Conservative Dissent on the Schiavo Case

For what it’s worth.

Here’s Jacob Hornberger (okay, he’s really more of a libertarian, but still):

The issue in the Terri Schiavo case is not whether the Florida district court originally entered a correct judgment or not. The issue is whether this is a nation in which the American people are going to continue permitting their Washington politicians and bureaucrats to continue trampling on the Constitution and the rule of law, even while these people go abroad and hypocritically preach the importance of these principles to authoritarian regimes around the world.

Come on now, Mr. Hornberger, tell us what you really think!

He goes on:

Thus, since the Schiavo case did not involve a federal or constitutional issue and did not involve citizens of different states, if one of the litigants had filed his suit in federal court rather than state court, the federal judge would have dismissed the case for lack of jurisdiction, no matter how much he felt that one side or the other deserved to prevail.

This is an example of the “rule of law” – where a judge follows the law rather than deciding on his own to let the case proceed out of sympathy for one of the parties. In fact, it’s a commitment to the rule of law that motivated the U.S. district judge in the (new) Schiavo case to deny injunctive relief and the federal court of appeals to affirm that judgment, effectively rejecting Congress’s unconstitutional actions and despite any sympathies these federal judges might have for Terri Schiavo and her parents. As the majority opinion put it in the federal court of appeals case:

There is no denying the absolute tragedy that has befallen Mrs. Schiavo. We all have our own family, our own loved ones, and our own children. However, we are called upon to make a collective, objective decision concerning a question of law. In the end, and no matter how much we wish Mrs. Schiavo had never suffered such a horrible accident, we are a nation of laws, and if we are to continue to be so, the pre-existing and well-established federal law governing injunctions as well as Pub. L. No. 109-3 must be applied to her case. While the position of our dissenting colleague has emotional appeal, we as judges must decide the case on the law.

That’s how our system of government is supposed to work. When we pervert the process in an attempt to achieve a just result in a particular case, we inevitably end up with long-term bad results. That’s why it has been said that “hard cases make bad law.”

He also questions the bona fides of the “pro-life” members of Congress who are intervening:

This raw exercise of power is comparable to that being exercised by the Pentagon and the CIA, with their intentional and knowing denial of the principles and protections of the Constitution and the Bill of Rights to Americans and others who have been seized, tortured, sexually abused, and murdered, all with the silent and cowardly acquiescence of the so-called pro-life members of Congress. Or even the president’s waging of war against Iraq without the constitutionally required congressional declaration of war, again with the silent and cowardly acquiescence of Congress. Do you see now what happens when people meekly permit their government officials to begin violating the Constitution? The path toward the tyranny of omnipotent government quickly becomes a slippery slope.

Is that what we’ve actually come to in this nation? A nation of meek lambs who permit these power-hungry wolves to once again scoff at and scorn the supreme law of the land – the law that our ancestors had the wisdom, foresight, and courage to impose on our government servants? A people who meekly permit such servants to trash our form of government under a purported “pro-life” mindset, a mindset that has sat silent and comatose during the entire time that an estimated 100,000 innocent Iraqi people have had their lives snuffed out by an unconstitutional war that lacked the constitutionally required congressional declaration of war?

Meanwhile, paleo-conservative Thomas Fleming takes on the Christians:

Hard cases make bad law. They also cause people to lose their moral bearings and their political principles. The case of Theresa Schiavo is no exception. Like many controversial issues, the Schiavo case pits states’-rights/limited-government Republicans against big-government Democrats who want to take power away from families and give it to federal judges. In this case, however, it is Barney Frank who is arguing for states’ rights and the entire Republican congressional caucus that is empowering judges. To take the irony one step further, President Bush—who, as President, has done next to nothing to protect innocent life—is now emerging as the spokesman for a “culture of life.” As governor of Texas, however, he signed a bill turning over the power to make decisions in apparently terminal cases to a medical-ethics board, which could authorize a hospital to end life support for a terminal patient even against the wishes of the next of kin. Under Texas “Advance Directives Act” of 1999, a children’s hospital, over the objection of the mother, removed a five-month-old boy from a ventilator. I should like to hear the President explain this away to the pro-life evangelicals he has betrayed at every turn.

[…]

Liberal nonbelievers, who believe that “this is all there is,” may be pardoned for their hysterical attachment to physical life. This makes the non-Christian willingness to practice abortion and euthanasia all the more terrifying in its implications. For them, other people’s lives are mere commodities to be used when they are convenient, discarded when they are not.

Christians know better. They know, not only that life is a precious gift, but also that it is not all there is. There was a time when believers gratefully accepted even martyrdom because it was a chance to live and die for their faith. Life can and ought to be beautiful, and we who believe that God looked at His creation and saw that it was good cannot contemn the joy and beauty of everyday life. But we also know that Christ’s kingdom is not of this world. We are sojourners here, like the Hebrews in the land of Egypt. Our home is elsewhere.

Mrs. Schiavo’s parents have the right and duty to do what they can for their daughter, but the rest of us—and, by the rest of us, I include Bill Frist, Tom Delay, George Bush, and the Vatican spokesmen who so cavalierly intrude themselves into legal and constitutional matters they do not understand—have no business. Playing politics with a dying woman, even if it advances the pro-life cause or expands the electoral base of the Republican Party, is contemptible.