damnum absque injuria

March 20, 2005

Radley Balko, Legal Eagle

Radley Balko makes an ass of himself (h/t: Michele Catalano) while attempting to tackle the Schiavo case. Regarding the question of whether or not Terri Schiavo should be kept alive or allowed to starve to death, Balko writes:

[I]t’s pretty clear. Schiavo gets to decide if she lives or dies. You and I can both request that our lives be ended should we end up in a prolonged vegetative or comatose state. That’s usually done through a living will. But in cases where there is no living will, like Schiavo’s, courts can look at other evidence, such as conversations you’ve had with friends, family, and acquaintances. If that evidence is inconclusive, they look to the spouse first, then the parents, siblings, and extended family.

Um, no. If the evidence is inconclusive, you don’t kill the patient. It’s really that simple. The only reason it’s not that simple this time is because because one judge with an obvious agenda has found “clear and convincing” evidence based on facts that have clearly not have all of us convinced.

But in this case, I don’t believe it should even come to that. To my knowledge, six different courts have determined that there’s ample evidence from Schiavo’s conversations to indicate that she would not have wanted to continuing living the way she is.

In fact, only one judge – count, ’em, one – has made any such determination. The rest were appellate courts, which do not make factual determinations.

The second point has also been determined in the courts. At least a dozen court-appointed attorneys have been working with Schiavo — some of them for years. Their testimony based on their treatment of her is what pursuaded [sic] the courts to order the removal of the feeding tube.

I didn’t know that attorneys treated patients. I guess you learn something new every day. Doctors, however, are much more divided on the issue, and they’re the ones I’m more inclined to trust on matters like this one.

Congress? Shamelessly grandstanding? You don’t say. You know, for a bunch of “strict constructionists,” these GOP lawmakers are awfully eager to crap all over the Constitution when it comes to “activist lawmaking.”

Silly me, I always thought that whole point of strict constructionism was that lawmakers, not the courts, were the ones who were supposed to … um … make laws?

Laws narrowly tailored to apply to a specific person or a specific case are baldly unconstitutional.

Bullshit. Balko simply made this one up. The closest thing to a constitutional prohibition against laws “tailored to apply” to a specific person is the prohibition on bills of attainder in Article I, Section 9 of the Constitution. Of course, a bill isn’t a bill of attainder if it doesn’t “attaint” anyone, i.e., single them out for punishment without a trial. Despite all of Michael Schiavo’s self-indulgent protests to the contrary, the legislation being considered in Congress isn’t aimed at punishing anyone.

As are ex post facto laws.

Neat. Let’s keep that important point in mind, just in case Congress or the Florida Legislature passes a law three weeks from now retroactively defining his murder of Terri Schiavo as a murder. But it has no application whatsoever to the legislation pending in Congress.

Anything legislation Congress may try to pass to prolong Schiavo’s life would fail both of those tests on its face.

It might if, God help us, the case were reviewed by a judge who is as legally illiterate as Balko appears to be. In an update, he concedes that the “constitutional” prohibition on ” tailored to apply to one person” that he pulled out of his book “wasn’t quite right.” He still misses the nearest real issue, namely the separation of powers argument that killed Terri’s Law when the Florida Legislature tried to do its job a year and a half ago. He then steals a page from Dan Rather’s “fake but accurate” playbook, arguing that notwithstanding his shocking ignorance over the one issue that a reader has pointed out to him, “[t]he rest of the post stands.”

Federalism. This is a classic case of boundary-drawing. What is or isn’t a vegetative state? How much evidence indicating a desire to end life support over casual conversation is necessary for a court to determine that doing so would be consistent with a patients’ [sic] wishes? These are values [sic] judgments, and as such are best decided at the state level (at least). The federal government has no police powers to make such determinations.

None, that is, except maybe the Fourteenth Amendment, which prohibits states from depriving its citizens of life, liberty and property without due process of law, and which specifically authorizes Congress to “enforce, by appropriate legislation, the provisions of this article.” But why let the Constitution get in the way of a good “constitutional” rant?

Balko’s post is very stupid, but it’s not 100% stupid. He makes one valid point that is worth quoting for its validity rather than its fiskworthiness, so in fairness, here it is:

What the hell is wrong with us? Why is it that when it get to the point of letting someone go, we force terimally sick people to die in one of the most agaonizing ways possible? Why is starving someone to death by removing a feeding tube considered humane, but injecting a terminal, pain-ridden patient with a solution designed to let them die painlessly forbidden?

I know the answer. But it isn’t acceptable. The answer is that removing a feeding tube isn’t proactive. Whereas injecting someone with lethal, but merciful drugs is. That’s asinine.


6 Responses to “Radley Balko, Legal Eagle”

  1. So Cal Lawyer Says:

    Nicely done.

  2. John from WuzzaDem Says:

    Excellent post.

  3. Joel B. Says:

    I must say, the damage done to the courts over the past 2 years has been absolutely astonishing. From Lawrence, Massuchusetts, Terry Schiavo, death penalty for Juveniles, and then the latest SSM ruling in S.F., we may be seeing the breaking point for respect of the judiciary. I’m not all that heart-broken about it either.

  4. Joel B. Says:

    Doh! I can spell Massachusetts! I sware!

  5. gaijinbiker Says:


  6. The Agitator Says:

    Patterico. Again….

    My old pal Patterico — a prosecutor in California — has valliantly rushed to the defense of the police tactics……

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