- The Washington Times - Monday, March 28, 2005

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. Their findings on Terri Schiavo may have been wrong. But that can be said of all fact-finding by courts, even in criminal prosecutions where proof beyond a reasonable doubt is required. The rule of law would be paralyzed were absolute certainty the standard for proving facts. Even the rising of the sun in the east and its setting in the west would fall short.

Courts are far superior to legislative bodies in fact-finding. Litigants enjoy the rights to cross-examine adverse testimony and to present favorable witnesses. In contrast, legislatures characteristically orchestrate presentation of evidence to support preordained conclusions. Cross-examination, the greatest engine yet invented for discovering truth, is typically denied. Virtually every member of Congress who voted for the federal legislation to disturb the Terri Schiavo state court judgment was ignorant of both the facts and the law.

The legislation, styled “An Act for the relief of the parents of Theresa Marie Schiavo,” flagrantly trespassed on the judicial domain and usurped state powers. The bill instructed the federal district court for the Middle District of Florida to grant a new trial regarding the withdrawal of hydration and nutrition: “[T]he District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo … , notwithstanding any prior state court determination and regardless of whether such a claim has previously been raised, considered, or decided in state court proceedings.”

Congress was unable to summon a single syllable in the Constitution to authorize its action. Further, the Founding Fathers would have been outraged by the statute’s violence to the separation of powers. As Justice Antonin Scalia recounted in Plaut v. Spendthrift Farm, Inc. (1995): “The Framers of our Constitution lived among the ruins of a system of intermingled legislative and judicial powers, which had been prevalent in the Colonies long before the Revolution. … In the 17th and 18th centuries, Colonial assemblies and legislatures functioned as courts of equity of last resort. … Often… they chose to correct the judicial process through special bills or other enacted legislation. It was common for such legislation not to prescribe a resolution of the dispute, but rather simply to set aside the judgment and order a new trial or appeal. … This sense of a sharp necessity to separate the legislative from the judicial power, prompted by the crescendo of legislative interference with private judgments of the courts, triumphed among the Framers of the new Federal Constitution.”

The rule of law ordains that perceived deficiencies be corrected by prospective amendments, not by flouting court decrees a la the Southern Manifesto pledging defiance of Brown v. Board of Education (1954). Congress has set a terrible example in its attempt to manipulate the courts and to cast aspersion on an independent judiciary in the Terri Schaivo case.

Bruce Fein is a constitutional lawyer and international consultant at Bruce Fein & Associates and the Lichfield Group.

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