Friday, March 25, 2005

What I've been saying all along
Now the Wall Street Journal agrees: "At its heart, the public uproar demonstrates the need for a national discussion on the care of the severely disabled and, inevitably, on the 'right to die.' These are intensely personal questions, best left to individual families in consultation with their medical and religious advisers. But to the extent that government gets involved, the proper venue for settling debates is state legislatures, where the will of the people, as expressed through laws enacted by their elected representatives, can be heard. It is not the courts, where judges can be tempted to impose their own values, especially in the absence of specific guidance from the law."


Dave Justus said...

I think that there is a place for both arms of government in this sort of thing.

Courts will always be required to interpret the laws and adjudicate disputes. I believe that they have properly done so in this case. You might have a problem with some of the laws they have interpreted, but I haven't seen anything to convince me they haven't interpreted those laws correctly.

Perhaps we do need some new laws on these issues. Perhaps Florida has poor laws, but claiming that this case shows any sort of judicial activism seems to be a pretty big stretch to me.

Richard said...

Dave, I am going to strongly agree with you. The Legislature passes laws to apply to everyone, and the Judiciary applies those laws - and the traditional laws of society as established in previous court decisions. This latter is what we call the "Common Law" to the specific facts of each case.

When the court applies law, it takes the general rules (Common Law and Legislative Law both) and applies those laws to the specific case in front of them. This is where the investigation of the facts is involved. You have to collect the relevant facts to determine which rule (law) applies.

Then if the law is improperly applied to the facts of the case, it is up to the appeal courts to correct the application. If the appeal court doesn't find the facts needed to apply law, they kick it back to the trial court for further investigation. In this case the courts have carefully investigated and weighed the existing evidence, and have determined that they are making their decision based on the best existing evidence.

All the talk about something being overlooked? Forget it. Twenty-one court decisions before this week by Judges of all political stripes tells us that every possible aspect has been investigated. The numerous appeals shows that the facts are there, and the laws have been applied properly. What more can we ask?

One fact that all the courts have been applying is that - based on best available evidence - Terri Schiavo would not want to continue to exist in this condition. Frankly, I wouldn't either, but that is neither here nor there. Based on best evidence, this decision has been made based on her desires.

There has been no judicial activism in this case. What there has been is a totally unconstitutional action by the Congress and the President to change the rules in mid stream because their supporters don't like the outcome of the Rule of Law.

In the legal sense, this really scares me. This is a nation of the Rule of Law under the Constitution. If we lose that, we have lost America as we know it.

Does the outcome of the judicial process so far meet the needs of maintaining the sanctity of life in a religious sense? Or in the sense of reality regarding Terri's actual consciousness?

I have my own opinion (which I think I have expressed on my own blog), but I don't have the ability to defend it as well as I do the legal aspects. The facts and the procedures are a lot less clear in those areas. All I can say is that they don't really apply to the legal considerations. The legal considerations are the ones that apply in this case now.

RFTR said...

You guys need to pay more attention.

What I've been saying all along is that we need to have a national debate about THESE ISSUES, independant of THIS CASE.

Just because there was no judicial activism here does not mean there isn't room for it in future cases.

I don't CARE about this case, I care about preventing problems in the future.

Irina Tsukerman said...

In fact, I think it's very problematic when the debate is raised around a specific case. It deteriorates into specifics and becomes too emotionally charged to be constructive.

veggiedude said...

Read this and weep: Tom Delay pulling the plug on his own dad? and also Tom Delay refusing medical resuscitation for his brain damaged dad?