Jacob Hornberger has the most sensible commentary on the much discussed Terri Schiavo case. I don’t know enough about the details of the case (and the facts of the case do matter) to have an informed opinion on the matter. But what is annoying is how badly the media (with some exceptions) have reported the issue: it is not a matter of the “right to die,” nor is it a matter of “privacy,” nor is it a matter of the “right to life.” It’s about what the wishes of Terri Schiavo were and who had the power to express and carry out those wishes. I don’t know what those wishes are or were, nor who should have the power to carry them out. That’s why we have courts of law.
(I will express one view, and one view only, on the issue of the humanity of the case. I do not understand why her husband has — according to some media reports — refused to provide ice for the cracked and burning lips of a body that was dying of hunger and thirst. I would not do that to my worst enemy. Even plants move away from sources of hurt. Why would Mr. Schiavo refuse the least effort to alleviate suffering, even if only potential suffering? That does make me wonder about his motives. But then, I am not authorized to make the determination of his competence to make the decisons. That, again, is why we have legal procedures to determine matters of fact and of law.)
See I agree with you that I wouldn’t have wished that to happen to anyone. What really irks me is the willingness of the Congress to jump into to anything it pleases, federalism and rule of law be damned. If anything that is what deserves the most examination.
I agree and should have mentioned that it was not clear how the action of the Congress and the President could be squared with the Constitution. As I understand it, however, the relief that they offered her family was quite minimal; federal courts were authorized to examine the proceedings of the state courts to determine whether any errors had been made that would have violated any of the rights of Ms. Schiavo that are protected by the federal constitution. The court did that and found no such errors, so the state court decisions were allowed to stand. What was amazing was to hear the Governor state, when asked to send in state troopers (or some similar act), “My powers are limited.” Now that was astonishing!
Tom, did you see Deroy Murdock’s column today in NRO? It’s a good discussion of why non-theocrats also have good reason to be concerned by Terry Schiavo’s treatment. Worth a read, if only to see Deroy speak well of Jesse Jackson and Ralph Nader in the same piece!
http://www.nationalreview.com/murdock/murdock200503300801.asp
– Adam
You sad fools. Making her suffer is the “husbands” intention. It is the same as the pro-death supporters. Otherwise they would be advocated a quick, clean, humane, and dignifed death (i.e. lethal injection). And don’t give me the “lethal injection is illegal in Florida” because the Law says she is virtually dead. Is it illegal to give a virtual corpse a lethal injection?
Admittedly, I’ve paid very little attention to this entire affair. But if Mr. Schiavo really did refuse the application of ice chips, I can think of a likely reason for his decision: He cannot bear even the possibility that his wife is aware of sensation, which would imply that he is killing his wife.
If that’s correct, then he’s acting negligently. Yet, ironically, it would demonstrate his love for Mrs. Schiavo.
I share Brian’s feelings with respect to Congress. The good news, though, is that most Americans don’t seem to approve of the intervention.
Tom: Thanks for the link to Hornberger’s piece — it is excellent commentary.
The thing that bothers me most about this sad episode is the unusual degree to which the president, congress, governor, and state legislature intervened on an ad hoc basis to interfere with the courts, and the popularity of this intervention with the more vocal & radical elements of the christian right. I see a real contempt for the rule of law in this.
Although in the end these interventions didn’t reverse the decisions of the courts, there’ll be repercussions — I suspect that we’ll see increasing efforts to hamstring the judiciary (already an announced goal of some of the religious right).
“federal courts were authorized to examine the proceedings of the state courts to determine whether any errors had been made that would have violated any of the rights of Ms. Schiavo that are protected by the federal constitution.”
Does this give rise to Article III jurisdiction? Article III gives federal courts jurisdiction to hear issues of Constitutional law, but can Congress constitutionally say “hey, there’s some remote chance that this party didn’t get due process in state court, therefore we’re going to give a federal court jurisdiction to examine the case again, de novo” — i.e. with no deference whatsoever to the state court.
If the Due Process clause really sweeps that far, then wouldn’t it swallow state sovereignty entirely? Can’t you always just make up some excuse as to why a party didn’t get due process in state court?
In state cases in which there truly is a due process (or other constitutional) problem, it (first) has the opportunity to be fixed during the appeals process in the state court system. And if it doesn’t, then (second) the party can always petition the US Supreme Court for cert. That happened here, and the Supreme Court didn’t think it was worth taking. (And candidly, I can’t imagine anyone thinking that there’s a valid due process issue here.)
That should be the end of the story. Anyone disagree?
I read that Hornberger commentary after posting, and I have to agree; that is indeed the best piece I’ve read so far on the Schiavo case.
Can someone help me understand who the religious right thinks SHOULD make medical decisions for someone who cannot speak for themselves? Apparently, they don’t think it should be one’s self-selected spouse.
I’d really like to hear what rules they’d put in place. Especially from Mr. Murdock, who at least claims not to be a member of the “life at all costs” crowd.
My understanding is that the religious right doesn’t believe that anyone is entitled to cut “short” a person’s life. In other words, doctors must do everything that is medically possible to sustain life until the end. To do otherwise would be to violate God’s law; after all, suicide is a sin.
No doubt there are a range of less absoulte positions within the movement that would recognise the possibility of terminating life support under certain circumstances.
– Adam
Mr. Palmer, I’m shocked! Don’t you know that Jacob Hornberger writes for (gasp) Lew Rockwell! Since Rockwell is a “racist” for running articles by Sam Francis (that were written for other websites) aren’t you a racist for praising someone who dwells in the “fever swamps” of LRC? (This guilt-by-association thing gets pretty ridiculous, don’t you agree?)
Just a quick comment between sessions at the conference I’m attending.
Mr. Spielberg seems to have a minimal understanding of the critique I have made elsewhere of Lew Rockwell, which he seems eager to raise again. A number of honorable people have been published on lewrockwell.com. Some of them are people I admire. My concern is not with them (although I think that they would be wise to think again about their association with Mr. Rockwell), but with the way that Mr. Rockwell has brought them into contact (often without their knowledge) with some of the ugliest figures of the nationalist, anti-immigrant, racist, anti-Semitic right. I won’t rehash those issues here (lengthy discussions can be found under “The Fever Swamp: http://www.tomgpalmer.com/archives/cat_the_fever_swamp.php ). It is clear that Mr. Spielberg–whose writing style is remarkably similar to one of the dimmer bulbs on the Rockwell chandelier, Stephan Kinsella–hasn’t a clue about why one would be distressed by the entree offered by lewrockwell.com to libertarianism for people so anti-individualist and anti-libertarian in their collectivism that they were booted out of conservative groups and publications, such as National Review and the Washington Times. My point has never been that anyone who has published on lewrockwell.com is a racist, but that their reputations are harmed (as is that of libertarianism generally) by being associated through lewrockwell.com with such hateful and racist figures as Sam Francis. But enough of such matters.
Thanks for the other interesting comments; I agree with the non-Palmer Tom that the refusal by the U.S. Supreme Court to examine the case should have been the end of federal involvement.
I feel as though I’m Ben Franklin reading an attack on Deism–and becoming convinced that what was attacked is right.
Going to Jacob’s well-wrought opinion, I then linked to the court’s original decision (http://www.miami.edu/ethics2/schiavo/021100-Trial%20Ct%20Order%200200.pdf) only to find that the primary doctor, Dr. James Barnhill, conclusively established for the court that the poor woman was in a persistent vegetative state with no hope of recovery (page six of the legal brief).
Alas, the good doctor, later corroborated by another fellow named Dr. Vincent Gambone, arrived at his diagnosis after a mere ten minutes’ time.
Apparently, this is also part of the public record.
Frankly, I’m shocked at that. Furthermore, once the diagnosis has been made, human nature being what it is, the other physician is more than likely going to come in with the prejudice that he’ll merely be confirming the verdict of his colleague.
The problem I have with Jacob Hornberger’s is that it wasn’t a jury that made these determinations. It is ironic because I don’t really even like juries normally. But here, I really wonder about the possibility of the kind of depraved indifference insitutions show the people they process. The lawyers and judges here all working together none of whom really represent Terri Schiavo…?
He says that if you doubt the findings of fact, that just brings us right back to the point he is making that this is all for courts of law to decide (rather than the court of public opinion which has been lead astray by biased media presentation). He seems to have a an awful lot of faith in the legal system — I guess I’m not suprised. But, I don’t, and I don’t think the founding fathers did. This is what juries are for — almost more for nullification, for instance, than just to make sure an impartial finding of fact is made. Don’t all us libertarians know this?
If so, then why do we think that a judge’s decision and a court’s presentation of “the facts” are so reliable as Hornerger suggests — that we should go read these legal briefs rather than try the case by the media presentation? I realize that Terri Schiavo’s case is not the only instance of this sort of thing, but what I find most disturbing of all is the way a *civil* court case can decide whether someone lives or dies. I *have* read the documents and it *isn’t* clear. He expresses and presents the facts as he sees them and he clearly sides with Michael. But, what I see based on that is that he considered the matter and in the end sided with Michael. I do not see such a strongly defenisble position that would justify the extreme action of ordering a persons death.
And that’s what brings me back to the point. A jury, I would at least suspect really excercised conscience in the matter. The judge is only interested in rendering a defensible verdict that will withstand legal scrutiny. Michael clearly has plenty of reason to want to get rid of his wife. The parents will do anything not to see their daughter die. And in the end we put this woman to death
1) without really knowing she wanted to die
2) without *her* interests really ever being represented
3) without any oversight of the law or legal system (i.e. without a jury)