Dura Lex Sed Lex

A commenter to my blog 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 U.S. 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, Supreme Court 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 shortly after midnight last night), 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 debate in the U.S. House of Representatives, i found myself in the unusual position of agreeing with many of the Democrats, as they took the floor to give impassioned speeches in support of the "rule of law." (With a sense of irony, i wonder where they were when the issue was Clinton's purjury, and no one's life was at stake?) Hard as the law may be, these Democrats 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 Terri Schiavo 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.

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

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

3 Exodus 20:13 (King James).

[cross-posted at annika's journal]

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