Final On Schiavo and Federalism

"Hard cases make bad law" was what the eminent justice Benjamin Cardozo wrote when facing an especially complex case--and the Teri Schiavo saga was the hardest of the hard. This hardness led the public discussion so awry that most of it was almost as wrongheaded as the injustice done at the end to Teri herself.

Teri was not dying; she had been stable for 15 years. She was not terminally ill; she was injured and survived in a reduced state of existence; but she was not sick. The case had little to do with living wills because, so many years later, she was not sick or dying; and most such documents are ignored anyway since it is impossible for them to control all eventualities. Teri was not dependent on life support either; her digestive system, lungs, kidneys and so forth functioned well. The issue was not artificial means keeping her alive; all she needed was food and water. The fact she was ingesting food and water through a tube seems little different than doing so through the mouth. The issue was whether she should be denied normal nourishment.

Teri Schiavo was diagnosed as in a "persistent vegetative state." There was no issue about her being "brain dead." Being brain dead is a reasonably (but not perfectly) empirical and objective matter involving the flow of waves in the brain. Teri had plenty of brain waves. If a person without brain action is released from the mechanical support, he or she will die in a few hours or days. PVS patients can live without mechanical support and death from starvation and thirst can take weeks, the same as for a healthy person, as the world has now learned with poor Teri.

"Persistent" and "vegetative" are relative terms, not objective matters of measuring electrical impulses. How many functions not being performed make a person vegetative? Teri smiled. She seemed to respond to some stimuli. Persistent even implies that one can know the future, which is impossible. Decisions are by no means objective and create the most excruciating decisions for families, physicians and others forced to make such agonizingly personal evaluations about their loved ones or their patients. These are difficult enough when the family is united. Those who say the Schiavo case should have been left to the family, of course, ignore that the family was divided between the husband and the parents. Once there is a dispute within a family the issue shifts from a personal decision to a judgment between the parties in a court of law.

Once two contesting parties enter a court they are at the whim of a judge and/or jury. The court of original jurisdiction will determine the facts and these are almost never overridden by appellate review. Teri was unlucky to have a Judge George Greer who deferred to conventional opinion among physicians who claimed more science than their art provided. Knowing laymen get confused with the probabilities that govern their profession and its decisions, many doctors pretend an absolute knowledge that they cannot possess. How can a doctor know a new technique will not be invented over the 15 more years Teri easily could have lived under the care of her parents? Other PVS patients have recovered or gained significant functions after years when their doctors have said they could not. An arrogant set of physicians and a gullible or worse judge sealed Teri Schiavo's fate.

Certainly, a dying person has the right to refuse nourishment to avoid prolonging the suffering. But when another person has to make the judgment, it is much more difficult. Without specific instructions, it is very questionable to deny simple food and water simply because it was entering through a different orifice. Did Teri not tell her husband she did not want to live in a vegetative state? He said she did but he is not without interests in the matter. Although he probably is not simply after the money, he has been clear that he wanted to marry the woman he has lived with and with whom he has born children inside his church, and the only way he can do so is if she dies. But even if she expressed that wish, and most Americans express the same desire, that was 15 years ago and who knows how she felt so many years later? Even given the wishes of most Americans to die at home, most of them do and will spend most of their time near the end in a hospital or nursing home if the resources are available. If Teri was unaware, as those who said she should not have been fed argued, she certainly could not care. If she was aware, she did not show signs of wanting to die.

The constitutional issues are as confounded as the medical ones. After the initial court reviews were completed and Teri's tube was ordered removed the first time, the Florida legislature and governor voted to allow Gov. Jeb Bush to reinsert the tube, which he did. The Florida Supreme Court subsequently declared that this action was unconstitutional under state provisions. When the governor requested that the legislature vote under state separation of powers doctrine to reestablish control over Teri's feeding, the House complied but the Senate failed on a 21-18 vote. The key Republican senators who had voted to reinsert the tube initially did not the second time explaining that the court said it was unconstitutional to do so. In other words, they voted that Florida no longer had separation of powers but allowed the judiciary to be supreme against the judgment of the other two branches--which would have shocked the American Founders--who in the words of Alexander Hamilton, considered the judiciary with "neither force nor will, but merely judgment; that must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments" and the Congress for its funds and much of its authority.

Many who should know better were just as confused. When the national Congress stepped in on Palm Sunday and, with the concurrence of President George W. Bush, referred the Schiavo case to the national courts, opponents claimed this was an unconstitutional action against federalism. On the other side, a Wall Street Journal editorial countered that, "Only phony ‘federalists' question Washington's competence on matters of fundamental rights," that is, letting the national courts have the final say. This too would have shocked the Founders. While it is true that Democratic politicians who never met a matter previously that they did not believe the national government could not solve better lacked credibility on federalism, there were real issues. The Founders understood federalism to mean that the national government and the states had separate spheres of activity and that each was preeminent regarding the rights covered under its own separate jurisdiction.

It was not until the 20th Century that the Supreme Court, under the influence of progressives like Oliver Wendell Holmes, decided that the 14th Amendment "incorporated" the first ten amendments to apply those rights to the states (and to have national courts interpret how they applied to them). This interpretation indeed made the national courts supreme over the states in the most important area of "fundamental rights." It was even later that the courts claimed, although quietly, the ultimate power to interpret the Constitution over the interpretations of the president and Congress. Did the Journal editorial writer miss the century-long exertions of conservatives to first oppose and then to narrow these egregious interpretations? Perhaps it was a losing fight, as Robert Bork believes, but since when was the difficulty of a fundamental principle the measure of whether it was right or "phony"? In any event, history shows that when the courts have taken too much power in the past, states have interposed and wriggled around decisions, Congresses have re-passed laws to "overrule" court declarations, and presidents Andrew Johnson and Abraham Lincoln, among others, have simply defied Supreme Court orders that they deemed unconstitutional, claiming their rights based on that document and Hamilton's views to do so.

In fact, the law passed by Congress to move the Schiavo case to federal jurisdiction was symbolic only since it was extremely unlikely it could have overturned the flawed lower court fact-finding. As such, it was in the separation of powers tradition of one body expressing its views on the actions of others. The original proposal would have adopted a version by Iowa's liberal senior Senator Tom Harkin to refer all cases where the patient was incapacitated to national courts for final decision. That would truly have violated the federal principle. But narrowing the case to Teri alone allowed Congress and the president to vote their hearts without setting precedent except to show the state and the country where their sympathies lay. No harm was done to federalism and the vote seems to me to set have set a proper moral tone in a situation of great national interest and where a decision to let Teri's parents care for her would seem to have been the best solution.

The good news is that the Journal editors in a more considered opinion the very next day set matters in a context the Founders would have understood. This time they concluded, "to the extent that government gets involved, the proper venue for settling debates [such as Schiavo's] is state legislatures, where the will of the people, as expressed through laws enacted by their elected representatives, can be heard." Even more important, they returned to the critical Florida Supreme Court decision to overrule its legislature, saying that this act in fact made the legislature "subservient" to the court and violated separation of powers. This is the great constitutional issue before the nation today: can separation of powers and federalism survive the colossal judicial onslaught of the past century?

Federalism and separation of powers are so important that if only two conservative Florida senators knew their Constitution, Teri's tube would have been reconnected and she would be alive today. Together with the judges and the legislators, the conservative movement must take its part of the blame. Why cannot we at least teach our own conservative and Republican legislators that they have as much authority to determine rights under the Constitution as do the courts? The Constitution requires that executives and legislators swear to uphold the Constitution and that necessarily means to support it as they understand what it means, not how a court understands it for them. Federalism and separation of powers were created by the Founders so that Congress, the president, the courts and the states would decide fundamental issues together or, if that failed, be decided by the largest number of branches possible and, certainly, not by one alone as the final arbitrator.

Legislators and executives who defer to the courts on fundamental matters are not merely mistaken; they are not upholding their oath of office and they should have the integrity to vacate that office if they cannot uphold it. If conservatives did their job correctly, no conservative or Republican should ever be able in the future to stand up and admit he could not vote to give a governor the power to assist a citizen in extremis, as was dear Teri, simply because a court told him it was unconstitutional, without the voters and fellow legislators laughing him out of office.

Donald Devine, Editor.

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