Touchstone: A Journal of Mere Christianity
“Legal Evils” first appeared in the July/August 2005 issue of Touchstone.
Donald T. Williams on What Thomas More Might Have Said About Schiavo’s Judges
In a situation like Terri Schiavo’s, the moral thing to do is to err on the side of life, but the response of many in the pro-life movement to the judges who kept ruling against the Schindlers in their attempts to have Terri’s feeding tube reconnected too often lacked a certain nuance.
Were all of these judges in court after appellate court really pro-death? Many probably were. But they all had a responsibility to rule according to the law. The law of the state of Florida gives the decision on treatment in a case where there is no clear written directive to the spouse.
Therefore, a sufficient explanation for the astounding unanimity of so many courts in so many appeals is simply the fact that the judges could read. And the Supreme Court refused to intervene because, however tragic the outcome in this case, there is nothing unconstitutional about that law as such.
The Law as Such
Well, shouldn’t the Law of God trump the laws of men? Yes. This case shows us that the law needs to be changed, that as it stands it does not provide sufficient safeguards to prevent a tragedy like the one that unfolded. But judges cannot overturn a law simply because its application has undesirable results. It has to be unconstitutional.
Okay, but wasn’t Mrs. Schiavo deprived of her constitutional right to life? Yes, in effect. But the law as such did not really do that. It only addressed the question of who has the right to speak for a person whose wishes about treatment are unclear. The Constitution and common sense dictate that the spouse is usually the right person to answer to that question.
Perhaps a legally justifiable way to avoid this tragedy could have been found; I wish it had been found. But my point is simply that it is not as self-evident as many people would apparently like to think that the judges were not just doing their jobs—to interpret the law as it stands—and, for once, doing them correctly.
One might say that the Devil has won in the case of Terri Schiavo. Let us say so. In A Man for All Seasons, Robert Bolt’s play on the martyrdom of Thomas More, More’s son-in-law, William Roper, asks a very pertinent question: “So now you’d give the Devil benefit of law?”
“Yes,” More answers. “What would you do? Cut a great road through the law to get after the Devil?”
Roper avows, “I’d cut down every law in England to do that!” More’s response is worth pondering.
Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast—man’s laws, not God’s—and if you cut them down—and you’re just the man to do it—do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.
Judicial activism is a real problem. If you can “deconstruct” the Constitution, then the rule of law becomes impossible and all that remains is the rule of men and their arbitrary opinions. That is how the “right” to an abortion got created in the first place. This is the deeper issue we may have forgotten in our laudable zeal to save Terri Schiavo, for it is not so clear to me as it seems to be to some that the judges in this case were guilty of activism.
The Enemy’s Sword
Ironically, judicial activism is, in this case, precisely what the pro-life movement and Republicans leaders seem to have wanted from the courts. We wanted them to rule in favor of life by judicial fiat, no matter what the law said. It is terribly tempting to take the sword of judicial activism and try to turn it against the enemy when it seems necessary. But that way lies a victory that, if we had achieved it, would have legitimized our deepest defeats.
If we want to protect the next Terri Schiavo, we need to do a better job of mastering the way our constitutional system is actually supposed to work, a better job of addressing the problem where it actually lies, and a better job of living by our principles—all of them—even when it proves tragic. The rule of law is still better than the rule of men—even when, on occasion, the men are right and the law is wrong. From the winds that will blow if we fail to remember that truth, may God protect us all.
“Legal Evils” first appeared in the July/August 2005 issue of Touchstone. If you enjoyed this article, you'll find more of the same in every issue.
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