Terri Schiavo—Life, Death, and Law 

Editorial

The decision to deprive Terri Schiavo of sustenance, and allow her to die of starvation, was lacking in decency and, I would suggest, illegal, an act of presumption by the court that has no sanction in the U.S. Constitution. The making of laws is the sole prerogative of Congress. The judiciary may declare a law of Congress unconstitutional, but this was not relevant in the Schiavo debate. The U.S. Congress and the State of Florida passed laws that the federal courts negated without comment.

One of the legal arguments in favor of depriving Terri of life-support was that legal action has to observe due process—whatever that means. It was claimed that due process had been observed several times and, therefore, no change should be made from the first decision. I am not impressed. Due process or legal methodology is of less importance than substance, or method is less important than fact. There are many facts that were not considered by the court. 1) Michael Schiavo was married to Terri but wanted her to die. What his reasons were is not the point. He remarried and became a bigamist. I am not aware of the legal claims of bigamists. The right of a bigamist to control the life of his former wife was improperly assumed. He could have removed Terri from being a burden by divorce, but that would have returned control of his former wife to someone other than himself. He did not want to lose control of the possibility of putting her to death. 2) Terri’s parents wanted to continue her life and were willing to pay the expenses for this. The choice was between life and death. The court and her former husband chose death. The important point is that the legal decision lacked common decency and was abhorrent. That legal process takes precedence over decency is a reflection on our courts and our culture.

Some years ago, before Roe versus Wade in 1973, as a young clergyman, I was asked to speak to a group of young women. I did not know they were pregnant and did not mention the obvious fact when I spoke, but I recall to this day that group of fifteen or so young women sitting silently, motionless, with sadness on their faces. They were aware of a mistake and they knew they would give their children to strangers.

Few people would dare to deny that, in the choice between life and death, the preference should be given to life. In the dispute about abortion, death has been preferred to life by our courts and probably by a majority of citizens when a mother does not wish to continue her pregnancy. This decision is a reflection of current morality.

Prior to Roe versus Wade, abortion was legal only to save the life of the mother. The argument for abortion was that if it were illegal many women would abort without proper medical attention so that they would be in danger. The argument has weight but it has also tragic consequences for general morality. We have become a sex-dominated society without discipline and have developed one-parent homes that condone sexual license. Continence is not honored, conversation is without dignity, popular entertainment is without taste. In an earlier day, humorists were men of decency but not so now. Popular entertainment is dominated by sex, and so is the conversation of current humorists. Everything is dominated by sex.

We have unlimited legal action but every legal action is a moral decision. If we do not have clear moral principles, we have no basis for sound legal action. That we have no legal principles to guide us explains the present moral confusion.

For more than a thousand years all European countries were dominated by the Ten Commandments. The relevant ones for society were: honor your mother and father, you will not kill, you will not commit adultery, you will not steal, you will not lie, you will not covet your neighbor’s wife or his property. We cannot repudiate any of these laws without falling into chaos, but we accept them for the sake of convenience rather than as holy commands, and the extent of our repudiation of any of them measures our decadence.

That these commands are negative gives a positive message. If we keep ourselves from breaking these ancient commands, everything else is honorable. We are free to do what is good and there is no limitation to our behavior. The Ten Commandments were part of the Christian tradition, but they were part of the Jewish tradition for many hundreds of years before they were followed by European Christians. No one rejected the wisdom of these commandments until modern thinkers.

In addition to the Ten Commandments, Natural Law has been observed for centuries as a basis for legal action. Natural Law follows the belief that man has been endowed by the Creator with rights that cannot be denied. This was Jefferson’s meaning in the Declaration of Independence when he wrote that our rights to life, liberty, and the pursuit of happiness come not from government but from God. Because men desire freedom, it is a command of his nature and therefore of God. If the government or a stranger seizes your property or denies your freedom, these are denials of your Natural Rights and are therefore illegal. No law, no political act, can seize your property or invade your freedom because the possession of these rights is natural and, therefore, a gift of God.

We may yield rights for the common good in taxation and limited acts of eminent domain, and even our freedom, but we do so without denying that our Natural Rights are fundamental and yielded only by consent and in a limited manner. The Supreme Court decided this in 1798. The Connecticut Legislature enacted a statute that took property of one citizen and gave it to another. The highest court of the state invalidated the act of the legislature and the Supreme Court followed suit, ruling that the legislature acted illegally. Natural Rights could not be invalidated by legislative action.

Today our courts flout Natural Law. In 1981 the Supreme Court of Michigan allowed the government to destroy a community so that General Motors could build an assembly plant:

As a result of the new GM plant, 3,468 people were displaced and had their homes confiscated by the government. The court simply rubber-stamped the government’s claim that the condemnation would benefit the public because the GM plant would result in the creation of six thousand new jobs.

The Constitution’s public use requirement was intended to protect against just this sort of usurpation. If GM wanted the property, it should have been required to purchase it. The government’s use of the eminent domain power to transfer private land from one private party to another is an unconstitutional use, even if it creates one million new jobs. No “public benefit” can counterbalance the fact that 3,468 people lost their homes so that a wealthy company could become wealthier. --Judge Andrew Napolitano, Constitutional Chaos, p. 73.

The only valid laws are those grounded in the pursuit of goodness. Our society denies this as it denies the Ten Commandments and Natural Law. We have substituted Positivism that states that law is whatever government decrees. No matter what the law says, it is to be applied by officials and obeyed by citizens. This is the doctrine of dictators, with no consideration of minority rights or the traditions of the ages.

The problem of America today is that Positivism is the underlying presumption of law—not all of the time, of course. Positivism is so offensive both to tradition and common sense that we do not observe it consistently, but we carry it as far we can, emphasizing private interest over traditional morality. The refusal of the Senate to allow the appointment of judges committed to traditional morality illustrates present Positivism.     *

“The battle, sir, is not to the strong alone; it is to the vigilant, the active, the brave.” –Patrick Henry