Pat Boone
Friday, April 1, 2005

Story Continues Below

  Momentous questions have kept mounting. Should her by-now-bigamous husband have had legal "standing" in this case? Did Congress act in an extra-constitutional way? Did the Florida courts fumble her right to due process? Did they illegally ignore mandates from Congress? Could we be truthfully confident she was feeling no pain?

Serious people are saying the answers are clear. And no sooner are they saying so than they are hearing other serious people say they are clearly wrong.

Presented as certifiable fact, pronouncements about Terri Schiavo's precise medical and conscious state were made available, and we could believe them if we could ignore pronouncements of certifiable fact that were 180 degrees opposite. In Terri Schiavo's case, the "facts" a particular judge chose were all that counted anyway.

In a case like this, a judge whose normal duty is to apply the law uniformly to individual cases has to take the extra step of choosing which facts – which experts, which witnesses – to believe and render true. His judgment becomes the truth for all practical purposes.

Not one of the oft-ballyhooed multiple appeals took a new look at the original findings of fact. Quite possibly the original judge wished that the responsibility belonged to a jury, as it would in a criminal case, but in Terri Schiavo's case he dutifully chose the "fact" that her husband, who recalled it from fifteen years ago, had heard her declare that she wouldn't want him to keep her alive this way. (A borderline example of hearsay evidence, it's being said.) Despite her never getting an MRI or a PET scan, Terri Schiavo was deemed, as Congressman Barney Frank put it, "not capable, according to what the courts have found, of feeling pain."

But in the real world apart from what courts find, people can still ask: Would you rather be burned at the stake or starved to death? I complained to Congressman Frank that Terri Schiavo is getting terminated because of hearsay … as unjustly as Joan of Arc got terminated because of heresy! He disagreed with me (per his habit) on a "Larry King Show" roundtable, but he was again on TV after just a few days' reflection, entertaining the possibility with others, like Congressman Dave Weldon of Florida, that new legislation will outlaw the withdrawal of nutrition from patients like Schiavo.

Even Jesse Jackson and Ralph Nader openly sought to thwart Terri Schiavo's termination. Is her case making political allies of Barney, Jesse, Ralph and me? The power of this moment in history should not be underestimated. Nor should it be squandered.

Two great horrors have arisen to scare us, and they correspond to two great questions that will be overarching America's domestic agenda: The two great horrors are (1) the prospect of grossly inhumane treatment of a citizen at the hands of the state and (2) the prospect of court judges having sweeping dictatorial powers over us and the rest of our elected officeholders. The two great questions are: (1) What and whose individual rights will the state enforce? And (2) What powers do and don't the courts have?

Contrary to what's generally believed, there's nothing in the U.S. Constitution that gives the courts the last word in upholding the law. Governors and presidents are also sworn to that primary duty. The historical happenstance of the Marbury vs. Madison Case in 1803 did more to establish the courts' role as the arbiter of a statute's legitimacy than did anything written in the Constitution. So, seeking to change the role of courts in our political system may be immoderate, but it still isn't illegitimate, as some law school types now hold.

"We must have a government of laws, not of men," we keep hearing.

Well … what Congress enacted and the president signed last Palm Sunday, mandating a de novo court review that would necessitate at least an interim reconnection of Terri Shiavo's feeding tube – that was a law. What kept Terri Shiavo's feeding tube disconnected – that was a man. That irreducible contradiction is at the center of the storm we now sail into.

Editor's note: