by Rod D. Martin
March 29, 2005

Letters we get letters (and indeed, one reason for starting this blog is to give outlet to some of the more interesting ones, items which would not really “fit” on the Vanguard site). Here, I respond to several common assertions regarding the Schiavo case which simply are not true or make no sense. My position is that we must blame the guilty — not the innocent — if we are to really make a difference after this case is (at this point, inevitably) over. The names have been changed to protect the privacy of my correspondents.


Dear Jonas,

You know how much affection I have for Jim and Pablo. However, the thinking below shows such a complete lack of understanding of our laws, of the Constitution, and of this particular case as to perfectly illustrate the most significant point we continue to face: most of the people talking have little idea of what they’re talking about. They are emotional, and they are right that Terri Schiavo should be protected. But they are speaking without even a hint of knowledge, and so are blaming all the wrong people.

It’s a shame. And it’s a warning (which is why I’m copying both of them on this email): when people presume to speak with the authority of the faith, but don’t know what they’re talking about, they end up hurting their cause more than helping it. Scripture counsels a different path.

I’ll interact with a few of Jim’s more egregious erroneous statements, and then sum up.

Jeb could have granted clemency to her or a stay of execution like he does for those on death row.

This is a mind-bogglingly ludicrous assertion. Terri Shiavo is not being executed. A court has found that her wishes were to die. That court is wrong, and made its findings based on ridiculously flawed evidence, but that’s beside the point: Terri Schiavo is not a criminal and has been found guilty of nothing and, more to the point, has been sentenced to nothing. Which means that Jeb Bush has no power whatsoever to grant her clemency or a stay of execution, because she is not like “those on death row”.

I repeat: the finding of the court was that dying is her wish. Our problem with that is how the court determined it, not that the court determined it. If it were clearly her wish to die, there’d be no issue and neither Jim nor Pablo would have ever heard her name.

The President of the United States could have walked in and saved her.

This is even more puzzling still. On what basis would he do this? Even if she were a criminal, she’d have to be a federal criminal (as opposed to a state criminal) for a federal pardon to apply (and of course, she’s not a criminal and so can’t be pardoned or granted clemency: the whole point is that she supposedly wants to die, which she has every right to do).

Back to the President. Jim says (I’m told, at least) that he’s a supporter of state sovereignty. On what basis, then, may the President of the United States unconstitutionally and unilaterally usurp Florida’s right to determine its family law? Certainly this is not an enumerated power within the U.S. Constitution; it is also an area which has never at any time in the entire history of American jurisprudence been under federal control. If the President were to declare unilaterally that Florida must amend its family code to require gay marriage, I’m pretty sure Jim would squawk quite loudly about federal occupation and usurpation (as well he should). The difference here is only that this time we don’t like the result of our (proper) federalist beliefs.

Could GWB have sent in the 101st Airborne and taken her into custody? Not unless Jim is first willing to concede that Janet Reno was within her rights to seize Elian Gonzales. Not unless Jim is also willing to concede that Dwight Eisenhower was within his rights to defy the state sovereignty of Arkansas and send in federal troops to force the integration of Little Rock Central High. And even if he concedes those things, he has another problem: both those events were within some clear area of federal Constitutional authority (immigration issues and civil rights, the latter falling chiefly under the 14th Amendment). Knowing his position to be rather, shall we say, hard-nosed on both (and rightly so on Elian), I doubt he’ll concede either, but were he to do so, he’d still have to find the article and section of our Constitution which would permit federal usurpation of the right of a state legislature and a state court judge to determine who may speak for an incapacitated person (and he’d have to repeal the 9th and 10th Amendments to do it).

As I noted earlier, there is one person at the federal level who could have done something more: Tom DeLay could have enforced the federal subpoena of Terri Schiavo, which would have extended her full federal witness protection (and, likely, held Judge Greer in contempt of Congress and potentially sent him to jail). However, the Congressional subpoena was on shaky ground from the start — under any other circumstance we’d likely all be yelling that it was an unlawful abuse of the subpoena power since it is impossible for her to testify and everybody knows it — and I suspect that’s why DeLay backed off. He bluffed — good for him! — and Greer called that bluff. But even if he should have pushed it, DeLay is not George Bush. And Jim is going to have to get very creative indeed — much more creative than Jay Sekulow or I have been able to do — to come up with a Constitutionally permissible way for George W. Bush to have done even one more thing than he did.

I guess the rights to life, liberty and the pursuit of happiness don’t apply because a court says so?

Again, this bespeaks a complete lack of understanding of both the case and the law, not to mention the function of courts in either the Bible or our system. The question at issue is whether Terri Schiavo wished to die in the event that her health reached its current state. The court absolutely has the right — and the duty! — to determine whether she did or didn’t: that is the exact and precise purpose of a court, to determine this exact sort of fact issue. Our problem with the court is that it used flawed evidence, refused to consider other evidence, refused to permit the gathering of yet additional evidence (Terri has never had an MRI, for instance, because Judge Greer refused to allow it), and so forth. But all of that is incidental to our real issue with the Judge: his finding that a man who has long since abandoned his marriage, moved in with another women, taken up marital relations with her in everything but name, even had multiple children with her, and even stands to profit greatly financially from Terri’s death, is somehow still the proper person to represent her in court and make decisions on her behalf. Such a ruling would be inconceivable in a child abuse case, or in any case involving a financial issue (as, in fact, this one tangentially does): Michael Schiavo has, if nothing else, a fiduciary duty here with which he has an irreconcilable conflict of interest. The idea that Terri had no right to separate representation is just unfathomable, and that is both the judge’s error and his sin. But he is completely within his just constitutional power to decide who gets to say — despite the fact that he’s made that decision in this instance either incompetently or wickedly or both — and if you were to take such power from judges, you’d just have to create other judges and give it to them. The need for finders of fact doesn’t go away just because some of them do their jobs poorly.

Or, to put this another way, Jim said “I guess the right to life, liberty and the pursuit of happiness doesn’t apply because a court says so?” The answer is painfully obvious: yes. The Bible — and our law — gives to judges the power to take away life, to take away liberty, and to inflict phenomenal unhappiness. The problem in this case is that the judge has (wrongly) determined that Michael Schiavo gets to make the decisions for his nominal wife, and he has used that power to cause her to die. She has a right to surrender her life in the pursuit of her happiness, and the judge is right to say she does. What is wrong is not that the judge respected her husband and the institution of marriage but that he considers Michael Schiavo a valid husband at all.

I guess that the president can’t sign an executive order to keep her alive?

Precisely so. The President may not sign an executive order of any sort. Why do people who spend so much time decrying “unlawful executive orders” not even understand what they are? An executive order is nothing more and nothing less than a directive by the Chief Executive TO THOSE IN HIS EMPLOY to follow a particular policy. The only difference between an executive order and a policy paper from your boss at any other job is that it applies to federal employees, not to the employees at the local Sonic. Since that is true, executive orders frequently impact how federal laws are interpreted and carried out. But they are not federal laws, and they may not be applied to just anyone at random (like, for instance, Terri Schiavo). By any measure, such a power would be that of a dictator, and I marvel that anyone so staunchly opposed to tyranny would be so quick to reach for the One Ring when it suits his purpose.

Doesn’t the Florida Constitution protect the disabled?

Well, it does in theory, but it obviously needs to do so better than it does at present. Currently, it is possible under Florida law to completely ignore the fact that the person to whom a judge gives functional custody of a disabled person has interests completely at odds with those of his ward. This is what we should be working to reform, and this (in addition to curbing the very real usurpations of power of which Judge Greer and several other judges in this case are guilty) may well be the positive legacy of this case, if we make it so.

We must not forget that Terri Shiavo is far from unique: she’s just the most famous (in large measure because of all the Bushes have done to fight for her life, but I digress). Every day there are more Terris, and the number will keep growing for a long, long time, as life expectancies increase and medical science struggles to keep up. Too few of the people I hear seem interested in those people: they don’t know their names, and they don’t much seem to care. Terri has a name and picture, and they fixate on her. Will they go away when this is done, casting blame and ignoring the real issues (in some cases quite obviously never even understanding the real issues in the first place)? Yes, I expect many of them will. All of those should be ashamed: they would by such shallowness let her die in vain. There are real reforms we can enact — with the full and vigorous support, I might add, of the people these men attack — that would prevent most of these cases from coming out so tragically. But it takes time and patience and wisdom to figure out what reforms are needed and to actually do something about them. That doesn’t suit many of these men, who prefer to slash and burn and then go on to the next “popular” issue of the day. I very much hope Jim and Pablo will not be among that latter group, because God has given them far too many gifts for them to waste their abilities so. Terri’s case is an opening for very serious reformation of a family law system (not to mention our whole judiciary) broken now for half a century. For her sake and the sake of countless more like her, that opening must not be lost.

But to achieve any of this, it is first required that one have some notion of what the law actually is right now. Of that, this lawyer has seen precious little among these and many other men who presume to speak for Almighty God. I sincerely doubt He would be impressed.

My great affection for your friends stands.