...it's not dark yet, but it's gettin' there...

March 20, 2005

Dura Lex Sed Lex

A commenter asked whether i was going to write about the Terri Schiavo case. i haven't yet because i don't know enough about the facts, and it's such a sad story i didn't want to think about it.

But this weekend, it's been hard to ignore the story.

There are so many issues, i find my opinions whipsawing back and forth. i'd rather say i don't have an opinion, and go back to enjoying my spring break. But i do have an opinion. Several opinions, as a matter of fact, and they aren't necessarily consistent. Nor am i comfortable with them.

Firstly, as background, i am Catholic. i oppose abortion for secular as well as religious reasons. There's a huge difference between the Schiavo case and the abortion issue, despite what the idealogues on both sides say. But since i'm pro-life, it's probably not surprising that when i look at the Schiavo case, i feel a great degree of sympathy for her parents' side.

Dura lex sed lex...

But i'm also profoundly uncomfortable with the legislative branch of the Federal government stepping in to oversee the ruling of a state court. That's my libertarian sensibility talking. My belief in federalism, the separation of powers, Jeffersonian democracy, the vision of our Founders. All that rot.

In 1904, Justice Oliver Wendell Holmes said "Great cases, like hard cases, make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment."1

This is both a "hard" case, and a "great" case. Great because the issues at stake are the most fundamental to which the law can be applied. Hard because no matter what happens, Terri Schiavo will die. So it must be for all of us. But in Terri's case, the law can influence the manner and timing of her death. And that's part of the problem.

Left to the judgment of the Florida Court, Terri Schiavo dies a lingering death of starvation sometime in the next week or so. Congress steps in (as they just did moments ago), and she may - repeat may - get to live out the rest of her life, bedridden, brain-damaged, and feeding from a tube through her stomach. Only to die from some other more "natural" cause.

Dura lex sed lex...

Who should decide how she dies, when Terri's own wishes were never recorded? Here the law is clear: her husband should. But what if her husband is an asshole, whose motivations are suspect? Should this "accident of immediate overwhelming interest" be allowed to distort the judgment that would normally keep the federal legislature from intervening in a state judicial matter just because it disagrees with the outcome of one particular high profile case?

Dura lex sed lex...

...which means: The law is hard, but it is the law. Watching the House debate tonight, i find myself in the unusual position of agreeing with many of the Democrats, as they take the floor to give impassioned speeches in support of the "rule of law." (Where were they when the issue was purjury, and no life was at stake?) Hard as the law may be, they say, should Congress change the law for the benefit of one single person? i ask myself the same question.

Dura lex sed lex...

But then i think, what law? What law indeed. Here's a law that inevitably must figure into this controversy:

nor shall any State deprive any person of life, liberty, or property, without due process of law2
The Schiavo case is like the execution of a human being, by means of starvation, based on the testimony of one person, her husband. And that one witness' credibility is tainted because of his own monetary and extra-marital interest in the death of his wife. Under those facts, doesn't due process of law demand that a Federal Court have jurisdiction over the federal question of her right to life and liberty under the U.S. Constitution?

And then i think, there is another, even greater law, that may also apply here. One which helps guide me through my own conflicted thoughts:

Thou shalt not kill.3
Michael Schiavo might not like that particular law. The Democrats who spoke tonight might not like it either. But they might do well to remember the maxim: Dura lex sed lex.

The law is hard, but it is the law.

i am not saying that we should subordinate the civil law to the religious, like they do in Iran. i am not in favor of a theocracy. But this is a case about morality as much as it is about the rule of law. We have to be guided by moral principles as well as legal ones.

Talmudic and Christian scholars tell us that there are situations in which it may be moral to kill, or at least not immoral. This indeed may be one of those situations. All i'm saying is let's make sure. Ideally, i wish the court would order those diagnostic tests that her husband has refused to allow.

At the very minimum, i think the procedural rush to euthanize her should be slowed down. So, despite my public policy concerns about federal intervention, i do think that the uncertainty of the situation demands the same opportunity for federal review of her due process rights that a death penalty case would receive.

Update: There's an interesting discussion of the federalism issue by an expert on the subject, Ann Althouse. She quotes today's WSJ editorial, which reminds me that perhaps i should have cited the fourteenth, not the fifth amendment, supra. i have made the correction. Hey, at least my blue book cites were good.

1 Northern Securities Company v. United States, 193 U.S. 197 (1904)(Holmes, J., dissenting).

2 U.S. Const. amend. XIV ยง 1. Section 5 of this amendment states that "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." Bingo.

3 Exodus 20:13 (King James).

[cross-posted at A Western Heart]

Posted by annika, Mar. 20, 2005 |
Rubric: annikapunditry


"...i don't know enough about the facts, and it's such a sad story i didn't want to think about it."

I know too much about the facts, and I want to think about it even less. I've thought and written and watched and listened about it all far too much for my own good in the past few days: I've felt some kind of obligation to, given my own previous if peripheral involvement with it. There's too much to say, and I'll never feel I've said enough. I could respond to each of the points you've made in turn, but I no longer have any desire to: I think your words have put it more elegantly and clearly than I possibly could any more, since it all really is getting me pretty inarticulate at this point. Thanks.

Posted by: Dave J on Mar. 20, 2005

"Too bad we don't use the chair anymore. He deserves to fry in old sparky."

Thou shalt not kill?

Posted by: d-rod on Mar. 21, 2005

D-rod, the more literal Hebrew translation is actually "thou shalt not murder."

Posted by: Dave J on Mar. 21, 2005

Obviously, it has generally been interpreted in a way that opposes "unjust killing". Exodus 21, however, goes on to say that if a man kills a slave under his hand and the death is not immediate he is pretty much exempt from this commandment. Is that not a case in the Bible for letting a murderer walk away scot-free?

Posted by: d-rod on Mar. 21, 2005

Not having kept up with the Shiavor case very much, this is my question: Isn't Congress' involvement really a kabuki dance - with their real concern being abortion v. right to life? Isn't this the elephant in the room? Or do I have the wrong impression?

Posted by: gcotharn on Mar. 21, 2005

As i implied in that post, d-rod, my stand on the death penalty is in a state of flux. The Groenigen protocol and the Schiavo case have had a lot to do with that. Still, Scott Peterson is not innocent, as Terri Schiavo is. And most likely, he will never be executed, anyway.

Posted by: annika on Mar. 21, 2005

for seven years or so terri has had nothing but due process, 20 judges (in both state and federal courts) over seven years. This is about 16 or 17 more judges than your typical death penalty case gets and ecrtainly no condemned prisoner has ever had a president awaken in the middle of the night to sign a special bill for him. this president in fact, when he was governor, mocked and laughed at karla faye tucker's appeals. I agree with most of your post, pretty much up until your ending. That man is her husband, even the bible says that no one should come between husband and wife. here her parents want to do exactly that -- and not that i blame them. it sucks that he now speaks for her. but he does. it's florida's law, u.s. law and even biblical law. if he is lying or has impure motives (although i don't think it's money, since by all accounts all the medical malpractice money has been spent on the case and he just recently turned down 1 million dollars to walk away from her) then he will have to answer for that before God (or the florida state police if charges are investigated).

Posted by: dawn summers on Mar. 21, 2005

I know annie. I was more questioning invoking some ancient commandment to this issue. For example, should "honor thy father and thy mother" be obeyed if the father happened to be Scott Peterson or Charles Manson? Dave J. might argue that honor might be better translated as respect, but whatever. I have to agree with Dawn's conclusion to let her die.

Posted by: d-rod on Mar. 21, 2005

Happily, Annie, I'm with you on this one. Actually, there isn't much about which to be happy, is there?

Posted by: Hugo on Mar. 21, 2005


I agree with your entire post, except your ending about the "procedural rush." As far as I know, and as you said about yourself, I don't know enough about the case to be sure, the cases started over 7 years ago. If that is the case, it doesn't really seem to be a rush.

Also, is the husband (I can't remember his name, not that I really care to) really an asshole? My wife suffers from a chronic illness - nowhere near Ms. Schiavo's, but I can, to some extremely limited extent, identify with his pain in watching his wife exist in her state. Would I react the way he has were my wife to be in that state? I hope not, but I cannot fairly say.

However, over and above all of that, I am highly impressed by your ability to rationally analyze the case. I am a practicing laawyer and I know very few lawyeers who could set aside their personal feelings as well as you did to analyze what is, in the end, a highly emotional and agonizing affair no matter where you stand on it.

I look forward to hearing about your life as a lawyer.

Posted by: JJR on Mar. 21, 2005

BRAVO! Well done!!

Let's have a death penalty convo sometime. I know the path.

Posted by: Casca on Mar. 21, 2005

Terri is a disabled woman who is aware and responds to her environment. Physically and mentally sound people have presumed to know what she wants. That presumption is that she must want to die because she is disabled, because who would want to live like that? Is hers a life not worthy of life because of the fact that she is disabled? Disabled people everywhere must be very, very frightened. And non-disabled people who could become disabled at some future date should be very, very frightened. Terri is you and Terri is me, and I for one, want to live.

Posted by: Carol on Mar. 21, 2005

I don't think she should die this way. Starvation is a cruel way to go. Not as cruel as some other wys but not something to be lightly dismissed.

That being said it's disappointing that the feds have intervened. The due process argument falls short. If Terri was tried for a crime I could see where a due process claim might (mighty big word might is) be approporiate. But this is as best a civil, not a criminal matter. It's in accordance with Florida's laws (afaik). You can't say someone's been denied due process when they're beign affected by legal actions. & as someone pointed out it's not like there's been one or two court proceedings - there have been several.

But the feds didn't like the outcome so they made a play for more power. See aside from the constitutional issues there's one that people often ignore. I bring it up whenever anyone advocates a smoking ban - if a government has the power to prohibit something they also have the power to mandate it. Ban smoking in public places? When that happens they also assume the power to mandate smoking in public places. Demand federal review of a life or death state case? That means they can also deny such review. Or putting it in simpler (if somewhat less accurate) terms - if the feds assume the power to save one life then they assume the power to take it.

So I'm agin federal involvement.

However there's a state angle which everyone seems to be overlooking. I'm sure Florida has some laws pertaining to adultery on the books. Possibly laws pertaining to appointing a guardian in such matters if for some reason a spouse is not competent to look after her interests. Now if both of those assumptions of mine are true about Florida law then since Terri's hubby has a common law wife & a couple of kids I'd think the best route would be to have someone sue him for divorce on her behalf. If said divorce is granted then the parents should (I assume) become her guardians. But that relies on a few assumptions that I have neither the time nor inclination to delve into.

Regardless starvation is cruel as hell. The hubby would gain much more respect if he would abondon the plan of just jerking out her tube. If the situation is as he describes (which seems doubtful) then he'd stand a good chance of acquital if he slipped something into her tube to peacefully kill her. But it seems he wants her dead without getting his hands dirty. I disagree with the decision to end her life & his being a punk about it doesn't do a damn thing to change my mind.

Oh, about the detah penalty - in principle I'm in favor of it. In practice I waiver from case to case - mainly because I don't trust our legal system to get it right & when we do pick the right guy we take way too damn long. Ideally the death penalty should be imposed at the time of the crime by the would be victim. But that's another topic entirely & perhaps one too foreign to Californians to discuss in a comments section. :P

Posted by: Publicola on Mar. 22, 2005

OK, I'm probably going to be banned for saying this, but...

I can't be the only one who saw "lurid sex with Durex" sprinkled throughout this post.


Posted by: Kevin Kim on Mar. 22, 2005

Kevin, Durex didn't exist in ancient Rome. They used Trojans.

okay now i have to ban myself.

Posted by: annie on Mar. 22, 2005

I see law school has already warped Annika's mind. She's perfectly citing U.S. Supreme Court cases!

Mark, J.D.

Posted by: Mark on Mar. 22, 2005