March 22, 2005


If Congress can save a life, could it also take one away? (MARK BROWN, March 22, 2005, Chicago SUN-TIMES)

Whether you believe Schiavo should be kept alive or allowed to die, here's why you don't want Congress second-guessing the Florida courts about her case:

If this session of Congress can pass special legislation designed to keep Schiavo alive after the courts decided it would be her wish to die, then what's to keep the next session of Congress from deciding to intervene in an effort to allow your ill father to die even though you and an Illinois court decided he would prefer to be kept alive?

You say that's different. How so? If Congress has the power to interfere in such situations, then logically it has the power to go either way.

Never mind the "logic" that killing someone is the same as not letting them be killed, the Founders, not suprisingly, made specific provision against the possibility of Congress ordering a killing in the bill of attainder clause.

Posted by Orrin Judd at March 22, 2005 10:22 AM

You say that's different. How so?

Um...the facts? OJ, maybe you or David or Peter or one of the other great legal minds that haunts this space can help me out here, but since when was the absence of something (in this case, a living will) prima facia evidence of its existance with the sole individual possessing the power to act as attorney in fact?

. . . even though you and an Illinois court decided he would prefer to be kept alive?

Therein lies the problem. Unless I could produce a document from my dying father clearly indicating his intent, we (the Court and I) shouldn't be allowed to kill him.

The doubt must always fall to the side of the first inaliable right: Life. Or we are truly barbarians.

Posted by: John Resnick at March 22, 2005 10:50 AM

"... after the courts decided it would be her wish to die ..."

A telling phrase, that, and an interesting legal theory. Absent any dispositive evidence of her wishes except the hearsay testimony of a party who stands to profit, the court claims to know her mind.

Posted by: jd watson at March 22, 2005 10:59 AM

I does not matter. The federal judge disobeyed the new law anyway and issued a new federal death warrant to supplement the state one.

Posted by: Bob at March 22, 2005 11:24 AM

OJ: I am not in agreement with the idea that Congress should have acted in this situation. It strikes me that this is not a case that tests federalism. I have long thought that Roe v Wade was wrongly decided on the grounds of Federalism.

If we allow the States to be the final arbiters of Justice within their borders, we will ocasionally see one of them go dreadfully wrong. If we make the federal government their court of review, it will be the master. This is the way that SCOTUS has opperated for the last generation and I think that you would agree that they have botched a great deal more than they have gotten right.

There are worse possibilites than having one hick judge in Florida screw things up. One of them is that the 9 Old Women in Black Robes will make it a constitutional right to kill. No, we are better off if the Federal courts stay out of this.

It is also mistaken to lean on the 14th amendment guarantee: "nor shall any State deprive any person of life, liberty, or property, without due process of law;" To extend that language beyond the procedural is to condone SCOTUS' error in Roe and Lawrence.

I do not agree with Congress, but that does not mean that I think that the Florida court has handled this properly. However, if the Schindlers really wanted to save Terry, they should have invaded the nursing home where she is kept and physically stopped them from removing the feeding tube. If necessary they should remove her from Florida and find a more symathetic jurisdiction.

It is obvious that they have played out the legal string, If they want to save her, they need to take action.

Posted by: Robert Schwartz at March 22, 2005 12:44 PM

Robert - The progress of mankind, in the political realm, has been removing autocratic decision-making procedures and replacing them with checked-and-balanced multi-party decision procedures. Thus, the 14th Amendment, introducing the federal government as a check and balance upon state violations, is a step forward, as long as the rest of the Constitution isn't repudiated so that the federal government swallows the functions of the states. The antebellum experience, with southern states suppressing religious freedom and freedom of speech in defense of slavery, shows the dangers in autocratic procedures at any level.

The Schindlers can't intervene, the course you describe would be utterly hopeless for them. We need a lawful authority to dispute the judges about what the law is.

Jeb Bush could do it; he has a law from the Florida legislature saying he has the right to bar removal of the feeding tube; he should have resisted the Florida courts that ruled that law unconstitutional.

President Bush could do it; federal civil rights law outlaws executions of innocent people, and he could at least open an investigation and bring Terri in for questioning at a reputable medical facility. I think there's a fair chance she could communicate with technological aids.

Posted by: pj at March 22, 2005 1:25 PM

I agree with PJ on both the President and Jeb. They won't, the view that judges are supreme is too entrenched,unfortunately.

Posted by: Bob at March 22, 2005 2:11 PM

PJ: The 14th amendment was good as far as it went. The efforts of SCOTUS to make it an excuse for every intervention have produced Roe and Lawrence. They are a disaster. And one that should not be pushed farther.

As far as the Schindlers or their supporters intervening physically, it has a lot of prec3ednt in the civil rights era. Not only that but it would allow Pres/Gov Bush to intervene by doing nothing. "Justice Marshall has made his order, now let him enforce it."

Posted by: Robert Schwartz at March 22, 2005 5:24 PM
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