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Between Schiavo and Charybdis

Posted by Rick · March 26th, 2005 · 9 Comments

As I write this, I’m feeling very sad. For many reasons.

First, I’m saddened — seriously, deeply saddened — for the pending death of Terri Schiavo. I’m not sure that it’s right. I have faith in our judicial system to uphold our laws, but that doesn’t translate into a belief that the inputs to that system were sufficient to eliminate all moral concerns. My concerns should not be taken — for that would be incorrect — as reason to believe I think our government should step in.

Second, I’m saddened for what Terri’s situation is doing to our country.

What’s been happening is no good for anyone. There’s not a single person benefiting from it, except those who are exploiting it for personal and political gain.

The title of today’s article is explained by this quote from Wikipedia:

In Greek mythology, Charybdis, or Kharybdis (“sucker down”), is a sea monster, daughter of Poseidon and Gaia (mythology), who swallows huge amounts of water three times a day and then spouts it back out again, forming an enormous whirlpool. She lay on one side of a narrow channel of water.

On the other side of the strait was Scylla, another sea-monster. The two sides of the strait are within an arrow’s range of each other, so close that sailors attempting to avoid Charybdis will pass too close to Scylla and vice versa. The phrase between Scylla and Charybdis has come to mean being in a state where one is between two dangers and moving away from one will cause you to be in danger from the other. “Charybdis,” Wikipedia (last visited March 25, 2005).

By now, Schiavo needs no explanation; Charybdis, in this case, represents the whirlpool of tyranny, the abandonment of constitutional principles.

It appears that Terri’s body is finally going to die. Her parents have launched a last-ditch effort to convince the courts — or at least increasingly volatile minority segments of the population — that Terri wants to live. According to them, Terri said to them “Aaaaaaaa Waaaaaaaaa” which, they say, translates as “I want to live.”

I do not want to sound uncaring or cruel, but I think Terri’s parents have possibly crossed the line into delusional. Don’t misunderstand: I don’t blame them for a moment. As I said yesterday, losing a daughter must be excruciatingly painful and all the more so when you don’t believe — as all the experts who have actually seen her and many Americans do — that she’s already gone. But when suffering people become delusional, there is no benefit in others supporting their delusions.

Recognizing this doesn’t require me to switch off my feelings. I can, and do, grieve for and with the Schindlers and everyone else who cares deeply for Terri.

The thing that concerns me right now, though, is that other caring people in our nation, in order to avoid the danger of “killing Terri,” which they see as morally wrong even in spite of court rulings that this is in keeping with Terri’s wishes, have drifted dangerously close to the Charybdis of Constitutional Abolition.

The government of the United States has historically been “a government of laws and not of men.” (Marbury v. Madison, 5 U.S. 137, 163 (Cranch) (1803).) Prior to the establishment of the United States of America, countries were ruled by individual men: pharoahs, caesars, emperors, kings. The law, such as there was, changed according to the needs of those in power. When our nation was established — constituted — the men who established it considered all the evils inherent in even the most benevolent of dictatorial rule.

Thus the Constitution created a complex division of power among “the three co-equal branches” of our democratic republic.

So let’s take a look at relevant parts of the Constitution itself. This was, after all, the document by which our government was constituted.

As defined in Article I, Section 1, of the Constitution (still available on the White House website), states,

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

The power vested, however, is not absolute. The powers that are given to Congress are delineated in the rest of Article I, but particularly in Section 8. These include, significantly, “to constitute Tribunals [courts] inferior to the supreme Court” (Article I, section 8, clause 9). And clause 18 says they have the power,

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Yet even those powers are not without limits, as we’ll discuss later.

The “second branch” of government is the Executive. The Executive and the people who work with him (so far, in the United States, it’s always been a male) is what we commonly refer to as “the Administration.” Currently, that’s “the Bush Administration.” The duties of the Executive are outlined in Article II, specifically, Secction 2:

Clause 1: The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

Clause 2: He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

Clause 3: The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

And, again, these powers are not without limitations. (And, again, these will be discussed later.)

The final, “third branch,” of government is the Judiciary. As you may be able to guess by now, the delineation of judicial power is outlined in Article III of the Constitution, particularly in Section 2. And — surprise! — the power of the judiciary is not without limitation.

Okay…so what about these limitations on powers?

Well, partly, these limitations are found in Articles IV through VII. But, additionally, these powers are limited by the fact that they are distributed among the three branches as noted above, but in a way that causes them to overlap one another.

You see, the Founders deliberately crafted things to avoid the kinds of problems with which these Renaissance men were all too familiar. Kingships — like that of King George (not Bush, but one of the original King Georges) — have too much power concentrated in one man. And you’ve probably heard the old phrase: Absolute power corrupts absolutely. So, as noted above, the Congress got the power to make laws, but the President has to approve them and the Judiciary, if those laws are challenged in court, has to rule on their constitutionality. The President runs the country, but he can only do so within the parameters of the laws Congress has passed. And, again, if his powers are challenged in court, the courts rule on the constitutionality of the President’s actions.

It might sound from the above like the Judiciary is the most powerful branch of government. This, however, is deceptive. First of all, the Judiciary is reactive. Courts do not initiate anything on their own; they simply apply the laws of the Constitution and the United States to the specific facts of cases that are brought to them. Secondly, the Congress has some control over the specifics of how the federal courts operate (although the limits on this are also spelled out in the Constitution). Thirdly, and perhaps most importantly, the Judiciary has no power of its own; ultimately, it relies upon the faith and good will of the people for its power. Unless the people embrace the rule of law, the law cannot rule.

The Founders of our country understood that this “separation of powers” was absolutely essential.

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny. Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system. — James Madison, The Federalist No. 47, “The Particular Structure of the New Government and the Distribution of Power Among Its Different Parts” (February 1, 1788) FoundingFathers.info.

In addition to the limitations the Founders built in by distributing federal power among the three branches, all the federal branches have other limiting factors placed upon them. As Federalist Paper Number 41 notes,

[T]wo important questions arise: 1. Whether any part of the powers transferred to the general government be unnecessary or improper? 2. Whether the entire mass of them be dangerous to the portion of jurisdiction left in the several States?

Or, as the Ninth Amendment (which has very little power these days) states,

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. — Ninth Amendment, from the Bill of Rights.

And the Tenth Amendment (which has even less) says,

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. — Tenth Amendment, from the Bill of Rights.

As noted, these Amendments from the Bill of Rights have very little force in the United States anymore (and I’m not just being my usual sarcastic self here), but they do give an idea of the original intent of the Founders. The power given to the federal government was, as I said, limited not just by the distribution between the three branches, but by the fact that the States and the People generally still retain rights that were not deliberately given up in order to create and empower the federal government. The feds, in other words, were only given so much power as the People — through the Founders — felt was necessary and proper “in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” (U.S. Const. pmbl.)

The distribution, interplay and overlap of powers between the federal branches, complicated by the distribution, interplay and overlap of powers between the federal and state governments makes the exercise of power “inefficient.” Because no one branch has enough of its own power — unless we ignore the Constitution, as we sometimes do — this creates a system of checks and balances. And over all of exercises of governmental power (both State and Federal) are specific built-in requirements of the document that sets all this up: the Constitution, with its Amendments.

Today, there is a push to undo what the Founders, in their great wisdom, did for us. Rulers naturally do not like limitations being placed upon their power. This has always been true. Ironically, it was even true of the very Founders who wrote the Constitution! The case cited near the beginning of this article, Marbury v. Madison, arose in no small part out of a conflict between the three branches.

But perhaps no Administration has pushed harder, and more often, to throw off the constraining yoke of the Constitution — and of the other branches of government — than the Bush Administration. As then President-Elect George Bush said,

If this were a dictatorship, it’d be a heck of a lot easier, just so long as I’m the dictator. “Transition of Power: President-Elect Bush Meets With Congressional Leaders on Capitol Hill” (December 18, 2000) CNN.com Transcripts.

And Bush is well on his way to achieving the dictatorship. There’s just one little thing in the way: the Constitution. Primarily, that great check on their power — from the one branch that doesn’t really have any power of its own other than the good will, the endorsement of the People — is the Judiciary. And that’s why the Bush Administration and the Republican Party are working so hard to convince us that the courts are our enemies. They want us to believe that, but for the courts, the majority could have whatever they want. They could stop things like what’s happening to Terri. They could stop women choosing abortions. They could put prayer back in schools. They could build monuments to (the Christian) G-d in our courthouses and other public buildings. They could legislate (Christian) morality. They could make our country safe (they say) with unlimited powers. If only the courts didn’t insist upon doing their job under the Constitution.

But the United States of America didn’t get where we are today by being China. The United States of America didn’t become a world power by imitating Islamic dictatorships like Syria (to whom we currently outsource the torturing of prisoners as a work-around until the Constitution is less of an impediment to doing it right here in America). The United States didn’t become an example of freedom to the rest of the world by mimicking totalitarian regimes.

The United States became the great nation that it is because of our Constitution!

That’s why it’s imperative that Americans understand just how important this document is. That’s why it’s imperative that we study it, even if it isn’t taught to us in our schools anymore. That’s why it’s important that we not allow emotional issues to push us from Freedom’s Course, upon which our Founders placed us.

It’s understandable that we shrink from what’s happening to Terri. It’s human to mourn. It would be inhuman not to feel pain over the idea of watching her die a slow death — as the “news” will, for their own reasons, ensure we must — a death that we who do not have semi-liquified brains imagine must be painful.

But the straits between Schiavo and Charybdis are tight. Pull away from the limitations the Constitution places upon the power of Congress, the President and the Courts when dealing with difficult cases such as that of Terri Schiavo and we fall into the whirlpool of tyranny, the abandonment of constitutional principles.

For the sake of all our lives, that must not happen.

Categories: Constitutional Issues


9 responses so far ↓

  • 1 newswriter // Mar 26, 2005 at 9:59 am

    Bravo. Personally, the News Writer does not have moral difficulties with the act of removing Terri Schiavo’s feeding tube and letting her die, as she told her husband and others she would want should this very situation arise. Lacking the more humane euthanasia, it is similar to her thoughts about abortion. Would that abortion is never necessary! But alas, it is at times, and she is not talking about a “convenient” form of birth control, which is a bugabood of the right and doesn’t really happen that often.

    But the Constitution. Oh my. El Presidente has sought to become King George from day one of his reign. Every step, every action. And yes, Rick, you are quite right that the courts are the last line of defense — the courts and those of us who aren’t falling for the “activist judges” line.

    But we live in a country now where up is down and squares are circles. The simple-minded, and I don’t mean those with mental illnesses, but rather those who cannot be bothered with thinking and prefer to be told what to think, are happy to have an administration that requires no more of them than to shout hallelujah and scorn “liberals” as the devils spawn. It’s easy for them.

    It is imperative, therefore, that the rest of us never surrender.

    I would love to know what the rest of the SCOTUS justices said about the Schiavo case … even conservative darling Antonin Scalia is a staunch federalist and advocate of the federal government staying out of those areas where it does not belong — and somehow I can’t see a case being made in interstate commerce in the Schiavo matter.

  • 2 Kate S. // Mar 26, 2005 at 1:31 pm

    This was such an excellent post, Rick. (I think I gave myself a headache.) I wish every American of voting age and those within three years of that age, could know this information in their hearts. I don’t know what happened to our schools, graduates don’t even seem to know the basic three branches of their own government anymore, let alone how the Constitution was written to protect us, our country, our government, our religions, our bodies, ourselves, all from each other’s meddling.

    We are being poked to death.

    And we don’t even have adequate health care available to provide homeostasis, to stop the epidemic bleeding brain drain of a country full of hemophiliacs.

    All, down the drain.

  • 3 LS Butts // Mar 26, 2005 at 9:28 pm

    Rick – great article – but I must say that I think this whole issue is a non-issue. It is an attempt by the conservatives to send an emotional message to their faithful and distract the rest of us from their lies and deceit. Our ratings driven corporate media has turned it into a circus. It is really hard for me to take any of it seriously.

  • 4 Rick Horowitz // Mar 26, 2005 at 11:01 pm

    Thanks for the compliment.

    Of course it was an attempt by conservatives to send an emotional message to their faithful. It was also an attempt by some people who were and are quite serious about their pro-life agenda. And there’s nothing wrong with being pro-life.

    But the way in which they’ve chosen to advance that agenda does have quite serious repercussions. And they made some major headway, not just in appropriating the machinery of Congress in a manner which — even if it turns out not to be technically unconstitutional (I don’t know if anyone is even ruling on that) — is definitely not in the spirit of the Constitution.

    The damage they’ve done to the rule of law, both by this anti-law act and by the perception they’re promulgating about the rule of law, is also serious.

    That’s not a non-issue and it’s not something we should ignore.

  • 5 Sinclair // Mar 27, 2005 at 10:30 am

    Wow! What I think everybody seems to be missing here is that we as a nation have had to sit back this week and watch the slow, agonizing, tortuous, and anything but dignified murder of a severely brain damaged woman simply because her husband would rather spout noble intentions and have her killed to assuage his guilt at wanting to move on, rather than give custody to the parents who created her. An injunction should issue anytime irreparable harm would ensue, and there are material facts in dispute over which one could prevail on the merits. There was plenty in dispute here. There were conflicting expert opinions, conflicting witness testimony, and a pile of money yet to be spent for care…or perhaps a ridiculous court battle that helps nobody. This woman wakes, sleeps, smiles, and by many accounts responds to external stimulus. She breathes on her own, which would not be possible with a “semi-liquified brain”. She was not hooked to a ventilator, nor IV meds or liquids. She only needed the feeding tube connected at feeding times. I know a child with Downs Syndrome in the same situation who is not much more responsive…should we murder him too? Perhaps he would not feel the pain…then again, how would we know if he could not tell us? This woman could sit up when strapped in her wheelchair, with eyes open in full consciousness. What we have witnessed this week is a travesty, judicial tyranny, and a black spot on the history of a nation which purports to hold personal rights in the highest regard. This woman was not allowed to observe Good Friday, or have last rights according to her religious faith. She was not allowed to have a moist cloth run over her face while she lay dying. How is this just? I am ashamed to be affiliated with our judiciary and our government this week. This is not a conservative, religious, separation of powers issue. This is a human rights issue, and we have failed this woman completely. I am sickened by the way our society has clamored for the death of a woman they never met, and how desensitized we have become. We are on a slippery slope with no end in sight.

  • 6 Rick Horowitz // Mar 27, 2005 at 12:39 pm

    Due partly to the length of my response to the last comment by Sinclair, I turned my response into a free-standing blog entry titled “On Human Rights.”

  • 7 Brenda Hook // Mar 30, 2005 at 12:25 am

    Rick, you spoke of the people having a say in what they want the Constitution to represent. It seems that this particular issue doesn’t fit into any of the three branches. So, the people should be able to decide what is right for this starving woman who until now was very much alive.

    How can we as a society stand by and murder this woman? How many times have we said or done certain things thinking that is what we wanted only to find out that hindsight is 20/20? My point is I doubt very much that anyone can say beyond a reasonable doubt that this woman would rather die than be in her before starvation state much less know what she would want knowing she is slowly dying now. How do we know?

    The court would rather accept the hearsay statement of a man claiming to be her husband but for all practical matters isn’t anymore as he has another family. How could our legal justices just sweep this under the rug? I am amazed of how the legal system lets an estranged husband starve his abandoned wife to death while and yet it only lets the woman’s mother and father and family watch.

    Terri’s family should be deciding her fate not her so called husband. How is it going to hurt him to let her live. Give guardianship to the parents, divorce Teri and move on. What is the big freaking deal. Why are we as a society allowing this to happen? People are speaking up. This is wrong.

    I would be able to understand if the husband had been by her side, was not copulating with another woman, etc. But, the facts are the facts. How could anything he says be reliable information. For all we know he could have been having an affair before she suffered the stroke or heart attack or whatever caused the brain damage. For all we know he could have cause it. We might as well have let OJ Simpson kill his wife. Oh, that’s right we did.

    Seriously, would you want your wife deciding whether you live or die if she was already having a relationship with another man and started a family of her own? Or would you rather have your mother and father deciding your fate?

  • 8 Rick Horowitz // Mar 30, 2005 at 6:13 am

    I think you mis-stated my “testimony,” future counselor. I did not speak of the people having a say in what they want the Constitution to represent. The way I read your statement, I pretty much said the opposite. The Constitution isn’t so malleable that its interpretation is amenable to the will of the majority. In fact, if you read the numerous articles I’ve written about the Constitution, you’ll see that I have repeatedly stated it’s an anti-majoritarian document — when it comes to the majority’s wishes regarding individual rights, it very often appears to go against the majority interpretation. (Use the Search box on the main page of this blog; put in the word “anti-majoritarian” and you’ll see what I’ve said about that.)

    Remember that “reasonable doubt” is “not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt.” (CALJIC 2.90.) [CALJIC is “California Jury Instructions.” One assumes Florida has something similar, but I’m writing this in CA, in response to another CA writer and we aren’t deciding the legal case in FL.]

    It’s interesting the way you’ve characterized Michael Schiavo. First, either you and I are using different dictionaries, or Michael isn’t estranged and he has not abandoned his wife. That he has said he is supporting a choice she made while she was able to do so may not comport with your sensibilities; it does not mean he has “abandoned” her. That he ended up — after years of her being in a vegetative state — becoming involved with another human being does not constitute estrangement. It’s interesting that not one person considering their own religious beliefs has stopped to consider what his might be. (Frankly, I don’t actually care what his might be, but my point is that a helluva lot of people are going off about their beliefs as if their beliefs trump his.)

    The “big freaking deal” is that Terri is Michael’s wife. According to Michael, Terri would not have wanted to live the way she is living. Do I personally agree with that? Heck no. I’ve already said that I don’t think Terri herself should make such a decision. As I said elsewhere, not even Terri could know what she would be like in the state she is currently in before she was in it. As I said then, for all we know, she is “inside” her shell of a body regretting very much having said the things she supposedly said to her husband and to several others. (The court did not accept Michael’s say-so alone on this.)

    The fact of the matter is that contrary to what you said, “this particular issue” does “fit into one of the three branches.” Some of us call it “the Judiciary Branch.” Those of us who do so read Article III of the Constitution and take its meaning seriously. Even when we don’t like the result.

    Right now, there are more people than you or I can count who have feeding tubes removed every month throughout the United States. How can society allow this to happen? Because it’s part of the law that our society has passed in various parts of the country. And it’s constitutionally-sound that it should be that way.

    Do I personally agree with all those decisions? I don’t know, in all cases. I think in most it’s probably a mistake. I think this because I don’t know that I think even the person who is on the feeding tube has the right to discontinue the feeding tube. But, thankfully, I’ve never had to make that choice.

    I particularly liked the “before she suffered the stroke or heart attack or whatever caused the brain damage part.” Nice touch. Apparently, while complaining that something like 20 trips to court have all resulted in judge’s making hearsay decisions, you haven’t even gone that far. You might want to google (or use Lexis)for stories on Schiavo. You’ll find the April 4, 2005 Time Magazine story, “Lessons of the Schiavo Battle,” which notes that she had cardiac arrest (not the same as a heart attack) “from a potassium imbalance that may have been caused by an eating disorder.”

    Furthermore, as for the hearsay, perhaps this will help clear up the issue for you:

    Courts generally employ rules of evidence during trials, and a well known rule of evidence holds that hearsay is admissible to prove something only in limited circumstances. Under Florida law, there are about 30 or so such circumstances. You could say that one of them applies here, such as the exception for statements describing the declarant’s then-existing state of mind. You could also say that Terri’s statements were not hearsay, since they were offered to prove she said those words, not to prove that what she said was true. Hearsay is an out of court assertion offered to prove the truth of the matter asserted.

    Those are evidentiary reasons why the testimony was admissible. There’s a better reason. A constitutional reason. Terri had, and every Florida citizen has, a constitutional right to privacy that includes the right to decide that certain medical treatments should not be used to prolong her life. The Florida Supreme Court has clearly decided that this right can be exercised through written and oral statements.

    In the landmark 1990 case In re Browning, Florida’s high court explained that a surrogate attempting to determine what the ward would do can rely on the ward’s written or oral statements. — Matt Conigliaro, “Schiavo Thoughts: Hearsay” (March 25, 2005) Abstract Appeal.

    Abstract Appeal, by the way, is “The First Web Log Devoted to Florida Law & The Eleventh Circuit Court of Appeals.” The lawyer-writer of that blog has read the legal documents (and continues to read the new ones coming out) relating to the Schiavo case. Those of us who are law students and concerned about the issues raised in this case could learn something from reading what Mr. Conigliaro has to say about it.

  • 9 On Human Rights // Sep 17, 2008 at 8:23 am

    […] ← Between Schiavo and Charybdis Talking About Morality […]

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