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"Indeed, the rage of theorists to make constitutions a vehicle for the conveyance of their own crude, and visionary aphorisms of government, requires to be guarded against with the most unceasing vigilance."
     -- Joseph Story
     Commentaries on the Constitution of the United States
     Book III, § 1857.

Friday, March 25, 2005

My browsing took me to yet another site (deliberately unlinked) complaining about Congress's intervening in the Schiavo matter "for political gain." No sale: If it's the right thing to do, the members are entitled to that "political gain" from doing it; if not, it's not the "political gain" that impeaches it.

-- posted by Clayton 3/25/2005 01:18:00 AM | comments (0)

The Corner notes Ralph Nader's entry into the Schiavo mess.

It can't be comfortable for them. The knowledge that Nader agreed with me upon any point would be sufficient cause for me to re-examine the whole schmear from the ground up, looking for any errors I might have committed.

-- posted by Clayton 3/25/2005 12:38:00 AM | comments (0)

Thursday, March 24, 2005

This, by way of the Corner, where the slugfest continues:

There is a genuine dispute as to what Ms. Schiavo believed and expressed about life with severe disability before she herself became incapacitated; certainly, she never stated her preferences in an advance directive like a living will.
And any question upon that point, according to Florida law, is for the courts to determine, and they have done so.
If we assume that Ms. Schiavo is aware and conscious, it is possible that, like most people who live with severe disability for as long as she has, she has abandoned her preconceived fears of the life she is now living.
It's also possible that she has been screaming inside for going on two decades, now. What's your point?
We have no idea whether she wishes to be bound by things she might have said when she was living a very different life.
And also no reason to suppose she has changed her mind. She has no mind.
If we assume she is unaware and unconscious, we can't justify her death as her preference. She has no preference.
She is not confined to the present tense in this regard.

-- posted by Clayton 3/24/2005 08:29:00 PM | comments (0)

Wednesday, March 23, 2005

Since it's all anyone is talking about, here we go: Terri Schiavo. It's depressing, the number of ordinarily sensible persons who have turned into foot-stomping whiners over this one. See the Corner for a lot of them gathered in one place, just barely restraining themselves from calling each other's mammas names. Not, mind you, that there's anything special about the Corner in this regard: It's serial tantrums no matter where you look.

No matter how anyone chooses to act about it, and no matter how much pouting he threatens to do otherwise, there is no single controlling legal or philosophical authority to decide this matter. There are enough mutually contradictory premises floating around among all the debating parties -- not to mention in each and every one of them -- that about the only outcome that would not find some widely accepted supporting authority would be feeding her into a plastic shredder. Ya wanna bitch about Congress enacting a special bill? about Congress intruding upon the functions of state law and state courts? Every part of the authority Congress would need for such a thing is already conceded in the passage and upholding of measures restraining protesting in the vicinity of abortion clinics. Ya wanna bitch about Congress intruding directly in the care and feeding of Terri Schiavo? interfering in the practice of medicine? Every part of the authority Congress would need for such a thing is already conceded in the establishment and continuation of the FDA. Ya wanna bitch about Congress and the Federal courts looking into the personhood of Terri Schiavo? Every part of the authority they would need for such a thing was handed down from the Mount in Roe v. Wade. Ya wanna bitch about the courts at all levels flagrantly defying the law and the coordinate branches of government in favor of trendy outcomes? Every part of the authority they would need for such a thing is already conceded in (insert decision here). Ya wanna bitch about Congress issuing a grotesque and pointless subpoena just for the pleasure of grandstanding at a freak show, not caring who else they screw over in the meantime? Every part of the authority they would need for such a thing is already conceded in (insert congressional inquiry here).

On the other side: Sometimes, ya know, it just happens, those who are discovered to have the authority to make decisions the calamitous effects of which fall upon others, turn out to be really shitty persons. It is not a requirement, for the exercise of their undoubted authority, that everyone else weigh and approve the purity of their motives; all the overblown vituperation heaped upon Michael Schiavo is beside the point. Whatever else may be said of Terri Schiavo's viewpoint now or in the past, she obviously, at one point or another, approved enough of her husband's judgment that she married him, thus handing him this authority he now seeks to exercise, under the supervision of Florida's courts, as set down in Florida law. Ya think Michael Schiavo is lying? that his serving up personalized hearsay years after the supposed fact is just a tad too facile and convenient? The authority to weigh and decide upon those points belongs to those courts, whether the bench be filled with shitty persons or not. Ya think the law is wrong, and ought to be changed? The authority to weigh and decide upon those points belongs to the legislatures, no matter how bad the reek from collecting so much shit in one place. Pay attention: There is no such thing, and can never be such a thing, as self-operating law; the good character of those having power under the law will always be important. If ya fill yer families, and yer communities, and yer legislatures, and yer agencies, and yer courts, with shitty persons, the law -- constitutional, statutory, customary, whatever -- is not going to sanitize the result for ya.

Myself, I think the "dump Terri" crowd is just a bit too energetic right now, rushing things as fast as possible with the idea, if the bitch would just die, no one will ever be able to prove their judgment defective after the fact, so it's best to shove her out the door before someone changes his mind. On the other hand, the frenzied efforts of the "keep Terri" crowd have all the stigmata of the straw-grasping appeals customary in the courts long after the actual propriety of a prospective death has been well established.

-- posted by Clayton 3/23/2005 10:27:00 PM | comments (0)

Tuesday, March 22, 2005

Sorry about the dry spell. I've been so furious with the Supreme Court, and especially with that idiot, Justice Kennedy, that I've not had the energy to think about much else, much less write about it, and my fury would not lend the subject the attention it needed.

So, anyway, off to other topics, finally. Bill Quick provides this, taking a swing at, what has gone wrong? Here's his take:

Because the loners, losers, and outcasts in our nation's schools have learned the hard way that "fists and the occasional knife fight," not to mention appeals to parents, other adults, teachers, and school administrators, do nothing to mitigate the rule of vicious bullies in our schools. If you are unlucky enough to become the designated victim of such bullies, you have nothing to look forward to until graduation but torture, humiliation, violence, and fear.

This describes the symptom, not the problem. Here is the problem:

  • It is far more true of children's disputes than of adults', that justice ought to be swift and certain. Childish misbehavior is most properly and sensibly handled in a summary fashion.
  • Those who have the running of schools these days are, by and large, not the kind that ought to be trusted with powers of summary justice; in fact, many of them are unfit to have any supervision -- much less education -- of children whatsoever.
  • The idiotic procedural "safeguards" in which all school discipline is now wrapped make the proper handling of any problem, even with all the good will in the world, so much more costly, in time and effort, than the problem is worth, that the temptation simply to ignore the problem is almost irresistible.
  • The various legislatures have almost completely stripped the schools of any power to deal with children in a sensible manner. The schools are far from being victims in this regard; they actively lobbied those same legislatures to have those powers stripped away.
  • The schools are therefore powerless in the face of misbehavior.
  • And the children know it.

This is merely one manifestation of a much larger problem, which is, the concerted effort by the legal profession, over the last four decades, to eliminate every last trace of official discretion. It is, after all, a very simple argument: If we allow discretion, then it might be used in a discriminatory manner, and we can't have that, can we? So there is no longer any such thing, in this country, as an office of trust; there are only ministers, marching to the courts' dreary procedural tune. As applied to the schools, those procedural "safeguards" are -- literally -- deadly.

-- posted by Clayton 3/22/2005 11:22:00 PM | comments (0)




For the more forensically inclined