Saturday, March 26, 2005

Easy Cases

I've just finished reading Judge Whittemore's and the 11th Circuit's second opinions in the Terri Schiavo case. Some random thoughts:

The Schindlers, inspired, perhaps, by Andrew C. McCarthy, tried to turn the Supreme Court's holding in Cruzan v. Missouri on its head, but to no avail. The 11th Circuit saw through it, as any first-year law student would have done. I'm surprised, though, at Mr. McCarthy's misconstruction of Cruzan: his analysis of the case is that of a fool, or a knave, or a person so emotionally caught up in the Schiavo affair, that his judgment has been impaired.

Cruzan is not the only thing that has been turned on its head in this matter, though: so have the words liberal and conservative. When I was boy, a conservative was (so went the party line chez nous) one who believed that the Constitution meant what it said; believed in individual liberty and responsibility; and disapproved of governmental intrusion, particularly federal intrusion, into matters that were not its concern. A conservative believed that things were fine and needed no fixing, or that the fix was worse than the problem. A liberal was one who believed the opposite. In the last week, the so-called conservatives in Congress and the White House have chucked the Constitution, dashed the rights of the individual, intruded like gangbusters, and turned a private tragedy into a great big mess. In acting, they betrayed a complete ignorance of how the judicial system works, although many of them, I understand, practice law on the side.

What's worse, these conservatives don't seem to know the first rule of nature: everything dies. Our ability to sustain life, of a sort, for long periods in spite of the first rule of nature is a new--liberal, if you will--development that is contrary to what our ancestors would have called "the natural order of things." A person's wish to forego such treatment stems from what, at bottom, is a conservative impulse to die as men have always died. Anyone calling himself a conservative should consider such an impulse to be "natural," and should therefore believe a priori in the probability that Mrs. Schiavo indeed wished to forego treatment.

So the Schindlers' tenth claim--that Terri Schiavo was being deprived of "life"--is as liberal as it is absurd. As if the Constitution guarantees us all "life"! (I had thought that only Jesus Christ guaranteed it.) Well, if this is what the Constitution now says, then somebody had better bring a claim to resurrect the Founding Fathers, for their constitutional right not to die has been most shockingly abridged.

Where the Schindlers' strategy errs most grievously is in not seeking to vacate the finding of fact that Terri Schiavo wishes to forego treatment. As long as this fact is the fact of the case--and only God knows whether it is the truth in His eyes; but for purposes of this litigation, it is the only fact that matters--all their legal arguments are idle. Perhaps, once in the distant past, they pursued the better strategy and were stymied. If so, their case was at that moment lost for good, and all their subsequent efforts have been in vain.

The Schindlers, truly pitiable in their refusal to accept what cannot be helped, grasp at straws when they argue that the Eighth Amendment applies to their daughter's case. But they have succeeded in one respect: by focusing so much attention on this case, they have cowed the courts into silence on the subject of monetary sanctions for frivolous conduct. Any other private party who had asserted such positions would have been mulcted good and plenty by now.


Blogger sallie parker said...

The notion of conservatism being opposed to artificial means of prolonging life—life of any sort, regardless of its sentient quality—isn't all that antiquated. It was just about twenty years ago that a popular conservative Republican governor (can you name him?) raised a fuss when he said that people need to learn how to die and must stop prolonging old age unreasonably. Here in the Schiavo case we have a body whose inhabitant perished fifteen years ago (from a medical standpoint) and has long gone on to her Particular Judgment (if you want a religious interpretation).

The striking lesson from the Schiavo case is the extent to which the "conservative" movement has been hijacked by the cracker-barrel sentiments of evangelical wackos whose point of view is as alien to traditional Christianity as it is to American Conservatism. One has to assume that the "Christians" agitating in favor of artificial life-support don't really believe in the soul or an afterlife at all. To them, life in the here and now is all there is, and to be brain-dead with a beating heart is better than nothing. This idea is close kin to the reasoning that prefers life imprisonment to capital punishment: long decades in a penitentiary may be a living hell...but hey, it's still life!

11:14 PM  

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