Analysis by Oswald Sobrino, J.D., M.A., who has published in New Blackfriars (U.K.), Homiletic & Pastoral Review, The Catholic Answer, New Oxford Review, CatholicExchange.com, and the Fellowship of Catholic Scholars Quarterly. He is a lay graduate student at Sacred Heart Major Seminary, Detroit. © 2002-06 Oswald Sobrino.
"There is much in Christianity which can be subjected to exact analysis. But the ultimate things are shrouded in the silent mysteries of God." --Hans Urs von Balthasar (1905-1988)
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Saturday, March 26, 2005N.Y. Times Columnist Slips Badly
N.Y. Times columnist David Brooks writes today how he is torn between the social liberal and the social conservative sides of the Terri Schiavo debate ("Morality and Reality," 3/26/05). Brooks describes the social liberal position as viewing Terri's life as "mere exsitence." That phrase is quite revealing.
The Nazis used the phrase "Existence without Life" (Dasein ohne Leben) to describe those unfit to live. The social liberals are echoing the phraseology of the Nazis. This linguistic affinity is quite revealing, to say the least.
Gov. Bush Should Ignore the Florida Courts
Gov. Jeb Bush has fought valiantly on behalf of Theresa Schiavo. So when I give my opinion that the Governor should ignore the Florida court order condemning Theresa Schiavo to death by starvation, I am not criticizing the Governor at all. He has already done enough to earn my personal respect; but, of course, I wish he would take the last step of ignoring the court's unjust order of execution. I am merely pointing out in what follows that there is a legal and historical basis in this extreme circumstance for the executive branch to ignore the misguided judicial branch.
If, in these dire circumstances, the Governor does choose to ignore the unjust order of the court, he would be in good company. For many, our greatest president was Abraham Lincoln. Yet, Lincoln himself ignored the ruling of Supreme Court Chief Justice Roger Taney saying that Lincoln could not suspend the Writ of Habeas Corpus, a legal remedy used to determine if someone in government custody is being held illegally. Lincoln had in effect suspended the writ in an executive order directing the military to arrest persons engaging in sabotage against the Union cause (see Ronald G. White, Jr., The Eloquent President: A Portrait of Abraham Lincoln Through His Words [Random House, 2005], p. 115]. The traitors so arrested could not use habeas corpus (Latin for "you have the body") as a legal remedy to escape federal custody.
Lincoln ignored the order by Chief Justice Taney because Lincoln believed that as President he was acting in accord with the Constitution and because of the need to preserve the Union. Lincoln's attorney general concluded that the executive and judicial branches were coequal branches of government and thus that the executive also had the authority to interpret the Constitution (see Supreme Court Historical Society link; scroll down to "Taney v. Lincoln: The Civil War Cases").
The Florida governor can do the same in this case as pointed out in a recent NationalReview.Online article. As that article points out, the Florida Constitution directs the governor to protect the right to life of its citizens. And so when a state court orders the execution by starvation of an innocent citizen, the Governor is constitutionally obligated by his oath of office to step in to undo the injustice.
Some will say that the Schiavo situation is not a crisis that matches that of a civil war threatening the very survival of the Union. I strongly disagree. If a runaway court can order the death by starvation of an innocent woman, with her anguished parents standing helplessly by, the very survival of our constitutional order and judicial system is at stake. To allow such a manifest act of injustice to be carried out is to deal a death blow to the legitimacy of the judicial branch of government and indirectly to that of all branches of government. Government authorized cruelty --covered 24 hours a day on television-- that amounts to murder (that is, the unjustified, intentional killing of the innocent) creates a severe crisis of confidence in the courts and in the rest of government. That is a crisis similar in effect to what Lincoln faced in the subversives who were aiding the Confederacy in trying to dismember the Union.
What was at stake then and is at stake now is the survival of our constitutional system. Lincoln rightly suspended the writ of habeas corpus as a means to preserve that system. Today, Governor Bush or another chief executive in a similar situation would be justified in ignoring a court order that threatens to destroy the legitimacy essential to the survival of that same constitutional system.
Like Lincoln, a governor in this extreme situation need only look to his sworn constitutional duties, in this case the duty to preserve life. Whether or not Gov. Bush so acts, I believe he has acted thus far in good faith. But some day some other governor or even a President may very well take the same courageous step taken by Lincoln in another great national crisis. The precedent is there in order to preserve the moral legitimacy of the constitutional order that is essential to its survival.
Friday, March 25, 2005Telling Verses from Today's Reading of the Passion
Given what is now happening in Florida, here are two striking verses that our fellow Catholics have heard today as John's account of the Passion of Christ was read in Catholic churches (with emphasis added):
"We have a law, and according to that law he ought to die . . . ." (Jn 19:7).
"After this, Jesus, knowing that all was now finished, said (to fulfill the Scriptures), "I thirst." (Jn 19:28).
No commentary needed.
Take Out the Black Ribbons
It's time to take out the black riboons to protest the great and evil absurdity of the slow-motion starvation of Theresa Schiavo. Let's put the black ribbons on our clothes, on the trees in our front yards, on our doors, wherever you can, to protest this great evil. Flags proliferated in the aftermath of 9/11. Let the black ribbons proliferate in the aftermath of this new and self-imposed 9/11.
The Judges Have Lost
When you listen to the legal pundits defending the starvation of Theresa Marie Schiavo, what you hear again and again is a variation of one theme: the courts establish the facts, the courts have reviewed this again and again, the courts have decided otherwise. We are being told to suspend moral judgment and to deliver our consciences and our common sense into the hands of judges and courts. We are called, in true relativistic fashion, to trust process over substance, to trust a so-called enlightened and highly educated elite over moral tradition.
That is the Nazification of America. Even in the military, my understanding is that a soldier has no obligation to follow manifestly evil orders--such as an order to torture someone. But we are now being asked to calm ourselves and stoically accept the starvation of an innocent person because "the courts" have handled it all for us.
Good judges and lawyers know that the authority of a court derives in the long run from the fact that all parties leave the court believing that they have at least been fairly heard. Otherwise, the fragile commodity of judicial authority evaporates quickly.
Large numbers rightly believe that Theresa Schiavo has not been fairly treated in court. Her guardian is in a stunning conflict of interest by having maintained for years a politely termed "common law marriage" with another woman. But the courts have still let him have the final say over her life, even though her parents and siblings are eager to care for her. Without a truly independent guardian about whom there is no reasonable doubt whatsoever, no sensible person can have any faith in the judicial process applied in this case.
You cannot ask people to blind themselves to reality and simply defer to the indefensible. What will be the result? My personal prediction is that many will demand new laws to trim the power of judges given the spectacle we have seen before us. The judges in this matter, with some possible exceptions, have diminished themselves. Future laws will recognize that, as a whole, they cannot be trusted and are no longer worthy of our full confidence.
That's what happens in a morally relativistic culture. In 1930 or 1940 or even 1960, it would have been unimaginable that a man living in open concubinage with another woman would be confirmed as a guardian for his stricken spouse. But given the typical attitude that anything goes and anything is acceptable in sexual matters, this open concubinage is granted the cultural cover of "privacy" and made irrelevant to the legal proceedings. That is the same cover of "privacy" that first justified the explosive marketing of contraceptives in the sixties and which was extended to justify abortion in the seventies.
Without a moral consensus, judges can't be trusted to make the right decisions regardless of the procedure followed. That is why more and more laws will be passed restricting the discretion and powers of judges. Moral relativism makes for bad judges. So restrictive laws must step in to recognize that cultural reality. When a culture loses its moral bearings, trust disappears. And so does real authority.
Thursday, March 24, 2005A New Kind of Martyr
Terri--or, better, to use her very Catholic full name Theresa Marie--is a new kind of martyr. We usually think of martyrs as those dying for confessing their faith. Theresa Marie is being executed by starvation because she dares to live in a condition that many find repulsive. Our society looks at her and is reminded of what can happen to any of us at anytime and of our inevitable rendezvous with physical suffering and disability. As a good friend of mine told me last night, we want to exile suffering from view and hide it. We want an antiseptic environment in which pleasure and good times are fine, but in which suffering is censored and taken out of existence.
[Updated in light of comment below:] So Theresa Marie dares to live in her severely disabled condition, and for that she must go, even if it means starvation. She is a martyr to the Culture of Death for daring to live as she is. There are many such potential martyrs. Every disabled person, every seriously ill person provokes the disdain of the Culture of Death. The martyrdom of Theresa shows how deep the tentacles of the Culture of Death have reached. When you can't even muster a majority of 12 appellate judges to block having her starve to death, a fate contrary to the age-old concepts of equity and mercy found in the Western legal tradition, we know that the Culture of Death, like the prince of this world, has great power and reach.
The Vatican has called for a "collective mobilization" to protest this unnecessary death by starvation. The martyrdom of Theresa Marie is a watershed moment in the cultural civil war that our country has now been in for decades. In the Acts of the Apostles, Paul and his converts were so bold that the persecuting mob referred to them as those who turned the world upside down (Acts 17:6-7). We must turn upside down the world created by the Culture of Death. We are all targets. We are all likely, sooner or later, to fit the mode of life that society cannot bear to witness. We are all on the road to this new martyrdom.
Should we be surprised? Shocked yes, always shocked at evil in the guise of civility and legality. Surprised, no. If absolutely healthy babies are killed routinely in the womb through abortion, then it is natural for the Culture of Death to kill those who are severely disabled. Remember the many aborted babies who are utterly and completely healthy. Physicians kill new and fully healthy life. They will kill older and disabled life.
And Satan, the father of lies, is at work seeking to prop up this shame. One reader sent me a Newsweek article by a Boston College Jesuit "bioethicist" defending the starvation of Theresa because her care is too burdensome. He misrepresents Church doctrine by saying that the correct analysis is to distinguish between what is burdensome and what is not burdensome. That alleged distinction is so vacuous that it is merely a fig leaf for genocide at will.
The real distinction, as authoritatively set forth in the Catechism of the Catholic Church, is between extraordinary care and ordinary care. The Catechism makes clear that "the ordinary care owed to a sick person cannot be legitimately interrupted" (Catechism, 2279). If food and water are not ordinary care, then nothing is "ordinary care"; and we have a blank check to kill at will based on someone somewhere opining that a particular individual is just too "burdensome" to justify care. My friends, some people find just about anything too burdensome; and we have learned in the judicial proceedings of the Schiavo case that you can find plenty of judges to agree with just about anything proposed to them.
The Culture of Death has deeply penetrated our courts and Boston College and even our religious orders. Don't look to the media for guidance, don't look to the urbane mainline liberal Protestant denominations for guidance, don't look to judges for guidance. Look to Rome. Rome has spoken: Theresa is being murdered. It is the abortion of an adult.
Wednesday, March 23, 2005Judge Wilson's Dissenting Opinion: Equity Means "Mercy and Practicality"
Below is the link to the dissenting opinion of Judge Charles Wilson of the 11th Circuit Court of Appeals arguing forcefully for feeding Terri Schiavo while the legal issues are sorted out. Click this link and scroll down to page 11 of the PDF document where the dissenting opinion begins. Judge Wilson rightly focuses on the obvious powers of equity of the court to consider the "qualities of mercy and practicality" in this case.
Martyrdom and Legal Positivism
I usually agree with conservative Washington Post columnist Charles Krauthammer, who, by the way, is not a Christian. Today, he writes in effect that the killing by starvation of Terri Schiavo is immoral, but that the law must take its course. The only solution he offers is that laws be amended to favor guardianship decisions by those close relatives who favor life. I am deeply disappointed in that analysis.
We should be long past the point where imperfect and defective laws are allowed to dictate an immoral and terrible outcome. Such bending of the knee to law is idolatry of the worst kind--even worse than the idolatry of pagans who at least mistakenly thought they were bending the knee to something divine. But many in our society insist on bending the knee to law even though it is the obviously imperfect creation of imperfect and yes, even corrupt, legislators. The fancy term for all of this is "legal positivism," the view that the dictates of the law must be followed at all costs regardless of morality. Legal positivism made the Nazi project of Hitler possible in a highly cultured country like Germany. Legal positivism--the mania for legalities as ends in themselves--is now making America the scene of a Nazi-like execution by starvation of a life deemed unworthy of life.
Laws are made to be interpreted and mitigated by equity. Equity is a concept as old as law itself. Equity seeks to use mercy and common sense to make laws fit reality. There has been no equity thus far in Terri's case. Instead, a so-called modern and enlightened society that prides itself on human rights bows like a group of primitives before the idol of the letter of the law at the expense of an innocent human life that is indeed worthy of life. So the suggestion that state guardianship laws must be amended is apt, but Terri still must give up her life by cruel starvation because legislators couldn't amend it in time for her situation. This scenario is irrational, primitive, and fetishistic. It makes of the law a fetish, not a tool of civilization.
The higher law is agape, self-sacrificing love. This Holy Week we are seeing enacted the spectacle of an innocent young woman--whose full name is the very Catholic name of Theresa Marie--being sacrificed on the altar of the paganism that is Legal Positivism. She is a martyr. She will be remembered as a martyr, and people will venerate her sacrifice in some way. I would not be surprised in the least that a Terri Schiavo monument/shrine takes shape in the near future. I certainly would support its construction.
The parallel has already been drawn at another website where I saw the characters of the Holy Week narrative given their modern equivalents in this case. Most of the judges involved have played their role as Pontius Pilates to the tee--except for those judges dissenting in the recent 11th Circuit decision. The Pilates have washed their hands of mercy and justice and leaned on their fetish for safe unimaginative legal routine. As promised in Scripture, God will give them the same measure they measured out to Terri. The liberal pundits screaming for the death of Terri are the same mobs that jeered and mocked Our Savior on the cross. When we read the passion account this week, you can put very real faces and names among the mob shouting for crucifixion.
It is a stunning moment. The United States is on the verge of completing the legally-sanctioned murder by starvation of an innocent person because of the technicalities of a flawed Florida law on guardianship. It is inane, irrational, barbaric, and primitive. If this unnecessary sacrifice on the altar of legal technicalities goes forward, we should all shudder for our country.
Tuesday, March 22, 2005Terri Appeals to 11th Circuit in Atlanta
The denial of relief from the Florida federal district judge was no surprise. The telltale signs were there. First, the late hour of the hearing at 3 p.m. yesterday, which was extraordinarily unconscionable given that Terri has now been starving since Friday. Second, the even more unconscionable and cruel overnight delay in issuing a decision. Any lawyer will tell you that it is routine for a Temporary Restraining Order or "TRO" to be issued in circumstances that are far less serious than these in order to "freeze" the situation in place while the court examines the issues more closely. The district judge here inexplicably did not issue a TRO, but took, in my view, a cruelly languid approach to deciding the case.
In addition to the cruelly slow manner in which this court proceeded, we already knew from news reports that the district judge was a Clinton appointee. Put the failure to issue a TRO, the strange delay, and the Clinton background together, and it was clear that the decision would likely not favor Terri.
So it is no surprise that we are at the next step: appeal to the 11th Circuit Court of Appeals located in Atlanta (see CNN.com). This appeals court is the one that oversees federal courts in Florida and also in other nearby Southern states. From news reports, I gather that the 11th Circuit is already considering a constitutional argument on behalf of Terri. Pray that the 11th Circuit will issue an immediate stay to stop the starvation, while the legal issues are argued. We are all seeing up close on cable TV how our legal system works. It is not pretty.
Update: The great political economist and social commentator Thomas Sowell has a good column on the matter, brought to my attention by Powerlineblog.com. The phrase "cruel and unusual" also haunts Sowell's mind. Here is the Sowell link.
Monday, March 21, 2005Good Source for Terri News: Fr. Rob Johansen's Blog
Fr. Rob Johansen of Michigan is closely involved in efforts on behalf of Terri Schiavo. Visit his blog to keep updated. As of 5:35 p.m., the federal hearing has ended; and we are waiting for a ruling. Why we are still waiting is beyond me.
Rome Calls for Feeding Terri Schiavo
Here is the A.P. link to the Vatican's call for the starvation of Terri Schiavo to end. It is all coming to a head during Holy Week--an apt time to reflect on the dignity of the suffering.
The Third Branch is Falling
The usual liberal Democratic pundits are as usual pounding their heads about procedural issues instead of addressing the moral substance of the Terri Schiavo case. They can't address the moral substance of the right to life and of the cruel and unusual nature of death by starvation because they refuse to think in moral categories. For them, everything is allowable and doable, as long as some respectable veneer of legality can be superimposed. The Catholic and Christian view, on the other hand, logically and wisely focuses on the substance of laws and affirms for all to hear that an unjust law or court decision is no law, is no court decision, and is unworthy of implementation.
The complaint is that Congress overstepped its bounds by passing a bill to have the Schiavo case go to federal court. Well, when a Florida state court acts irrationally, as has been documented on this site and many other places, somebody has to step in. Congress did that last night, and the President signed the bill to give Terri a reprieve at 1:11 a.m. (see Foxnews.com). This moment reaffirms how great it is to have a pro-life Republican Congress and a pro-life Republican President. John Kerry and company would have washed their hands of the whole matter. Add to that Pilate-like group most of the Democratic Party.
When courts act irrationally, their authority slips away. And citizens and legislators will of course pursue other means of justice. The third branch, the judicial branch, is cracked. It is falling. Authority evaporates when irrationality takes over. Judicial robes and august courtrooms become like the false facade of the Wizard of Oz with no power to awe anyone anymore. If the third branch wants to repair itself, then judges had better start acting rationally. If not, they will be checked. No one gets a free ride, not even the judicial system.
Sunday, March 20, 2005Palm Sunday of the Lord's Passion: Matt. 21:1-11 (Jesus' Entry into Jerusalem); Isaiah 50:4-7; Phil. 2:6-11; Matt. 26:14-27:66 (The Passion)
Today's main Gospel reading centers not on the triumphal entry into Jerusalem with branches strewn on the road but on the Passion. In the Passion account, we hear the call individually: to stretch forth our own arms between heaven and earth as Christ did and take up our own cross in complete self-abandonment to the will of God. John Paul II's motto is Totus Tuus ("All Yours"), emphasizing his devotion to Mary. We can make it our own motto in abandonment to the will of God in our own lives in imitation of Mary and her Son.