The Lichfield Group

This article appeared in the March 29, 2005 issue of the Washington Times.

The rule of law dictated the withdrawal of nutrition and hydration in the wrenching Terri Shiavo litigation. Detractors of the final court decision, that scrupulously honored Florida’s “right to die” statute and the United States Constitution, would reduce the rule of law to a restricted railroad ticket, good for this day and train only. Civil strife would become endemic, as each disappointed group in controversial litigation would rebel against court decrees regarding such matters as abortion, school prayer, the right to die, the death penalty, same-sex marriage, civil rights, or otherwise. As Thomas Hobbes lamented, life in such a state of nature would be poor, brutish, nasty, and short—a war of all against all.

Sir Thomas More explained in A Man for All Seasons the superiority of the rule of law to theological encyclicals: “The law, Roper, the law. I know what’s legal, not what’s right. And I’ll stick to what’s legal…I’m not God. The currents and eddies of right and wrong, which you find such plain-sailing, I can’t navigate, I’m no voyager. But in the thickets of the law, oh there I’m a forester….What would you do? Cut a great road through the law to get after the Devil?…And when the last law was down, and the Devil turned on you—where would you hide, Roper, the laws all being flat?”
During the ante-bellum slavery crisis, Senator William Seward appealed to a “higher law” to justify disobedience to pro-slavery decrees. President Abraham Lincoln deplored Seward’s invitation to lawlessness or vigilante justice. Despite detesting the Supreme Court’s decree in Dred Scott v. Sanford (1857) denying blacks citizenship, Lincoln insisted on compliance with the court judgment while working to overcome the pernicious holding in future litigation or by constitutional amendment. Lincoln similarly declined to urge disobedience to the Fugitive Slave Act of 1850 despite its moral taint.
State and federal courts meticulously honored the rule of law in the protracted Shiavo litigation, marking one of the judiciary’s finest hours. Speaking through Chief Justice William H. Rehnquist in Cruzan v. Director, Missouri Department of Health (1990), the Supreme Court assumed that “the United States Constitution would grant a competent person a constitutionally protected right to refuse lifesaving hydration and nutrition.” The Chief Justice further upheld the constitutionality of state laws that required the wishes of incompetents in a permanent vegetative state to be proven by “clear and convincing evidence.”
Florida enacted a “right to die” statute in conformity with Cruzan. As regards Terri Shiavo, impartial state trial and appellate courts examined comprehensive testimony from independent neurologists. The judges unanimously concluded that her brain was non-functional with no chance of recovery. They further found by clear and convincing evidence that Mrs. Shiavo would have desired the withdrawal of lifesaving hydration and nutrition, a constitutional right which must be respected under Cruzan.
Courts, as with all human institutions, are not infallible. Their findings regarding Terri Shiavo may have been wrong. But that can be said of all fact-finding by courts, even in criminal prosecutions where proof beyond a reasonable doubt is required. The rule of law would be paralyzed if absolute certainty was the standard for proving facts. Even the rising of the sun in the east and its setting in the west would fall short.
Courts are far superior to legislative bodies in fact-finding. Litigants enjoy the rights to cross-examine adverse testimony and to present favorable witnesses. In contrast, legislatures characteristically orchestrate the presentation of evidence to support pre-ordained conclusions. Cross examination, the greatest engine yet invented for the discovery of truth, is typically denied. Virtually every Member of Congress who voted for the federal legislation to disturb the Terri Shiavo state court judgment was ignorant of both the facts and the law.
The legislation, styled “An Act for the relief of the parents of Theresa Marie Schiavo, flagrantly trespassed on the judicial domain and usurped State powers. The bill instructed the federal district court for the Middle District of Florida to grant a new trial regarding the withdrawal of hydration and nutrition: “[T]he District Court shall determine de novo any claim of a violation of any right of Theresa Marie Shiavo…, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings.”
Congress was unable to summon a single syllable in the Constitution purporting to authorize its action. Further, the Founding Fathers would have been outraged by the statute’s violence to the separation of powers. As Justice Antonin Scalia recounted in Plaut v. Spendthrift Farm, Inc. (1995): “The Framers of our Constitution lived among the ruins of a system of intermingled legislative and judicial powers, which had been prevalent in the colonies long before the Revolution…In the 17th and 18th centuries, colonial assemblies and legislatures functioned as courts of equity of last resort…Often…they chose to correct the judicial process through special bills or other enacted legislation. It was common for such legislation not to prescribe a resolution of the dispute, but rather simply to set aside the judgment and order a new trial or appeal…This sense of a sharp necessity to separate the legislative from the judicial power, prompted by the crescendo of legislative interference with private judgments of the courts, triumphed among the Framers of the new Federal Constitution.”
The rule of law ordains that perceived deficiencies be corrected by prospective amendments, not by flouting court decrees ala the Southern Manifesto pledging defiance of Brown v. Board of Education (1954). Congress has set a terrible example in its attempt to manipulate the courts and to cast aspersion on an independent judiciary in the Terri Shaivo case.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and The Lichfield Group.