In the tragedy that has played out over the past month in the Terri Schiavo case, one has to look very hard to find any redeeming legacy. However, there is one possible legacy that may assure that this woman will not have died in vain, and that is a heightened sense that there is something truly amiss in the constitutional confusion between the legislative and judicial branches at the state and federal level and the process by which we resolve questions of life and death as well as other moral issues. Let’s set aside the true facts of this case, which are known only to a few (possibly excluding even the trial judge in the case), and focus instead on the seat of responsibility for its resolution. In the absence of specific written instructions from the victim, to the extent that government has any role at all in personal judgments on moral values, it is the legislative branch, Florida’s in this case, expressing the consent and will of the citizens, that is the proper venue. In the scheme of our founding principles, no court should have the jurisdiction or authority to substitute its values for this consensus. Therefore, aside from the trial judge’s complete reliance on the representations of a “husband” with glaring conflicts of interest, the biggest mistake here was the ruling of the Florida Supreme Court that the will of the people in the form of “Terri’s Law” authorizing the replacement of her feeding tube is unconstitutional.
This case provides clear evidence of the point to which the advent of the “procedural republic”, so well described by Michael Sandel in his book, Democracy’s Discontent, has brought us over the past half century—process trumps civic virtue in almost complete contravention of the civic republic we once were. We have so contorted our legal system that it has become almost impossible to overrule the will of the judiciary in the absence of egregious procedural errors or legal malpractice. Common sense, as exercised by the norms of the civic republic expressed through its elected representatives and executive, is more often than not set aside in favor of “due process” and the value judgments it produces. Ask yourself, what kind of regime denies a mother the right to give her starving child food and water? It is true that we are a nation of laws, not of men, but “erring on the side of life”, as the Bush brothers have so pointedly and rightly preferred in this case, requires moral judgments that are outside the purview of legal procedure and belong in the political arena. And I can’t help noting the unusual political configurations and strange bedfellows this case has produced, or wondering when was the last time I found myself on the same side of an issue with Ralph Nader and Jesse Jackson!
We are a society increasingly possessed with power struggles over the issues of life and death, intensely personal issues that also have enormous implications for the health of our polity. Make no mistake: we know the definitions at stake here—our science knows when human life begins and when it ends. The question is whether or not the Schiavo debacle will awaken us to the damage that has already been done by the procedural republic and the quest for unfettered personal autonomy unencumbered by a moral order and a duty to life.
