Friday, April 01, 2005

The Settling of the Dust

Terri Schiavo's passing ends the legal wrangling between the families. But I believe that it is the beginning of an entirely different set of battles which may very well determine the course of the culture, and of the culture war.

Living Wills
If you don't have one, get one. The state legislatures are going to get very busy in determining how to divine one's intentions about medical care after a catastrophic injury or illness, so folks would be wise to make their intentions known.

One other matter that they might be wise to take up are indicia of the unsuitability of a guardian. Spouses ought to have the first right to make these decisions, but that right needs to be balanced against the spouse's other interests or conflicts thereof. From Michael Schiavo's interest in a malpractice award, to his bigamous 2nd family, to his tardy recollection of a statement made by Terri while she watched a movie that she would not want to live on "life support", one could conclude that Michael Schiavo, whatever good intentions he claimed to have, had things beyond his wife's well-being on his mind.

Judicial Fitness
If anything proved that we have a serious problem with activist judges in this nation, it was this opinion filed by Judge Birch of the 11th Circuit Court of Appeals. Judge Birch came out swinging at the Congress and the President, and addressed the label of "activist judge" which he very correctly feared would be applied to him. The opinion is a screed whose main point is that Terri's Law is an unconstitutional violation of separation of powers. But Judge Birch is wrong on the law. And several other 11th Circuit judges think so too. I encourage everyone to read the dissent following his opinion, which is well researched and documented, as it directly attacks his argument of the constitutionality of Congress' act, making the judge look like the very activist fool which he claimed he was not.

The opinion is a symptom of a bigger problem though, which is judicial tyranny. When judges will not obey the law and usurp the power of other branches of government to make law fit their personal philosophical and political beliefs, we have a departure from an elected, accountable, and limited government.

When judges start reshaping law, rather than simply applying the plain terms of statutes, the parameters of our society break down. Judges do not exist to establish law, but to resolve disputes upon existing law.

The U.S. Congress may wish to begin an overhaul of the judicial system, by plucking activist, outlaw judges from their chambers, and forcing them to defend their office in impeachment proceedings. The mechanism exists. It is time that it be used. Because the unelected cannot carry more power than our entire Congress.

The Value of Life
Roe v. Wade has determined the course of the culture war for over 30 years. It permitted women to end those pregnancies which they regarded as socially or economically inconvenient. And the practice became so accepted and regular that we actually needed to have a debate in the 1990s as to whether a form of infanticide, euphamistically called "partial birth abortion" was the kind of thing that we would continue to allow in our society. While the procedure is condemned when used to enforce the Chinese state policy of population control, it is defended when a woman in the United States elects to have it. The distinction (being one without practical difference) between them, which seems to determine the morality of the procedure, is which person makes the decision to commit the abortion. Oddly, nobody thinks to consult the child being aborted.

We have become a culture that too easily evaluates life based upon its fragility and function. So perhaps it is time to decide whether we want to be a society that permits one's life to be ended once it becomes a burden on the rest of us. Will we further slide into the eugenic paradigm or a culture that nurtures, respects and loves life, regardless of its imperfections?

Terri Schiavo's life and death highlight some of the unfortunate things we have come to permit in our society. But legal disorder and moral relativism have very real and dangerous consequences. A time of decision is upon us. If we ignore it, we do so to our detriment.

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