Tuesday, March 22, 2005


I frankly don't have a clue as to what I think about the tragic case of Terry Schiavo. It seems one of those situations that you can't possibly judge unless you are in the middle of it and for that reason I think Congress should have stayed away from it. Yet I'm struck by the angry tone of Dahlia Lithwick's piece in Slate denouncing Congressional Republicans for passing a bill allowing Schiavo's family access to the federal courts. According to Lithwick:

Evidently, Congress has a secret, super-textual constitutional role as the nation's caped crusaders—its members authorized to leap into phone booths around the world and fly back to Washington in a single bound whenever the "culture of life" is in peril.

She goes on to add that such matters are best left with the courts:

The reason we have courts, the reason we traditionally assign these brutal fact-finding responsibilities to those courts, is that intimate legal custody and life-or-death decisions should not be determined based on popular referenda. They need to be rooted, as much as possible, in rock-solid legal rules.

First of all, Congress did nothing more than grant Schiavo's family access to the federal courts and this is something that it has a clear Constitutional power to do. Second, why are courts necessarily better at making these decisions than are legislatures? Last I knew, legal rules were determined by legislatures and the courts were there only to make sure that they were properly implemented. Also, if Lithwick is right, there are plenty of other "life-or-death decisions" that might best be left to the courts. In fact, why not just leave everything to the courts since they are self-evidently better at making such important decisions?

1 comment:

QPRHigh said...

One thing that struck me in this case is that most of those that entered the fray seem to have done so out of a real sense of conviction. There were exceptions, but it's rare to see an issue where so many across the political spectrum weighed in with good faith, knowing they were probably going to get clobbered by the chattering class. Only two people know for sure what Terri wanted, and one is dead now. In the end, it is sad that those with the power to do so did not, as the president urged, err on the side of life.