Ploy Chorus . . . Law Libretto

The Washington Times (Washington, DC), March 29, 2005 | Go to article overview

Ploy Chorus . . . Law Libretto


Byline: Bruce Fein, SPECIAL TO THE WASHINGTON TIMES

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. Lincoln similarly declined to urge disobedience to the Fugitive Slave Act of 1850 despite its moral taint.

State and federal courts meticulously honored the rule of law in the protracted Schiavo litigation, marking one of the judiciary's finest hours. Speaking through Chief Justice William H. Rehnquist in Cruzan v. Director, Missouri Department of Health (1990), the Supreme Court assumed "the United States Constitution would grant a competent person a constitutionally protected right to refuse lifesaving hydration and nutrition." The chief justice further upheld the constitutionality of state laws requiring "clear and convincing evidence" of the wishes of incompetents in a permanent vegetative state."

Florida enacted a "right to die" statute in conformity with Cruzan. As to Terri Schiavo, impartial state trial and appellate courts examined comprehensive testimony from independent neurologists. The judges unanimously concluded her brain was nonfunctional with no chance of recovery. By clear and convincing evidence they further found Mrs. Schiavo would have desired withdrawal of lifesaving hydration and nutrition, a constitutional right that must be respected under Cruzan.

Courts, as with all human institutions, are not infallible. …

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