Monday, March 28, 2005

This Circus, Summarized

For the sake of charity, I refrain from assigning moral blame on any of the participants in the Schiavo case, but I do not refrain from applying moral analysis to the situation. It seems probable to me that this case is something of a "tip of the iceberg" thing. More likely than not, disabled people are unjustly deprived of life more often than we would like to think (if everyone capable of speaking up in a particular case agrees on the decision, then it simply does not become a publicly visible issue, and no one is the wiser). However, sometimes Providence sees fit to shine a very bright spotlight on "standard operating procedure".

I do not see how it can be denied that (speaking about rights themselves and not any particular ruling, legal brief, statute, etc) Terri Schiavo, under the fifth and fourteenth amendments of the Constitution, is afforded the same due process rights that a confessed and convicted serial killer would have. These rights include the right to a very high standard of evidence before an execution can be carried out, the right to appeal at the federal level, the right to a stay of execution at the order of the executive, and the right not to undergo cruel and unusual punishment. Terri Schiavo is being detained and executed by the state. The method of her execution is equivalent to the ancient Roman practice of being entombed alive. This is a punishment that is not, and never has been, a part of U.S. law.

Congress, under its Constitutional authority to determine the jurisdiction of the federal judiciary, passed an emergency law which called for a reopening of the case and a fresh examination of all available evidence. Now, the federal judiciary, which has shown itself in its exquisite sensitivity to be capable of finding legally binding "penumbras and emanations" on the back of a box of imported cereal, went into "jot and tittle" mode and just couldn't discern any substantive intent behind the emergency law.

After Schiavo is dead, our activist Judicial Lords will simply claim, "nobody said the magic words!"

Our federal legislators and the Chief Executive are sworn to uphold, defend, and protect the Constitution. The Judicial Branch, for whatever reason (who knows, maybe there are some good Levitical or Deuteronomical, or Numeric reasons why the Judiciary was bound by the "letter of the law" and thereby not able to carry out the "spirit of the law"; really, maybe there were some very good legal reasons why they simply could not act), was unable to uphold fundamental Constitutional rights in this case. Due to the (perhaps inevitable, perhaps logically required) failure of the third branch, the first two had a duty to act. The litigation which would have followed would have served to clarify the Constitutional issues involved, and set the precedents required to get these rights handled properly by the judiciary. However, the response of the first two branches was, "The Almighty has spoken. Ours is but to tremble and obey."

Surely it will be the case from time to time that the Judiciary (and perhaps for perfectly honest reasons) will paint itelf into a corner, and that the other branches will need to step in and cut the Gordian knot? It's hard to see how the legal system in this fallen world is not going to be subject to the universal law of entropy and not in need of some periodic adjustment from outside. Of course the threshold for doing this should be high. If this threshold hasn't been met now, then when could it ever be?

We acknowledge that the Executive can fail and that there are quick remedies by way of the Legislative or Judiciary. We acknowledge that the Legislative can fail and there are quick remedies by way of the Executive or Judiciary. Are we really to believe that the Judiciary can fail, and that the only available remedy is to say, "Oh well, maybe with a decade or so of Herculean effort, we can get better judges or pass an amendment?" When the Legislative does something blatantly unconstitutional, does the Judiciary say, "Oh well, maybe some day people will vote for better legislators?"

People have argued that Congressional or Presidential action would have precipitated a Constitutional crisis. This is wrong. The crisis is already upon us, and has been precipitated by the Judiciary.

Update: Andrew MCarthy, who, I think, is probably the most clearheaded writer on this whole issue, opines on what needs to be done in the aftermath of this case.

1 comment:

Sue Bob said...

This is a stunningly brilliant take on the legal aspects of this case. Thank you for the great perspective you bring to the matter.