Wednesday, March 23, 2005
Schiavo: A Case CAN be Made for Intervention
TSM Blogger David A. Todd on the Terri Schiavo situation:
Reading a couple of liberal blogs recently, the l-bloggers are hanging their Schiavo hats on two factors: Congress is usurping the power of the court by passing the legislation it did; and Terri Schiavo HAS had due process.
Without getting into the "Terri should die" debate, I'll make only two limited range comments.
1. I keep hearing people talk about the "separation of powers", which is of course one of the intentions of the writers of the Constitution, but I have not heard anyone write about the other side of that coin, the system of "checks and balances". While mere separation goes a long way to keeping one branch of government from abusing their power, it is not sufficient.
There is also a system of checks and balances written into the Constitution, whereby the co-equal branches of government, in addition to sharing power, also check and balance each other. In the case of the judiciary, the checks and balances are that, except for the establishment of one Supreme Court, all other Federal courts are subject to establishment by the legislative branch. Congress establishes all the inferior courts, and regulates them in terms of jurisdiction (within a few limits specified in the Constitution). Therefore, without saying whether Congress was wise to have acted in this case, I must conclude that, IMHO, they acted within the framework of the Constitution. If I am wrong in that conclusion, the Supreme Court will likely rule otherwise.
2. We were foster parents for a while (9 months). During that time, we learned much about guardianship of minors. All the children we took in had been in home situations which were alleged to be abusive in some way--parents (i.e. guardians) who somehow wouldn't or couldn't take care of their children in accordance with the law. The children were removed for their protection while the allegations of abuse were considered. IN EVERY CASE, although the parents were still "guardians", and still had parental rights (i.e. guardian rights and responsibilities), the child had an attorney appointed to look after THE CHILD'S interests, not the guardian's interpretation of the child's interests. There is a difference here, of course; I'm not saying the analogy is perfect. It seems, however, that Terri is in almost the same situation as a child removed from its home.
There is an allogation that her guarian is not looking after her best interests. If she were a child, she would be removed from the home and an attorney ad lietum(probably mispelled) appointed for her. Since Terri seems as helpless as a child, perhaps she should have been given the same protections as a child would receive. From that standpoint, I CAN see how a case could be made that she has not received due process.
Two caveats:
- I'm working under my knowledge of Arkansas laws, acknowledging that Florida seems to have trouble protecting children, and may have different laws.
- If we are going to make an error of going too far in choices between life and death, I hope I will always err on the side of life.
Reading a couple of liberal blogs recently, the l-bloggers are hanging their Schiavo hats on two factors: Congress is usurping the power of the court by passing the legislation it did; and Terri Schiavo HAS had due process.
Without getting into the "Terri should die" debate, I'll make only two limited range comments.
1. I keep hearing people talk about the "separation of powers", which is of course one of the intentions of the writers of the Constitution, but I have not heard anyone write about the other side of that coin, the system of "checks and balances". While mere separation goes a long way to keeping one branch of government from abusing their power, it is not sufficient.
There is also a system of checks and balances written into the Constitution, whereby the co-equal branches of government, in addition to sharing power, also check and balance each other. In the case of the judiciary, the checks and balances are that, except for the establishment of one Supreme Court, all other Federal courts are subject to establishment by the legislative branch. Congress establishes all the inferior courts, and regulates them in terms of jurisdiction (within a few limits specified in the Constitution). Therefore, without saying whether Congress was wise to have acted in this case, I must conclude that, IMHO, they acted within the framework of the Constitution. If I am wrong in that conclusion, the Supreme Court will likely rule otherwise.
2. We were foster parents for a while (9 months). During that time, we learned much about guardianship of minors. All the children we took in had been in home situations which were alleged to be abusive in some way--parents (i.e. guardians) who somehow wouldn't or couldn't take care of their children in accordance with the law. The children were removed for their protection while the allegations of abuse were considered. IN EVERY CASE, although the parents were still "guardians", and still had parental rights (i.e. guardian rights and responsibilities), the child had an attorney appointed to look after THE CHILD'S interests, not the guardian's interpretation of the child's interests. There is a difference here, of course; I'm not saying the analogy is perfect. It seems, however, that Terri is in almost the same situation as a child removed from its home.
There is an allogation that her guarian is not looking after her best interests. If she were a child, she would be removed from the home and an attorney ad lietum(probably mispelled) appointed for her. Since Terri seems as helpless as a child, perhaps she should have been given the same protections as a child would receive. From that standpoint, I CAN see how a case could be made that she has not received due process.
Two caveats:
- I'm working under my knowledge of Arkansas laws, acknowledging that Florida seems to have trouble protecting children, and may have different laws.
- If we are going to make an error of going too far in choices between life and death, I hope I will always err on the side of life.
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