March 24, 2005

What the Loiusiana Purchase Could Teach Us About Terri Schiavo (UPDATED)

UPDATE: This post to stay near the top until it is too late....

Thomas Jefferson believed to his dying day that the Louisiana Purchase was unconstitutional. He believed that the best way to accomplish his goal of westward expansion was through a Constitutional amendment.

When faced with the choice between doing what was right and what doing what he believed to be Constitutional, he chose what was right.

All those who are supporting the judgement of a Florida court to slowly starve to death a severely handicapped woman on states-rights grounds would do well to heed the example of Jefferson.

In the process of arguing the legal niceties of seperation of powers and federalism, a woman's life is being lost. With her life goes part of the humanity that characterizes the America that I know and love.

Often times morality is trumped by legality. That is part of the social contract. Unless we have respect for the rule of law we endanger the thin fiber of rules that keeps our society from plunging into the pits of anarchy.

However, when rule of law itself endangers the very purpose for which poliltical societies are formed--namely, protecting life--than those laws must be ignored.

Terri Schiavo's life is worth more than a thousand dissertations on federalism or the seperation of powers.

It is time to ignore the law.

One more example is in order. That of Andrew Jackson. Most Americans do not realize that there was a time when courts were routinely ignored by executive officials.

Let me paraphrase President Jackson.

A murderous Florida court, a spineless Florida Senate, a weak federal judge, and an impotent 11th Circuit have made their decisions. Now let us see them enforce them.
Enough talk. Now is the time for action.

UPDATE: The Jump Blog notes that Lincoln also did several things he considered unconsitutional, yet necessary and right.

Good Richard's Almanac uses what is a natural law arguement, that is, to ignore what seems to be the law in this instance to uphold the higher intent of the law.

100 Percenter has similar thoughts.

Let me just add that going to an appeals court is the wrong strategy in this case. Appeals courts review law. In the Schiavo case the law seems to side with murder.

Appeals courts are generally reluctant to overturn a lower court's decision. This is a case where executive and legislative officials should simply ignore the Florida courts decision.

Governor Bush should not ask the court's permission to take custody of Terri Schiavo, he should simply take custody.

UPDATE 9:02: James Joyner calls this tactic kidnapping or legal kidnapping at best.

How is removing someone from the conditions which place Terri Schiavo in imminent death kidnapping?

What moral right does the hospice have on keeping Terri Schiavo?

This isn't a kidnapping attempt, this is a rescue attempt.

A rescue of a severely handicapped woman from those who would euthenize her simply because they feel she would have wanted it that way.

The judge that has refused the DCF's request to take custody of Terri Schiavo is the same judge that believes that Michael Schiavo should be the legal guardian of Terri. Despite the fact that Michael is in no way, shape, or form her husband.

Governor Bush ought to simply ignore Judge Greer.

A judge may issue an injunction, but who enforces injunctions? Judges do not have private armies. Judges do not have their own private police forces. Judges have no means of seeing that their orders are followed.

All this is left to the executive department.

And the Chief Executive of the state of Florida is Jeb Bush.

Ignore the judge, governor Bush.

Commissar, has some thoughts on the political angle as well. But I think he misses the mark.

I don't care that 60%+ of Americans don't like Terri's law. It's politically irrelevant. In next year's Congressional races what percentage of Americans will vote? 25%? 30%?

Which side sounds more politically energized to you at this point?

Again, federalism is an abstraction. Life is not.


As predicted, the U.S. Supreme Court has rejected the Schindler's appeal.

I understand the sentiments of James Joyner's comments here. When politicians routinely disobey the law, this can lead to a state of anarchy--or worse.

Tyranny has resulted from ignoring the law in the past, and presumably in the future.

In fact, the example I used above of Andrew Jackson illustrates the point. Jackson ignored a ruling by the Supreme Court which granted the Cherokee nation the right to remain in Georgia. Jackson's willful disregard for the law lead to the trail of tears and to the death of thousands of native Americans.

On the other hand there is the example of the Supreme Court in 1854 when they ruled that Dred Scott did not have standing to sue because people of African descent could not be citizens.

How is this any less tyrannical?

When Northern governors, legislatures, and judges simply chose to ignore those laws designed to return escaped slaves to their rightful owners in the South, was this tyranny?

But so far this has been an argument about the meaning of the word tyranny.

If Lincoln and Jefferson's disregard for their understanding of the Constitution was tyrannical their actions certainly were the lesser of two evils.

Further, in the Schiavo case there are real differences of opinion about what the law is.

Congress and the President believe Schiavo's rights have been trampled by a Florida Court. The governor and legislature of the state of Florida believe Schiavo's rights have been trampled by Greer's court.

Constitutional interpretation is not solely the province of the courts. I argued as much in this post here.

When the courts and every other branch of government disagree over Constitutional interpretation, why should the court's will trump?

Obeying the courts is not necessarily the same thing as obeying the law. To say so is to grant the courts a power in which they never were envisioned to have.

If Governor Bush disobeys the court, and I believe he should, there is a remedy. But that remedy is not a judicial remedy, it is a legislative one.

It's called an impeachment.

I'd like to see the Florida legislature try to attempt to impeach Bush over this. It aint gonna happen.

Blogs for Terri is urging Governor Bush to take action now. I agree.

Governor Bush's email:
Phone: 850-488-4441
Fax: 850-487-0801

UPDATE 11:30: Ann Coulter gets it and proves she is a Jawa Report Reader (via Michelle Malkin). My earlier post on why Constitutional interpretation is not solely up to the courts is here.

As a practical matter, courts will generally have the last word in interpreting the law because courts decide cases. But that's a pragmatic point. There is nothing in the law, the Constitution or the concept of "federalism" that mandates giving courts the last word. Other public officials, including governors and Presidents, are sworn to uphold the law, too....

President Andrew Jackson is supposed to have said of a Supreme Court ruling he opposed: "Well, John Marshall has made his decision, now let him enforce it." The court's ruling was ignored. And yet, somehow, the republic survived.

If Gov. Jeb Bush doesn't say something similar to the Florida courts that have ordered Terri Schiavo to die, he'll be the second Republican governor disgraced by the illiterate ramblings of a state judiciary. Gov. Mitt Romney will never recover from his acquiescence to the Massachusetts Supreme Court's miraculous discovery of a right to gay marriage. Neither will Gov. Bush if he doesn't stop the torture and murder of Terri Schiavo.

La Shawn Barber on the case:
When it comes to the protection of life, decency, fairness and American values in general, liberals dismiss the will of the people, preferring judge-made law. But when death, destruction, and indecency are in play, suddenly the will of the people is paramount. I got a kick out of reading the rambling posts of liberal bloggers pontificating about “the rule of law.” It was hysterical.
UPDATE 11:49: Steven Taylor makes a good argument here.

But if I'm not mistaken, Conservatism is not built on a single guiding principle. Yes, federalism is part of the conservative movement.

But from it's foundations Conservatism has also rejected the notion that the Supreme Court is the last word on Constitutional meaning.

The last time I checked, Judge Greer was, er, you know, a judge. Jeb Bush, on the other hand, is the governor.

The Schiavo debate is not just about federal courts intervening in what is properly a state court issue.

The Schiavo debate is also about who will have the last say in what the law means.

Will it be our elected officials, or will it be 'the least dangerous branch'?

UPDATE 12:00: Judge Greer admits error.....OpiniPundit wonders how many more of these there could be.

UPDATE 1:00: Chris Short chimes in "Don't step on my Constitution."

But I'm not sure why a governor exercising his Constitutionally delegated powers could possibly be construed as to be acting unconstitutionally?

Unless we buy into the myth of judicial supremacy, that is......

And I should have linked this earlier, but go check out Wuzzadem. That's pretty f*cked up right there.

Scott Ott:

The interim ruler of Florida, former Pinellas-Pasco Circuit Judge George Greer, today promised to appoint a new "people's legislature" in the wake of a coup which overthrew Gov. Jeb Bush and the Florida legislature.

While Gov. Bush and "pro-life" legislators have not yet fled Florida, helicopters are reportedly standing by.

Kevin at Wizbang:
On a related note there have been a lot of stories about polls showing support 60% to 80% support for keeping the courts and/or the government out of this messy family affair. A lesser publicized statistic is that 80% of Terri's immediate family wishes that the courts not order that she be killed by starvation.
Florida Constitution, Article I Section 2: All natural persons, female and male alike, are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty…No person shall be deprived of any right because of race, religion, national origin, or physical disability.

1:25: IT IS OVER. (via Matt Margolis)

A circuit court judge denied Florida Gov. Jeb Bush's request to take protective custody of Terri Schiavo (search) on Thursday, perhaps spelling the end of the protracted legal battled over how the severely brain-damaged woman ought to die.

The decision by Judge George Greer, who has consistently ruled that Schiavo did not want to be kept alive artificially, was not surprising, though it came two hours later than expected.

Greer had earlier barred the Department of Children & Families in an emergency order from taking custody of Schiavo.

Governor Bush, like most modern Americans, believes that the law is whatever judges say it is.

We have reached the end.

Terri Schiavo, may you Rest in Peace.

UPDATE 4:00: It is too late now, but I see the judicial supremacy angle is catching on. See my new post here for an ellaboration.

By Rusty Shackleford, Ph.D. at 08:23 AM | Comments |