While the State of Florida predicated its legalized murder of Terri Schiavo on the dubious “fact” that she wanted to be starved to death, the Associated Press reports that the State of Nevada is considering legislation to allow guardians to kill patients against their clearly stated wishes, provided that dying is deemed to be in the patient’s best interests. In other words, forget all that crap you heard about about how Terri Schiavo’s situation could have been avoided by a living will. If this bill passes, and you live in Nevada, all that’s going to matter when the chips are down is whether your guardian, a doctor, or worst of all, a “bioethicist,” thinks your life is worth living.

Of course his adherents assume that already. What I find disturbing, however, is that even if you assume the worst about Michael Schiavo, that he lied through his teeth about her intent to for no reason other than to answer his own question of “when is that bitch going to die,” it still wouldn’t qualify as murder under Florida law. Florida Statutes § 765.1115(2) provides that:

Any person who falsifies or forges the advance directive of another or who willfully conceals or withholds personal knowledge of the revocation of an advance directive, with the intent to cause a withholding or withdrawal of life-prolonging procedures contrary to the wishes of the principal, and who thereby because of such act directly causes life-prolonging procedures to be withheld or withdrawn and death to be hastened, commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

So killing someone by lying and saying they wanted to die is not murder, just a “felony of the second degree,” right up there with burglarly, vehicular homicide and robbery, but not quite as serious as arson. And even that assumes that the false testimony is considered falsifying a living will for purposes of this statute. If it doesn’t, it’s just plain on perjury, a piddly third degree felony even Presidents get to commit. Isn’t that special?

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.

May she rest in peace. Out of respect for her family, I’m refraining from further comment on this matter for the remainder of the day.

Catherine Crier has been on FoxNews all day touting her view that the law giving the federal courts authority to hear Terri Schiavo’s case is unconstitutional. On Hannity & Colmes, she repeated this charge, screaming over ACLJ representative Jay Sekulow at least twice that the law is a “bill of attainder.” The end of their exchange was particularly embarassing:

HANNITY: This is what is in play here, Catherine. Here you have Congressional subpoenas ignored by an arrogant judiciary.

SEKULOW: Right.

HANNITY: Here you have laws that are dismissed outright without any consideration. They’re supposed to be, Catherine, co-equal branches of government and for these judicial tyrants, frankly, to ignore these laws …

SEKULOW: Right.

HANNITY: …to that extent, really puts into jeopardy the question of whether or not we have co-equal branches of government.

CRIER (talking over the last half-sentence): OK, Sean, let me answer it. Let me answer it. Number one, the request they made was that the federal judiciary take a look at this. That was the legislation out of the federal government, and in fact the federal judiciary has bent over backwards to do exactly that.

SEKULOW: Catherine, it was supposed to be de novo …

CRIER: Second, secondarily…

SEKULOW: Hold it. It … the statute said, if you read the statute, the statute says de novo trial. That’s what it says. That means a complete re-look. You can’t do that in an hour and thirty-five minute oral argument. You know that, and I know that. That’s not due process.

CRIER: Well, but, but it …

SEKULOW: That’s a wink and a nod.

CRIER: But it was illegitimate for the federal government or the state …

SEKULOW: No one said … you may not like the statute but no one’s held it unconstitutional.

CRIER (talking over the last half of that sentence): Jay, we’re going to take turns here, I assume we’re going to get both a hearing here.

SEKULOW: Get your facts right.

CRIER: And that is the state court just like the federal court cannot do a bill of attainder. They cannot write a piece of legislation for ….

SEKULOW: No court yet has said that this statute is unconstitutional.

CRIER (in a raised voice): Jay, are you just going to simply filibuster and shout me down or are we going to have a two-way conversation here?

SEKULOW: Well, get your facts right.

CRIER (screeching): Well, get YOUR facts right! And that is this is a bill of attainder

SEKULOW: It’s called an an act of Congress, and nobody’s held it unconstitutional.

CRIER: It is inappropriate for the government to write a piece of legislation for a single individual. You know that, I know that it’s absolutely UN-CONSTITUTIONAL.

SEKULOW: No court has held it unconstitutional.

HANNITY: Guys, hang on one second. Here’s the point I want to make here.

CRIER: Yeah, Sean.

HANNITY: We elect representatives to go make laws. That’s what we hire them to do. But for judges to just dismiss out of hand Congressional subpoenas, dismiss out of hand laws passed by Congress, signed by the President of the United States, it shows that they have no respect for that other branch of government. They are the ones that are out of control…

CRIER: But Sean…

HANNITY: I don’t understand why you …

CRIER: Sean…

HANNITY: don’t see that.

CRIER: If it is unconstitutional for Congress to write a bill regarding one individual, if that is inappropriate given our Constitution forward, why are we supposed to say the judges are doing wrong?

HANNITY: One judge…

SEKULOW: Catherine! No judge has said it’s unconstitutional!

CRIER (screaming): It is unconstitutional!

SEKULOW: They raised that, the courts did not say it was unconstitutional. You don’t like it. That doesn’t make it unconstitutional.

CRIER (screaming over that last sentence): You can scream all day long, but the fact is it is unconstitutional.

SEKULOW: I guess you’re the judge and the jury now.

CRIER: No, I believe in the rule of law, and obviously you don’t.

In other words, not only is Crier the legal eagle too stupid or too lazy to look up the phrase “bill of attainder” before bandying it about, she also thinks that it’s OK for a court to take jurisdiction and do a half-assed job if the Constitution says they had no right to take jurisdiction at all. Can just anybody work for CourtTV these days?

UPDATE: According to Wuzzadem, this mental midget was a judge, too. So basically, we have one judge who doesn’t know what a bill of attainder is, passionately defending the credentials of another judge, who doesn’t know what teh common English words “clear” or “convincing” mean. That should do wonders to build everybody’s confidence on the judiciary.

UPDATE x2: Here’s the silver lining. While constitutional illiteracy appears to be a helpful trait for those seeking to appear on CourtTV, at least it’s not an absolute requirement. In this online call-in program, Florida lawyer and blogger Matt Conigliaro states correctly the ruleof what is or isn’t a bill of attainder:

Question from anna: Isn’t it unconstitutional for Congress to get involved in a personal matter such as this?

Question from tfarrugia: Doesn’t the fact that the law specifically addresses an individual make it unconstitutional?

Matt Conigliaro: Unfortunately, constitutional questions can be very complex. Congress has the authority to pass laws that affect an individual, so long as the law comes within one of Congress’s powers and does not violate any constitutional right. For instance, Congress is prohibited from passing bills of attainder. If this is a bill of attainder, then it’s unconstitutional. Whether it is or not is rather complicated and concerns whether Terri is being punished. In the past, bills of attainder were usually laws that were passed in order to sentence someone for an offense. Imagine if Congress decided that Michael Jackson was guilty of a crime and just passed a law saying he is to spend 10 years in prison. That would be a bill of attainder.

[Emphasis added.]

Bingo. The only thing I would have said differently myself is that the chances of Congress passing any statute designed to punish Terri Schiavo were slim to none, and therefore, this issue wasn’t really so complicated after all.

CodeBlueBlog offers easy money (h/t: Michelle Malkin) for any neurologist involved in the Schiavo case who “knows” from Terri’s CT scan that she is PVS. The bet is simple:

I will provide 100 single cuts from 100 different patient’s brain CT’s. All the neurologist has to do is say which ones represent patients with PVS and which do not.

If the neurologist can be right 6 out of 10 times he wins the $100,000.

Any takers?

I think it’s high time for the Puppyblender to stop pretending he has no position on the Terri Schiavo case. For one with no position, he seems to be gunning pretty hard for the pro-death side. The last straw for me was a favorable link to Football Fans For Truth, whose Schiavo F.A.Q. could have been written by George Felos, Michael Schiavo and George Greer, followed by an even more shrill entry that compares Schiavo skeptics to the “Free Mumia” crowd. Glenn later backs off a bit from the Mumia analogy, but not really:

Well, the “Free Mumia” comparison only applies to the unwillingness of some commentators to look at the actual record, and the willingness to posit a huge and implausible conspiracy on the part of numerous judges, attorneys, etc. (And Schiavo-partisan Randall Terry is just Al Sharpton with an inferior tailor. At best.). But the point is taken, and I apologize for any suggestion that the cases are otherwise comparable, because of course they’re not. There’s nothing tragic about what happened to Mumia.

Um, yeah, but I think there’s a more fundamental difference than that. Reasonable doubts exist as to whether Michael Schiavo has Terri Schiavo’s best interests at heart, whether Terri ever expressed a desire to be killed rather than put on life support, or even whether she really is PVS. There is no reasonable doubt as to Mumia’s guilt.

UPDATE: Reynolds goes further out into left field by drinking the phony phederalist Kool-Aid (in a more literal sense than that analogy is normally applied). Hat tip: Prestopundit, who appears to have drunk more than few cups of it himself.

It seems to me that the “Kill Terri” crowd has at least two discrete factions, each of which has an agenda of their own. One group is obsessed with death as an end in itself; the other, with the infallibility of the courts.

The first group, which includes Michael Schiavo and his Kevorkianesque^* lawyer, George Felos, is quite properly categorized as the “culture of death” by its opponents. Supporters of the death culture generally reject such crass labels, but come dangerously close to adopting them in some of their more candid moments. For them, mercy killings are an end in themselves, patient’s intent being merely a procedural hurdle that must be overcome to advance their agenda in our current, unenlightened society, but which will eventually go the wayside in favor of a broader “duty to die,” to quote Colorado’s then-Governor Richard Lamm. So finding an intent where a patient has not clearly expressed it is only an intermediate step; the hope is that by the time the next Terri Schiavo comes around, we won’t have to argue about intent at all. Nor will we have to argue about whether a patient is really PVS or minimally conscious; both are deemed severe handicaps, and both will trigger that sacred “duty to die.”

The second, much larger group, which I’ll dub the judicial supremacy crowd for want of a better term, believes that once a court has made a ruling, that ruling should stick no matter what. These are the people who think that the republic would explode if any modern executive were to refuse to bow down to the courts. Typically, such objections are phrased on more-law-abiding-than-thou terms, as if there were a clear rule of law that made courts the only ones responsible for following the Constitution, while everyone else took an oath to affirm The Constitution According To Five Judges, instead. Stubbornness on the parts of the “political” branches of government, as judicial apologists love to call them, is seen as crass and … heaven forbid … political, just as they are seen among the general population, who is supposed to know better than to form independent legal theories on their own. Stubbornness from the courts, however, is treated as a whole ‘nother matter.

Take, for example, this article on Judge Greer’s propensity to stick by his early rulings no matter what. To the Schindlers, of course, this “feature” of Greer’s jurisprudence has been extremely frustrating:

Attorney Pat Anderson, who had represented the Schindlers for three years of the court fight, filed three motions for recusal but said she could not get Greer to budge.

“A lawyer told me when I first got involved in this case that he (Greer) does not have a reverse on his transmission,” Anderson said. “He apparently is too prideful to say ‘I made a mistake. I made a mistake because I didn’t have all the information and I am sorry I made a mistake.”‘

That’s pretty much how most people would describe anybody, judge or no, whose views won’t budge no matter what new evidence you provide that may indicate their original conclusions were wrong. But to judicial supremacy crowd, once a judge gets involved the stubbornness trait ceases to be a vice and magically transforms into a virtue:

“There are very few people who have shown the will to stand up to raw power,” said Stetson University Law Professor Michael Allen, who has studied the Schiavo case. “He’s one.”

“This is simply a case of people not liking this decision, and the fact that a judge is standing up to this is quite important,” Allen added.

To the judicial supremacists, it is anathema to utter out loud the possiblity that any “fact” found by one judge and not reversed by another (under a nearly impossible “clearly erroneous” standard) may not in fact be a … well… fact, or that any “law” made up by a few activist judges at the top level, appealable to no one, may be anything other than a … er… law. For them, the mere fact that “Judge” Greer, an individual whose own judgment seems more than a tad questionable, found such “facts” under purported to be “clear and convincing” evidence is enough. That he later explained away his false Perry Mason moment with Diane Meyer, or relied on a fuzzy CT scan rather than allow a more determinative MRI or PET scan, let alone step aside from the case and allow another judge to re-visit his supposedly “clear” and “convincing” determinations, makes him a tragic hero of the judicial supremacy cause, without whom we would surely devolve into anarchy or become a Taliban-style theocracy.

I say, checks and balances are a two-way street. Originally, courts were supposed to be “the least dangerous branch” of government since they have no power to enforce their own judgments. Andrew Jackson took full advantage of this, (in-)famously pronouncing that “John Marshall has made his decision, now let him enforce it.” Like Ann Coulter, I agree that chaos would result if this became the regular course of action of the “political” branches, but also like Ann Coulter, I also think it might be good if an executive did so every once in a while, preferably in response to a judicial ruling that is clearly unsupported by the text of the statute or constitutional provision it purports to interpret. Much as I like the idea of a constitutional republic with checks and balances and all that good stuff, if the only real choice we have is between being One Nation Under Judges and One Nation Under Unrestricted Democracy, I’m opting for democracy.

^*I’ve used this analogy several times before, but am beginning to think it is terribly unfair to Jack Kevorkian. Kevorkian may have bumped off off a few depressed patients who weren’t really terminally ill, and is rightly criticized for that, but for what it’s worth, there is no question at all that any of his victims intended to die. Quite the contrary, each of his victims contacted him voluntarily, most flying in from other states, for the specific purposes of dying.

Add both duToits to the growing list of Super Federalists who won’t let that pesky Constitution get in the way of a good constitutional rant. Regarding baseball, Mr. du Toit writes:

Overheard during this past weekend:
“Can Major Leage Baseball heal itself, or will it take action from Congress to fix it?”

My response: Show me where in the Constution it says the Congress can do that.

My response to his response: If you need someone else to point out something as basic as the commerce clause, you probably shouldn’t be publicly opining on the constitutionality (or lack thereof) of anything. He does, however, and proceeds to ask the same of Terri Schiavo, and then implores his readers to:

Stop thinking with your hearts, because emotion and sentiment have no place in discussions of this type. Constitutional integrity is more important than Terry Schiavo’s life; it’s more important than a hundred lives, or a hundred thousand lives.
[Emphasis added.]

Don’t get me wrong, I’m a big fan of constitutional integrity and all that fun stuff, but since when is it more important than 100,000 lives? That’s insane.