Ploy Chorus . . . law libretto (rule of law = Terri Schiavo litigation - "right to die")

Washington Times Commentary section ^ | March 29, 2005 | Bruce Fein

[Former Military Chick]

The rule of law dictated the withdrawal of nutrition and hydration in the wrenching Terri Schiavo litigation. Detractors of the final court decision, that scrupulously honored Florida's "right to die" statute and the U.S. Constitution, would reduce the rule of law to a restricted railroad ticket, good for this day and train only. Civil strife would become endemic, as each disappointed group in controversial litigation would rebel against court decrees regarding abortion, school prayer, the right to die, the death penalty, same-sex "marriage," civil rights and other issues.

As Thomas Hobbes lamented, life in such a state of nature would be poor, brutish, nasty, and short -- a war of all against all.

Sir Thomas More explained in "A Man for All Seasons" the superiority of the rule of law to theological encyclicals: "The law, Roper, the law. I know what's legal, not what's right. And I'll stick to what's legal. ... I'm not God. The currents and eddies of right and wrong, which you find such plain-sailing, I can't navigate, I'm no voyager. But in the thickets of the law, oh there I'm a forester. ... What would you do? Cut a great road through the law to get after the Devil? ... And when the last law was down, and the Devil turned on you -- where would you hide, Roper, the laws all being flat?"

During the antebellum slavery crisis, Sen. William Seward appealed to a "higher law" to justify disobedience to pro-slavery decrees. President Abraham Lincoln deplored Seward's invitation to lawlessness or vigilante justice. Despite detesting the Supreme Court's decree in Dred Scott v. Sanford (1857) denying blacks citizenship, Lincoln insisted on compliance with the court judgment while working to overcome the pernicious holding in future litigation or by constitutional amendment.

[Former Military Chick]

Fein is an excellent writer, knows the law and is frankly always worth reading (listening)!

[farmer18th]

This guy must have never met Moses, Rahab, Ehud, David, St. Peter, Oliver Cromwell, Roger Williams, Samuel Adams, Patrick Henry, Thomas Jefferson, or Rosa Parks, just to name a few....

The entire premise, however, is bogus in this day and age. We all know the law is what a judge says it is, not what the legislature puts down on paper.

[Mr Ramsbotham]

I need respect no law that decrees an innocent person must be starved to death, nor any court ruling that such a law is just or proper. There are some cases in which conscience and morality must trump the law.

[HiTech RedNeck]

And then Lincoln issued the Emancipation Proclamation.

[HiTech RedNeck]

And there is a constitutional check and balance for just that. It's called an impeachment trial. If the executive disobeys the court, it's the legislature which arbitrates the matter, by choosing to impeach and convict, or not to do the same.

[farmer18th]

The most effective rule in the coward's arsenal:

"...if you are afraid to do something you know is right, pretend there is a law against it..."

[Nuzcruizer]

"We all know the law is what a judge says it is, not what the legislature puts down on paper."

So true. we need to get the judicial system back under control and have them enforce law as it was intended, not making up new law by changing the origional intent of it.

[northernlightsII]

I think Jesus hd a few choice words for those who relied on the letter of the law.I seem to recall something about him rebuking pharisees and the teachers of the law
"These people honor me with their lips,butheir hearts are far from me.They worship me in vain: their teachings are but rules taught by men.
You have let go of the commands of GOD and are hholding on to the traditions of men."
Mark 7:6

[Publius Maximus]

Unfortunately Bush is no Lincoln. There will be no "Emaciation Proclamation" in this case. Just a lot of excuses why the right thing to do was in fact the wrong thing to do.

[the invisib1e hand]

In Honor of Terri Schiavo

Please let it load -- it's 11 mb.

Have headphones or sound on.

special thanks to lafroste for generous technical and web assistance.

[the invisib1e hand]

Fein is an excellent writer, knows the law and is frankly always worth reading (listening)!

well said and thanks for the post.

[Nick Danger]

This article is crap. Mr. Fein is wrong on several counts.

He states:

As to Terri Schiavo, impartial state trial and appellate courts examined comprehensive testimony from independent neurologists.

Not so. Judge George Greer examined the testimony. He's the only one who did. Appellate courts do not re-visit the "findings of fact." Findings of fact are assumed to be correct.

Judge Greer turned two boxes of conflicting testimony into two irreversable "facts": that Terri Schiavo was in a persistent vegetative state, and that her wish would be to die in such a circumstance.

Another judge examining the same conflicting testimony may well have reached an opposite conclusion on one or both of those matters. Greer himself is not competent to diagnose PVS; it came down to which set of doctors he chose to believe. It was essentially an arbitrary decision on his part, never to be reviewed again by anyone.

That is precisely why the Congress wanted a de novo review of the facts. Terri Schiavo had not been examined or tested in years, and yet the courts were about to mandate her death without an MRI or a PET scan ever having been done.

But Mr. Fein tells us that in doing so...

Congress was unable to summon a single syllable in the Constitution to authorize its action.

Nonsense. Under Article III, Congress could have constituted the Court of Terri Schiavo if it wanted to. It has already constituted special courts for tax matters and some other things. For convenience and speed, it chose to delegate the jurisdiction to the existing courts in the 11th circuit.

As for the requirement for a de novo review...

Article IV Sect. 1. Full faith and credit shall be given in each State to the public act, records, and judicial proceedings of every other State. And the Congress may, by general laws, prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.

In this case, "the effect thereof" was to be "it doesn't matter what they did."

Too bad the Schindlers' lawyers never figured that out, and in a massive fest of incompetence and stupidity, blew the chance Congress had given Terri.