Strengthening Constitutional Self-Government

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Making Sense of Schiavo

Much has been written even today about the Schiavo case. I have chosen to limit my postings on the subject essentially to updates, because the issues are too large to be addressed in traditional blog length posts. However, because I have received several emails with questions, I will address it here. Accordingly, please pardon the length of the post.

The Schiavo case has created a conundrum perhaps best captured by Charles Krauthammer’s column today:

For Congress and the president to then step in and try to override that by shifting the venue to a federal court was a legal travesty, a flagrant violation of federalism and the separation of powers. The federal judge who refused to reverse the Florida court was certainly true to the law. But the law, while scrupulous, has been merciless, and its conclusion very troubling morally. We ended up having to choose between a legal travesty on the one hand and human tragedy on the other.

Why a Human Tragedy

While I am not as intimately familiar with all the details of the state court proceedings or Terri’s medical condition as I’m sure a number of NLT’s readers are, several features raise serious questions about withdrawing food and hydration.

First, there are credibility and motive issues with her husband, who has been made the surrogate decisionmaker by the Florida courts. He has started a new life with a woman, with whom he lives and has two children. I think that few people blame him for this, but one thing is a bit peculiar: why has he not terminated his marriage with Terri? Given her state, he could do so easily, and no one would blame him or call him a cad. He would essentially be formalizing the fact that he has started a new life with his new common-law wife. I don’t see how this would disrespect Terri any more than starting a new life, which is to say, the social mores against divorcing her seem fairly weak. Furthermore, divorcing Terri would permit him to formally remarry, rather than continue his status as—you’ll pardon the phrase—a common-law polygamist. One possible answer as to why he has continued his marriage is that Terri received a large jury settlement (exceeding $1 million) after her accident. This fund must be used for her care while she is alive, and Michael would presumably lose his claim to these funds if he divorced her. Suddenly, Michael has an incentive both to remain married, and to pull the plug. There are, admittedly, varying accounts as to how much money remains, but I am unaware to what extent the courts took this into account.

There are also claims from several doctors, including a leading neurologist who examined Terri before speaking with Maj. Leader Frist, and a leading speech therapist at the University of Chicago, that Terri could actually progress with the aid of therapy—even to the point of speaking and, key to this inquiry not requiring a feeding tube. Yet Michael has refused to authorize any of these therapies in the 15 years of hospitalization. The question of this inaction is only complicated by the fact that he is so adamant in refusing the requests of her parents to attempt any of these therapies, which to my understanding they have offered to do at their own expense. Even if we assume that he is sincere and genuine in his proffer that Terri would not want to live like this, why would he not want to at least try therapies that could improve her standard of living? Why the rush to die?

Finally, there is a hint of a pro-euthanasia agenda on the part of the local Florida judge who has presided over the case for these many years. Bill Kristol has noted that the neurologist that the judge relied upon is a major proponent of euthanasia, and the has given short shrift to conflicting evidence by other experts who have examined Terri.

In short, there are serious doubts as to whether all reasonable steps have been taken, and there are questions of the motives of those making the decisions. While I think that many in society believe that in tough calls, the presumption should be in favor of life, this case looks like one in which the presumptions may have run the other way.

Why a Legal Travesty

Despite these questions, issues of family law are traditionally the province of the state. For this reason, there have been howls about federalism as a result of Congress creating federal jurisdiction for this case.

I have seen a number of good and bad arguments in the federalism context. The most prominent “bad” argument—indeed one which is put forward today by Charles Fried, is the comparison to habeas reform. The argument is essentially that Congress limited federal habeas review for state offenders, and yet here they go hypocritically creating special jurisdiction for Terri. Aside from the fact that a life may be at issue, the analogy is actually rather weak. First, contrary to what Fried argues, it is not inconsequential that you are comparing apples and oranges. A habeas petitioner has been found guilty beyond a reasonable doubt by a jury of his peers (following which, I might add, he has a right to appeal through the state system, generally has a state post-conviction habeas proceeding which again can go all the way to the state supreme court, and then he gets a hearing in federal court), whereas in Terri’s case, her fate was decided not based upon her guilt, but rather based upon who was her guardian. Because the case was civil, no issue had to reach the high level of proof beyond a reasonable doubt. Therefore, the nature of the proceedings leading up to federal review are sufficiently different as to raise some doubt as to the utility of their comparison.

But even if we treat them as the same, the habeas reform initiated by Congress simply prevented state prisoners from bringing endless appeals in federal court. Instead, Congress reaffirmed that prisoners would have one bite at the apple, during which they could raise any federal or constitutional claims arising from their state criminal conviction and preserved during their state proceedings. Congress thereby reaffirmed that in our federal system, despite the fact that we believe that state courts are competent to adjudicate federal and constitutional claims, there is still a place for limited federal review where criminal convictions result in limitations on core liberties. In Schiavo’s case, Congress created a similar, one-bite review exclusively to review federal and constitutional issues. Contrary to those who suggest that this is different than the habeas reform bill, it actually is quite similar in its effect in this case. The only way to call them different is to make the thin debaters point that Congress made one law more strict (preventing endless petitions in federal court) and the other created new access. O.K., but the motion in opposite directions led to the same functional result: one review of exhausted federal claims in federal court.

That does not answer the tougher federalism question, however, which is whether Congress rightfully got involved in the first place. First, Congress was careful to act within its constitutionally limited power. Unlike other pet conservative projects, such as the partial birth abortion ban (which I talked about here), Congress did not illegitimately appeal to a bloated version of the Commerce Clause. Rather, they legitimately appealed to their authority to create and modify the jurisdiction of the federal courts. Even so, there are several features of the bill which, even if permissible, seem imprudent. For example, the fact that they created jurisdiction just for this case, and stated that any findings of the court would not have precedential value (the latter of which may well be beyond congressional power) are both questionable judgments. I would have much preferred that Congress pass the version of the bill which passed the House—one which provided for removal to hear exclusively federal claims in any such case where cessaton of life-sustaining procedures was imminent following the exhaustion of state court proceedings.

Yet the fact that Congress acted within the constitutional limits on federalism does not speak to whether Congress acted within the philosophical limits of federalism. This is, I think, the strongest objection. The general rule that family law is the province of the state is a very strong one in American law, and one which should not be ignored lightly. The best reply is that Congress sought simply to assure that Terri had a venue for exploring her federal rights. This may be true, but that is also the reason why Terri has lost who appeals to date, and why she will most likely lose her appeal before the U.S. Supreme Court. While she does have a right to life, unless we indulge in reading the Constitution broadly, she has been afforded Due Process by the state court proceedings. Congress was able to give her a venue to assure that her federal claims were heard, but the federal claims end up being narrow, and therefore we should not fault the courts for applying the law correctly.

Where Should We Go From Here?

I have seen a number of news broadcasters and commentators suggest that the moral of the story is that everyone should have an advance directive. But this is only part of the story. The real moral of the story is that courts—both federal and state—are not particularly good venues for deciding these kind of contentious moral issues. Contrary to all the screaming about the influence of politics on this matter, it is precisely the political branches that should be weighing in, and passing laws to prevent future Schiavos. (Indeed, Krauthammer has suggested that they weigh in to specifically save Schiavo.) Anyone who doubts the respective capacity of the branches to resolve disputed moral questions need only recall that the representational function of government which gave us the Declaration of Independence (" . . . all men are created equal . . .), and the judicial branch which has given us such glowing statements as Dred Scott and Plessy. Update:The examples are admittedly a bit glib, and counter examples can be (and indeed have been) raised. That said, it goes to the proper function of the branch of government. Courts are designed to handle specific cases and controversies, not to create policy. The liberals have turned to the courts specifically because they cannot get their agendas passed by the legislatures. But the courts do not have the capacity to do the kind of hearings, townhalls, and general factfinding that the legislative branch does. Judges are not chosen to represent the people. And, importantly in the case of the federal judiciary, they cannot be corrected when they create rules which are contrary to the desires and moral sentiments of the people. Even when the legislatures have endorsed laws such as Jim Crow which were contrary to the principles of constitutional law and notions of right, these interpretations were checkable through the political process. Dred Scott offered no such easy check.

People should have advance directives, but they should do a good many things that people don’t do. We need to have general norms in place for when people become afflicted with these kinds of conditions without directives, and if those norms do not comply with public sentiments of right (which seems to be the issue with Schiavo), it should be the political branches, not the courts, which alter those norms.

Discussions - 19 Comments

um... what about the fact that it was the representative branches that gave us the three-fifths clause, the constitutional extension of the human slave trade for 20 years after 1789, and all Jim Crowe laws. Moreover, what about the fact that it was the judicial branch that gave us Brown v. Board of Education.

not to say your general point is not right, but this logic is just plain stupid.

Anon: My point on Dred Scott was essentially an afterthought--an example. The point still applies: courts interpret laws, and legitimately are not policymaking branches. They are not good at making policy, as we have seen time and again, because their peculiar skills redound in resolving cases and controversies involving individual litigants. While some of our robed masters believe that they are experts in public policy, they are not--that is what we hire legislators to do.

As for your examples, the 3/5 compromise actually diluted southern voting strength, in order to prevent the further entrenchment of slavery. Brown v. Board actually relied upon the dubious pretext of social science studies rather than the declaration’s notions of equality to find against separate but equal (ironically, modern social science has come to the opposite conclusion of the studies in Brown--should we flip the decision, or rely on the legislative findings regarding equality?) As for Jim Crow, those clearly examples of where the legislature has gotten it wrong. But here is the point: we can actually correct the determinations of the legislature through the legislative process. Their decisions do not become canonical.

I was going to reprise the points made in Comment 1. Your selective choice of events makes a specious and ridiculous argument. Your continuous conflation of Terri Schaivo with the actions of the Schindlers is also off the mark. Terri Schiavo has at no time made any efforts to seek any legal review of the current actions. It isn’t ’her’ appeal, in fact everything has been done in contravention of her wishes as identified through her legally appointed representatives, be they her husband, the judge, or the guardians ad litem appointed by the state. The medical case proposed by the Schindlers is based at least in part on the opinions of William Hammesfahr, the Florida neurologist spuriously identified as a ’Nobel prize nominee’ due to the letter written to the Nobel committee by his state representative. follow this link for background on Hammesfahr
other medical ’opinions’ come form Bill Frist, who apparently diagnosed her from the half-hour videotape, and from Tom DeLay, formerly an exterminator, who claims that she is as conscious as you or I, and apparently would jump up and dance if given therapy.
The case has been litigated for more than a decade. Nobody is happy with the result. Nobody wants to see anyone die. Everyone will be sad. The courts are the proper place for this type of struggle.

Robert, your mention of Plessy is not really answered by Anon’s citation to Brown (remember the latter only corrected the judicial sleight of hand found in the former, after three generations). Jim Crow laws were allowed only because the Supreme Court first eviscerated the privileges and immunities clause of the 14th Amendment in the Slaughter-house Cases. And in any case, it was the Civil Rights Act of 1964 that really marked the turning point towards racial equality. Both the 14th Amendment and the Civil Rights Act are legislative achievments that have served our society better than any single case, or any single line of case-derived law (perhaps the entire body of common law has had a more important impact, but not any one specific portion).

Just to add 2 cents to the historical discussion of Jim Crow as an example of legislatures getting something wrong and courts setting it right:

The role of legislators in passing these bad laws is indisputable, of course, but the researches of Prof. Gerald Rosenberg of the U of Chicago show that in the matter of voting rights at least, substantial progress toward equality for Southern blacks came not as a result of Supreme Court decisions, but only after Congress passed the Voting Rights Act of 1965 and the federal executive sent US Marshals to enforce its provisions.

I’m sure that Supreme Court opinions such as Brown helped to contribute to the shifts in opinion that made the VRA possible, and the judiciary deserves credit for that, but to suggest that judges alone fixed the problems of segregation and secured civil rights is historically misleading. Actions to secure justice by legislators and the executive branch were crucial, and that’s not even to mention the huge role played by ordinary citizens of all races despite grumblings that they were meddling in what were, in effect, held to be private or virtually private matters (such as the putative right of a white merchant not to seat black customers at his privately owned lunch counter).

Some of your arguments about congressional capacities certainly have merit, but how do they apply to this particular case? Or maybe I just missed all of the congressional hearings and general factfinding that happened over the past week with respect to this case. If you’re going to defend Congress, you have to also admit that sometimes they do stupid (and harmful) things, and the basic question is whether the stupid things that Congress does are worse, on balance, than the stupid things that courts do.

Moreover, I’m left wondering where your argument leaves things like the Civil Rights Acts of 1866 and 1875, the principles of which conservatives tend to hate if expressed in their modern forms. (As in: State interference in private hiring matters? Tyrannical!) It was the judiciary that narrowed the 14th Amendment to a form that the contemporary right finds barely acceptable.

Richard: As for conflating the claims, the Schindlers filed the action as next friend, which we generally treat as surrogate arguments for the individual. Call it shorthand if you like, but it is too cute to call it conflation. As to your other arguments, I don’t see how someone’s being touted in the press for a dubious nomination for the nobel prize (or perhaps not dubiously--for all I know it was a "legitimate" nomination) raises issues about their credibility, however being a leading euthanasia proponent does create that issue. If you read my post, I did not give any peculiar credence to the medical opinions of Frist and DeLay, however you failed to address the speech expert at U of Chicago. As for your conclusion that the courts are the proper place for this kind of struggle, you fail to say whether you mean in Schiavo’s case in particular, or in general. Either way, my argument is that the public seems dissatisfied with the default rules. The way to change these is not to take the liberal road of forcing an expanded notion of rights through the courts; it is better to change the default through legislation.

Brett: My argument is largely one from function, and the examples are incidents of the function. If I subscribed to an outcome based or public policy view of the separation of powers, then perhaps I would have to provide you with an econometric study on the the positive versus negative outcomes, but I don’t. Congress makes policy, and the courts interprets laws. I can note that the incidents of how they operate support this, and that the outcomes also support this, but those are not the foundations of my argument from function.

It should be noted as well that when I said that the legislature should do the fix, I was referring to the Florida legislature. I don’t necessarily think that Congress has much authority to act here. It did so by creating jurisdiction which, as I said is within its power, but much more would probably be outside its power.

As for the early CR acts, the difference seems to be in the basis of regulation. My recollection of the 75 act, for example, is that the regulation on private action was seen as arising from the enforcement provisions of the 14th, insofar as the private action was seen as incident to slavery. I know of few people who suggest that as the basis for current private action regulation.


You write:

"the basic question is whether the stupid things that Congress does are worse, on balance, than the stupid things that courts do."

Certainly, Congress can be stupid. But aren’t any errors it may commit easier for citizens to correct than the errors of unelected jurists with life tenure?

BTW, can you offer any examples of influential contemporary conservatives (as distinguished from doctrinaire libertarians, let me stipulate) who say that state interference in private hiring matters is per se "tyrannical"? I’m not saying there aren’t any such folks, but I’m trying to think of some off the top of my head and can’t come up with any.

You say that judges aren’t chosen to represent the people. There are advantages when the people at least have a say, as in the case of .Judge George Greer, the trial judge in this sad case.

As an addendum to what I posted above, Schiavo trial judge Greer of Pinellas Country, FL, is an elected judge, and in fact survived an electoral challenge based largely on the Schiavo case. If he runs again, he’ll be up for a vote in 2010. I think my larger point about unelected judges still stands, given that many judges do not have to face voters while all legislators do.

I have heard the arguments stating that Michael should divorce Terri and "move on" with his life, thus allowing the parents/society/whomever to begin therapy/treatments/etc. Because this would show the love of a true husband. (e.g. all the damned references to Solomon).

What a load of crap.

How about for one second we assume that Michael is being truthful and faithful to his wife’s wishes. If he were to allow someone else to become legal guardian for Terri, then they would do all those things that she may have actually told her husband that she didn’t want. And allowing that IS NOT love.

To specifically address your point: The policy has been settled, and it is simple. The policy is that the court is to judge, based on available evidence, what condition the incapacited person is in; and, given that finding, what the incapacitated person would want to be done on her behalf.

For the former, the court have found her in a persistantly vegetative state from which she is unable to recover. For the latter, barring written evidence of her wishes, the court considered testimony from her husband, family, friends and clergy. The final determination was the court’s, but the spouse’s recounting of events is naturally given primacy. I’m quite sure my wife has a better idea what I would want done in these situations than my parents would, and I’m pretty close to my parents.

The court here is not making policy. They are applying policy. If you don’t like it, I suggest you come up with a new policy that is generally applicable and useful and acceptable to the population, and propose it to congress.

Mr. Terrell: You seem to miss several points. First, the point is that the courts are establishing a policy which has been established in Florida with which the people disagree. My point is that the way to change that policy is not through further court intervention, but through the legislature. So on this point we presumably agree. Your appeal to Congress is erroneous, however, because, as I suggested in my post, Congress does not have authority in this region. It is up to the state legislature. And if they should choose to enact something that would cover Schiavo as well as future cases, so be it.

Brian: I agree that we have to consider the possibility that Terri actually made these statements to her husband at some point during their marriage, and that there is a chance he is trying to meet with her wishes. However, I believe there are enough questions being raised about his motives to doubt whatever honorable intentions he is trying to portray.

WHY, for instance, did he bring these "wishes" to light only seven years ago, when she has been in this state for 12 years? How does he personally benefit from the malpractice lawsuit filed on Terri’s behalf and what is the truth about the large award and how has it been utilized? What does he stand to benefit by her death at this point - is there a large life insurance policy he is waiting to cash in on? I think there are enough questions being raised to seriously warrant review of Mr. Schiavo’s motives...

DT’s point is a good one. For me, the bottom line here is the prevention of a possible murder. The facts that (1) he has NOT backed off, (2) that he has NOT given control to her parents, (3) and that he has a strong financial incentive to let her die all SCREAM for oversight here. I’m really having a hard time understanding why so many people are SO intent of letting her die. Disgusting.

For several years, Mr. schiavo allowed - even spent money - on treatments and rehab. This was while the malpractice suit was in progress. During much of that time, he actually lived with the Schindlers, and even brought girlfriends to meet them.

Then the malpractice suit was settled out of court. With about $300k to himself, and control of a trust fund of about $700k, he suddenly remembered a casual comment (after a movie about somethng similar) to the effect "I wouldn’t want to live like that." He quite promptly stopped all treatment including rehab.

This is where Judge Greer comes in. The suit was to transfer the fund from Mr. Schiavo to the parents and use it for the [presumably] intended purpose[s]. The Judge, quite properly on the case presented, refused, and the appeals started.

Problem: because they were/are appeals, subsequent rulings were pretty much limited to whether Judge Greer had done something wrong in the original. All have concluded he did not. Evidence coming out since the original case has been ignored as not being relevant to the original decision - and even labelled "incredible" by Judge Greer - concerning sworn affadavits and testimony by nurses who attended her and doctors not appointed by either the Judge or approved by Mr. Schiavo. Personally, I find the statement by the last such outside doc that in all this time she has not even suffered bed sores (HAH!) incredible.

Somewhere I read that of the $700k trust fund (note: a seperate $300k went directly to Mr. Schaivo) over $500k has been spent defending his keeping the fund and being allowed to stop even the feeding/hydration.


Oh yes, "State’s rights." The Florida legislature in 2003 passed a bill similar to the one recently proposed in the federal House (before comprising with the Senate), but it was later declared unconstitutional. So the state wanted it, but set it up badly - and the Federals stepped in (and botched it again by not making their intent - to hold off killing her until a new trial allowing use of "new" evidence and testimony could be held - clear enough for a first grader to see).

So, legally it is over (SCOTUS has refused to get involved) for her.

Legally, this may be correct. Indeed, I strongly suspect she might want it ended were she able (but then she wouldn’t be at risk, would she? There are no "heroic efforts" at resuscitation involved...) to say. My problem is largely with the law that says a patient can be "allowed" to die in a fashion that might put all involved at risk of jail if they tried it on a horse or dog, while not allowing an easier death as is required for a cow or cat.

Robert: I could be wrong, but it seems to me that it’s hard to make a functional argument without letting empirical descriptions of outcomes creep in. But be that as it may, you write:

My recollection of the 75 act, for example, is that the regulation on private action was seen as arising from the enforcement provisions of the 14th, insofar as the private action was seen as incident to slavery. I know of few people who suggest that as the basis for current private action regulation.

I may seem to be making a merely antiquarian point, but I’m not. The reason why no one attempts that argument in court (although I’ve seen it in other contexts) is that the federal courts struck down the acts and gravely narrowed the judicial meaning of the 14th A (Plessy, the Civil Rights cases).

If the Reconstruction courts had been less "activist" and had deferred to the policy judgments of Congress, which is what you seem to be advocating here, we might have a very different civil rights regime, one in which uses of the 14th Amendment to attack affirmative action, for example, would be more of a stretch.

Brett: You might have a different civil rights regime, particularly if the Slaughterhouse Cases came out differently, but you could still challenge non-remedial measures such as affirmative action insofar as it did not address the present effects of past discrimination. This is the standard that the Fifth Circuit applied in Hopwood v. Texas. Even under your broad theory, you could not rely on the educational benefits of diversity taken wholly apart from redressing discrimination, as the SCOTUS did in Grutter.

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