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Thursday, March 24, 2005
Something that Troubles Me
By Dr. Steven Taylor @ 8:41 pm

I have noted commentators in various conservative corners this week regarding the Terri Schiavo situation who have argued that, essentially, there comes a time in which, because of the rightness of the action, that officials should be compelled in one capacity or another to ignore existing institutions and laws. In the abstract I suppose I agree (if Congress passes a law that the FBI should shoot all blond people, then that law shoudl be ignored), but in my mind such extreme actions are to be reserved for radical circumstances, not in the course of basic public policy debate and judicial discourse. And if one strips away the emotion, that is what we are dealing with here: there are established laws and precedence; there are procedures. This is not as extraordinary as many think that it is. Indeed, if Michael Schiavo didn’t have a girlfriend, or, if he and the Schindlers agreed on the course of action in this case, there would be no story.

However, forget the Schiavo situation, per se. As I stated above, there is a remarkable (in my mind, anyway) urge on the part of many (including many with whom I generally have cause to agree) to have various elements of government act in ways that conservatives normally argue against. Dr. Rusty Shackleford, for example, states that “[o]ften times morality is trumped by legality” and therefore supported the idea that Governor Bush somehow take custody of Terri, regardless of the legal barriers in place (a view shared by Bill Bennett). Yet, I respectfully submit that to allow Jeb Bush to act just because he thinks it is the right thing to do is to vest in one man extraordinary power. Further, the precedent would be onerous and allow, by extension, any number of actions by governors who deemed themselves to be doing the morally right thing. If Jeb Bush can seize Terri Schiavo, why can’t another governor declare the death penalty null and void, or another to state that all DNRs are invalid (all in the name of life)? The number of decree that could be handed down in the name of promoting life is high indeed. If life is to be preserved at all costs, why not mandate that all cars in the state of California be adjusted so that they can go no more than twenty miles an hour? There is no doubt that such a decree would save life-indeed, it would save numerous innocent lives. So why not? No doubt the banning of motorcycles, motor scooters and pocket bikes would save even more lives. I can see the pens of governors across the states issuing decrees as I type. And forget those silly do nor resuscitate orders! If ER staffs work as hard as they can on very patient, more people will, by extension, live. Forget all that pesky law stuff.

Others seem wholly undeterred by the fact that Congress clearly took a decisive step against federalism by inserting the federal courts into an area that, heretofore, had been the domain of the states. Now, I recognize (lest any one argue this point) that Congress has the right to set federal court jurisdictions. However, having the power to do so does not mean it is proper to exercise said power. If the argument is that this matter was so important that the Congress not only had to trample on federalism, but to do so in a very active-central-government kind of way, then, I state, there is no principled position on either federalism nor on restraining government within the Republican leadership of the Congress nor within many who supported this action. That is, I confess, a very strong statement. However, if the argument is that if something it really, really important, then Congress can do whatever it wishes, then this is no different than standard liberal arguments on issues such as abortion or gay marriage, or whatever other issue that gives social conservative hives, because, my friends, the liberals consider those (and many other issues) to be of such central and moral significance as to facilitate, nay demand, the imposition of them upon the entire populace without regard to state borders. And whether it is the Congress or the federal courts influencing such policy is irrelevant-the imposition of views onto the states outside the delegated powers of Congress is, by definition, an erosion of federalism. To take power away from states just because the leadership in Washington thinks it is “important enough” is to say that state power is a fiction to be ignored when it is inconvenient to abide by it.

Conservatives/Republicans/whomever who supported this move by Congress, and especially those who think Governer Bush should defy the orders of various courts and essentially seize custody of Terri Schiavo are simply saying that institutions and laws don’t matter, only power does. And if that is true, federalism, limited government and all the rest be damned, because all that really matters is how many seats one has in the legislature and whether or not your guy sits in the executive branch. Nothing else matters, because if the stakes are high enough, action is justified. And is that what we want? Further: is that the extremes we should be willing to go to in a case that, had Michael and the Schindlers agreed, could have very easily ended in Terri’s tube being removed sans any fanfare whatsoever?

It is this point that really amazes me in terms of the various principles many seem to want to set aside: this is not a radically unique case in terms of the actual procedures and outcome. It is unique because of the publicity, not because no one has ever taken a feeding tube from a persistently vegetative patient before. This is not the first time this has happened, and it shan’t be the last. Further, there are numerous other case in which a feeding tube is never inserted so as to avoid having to remove it from a person who will never recover. I repeat: this is not unique. And yet, some want extra-legal, extra-constitutional actions that will empower government and vitiate principles of federalism and limited government.

I believe very strongly in the significance of established institutions and laws and having to work through them. It part of the brand of conservatism to which I subscribe. If institutions and laws are unjust, then change then via democratic means, not fiat of elected officials who are “doing the right thing”.

Update: I note that Glenn Reynolds has similar thoughts:

I’m quite astonished to hear people who call themselves conservatives arguing, in effect, that Congress and the federal courts have a free-ranging charter to correct any injustice, anywhere, regardless of the Constitution. And yet my email runneth over with just those kinds of comments. And arguing that “it’s okay because liberals do it too” doesn’t undercut my point that conservatives are acting like liberals here. It makes it.

Every system generates unjust results. This may (or may not) be one of them, but there’s no reason to think that Congressional action on an individual legal case is likely to improve things. My lefty law professors used to think that more procedures were always better, and seemed willing to tie the Constitution and the rules of procedure into knots to get to the result they liked. Even they have learned, to a degree, that more procedure doesn’t necessarily lead to better outcomes overall. And conservatives, as opposed to bleeding-heart liberals, are supposed to understand that there’s more at stake than the outcome in individual cases, and that there are real costs to putting whatever thumb-pressure on the scales it takes to get to a desired outcome in each case. Or so I thought.

Update II: Glenn also notes another case of someone calling for Jeb to seize Schiavo. In this case it was Fox’s John Gibson.

Filed under: Political Philosophy/ Theory, Courts/the Judiciary | |Send TrackBack

Accidental Verbosity linked with Law and Emotion
Solo Dialogue linked with The Real Schiavo Divide


  1. On Doing the Right ThingAs someone who had to consider resisting govenmental authority in opposing the Vietnam War, I believe there is a fundamental difference between an individual citizen taking this position and public officials doing the same.

    An elected official is obligated to uphold the law and not to use the force of government in pursuit of personal beliefs. The right action in this case would be to resign and then pursue one’s beliefs.

    After exhausting legal means, as a private citizen, Jeb Bush or whomever has every right to act out of conscience against a condition or government policy he believes unjust. But he must also personally accept the consequences of such an action.

    Somehow, I don’t think a jail cell is what these characters have their eyes on.

    Comment by Charlie Quimby — Thursday, March 24, 2005 @ 10:12 pm

  2. Agree with the point, Dr. — the legal system has it down to a cliche: “Hard cases make bad law.”

    Individual cases may make the application of a law or procedure hard to do, but bending it or ignoring it to reach the “right” decision essentially destroys the law and replaces it with the consciences of the individuals empowered to enforce or interpret it. To invoke another cliche, we are supposed to be a nation of laws, not men. That is being thrown aside here.

    I have qualms about the original trial court’s decision. Although the evidence is certainly not one-sided, I am unsure that the husband’s testimony would reach “clear and convincing evidence” regarding his wife’s wishes in this case.

    Nevertheless, that factual finding has been made, and it was made by a person who was in the best position to weight the evidence and draw conclusions regarding the credibility and weight to be afforded to the husband’s evidence. At that point, it becomes a “hard case.”

    The summary of the gaurdian ad litem, who was representing Ms. Schiavo, certainly undercuts the information being put out by the family. I am not sure I am comfortable with the decision, but it was a difficult one made after what appears to be a valid and conscientious effort to afford her due process.

    That does not make me any less sad to see it happen, though.

    Steven L.

    Comment by Steven L. — Thursday, March 24, 2005 @ 10:43 pm

  3. The Real Schiavo Divide
    It is becoming apparent that the real divide in the Schiavo debate is less liberal/conservative than social conservative/traditional conservative.

    Trackback by Solo Dialogue — Friday, March 25, 2005 @ 8:16 am

  4. Steven L.

    I agree-the whole thing is tragic-from the heart attack onward.

    There is much I find troubling in this case, and I hardly think the husband to be perfect.

    I have simply been a bit amazed by the way in which many (including, as noted, those with whom I often agree) have addressed this case.

    Comment by Steven Taylor — Friday, March 25, 2005 @ 8:35 am

  5. Law and Emotion
    We meant to link Steven Taylor's ultimate, excellent piece on the big blog news story of the moment.  Better late than never, as they say.  It covers ground that Deb did in her post, which represents my thoughts as well, but with the add…

    Trackback by Accidental Verbosity — Friday, March 25, 2005 @ 5:00 pm

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