Wednesday, March 28, 2007

Remembering Terri (cont. and finis)

In July of 2005, Touchstone ran an article entitled "Legal Evils" by Donald Williams, which I can only summarize and in which the author argues that the "judges in court after appellate court...had a responsibility to rule according to the law. The law of the state of Florida gives the decision on treatment in a case where there is no clear written directive to the spouse. Therefore, a sufficient explanation for the astounding unanimity of so many courts in so many appeals is simply the fact that the judges could read." He is of the opinion that, since the only law under consideration was the one pertaining to spousal proxy, "judges cannot overturn a law simply because its application has undesirable results. It has to be unconstitutional." (The implication here seems to be that the judges should rule only on the matter of whether Terri's treatment decisions had been rightly granted to M. Schiavo, not on a particular one of those decisions, even should it end in murder.)

He then asks what he knows he must: "Shouldn't the laws of God trump the laws of men?" He answers yes...but. It's the yes-but quality of the article that reminded me so much of Miller's, the 'yes' admitting that an injustice had been done, the 'but' countering that the interests of due process outweighed it, for "judicial activism is a real problem. If you can 'deconstruct' the constitution, then the rule of law becomes impossible and all that remains is the rule of men and their arbitrary opinions. That is how the 'right' to an abortion got created in the first place." He claims that "We," pro-lifers and Republicans, "wanted them to rule by judicial fiat, no matter what the law said...but that way lies a victory that, if we had achieved it, would have legitimized our deepest defeats."

In cautioning against this temptation, he trots out the well-known (and by now well-worn) passage from Robert Bolt's A Man For All Seasons in which More turns upon Roper's zeal to cut down the laws to get at the devil: "And when the last law was down and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake." Which permits Professor Williams to stirringly conclude that "The rule of law is still better than the rule of men - even when, on occasion the men are right and the law is wrong. From the winds that will blow if we fail to remember that truth, may God protect us all."

It's enough to make one shiver. It also puzzles. How could the law be wrong? He's just spent an entire article defending its constitutionality. Anyway, it inspired two published protests in response, one by me and another by Fr. Robert Hart, a contributing editor. Fr. Hart's letter was really quite wonderful - making a careful case for the proposition that "Florida law was being set aside by Judge Greer," who, thinks Hart, should have been impeached and imprisoned, and that the federal refusals to re-examine the case from its inception were arrogant rebukes to the other two branches to stay out of their territory. Briefly, from Hart's letter:

The remedies sought never included, as Williams alleges, a simple fiat of judicial activism...We pro-lifers were on the side of the law against a judiciary that was breaking the law. The problem is not simply judicial activism, but judicial usurpation...When the Supreme Court of Florida struck down Terri's Law, it was active; when the federal courts chose to ignore the last-minute law passed by both houses of Congress and signed by the President, they were passive. But, whether active or passive, it is tyranny for the judiciary to treat the other two branches of government as animals that are less equal than judges."

For my part, I had kinder words for what Williams saw as judicial activisim, and you can find it here, backdated. If anyone wants to comment, come back to the front page.
From Jeff Miller, Bobby Schindler's letter to Bishop Lynch. The link in comments is no longer valid.


Jeff Miller said...

Have you seen the letter written by Terri Schiavo's brother to Bishop Lynch?

The Bishop recently wrote a column on homelessness and our responsibility and what will happen to those to ignore such situtations.

Here brother to say the least was not amused by the irony.

William Luse said...

No, I'll have a look.

Lydia McGrew said...

Well, what a lot of absolute legal hooey. What an idiot. (Williams, I mean.) I mean, really. Huff. I'm trying not to use any stronger language.

The end-of-life law in question *was not* one that gave the spouse the right to make a treatment decision. Michael Schiavo had to *go to a court* and ask for permission to withdraw her feeding tube, and he had to do it by supposedly bringing "clear and convincing evidence" that this was _her_ wish. In this matter, the legal fiction was that the PVS person was making a self-determining decision, or in a sense had already made it by giving "clear and convincing evidence" before being PVS of a desire to have no feeding tube under those circumstances. As far as I can tell, _anyone_ could have asked the court for such a ruling, claiming to be bringing such "clear and convincing evidence." It absolutely, positively, *was not* a matter of the spouse's having the legal right to make the decision. The court itself emphasized this. Did this guy not read the decision of the Florida appeals court? Yet he has the gall to chide pro-lifers for being uneducated on the legalities of the matter?

I like your idea of the U.S. Supreme Court's deciding to reconsider Cruzan and putting a stay on Terri's death until then. That's a new one on me. And people did get very creative. The subpoena idea was an excellent one, but Greer just blew it off. Terri's Law was an excellent one, but the Florida SC blew it off. And so forth.

In fact, reports at the time said that there was a brief period (a couple of hours, I think) during which Greer's court order somehow expired or something and before a new one came into effect. This was on the MSM, too (Yahoo news, I recall), not just conservative blogs. So Jeb Bush sent the staties in to try to get her. But on the way there they got in contact with the sheriff's men guarding the place who said that they still considered themselves bound by Greer's order (though in fact it had temporarily expired) and would resist the state troopers. So the staties backed out to avoid even the possibility of a firefight. So much for the rule of law.

The truth is, the people of our country are capable of making bad laws, for sure. But we'd have so many fewer of them if the courts weren't constantly forcing and twisting things. And then people like this come along and pontificate about "the rule of law." Makes me ill.

William Luse said...

Schiavo had to *go to a court* and ask for permission to withdraw her feeding tube, and he had to do it by supposedly bringing "clear and convincing evidence" that this was _her_ wish.

That pretty much smashes it right there (and vindicates my belief that the law driving this case was the one allowing us to dehydrate the severely disabled.) Much pretense was (and has) been made that, though the outcome was tragic, the process worked as to the legal issue in question. And when I hear people say it, I don't believe them - that they really thought it was tragic, that is.

I wish I had some way of reproducing Fr. Hart's letter. You and he would have been soul brother and sister on this.

And the link above to Bobby Schindler's letter to the bishop is fairly poignant. Poor fellow. I wonder how long it's going to hurt the way it does. It's one thing to have a loved one murdered by a criminal who is then brought to trial, where the efforts of the state strive to offer whatever the comforts of justice might be, even should they fail. But to have her murdered by the state, the very people we look to for protection - the judge ordering the murder, the police standing guard to make sure it's carried out...I can't even imagine. Bobby Schindler must spend a lot of time wondering if he really lives in a place called America, the country that killed his sister. This one's going to hurt until the day he dies. And her parents. All they wanted to do was take care of her. But no, she had to be put to death. Had to be. Jesus Christ. It is a singularly diabolical moment in history when the state takes recourse to the murder of its citizens, and I hope some people go to hell for it.

Lydia McGrew said...

Exactly. I was just thinking last night, trying to imagine going into a time machine and talking to some honest fellow from Iowa or something circa 1950 and telling him something like this: "In 2005, in the state of Florida, a probate judge (a _probate_ judge) will have the power on his own authority to order an innocent young woman who has suffered brain damage dehydrated to death at the instigation of her openly adulterous husband. And all the king's horses and all the king's men--i.e. the armed sheriff's men--will go out and enforce this order against her receiving any water during nearly two weeks as she dies. And this will be called the rule of law." What would he think?

And when Miller said to me in our exchange that she had "due process in spades." Oh, really? _One_ man made the determination of fact, here. The appeals courts were constantly deferring to Greer on the determination of fact, as is the usual practice for appellate courts. No jury. No unanimous verdict of 12 people required. No "beyond reasonable doubt." And, of course, no finding of any criminal guilt at all. That's "due process in spades"?

As for people's going to hell, I think I shook a Lutheran friend of mine. We were talking on the phone during Terri's murder, and I brought up the pictures on the Internet of the sheriff's men arresting protesters who were trying (in a symbolic but important act) to bring in a glass of water. (And whether she could have swallowed a glass of water or not, she could have had ice chips. But these, too, were denied by court order.) I said to my friend Eric, "Yeah, portrait of a person damning his soul," referring to the police officer. He was shocked. "You really mean that you think this could be a matter of someone's damning his soul to hell?" And I said yes, because I don't believe that if the policeman had "received Jesus Christ" or something that he was automatically guaranteed to go to heaven. It was an interesting conversation.

William Luse said...

I'll bet.

" think this could be a matter of someone's damning his soul to hell?"

He needs to have Zippy explain to him what it means to formally cooperate with evil. What did he think the officer's excuse could be? "I was just following orders"?