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Location: Montgomery Area, Alabama, United States

Former BUFF driver; self-styled military historian; paid (a lot) to write about beating plowshares into swords; NOT Foamy the Squirrel, contrary to all appearances. Wesleyan Jihadi Name: Sibling Railgun of Reasoned Discourse

Sunday, March 27, 2005

Thirst, Hunger, Montesquieu, and the Law

Well, Terri Schiavo will soon be gone and nothing further can be done on her behalf save by illegal means, which is not something that anyone on either side of this issue should encourage.

Regardless of your political leanings, there are two sides to this issue. Even among conservative pundits there is a fairly substantive and reasonable divide, with compelling arguments on both sides of the fence. Arrayed on one side are those like Glenn Reynolds who seek to uphold the rule of law, prevent executive and legislative abuse of constitutional original intent, and discourage bills of attainder and ex-post-facto lawmaking (which conservatives were extremely vocal in denouncing, for example, during the Iran-Contra "scandal"--made the latter in part by a Democratic Congress' similar abuse of the law). Reynolds makes cogent points:

I'm quite astonished to hear people who call themselves conservatives arguing, in effect, that Congress and the federal courts have a free-ranging charter to correct any injustice, anywhere, regardless of the Constitution. And yet my email runneth over with just those kinds of comments. And arguing that "it's okay because liberals do it too" doesn't undercut my point that conservatives are acting like liberals here. It makes it.

Every system generates unjust results. This may (or may not) be one of them, but there's no reason to think that Congressional action on an individual legal case is likely to improve things.

And here:

I do think that process, and the Constitution, matter. Trampling the Constitution in an earnest desire to do good in high-profile cases has been a hallmark of a certain sort of liberalism, and it's the sort of thing that I thought conservatives eschewed.
Points granted, professor. Is this the most important consideration, however?

Among conservatives on the other side are those, like Hugh Hewitt, who worry about the power of the courts and the emblematic nature this case may have for a certain stripe of activist judge. Hewitt:

The staggering judicial indifference to Congress's action early Monday is a display of judicial arrogance that, combined with other recent displays of judicial imperium, should trouble everyone interested in separation of powers and thus the limiting of government authority that occurs as a result of that balancing.
This point resonates with me, even if Congress' opposite tack is also an abuse of the system. I believe today's greatest threat to the rule of law is the very priesthood established to uphold it: the court system and the appointed-for-life scribes and Pharisees of our secular humanist state religion. I believe the law is like math--merely a language, a medium of communication, built for a set of specific purposes. Like in math (especially statistics), gifted minds can turn it to support any position or normative framework they want. But unlike math, there are no absolutes in the law. It may be the perfect vehicle for persuading others to any position by seeming use of logic. The logic is very slippery and context-specific, however. And the more complex the law becomes, the closer it gets to perfection. There is probably a precedent somewhere defending any act a villain would want to commit. And the villain will get away with it as long as he can recruit the more persuasive lawyer to his side. Murder? O Jay's gloves wouldn't fit. Child buggery? Jocko was just sleeping with the tykes. Slavery? The black man has no rights the white man is bound to respect. And so on...

The law is useful as an engine and facilitator of liberty only and entirely to the extent that its advocates in various camps are held in check by one another--the knavery of one set balanced against the equal or worse knavery of every other. Our founding fathers understood this. That's why they could "recite the central points of Montesquieu's doctrine as if it had been a catechism," as Forrest McDonald had it. Montesquieu*, the great apostle of checks and balances, advocated a form of government that looks almost exactly like ours today--the most stable form of republican government ever devised--except for one aspect: "The judiciary should not be a permanent body, but should be one whose personnel are frequently changed, and the judges should be 'no more than the mouth that pronounces the words of the law.'" Montesquieu was worried that a permanent judiciary would become too concerned with its own perogatives and interests--in effect, become very much like the priesthood of an established state church; like England's Lords Spiritual. Hmmmm....

The various courts' pronouncements this week certainly sounded Olympian enough. What the petitioners were asking was humane and reasonable--a mere re-examination of the case based on finding of fact, not Talmudic hermeneutics, and a stay of brutal execution until that was accomplished. There was significant reason to doubt some aspects of the initial judgment. For instance, there are obvious factual errors in the medical findings that are central to the case:

She has never regained consciousness and to this day remains in a comatose state at a nursing home in Largo.
This was written at Michael Schiavo's intial petition to have feeding tubes removed in 2000. Of course, this is not true. As has been widely reported, for instance in this detailed chronology sympathetic to Schiavo's doctors, she was comatose for only about a month after her heart attack. She remains severely brain-damaged, of course, but is not comatose and was not when this brief was filed. Her husband / guardian's actions have called his motives into question. I pass no judgment myself on whether he is the villain some in the press have made him out to be, but there is enough doubt to at least warrant a check upon his potential knavery and get a fresh set of eyes on a fresh set of facts. That was not enough for our Lords Legal, however. The rabbit's entrails didn't indicate that a humane solution was warrented. They had to uphold "The Rule of Law"--never mind that the auspices only showed what the judges wanted them to, no more and no less, because that's all that was behind their pronouncements--the judges' own agendas (leftist, conservative, or whatever), dressed up rhetorically, clothed in precedent. Only a humane solution, whatever ultimately irrelevant precedent dressed it up, would have spoken to something truly absolute and immutable. But most of our judges have excercised their craft so long and so well that they do not believe the absolute exists.

"Woe unto you, scribes and Pharisees, hypocrites! for ye make clean the outside of the cup and of the platter, but within they are full of extortion and excess."

I only hope the judges and doctors are right about Terri Schiavo's condition; that her frontal lobes really are just wells of CSF. I would hate to think even of a retarded person dying the sort of death she is. Hunger such as hers has made people in famine-ravaged lands devour their own children. Here is a good first-hand account of the sort of thirst she must be suffering from. I pray the doctors are right, for their sakes and hers.

Update: Reader Deb Stevens sends a link to related sentiments here. I agree: Procedural fairness has been served in this case and procedural fairness is 'safer,' but 'justice,' in a larger but more ambiguous sense, has not been served. Thanks, Deb.

Update: Another good perspective on the economics of the original ruling here. This is an important aspect that I haven't seen comment on before.


* Okay, okay...Bollingbrooke too--I realize that he influenced Monty and the founders heavily

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