Wednesday, March 23, 2005

Hard Cases

As the Terri Schiavo case reaches its climax, there arrives on my doorstep the latest issue of Smithsonian, containing an article about the enduring controversy over the Scopes trial. And it occurred to me that history is a bit like plate tectonics: when a principle and a fact rub against each other until the pressure becomes unbearable, all hell breaks loose.

There's no doubt that Mr. Scopes was a criminal. There's just as little doubt that evolution is a stone-cold fact. Yet today, no one remembers the former; we only remember the latter.

The States that would become the Confederacy stood for a noble cause: states' rights. But the cause was asserted in defense of an institution so distasteful, that no one remembers the cause anymore; we remember only the slavery.

So it is with Terri Schiavo: it has been proved in a court of law, with due process and by clear and convincing evidence, that Mrs. Schiavo's wish is to forego medical treatment. But the Congress, the President and the Schindler family and their supporters ignore this fact--for a legal fact it is; res judicata, and collateral estoppel, and the law of the case and the rest of those ancient and honorable rules designed to protect us all--and think only of the visceral issue of life and death.

I don't know what to make of all this. But I'll bet you any amount of money that, in days to come, the Terri Schiavo case will be remembered for one thing, but not for the other. And whatever it's remembered for, people like me will be as annoyed as hell that everyone's forgotten the other.

Now, I must go explain to my daughter why the Alien and Sedition Acts are not as bad as they're painted.


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