March 25, 2005

Upside Down

by PG

Why doesn't this equation work? From the NYTimes:

In a three-hour hearing before Judge Whittemore on Thursday night, the parents' lawyer, David Gibbs, argued that every person was entitled to life under the 14th Amendment and that "life can't be denied."
"The judges are running this country," Ms. Schiavo's father said outside the hospice Thursday afternoon. "All the judges have banded together to support Judge Greer."
Late Wednesday and early Thursday, the Supreme Court received briefs from the Republican leadership of Congress in support of the Schindlers' request. The briefs argued that two lower courts [...] had misunderstood the intent of Congress in the legislation it passed and President Bush signed Monday giving federal courts jurisdiction.

This is a serious question. If the courts are so wholly incompetent at understanding that Congress and the Florida legislature want people to be kept alive regardless of their expressed preferences (and so far no court finding has rebutted Mr. Schiavo's assertion that continued life support would contradict his wife's expressed preferences), why aren't we getting state or federal laws on the matter?

Instead, the best the legislative branch can do is pass anemic little statutes that will apply only to this particular case, an action that immediately arouses the judiciary's hostility, because particular cases are under their purview. But if the federal and state legislatures agree with attorney Gibbs that the 14th Amendment prohibits ending a person's life by removing life support, and the courts keep getting the Constitution wrong, why not put the correct understanding into law to apply to everyone and not just Ms. Schiavo?

There may be nothing to offend federalism in Congress's passing a law to give a district court power of review over a specific case, but surely federalists ought to prefer that matters like these be settled by legislatures, preferably at the state level. Federalist Charles Fried quoted Justice Scalia's saying as much:

"The states have begun to grapple with these problems through legislation. I am concerned, from the tenor of today's opinions, that we are poised to confuse that enterprise as successfully as we have confused the enterprise of legislating concerning abortion - requiring it to be conducted against a background of federal constitutional imperatives that are unknown because they are being newly crafted from term to term. That would be a great misfortune."
Justice Scalia went on to say that he would have preferred that the court had announced, "clearly and promptly, that the federal courts have no business in this field." The problem, he insisted, was that "the point at which life becomes 'worthless,' and the point at which the means necessary to preserve it become 'extraordinary' or 'inappropriate,' are neither set forth in the Constitution nor known to the nine justices of this court any better than they are known to nine people picked at random from the Kansas City telephone directory."
If the consensus about the need to maintain life is so strong among Americans, we ought to have laws that declare it. Instead, we have yet another instance of conservatives whinging about how "the judiciary is out of control."

(The title of this post describes the state of the world when a supporter of a constitutional right to abortion is making the argument contained herein.)

March 25, 2005 11:02 AM | TrackBack

Your syllogism is an interesting one, but it would work better if you chose similar quotations from outside the immediate parties to the lawsuit. As it is, it comes across a bit brutal, because it looks like you're accusing Mr. Schindler of "whinging" when, as he sees it, his daughter's life is being ended unjustly. Surely he of all people may be forgiven a bit of overheated rhetoric at a time like this.

Posted by: Tom T. at March 25, 2005 07:19 PM

The story linked by the "whinging" is all about career conservatives -- the people who come out every time something like this hits the news -- who are planning to use the Schiavo case to argue for a more conservative/ limited judiciary. If Ms. Schiavo's life is being ended unjustly, surely every person in a similar medical situation whose feeding tube is removed is having his life ended unjustly. Perhaps it asks too much for the Schindlers to be able to think beyond their own daughter, but it isn't too much to ask of everyone who is using this case as some sort of symbol or cause rather than as a personal tragedy. Part of the reason I've been posting about the end-of-life cases that haven't made the national radar is to emphasize this.

Posted by: PG at March 26, 2005 06:37 PM
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