Terri Schiavo and How Temptation Can Top the Constitution

Pubished 3/22/2005
By Jonathan Turley
During the drafting of the Constitution, the Framers often spoke of the interests of the “body politic” — a term that took on a new and chilling meaning this week in the fight over Terri Schiavo. Laying in a persistent vegetative state in Florida, Schiavo has literally become the body politic — a transcendent symbol claimed by rivals in an ongoing cultural war. Ironically, as each side has struggled to embrace her cause, she has become less real, more personification than person.
Schiavo’s 15-year struggle reached a crescendo when Congress passed an unprecedented bill that intervened to try to reinstate the feeding tube that her husband, Michael, had removed. This was the third time the tube was removed, in fulfillment of what her husband said were her express wishes. Each time, politicians intervened. Now, after a dramatic midnight session, Congress has itself intervened with members celebrating “the victory for life” by allowing the case to head to federal court. This is not how it is supposed to work.

In intervening in the case, Congress yielded to perhaps the darkest temptation of any democratic body. The Framers called it the tyranny of the majority — the use of democratic measures against unpopular individuals or groups. Legislators simply disagreed with over a decade of judicial rulings and were outraged at Michael Schiavo’s refusal to yield to their demands.

Trampling the Constitution

The Framers expressly sought to keep Congress from intervening in legal cases or imposing forms of punishment. The Constitution imposes a separation of powers, requires due process and prohibits forms of legislative intervention. Yet such principles become mere abstractions when the discussion turns to feeding tubes. For members, the Schiavo bill offered a sudden surge of popularity and clarity after weeks of punishing debate over Social Security plans.

This isn’t the first time these members have yielded to the temptation to weigh in on high-profile cases. When it comes to such interventions, Congress increasingly appears to follow Oscar Wilde’s rule that the only way to be rid of temptation is to yield to it.

In 2002, some of these same sponsors passed a bill to intervene in a family’s custody case. As with the Schiavo law, the “Elizabeth Morgan Act” used jurisdictional changes to side with Morgan. The bill negated 10 years of orders in the husband’s favor and effectively labeled him a danger to his daughter. I was counsel for the husband, Eric Foretich, and the federal appellate court ultimately struck down the law.

In intervening in Florida, the only thing that legislators had to give up was any claim to principle. The sponsors admitted that their intervention was a flagrant violation of federalism, but insisted that they simply could not let principle stand in the way of “doing the right thing.” Of course, the test of principle is the ability to remain faithful regardless of personal preference. If you comply with principle only when it is convenient or popular, it is a pretense of principle.

My own family tragedy

For me, this case is no abstraction. Just weeks ago, my father, Jack Turley, died of complications of Parkinson’s disease. He was on life support, and my father had named me in his living will to help my mother decide when to terminate his life. Like Schiavo’s parents, I argued for the introduction of a feeding tube. Like Terri’s family, the issue tore my family apart.

In our family, it was hard enough to have five children struggling over the decision. We would not have been assisted by adding 295 million fellow citizens and hundreds of politicians to the room.

When my father died, the family had come to a crossroads. Over the objections of some family members, we were preparing to move him to a different hospital and considering a feeding tube. We knew it was a decision that would likely sever relations for years. Just then, my father began to fail. It was as if he wanted to take the decision back to save his family. I held him as he died. He was my best friend and I wanted desperately to hold him to this life. But as he gently slipped away, I was also silently relieved that the decision had been lifted from our shoulders.

The Terri Schiavo law should horrify anyone who believes in the rule of law and the sanctity of the family. It would certainly horrify the Framers who believed strongly in a limited federal government and tried to curtail such brutish legislative acts.

Lawmakers are wholly unconcerned that there are thousands of cases like Terri’s. Indeed, President Bush and GOP leaders have stressed that this will not be a precedent. Yet, those cases involve that same suffering and hold lives in the balance. Those cases, however, do not have the political relevance of Terri Schiavo. So it is not the suffering, it is not the life, it is not even Terri. She is now the body politic, contemporary American politics personified in a persistent vegetative state.

4 thoughts on “Terri Schiavo and How Temptation Can Top the Constitution”

  1. Dr. Turley, with you and Eric Foretich leading the way, anything is possible. You led me on towards Terri Schiavo and the whole issue of how to preserve the 50% of authority due men in life-and-death matters. From this and, of all tings, county-level jury duty, I have stumbled upon when I know must be a part of inevitable future:

    Perinatal Lottery Sterilization (PLS)


    Dr. Morgan and Terri Schiavo are moves away from the Rule of Law and back to the estrogen-driven Monarchy. Now, men should pass PLS into law in nations that have an average family size of four or more. Population might yet top out at 8 billion rather than the 9 billion is headed for by 2050. It is not obvious, but PLS can be very nice.

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