It’s been widely reported that the whole Schiavo controversy could have been prevented if Terri had executed a living will. I’ve always found that a bit myopic. If for no other reason, then because even if the next Terri Schiavo has the foresight to execute a living will stating a desire to be kept alive no matter what, that’s not going to stop the next Michael Schiavo from tearing it up and denying it ever existed. That problem could be solved by leaving a copy with the family lawyer or with some other trusted individual other than one’s intimates, but I’m not sure it’s realistic to expect everyone to have that kind of foresight. Most of us don’t consider the possibility that our spouses may turn on us unless they have done so already, in which case the thing to do is to get out of an abusive relationship immediately, not to stay in the relationsihp while hiding the living will (or, for that matter, the non-living one) in a safe place.

It turns out that at least in Florida, the problem is more fundamental than that. Matt Conigliaro, who has forgotten more about the Schiavo case than most of us will ever know, observes:

Let’s go back to an issue I raised the other day but unfortunately could not follow up on until now. How binding is a living will? Or any other written form of someone’s wishes? I’ve been disappointed to hear a number of public figures speak of living wills as being sacrosanct, and I have heard one high profile nighttime television host state numerous times that, unlike Terri’s wishes, his wishes are in writing and there will never be an issue for him. Softly put, that’s a reasonable expectation, but the host hammered the point repeatedly, saying his written statements were beyond assail.

That’s not true, at least in Florida. It may not be easy to overcome a living will, but it can be done by clear and convincing proof that the person subsequently made contrary oral statements.

Now, if I had read the same statement prior to the Schiavo case, I probably wouldn’t be all that bothered by it. After all, “clear and convincing” evidence is a very high standard, and the highest one applied in any civil actions. Surely that burden couldn’t be met by a few affidavits by the guy who wants to kill you, his brother, and his brother’s wife. Right?

(more…)

Pepperdine Law Professor Douglas Kmiec has a lengthy column on Terri Schiavo’s case in today’s Orange County Register, with no link available yet (UPDATE: it’s online now). Most of the article, titled “We Can’t Move On Just Yet,” is very thoughtful and well worth a read. However, the two paragraphs devoted to what passes for legal analysis are worth reading for one reason only: fisking. Here goes.

Congress’ hastily drafted legislation was likely unconstitutional a dozen ways over.

Upon reading that, you might think that a “dozen” means 12, and that “unconstitutional” means “violates some identifiable provision in the U.S. Constitution.” Nah, that’s just what it means to us commoners. To a baker, a “dozen” means 13. To Kmiec, it means 3, and “unconstitutional” means “I don’t like it.” Here’s the first of the Kmiec’s dozen “constitutional” objections to Congress’s law for Terri Schiavo:

It purported to allow legislative revision of a settled case contrary to principles of the separation of powers, federalism and a host of federal rules that established finality.

That, of course, is a blatant violation of the 28th Amendment, which provides that:

Congress shall have no power to allow legislative revision of a settled case contrary to principles of the separation of powers, federalism and a host of federal rules that established finality. Yeah, we really mean that Congress, whose job it is to create federal rules, can’t create new federal rules to change that result.

No, wait, I lied. There is no 28th Amendment. The closest thing there is, the Full Faith and Credit Clause of Article IV, applies only to the states. Even the double-jeopardy clause of the Fifth Amendment, which bars the states and the federal government from bringing successive criminal cases, does not preclude the federal government from re-litigating in federal court any matters that have already been determined in state court. So for all the talk of a “constitutional” violation, all we’re left with is a bunch of emanations and penumbras no conservative law professor has any business caring about.

It singled out Terri for highly different treatment from everyone else, thereby contravening fundamental aspects of equality and the rule of law prescribing that legal rules be general and prospective in nature.

Which, of course, violates the 29th Amendment, which says… you get the drift. Far from prohibiting laws applicable to specific individuals (which, by the way, it does all the time, usually with no fanfare), the framers of the Constitution actually contemplated such practice. If the framers of the Constitution thought all laws applicable to specific individuals were unconstitutional, it would have made no sense whatsoever to ban bills of attainder in particular. Why ban specifically what is already banned generally?

Completing his “Kmiec’s dozen” of allegedly constitutional objections, the professor writes:

Most of all, the midnight law was premised upon no discernible legislative power – and in a government of enumerated authority, that is hardly inconsequential.

Nor, I might add, is it true. Article III grants Congress broad powers to make whatever exceptions and regulations it wants to federal court jurisdiction on any matters raising questions of federal law. Unfortunately, that’s all Congress did. However, it could have done more than that – much more – by exercising its enumerated power under Amendment 14, which appears to have been left out of Professor Kmiec’s version of the Constitution. Had he bothered to read it, he would know that all states are prohibited from “depriv[ing] any person of life, liberty, or property, without due process of law,” and that Congress has every right to enforce that prohibition by enacting appropriate legislation. But hey, why let that pesky Constitution get in the way of a good “constitutional” rant?

It would seem the only thing in favor of Congress’ legislation was the reasoned belief that all life is valuable – yes, inalienable. But then, like law’s otherwise imperfect coincidence with morality, that proposition in the Declaration of Independence has been largely aspiration, not formal law.

Unlike the idle musings of a law professor over “constitutional” principles that appear nowhere in the Constitution. Those aspirations, of course, are to be considered formal law.

Get a load of this howler. According to the article, which Fox News claims to have obtained from the Associated Press, the penalty for stealing and intentionally destroying embarassing classified documents is only a $10,000 fine, and you even get your security clearance back in three years. What a hoot!

But here’s the best part: this guy, this guy, this guy, this guy and this guy all fell for it! Hoo-haw.

I’ll be damned. Looks like I owe Ralph Nader, MTV and Hugo Schwyzer an apology. For all that pre-election hype about a second Bush Administration supposedly leading to a draft, I never for minute thought it would happen in my lifetime. God help us all.