveness and efficiency.
The key point is that effectiveness and efficiency issues are what prevents the system from being radically modified. You are maintaining that Congress has some kind of ethical responsibility to "maintain federalism?" What is the fount of this responsibility? What is the authority to which Congress grants deference, and does such authority indicate this standard? As far as I know, Congress only submits to the Constitution, which does not indicate anything about generally doing the right thing.
Relevant for this issue, the Constitution does, in Amendment 14, authorize Congress to enact any legislation it sees fit to ensure that no state violates due process. The Schiavo case seems to me to be an issue of due process, and Congress seems to be enacting a due process oriented bill this evening. So any ethical standard that you find will have to be so decisive that it holds precedence over the explicit authority granted to Congress in the 14th Amendment.
And, I would say, that executive muddling with court orders happens quite frequently. I refer you to Rosenberg's Hollow Hope. Any branch will oppose any other branch if (A) it is in their interests and (B) the expected benefits from that opposition will be greater than the costs.
Other Points:
"Where did you suggest that the U.S. HoR and Senate bear primary responsibility -- or any responsibility -- for maintaining federalism?"
I did not maintain this because no branch has an ethical responsibility to maintain federalism, which I indicated in my original post, but which I have made explicit now twice since. Incidentally, I also did not indicate that the Court have such a responsibility -- I was careful to put the word "meddle" in quotation marks, and indicate parenthetically that each branch is allowed to do what both the judicial and legislative branches have done.
Again, no branch has an ethical responsibility to do or refrain from anything vis a vis the other branches, so long as it is not prohibited by the Constitution. Beyond this, it is a matter of power v. power. Practically speaking, this is regulated by American tradition, a path dependence which preserves the current order, and consequently prevents other branches from doing anything radical (again, because of effectiveness/efficiency issues).
"Please think this one through." You could be a tad more polite here. Do you really think I am guilty of sloppy thinking here? Really?
Personally, my sense here is that you do not fully appreciate just how informal our system is. The practices that our governmental bodies currently employ are, in many areas, not derived from any formal document. The Constitution is a very open-ended document, and it gives each branch plenty of leeway to do what they want, and especially to combat one another as they see fit. Much of the vagueness has been filled in over time by events and actions. The system has changed drastically since its founding, and it continues to evolve. In relation to our current disagreement, this means that (A) the branches have a great deal of formal openness to do what they want, as our formal document is quite open-ended; (B) because our documents are so open-ended, referrals to an ethical standard will ultimately be quite ephemeral; (C) the real limitation upon branches is the limitation derived from our informal settlement, which induces "path dependence" that drastically increases costs upon branches that try to act truly novelly.
Your insistance upon an ethical standard that undergirds our political order is extremely problematic, and not just because (to my knowledge) there is no such ethical standard written down. It fails to explain change in our system. If there is some sort of ethical standard which keeps branches in line, then how is it that we have come to the point we have come to? Do you wish to argue that our contemporary system is now corrupted, and has not been pure since 1932, or 1860, or 1832, or even 1801? Our system is a changing entity that has evolved. How can you explain this without arguing that branches have acted immorally? As a final exclamation point to this argument, I'd point you to Stephen Skowronek's The Politics Presidents Make. Skowronek argues that the nature of the presidency itself is such that it induces the person who holds the office to engage in an "order-shattering, order-affirming, order-creating" process. In other words, each President is induced to remake the political order in his own image.
If Skowronek is correct (and I personally am inclined to his hypothesis, though I think he overdoes it in points), then the system itself is contradictory, by your standard. If we cede your point, agreeing that there is an ethical standard inherent to the system for maintaining "federalism" as you see it and therefore the political settlement's status quo, how do we explain Skowronek's argument? If both are held, the system condemns as unethical the very thing it induces the President to do (i.e. change the system)!
And, thus, I can't respond to your lengthy post. But a few quick points on separation of powers, which I hope are not so hastily dashed off as to be impenetrable:
- "Ethics" don't enter into it. As for specific provisions that enforce the separation of powers among the branchs: yes, they exist. (I've mentioned the prohibitions against ex post facto laws and bills of attainder; there are others). There is also the history of the common law in England (Blackstone et al.), which the founders drew upon in framing the Constitution.
- "Due process" is the wrong tree, unless you're trying to argue for a substantive due process right. By any standard, due process was provided here. (A court finding to clear and convincing evidence; numerous appeals; etc.)
- Again, no branch has an ethical responsibility to do or refrain from anything vis a vis the other branches, so long as it is not prohibited by the Constitution. Beyond this, it is a matter of power v. power. Practically speaking, this is regulated by American tradition, a path dependence which preserves the current order, and consequently prevents other branches from doing anything radical (again, because of effectiveness/efficiency issues).
You're arguing generalities; I'm arguing specifics. In this case, the law is not in dispute. The facts are. The trial court found that the facts clearly and convincingly indicated that Ms. Schaivo would wish to be allowed die if she was placed in this situation. That finding was upheld despite numerous (at least 14, at present) appeals.
The Court has issued an order. You suggest that the Executive need not follow that order. You imply that the Executive maybe should not follow that order. I'm telling you, as directly and as clearer as I can, that the day an executive refuses to follow a Court order is a day on which we cease to be a nation of laws. (Failing to enforce a law as a matter of prosecutorial discretion is a very different matter, which I can't fully explore at the moment.)
- Speaking more broadly: You highly discount the value of tradition. That's profoundly unwise, as well as profoundly unConservative. "Everything is up for grabs" is not a principle of governance.
- You're at the U of C (at least, according to your prior tag lines). Seek out Professor George Anastaplo, who I think still teaches there. Seek out your other Professors. Ask them about your proposals. But don't just ask questions of can and don't just ask questions of should. Also ask questions of effect: What is the effect, over time, if an executive refuses to enforce Court orders with which he disagrees? To what end is such a society heading?
I should point out that for someone with so little time, that's a very long comment.
You know, it really didn't matter whether Terry was alive or dead when the suit was brought. Unless there is some special kink in Florida law or Terry's legal arrangements, Michael would have been executor of her estate and would have maintained the right to bring a lawsuit on her behalf after she was dead.
Also, he was offered $1 mil and $10 mil to terminate his rights...so the whole "monetary self-interest" angle is really not that availing.
First I'd like to say that I'm simply floored by the quality of the arguments being advanced in this exchange, by both of you. Would it be that I could reason half this well. This is the kind of high-level argument that I don't see anywhere else, and we're all the richer for it. Thanks to you both for making the effort to post responses like this in a blog thread. My IQ just went up ten points. I wish. ;-)
In any case, George Anastaplo is currently a member of the faculty at Loyola University School of Law in Chicago.
There was a fascinating symposium on Anastaplo's thought, which featured articles written by several of his former students, published in the Political Science Reviewer in 1997. Anastaplo himself contributes an overview and a response. He was a staunch critic of the first Gulf War:
It appears that a quarter of a million people are now dead or dying in the Middle East who probably would be alive and fairly well today if the United States had not decided to go to war in mid-January 1991. Even the terrible depredations visited upon that part of the world by so reckless a man as Saddam Hussein in recent years cannot match what we and our allies, with perhaps the best of intentions, were able to do in less than two months.
Anastaplo taught many students at the University of Chicago and conducted essentially pro-bono adult education seminars, but never held a regular faculty appointment there:
Arnhart: I was a graduate student at the University of Chicago and during that time, certainly six or seven years, there was a group of us, varying from a dozen to a couple dozen, who met regularly with him in the library. We would read texts, prepare papers to discuss, and do a variety of things that we couldn't do in our regular classrooms. He was the best professor I had at the University of Chicago, although he has never had a regular faculty appointment at the University of Chicago. I think that should be said.
Patner: And, of course, he offered those seminars entirely without compensation.
Arnhart: In his "free time." His Socratic independence not only brought upon him the punishment of being denied admission to the Illinois Bar but, it should also be said, it brought upon him the punishment of never having a regular faculty position at the University of Chicago because he has not been acceptable to it.
Patner: It should be said as well that the dean of the Law School at the University of Chicago offered no assistance to him whatsoever throughout his struggles with the bar, even as he was bringing honor both to the school and to the legal profession. When this dean became president of the University of Chicago, he saw to it that, at least while his court sat, Anastaplo would not have the benefit, or the University (we should say) would not have the benefit, of Anastaplo's joining its regular faculty. We have here a person who has been educated by and who loves the University of Chicago, his real intellectual home. It is a shame that the marriage that was called for there was not perfected. Whoever's fault that was, it was certainly not the fault of this distinguished panel. We are grateful for their contributions here this morning and yesterday at the APSA Convention. I should add, before closing, that George Anastaplo is speaking today at noon at the Chicago Cultural Center. His talk, "King David, Favorite of God?," is in the First Friday Lecture Series presented monthly by the adult education division of the University of Chicago.
My mistake; I had thought that he was an adjunct.
Incidentally, I knew he was a professor of law at Loyola -- I took Con Law II and Jurisprudence from him.
The Dark Lord of the Sith told me so.
Laugh. Laugh. ;)
Death is neither a desirable nor a natural outcome. Though some who suffer may indeed long for death, it is the universal process of death (inherited through original sin) which is the initial reason for their suffering. Death remains the enemy. Regarding death as it relates to God, I refer you to a fellow named Paul. As for life, here's an interesting little quote that seems to be popular at sporting events.
Now, back from out little digression.
It is universally recognized that human life--regardless of form--is to be fought for. Sadly, this truth is also perpetually denied. In America, our most famous failure to embrace a culture of life can be seen in the slaughter of 45 million unborn babies since 1973. Yet as much as "pro-lifers" are taken to task for forcing their horrible love for life on others, rarely does the street run both ways when death advocates are the ones doing the proselytizing. You make an extremely subjective, negative value judgment when you opine that death can be better than life in a humanitarian context. You assume pain, as do you assume diminished value of a life in which speech and self-care is irrevocably impaired. Though this viewpoint may be popular among eugenicists, many seriously disabled and once-comatose patients could easily disagree.
Further, your hypothetical scenario about an individual being kept alive against their wishes does not apply to this case. The only evidence we have is the statement of an adulterous husband. This is simply not credible!
The bottom line? Allowing someone to live is not a decision. Death by starvation is.
But I used to work at DePaul, and anyone who mentions George Anastaplo in an argument with a University of Chicago grad student has to be from Loyola Law.
;)
Small world, huh?
Small world, indeed. And an excellent bit of deductive reasoning.
You're not related to a (former) Judge Kowalski, are you?
...medical professionals have commented that the 2000 video which shows Schiavo reacting to external stimuli prove that she is in no way in a PEV. Keep ignoring the blatently obvious only at the expense of your own credibility.
Not too long ago, I saw the highlights of the Superbowl on the news. All they showed were the touchdowns. Those b&*#@! They misled me into thinking every play was a touchdown, whereas in reality, most of the plays in the 4 hour game were pretty boring.
So your criticism is that a brain-damaged person was only able to act alive for five minutes out of several hours. I guess we ought to shoot the bi***, for misleading us.
She just wasn't alive enough for you to avoid letting her bodily acids eat away at her organs while she dries out. Is that your stance? Because that is what you are apperently supporting.
Terry is not a real person in any cognitive sense
You are arguing "personhood" not alive/not alive and at least you aren't hiding your eugenics POV.
Who's next, crony? There are just oodles of profoundly mentally and physically disabled people, MS/ALS/Cerebral palsy/low functioning Down-syndrome/severe autistic ...
Where do you draw the "personhood" line with them? Should they suffer to live? Should we institute some kind of eugenics boards to decide this issue?
No one has said Terri has a healthy brain. Quite to the contrary.
But she is alive, and was apparently able to eat from a spoon, according to nurses who took care of her. They say she tried to talk, saying "mom, pain" etc.
One nurse reported Micahel to the police for suspecting that he injected Terri with insulin in an attempt to put her into a coma. These nurses were interviewed by Doocy on Fox news and another show. Rush Limbaugh recounts it on his website.
Terri should not be punished for being brain damaged.
Death is wrought upon us because of sin? So that's why we grow old and croak?
Adulterous husband based upon the definitions in The Bible. I'd like to point out that the United States is run by law not theology.
In fact there is a line in the Constitution explicity BARRING laws adhering to a particular religious belief.
I'm veering off topic, but I am continually stumped by Catholicism's insistence that we're only here in service of God. It seems a bit egocentric that God, the creator of all that is, should require anything from fallible, sinful man.
First, no one here advocates a state-based religion. Quit trying to create a red herring. Second, the definition of adultery, secular or religious, is the same. Third, who says Str8ght is a Catholic???
In your original post you took a view of the government -- all branches are inherently and inevitably political -- that is not written in the Constitution, and arguably not intended by the framers. Consider the attitude of the President of the Constitutional Convention on political parties -- he was against them.
But when you want the argument to come out the other way, then you retreat to the precise text.
The political nature of the court system is implied in the Constitution, by the way in which the three branches must relate to each other without any overarching authority. That was your original argument and I agree with it.
But the ability of the courts to nullify laws they deem unconstitutional (which is what seems to be at the root of the complaints about judicial activism) -- this is likewise implied by the phrase "three coequal branches". Otherwise where would the check be against the Congress and the President passing and signing an unconstitutional law?
My own feeling is that, having failed in the first attempt to get the states to act together for the common good, the founders tried again with the Constitution and did much better, but still not perfect. Tweaks such as Marbury v Madison were still necessary to bring the administrative details in line with the broader vision.
In your original post you took a view of the government -- all branches are inherently and inevitably political -- that is not written in the Constitution, and arguably not intended by the framers. Consider the attitude of the President of the Constitutional Convention on political parties -- he was against them.
But when you want the argument to come out the other way, then you retreat to the precise text.
The political nature of the court system is implied in the Constitution, by the way in which the three branches must relate to each other without any overarching authority. That was your original argument and I agree with it.
But the ability of the courts to nullify laws they deem unconstitutional (which is what seems to be at the root of the complaints about judicial activism) -- this is likewise implied by the phrase "three coequal branches". Otherwise where would the check be against the Congress and the President passing and signing an unconstitutional law?
My own feeling is that, having failed in the first attempt to get the states to act together for the common good, the founders tried again with the Constitution and did much better, but still not perfect. Tweaks such as Marbury v Madison were still necessary to bring the administrative details in line with the broader vision.
If the legal facts of the case are in such dispute, why has:
a) every legal decision gone for Michael Schiavo?
b) the U.S. Supreme Court refused to hear any of the appeals brought forth by the Schindlers?