Trashing the law to save Schiavo

In arguing that Jeb Bush should ignore the courts and seize Terri Schiavo, the religious right turns its back on two centuries of American law.

By Tim Grieve
Published March 25, 2005 6:05PM (EST)

Partisans on the religious right have already blasted through the Republican Party's faith in federalism and its commitment to small government in the race to save Terri Schiavo. Next up on their demolition list: Two centuries of constitutional law.

In 1803, Chief Justice John Marshall created the model for judicial review in the United States. Although the Constitution vests the "judicial power" in the Supreme Court, the Constitution doesn't say where the judiciary's power begins and the executive's ends. In Marbury v. Madison, Marshall answered that question. He wrote: "It is emphatically the province and duty of the judicial department to say what the law is." That guiding principle of constitutional law has survived for 202 years, but it won't outlive Terri Schiavo, at least not if William Bennett, Alan Keyes and others on the religious right have their way. In arguing that Florida Gov. Jeb Bush has the legal authority to seize Schiavo and re-insert her feeding tube, Bennett and Keyes have advanced a theory of executive power that is breathtakingly extreme even judged against the standards set by the Bush administration.

In separate essays, Bennett and Keyes argue that, regardless what any court says, Jeb Bush has not just the authority but the legal duty to seize Schiavo if he believes that her constitutional rights are being violated.

Keyes -- who could be dismissed as a radical fanatic more easily if the Republicans hadn't promoted him as a candidate for the U.S. Senate just a year ago -- argues that the executive and legislative branches of government "must retain the right to challenge and reject the opinion of the judiciary when it conflicts with their own considered judgment respecting their branch's constitutional rights, responsibilities and obligations." If Jeb Bush or any other chief executive believes that a court decision "conflicts with constitutional provisions as to his powers and prerogatives, or those of the legislature, or those of the people," Keyes says he must take action to "give primacy" to whatever he happens to believe the Constitution requires.

Keyes tries to dress up his argument in democratic terms; he says that, when a "substantial majority of the people regards a judicial determination as an unlawful abuse or usurpation of power, they are not obliged to acquiesce out of respect for the mere form of legal judgment." The problem for Keyes: A "substantial majority" of Americans think the judicial determinations in the Schiavo case have been exactly right. In their National Review Online essay, William Bennett and Brian Kennedy acknowledge that the public might not react well to a government kidnapping of Terri Schiavo. No matter, they say: The courts have failed Schiavo, and "it is time for Governor Bush to execute the law and protect her rights."

"Using the state police powers, Gov. Bush can order the feeding tube reinserted," Benett and Kennedy write. "His defense will be that he and a majority of the Florida legislature believe the Florida Constitution requires nothing less. Some will argue that Gov. Bush will be violating the law. We think he will not be violating the law, but if he is judged to have done so, it will be in the tradition of Martin Luther King, Jr., who answered to a higher law than a judge's opinion. In so doing, King showed respect for the man-made law by willingly going to jail (on a Good Friday)."

Bennett and Kennedy say that Bush "may have to face impeachment" over a decision to seize Schiavo, but that he doesn't have any choice in the matter. If the people of Florida disagree with Bush's actions, "They are indeed free to act through their elected representatives and impeach him. Or they can vindicate him if they think he is right. But he should not be cowed into inaction  he should not allow an innocent woman to be starved to death  because of an opinion of a court he believes to be wrong and unconstitutional."

"Cowed" into complying with a court order? There's another way to say that. It's called obeying the law -- something that Republicans like Bennett used to think was pretty important.

Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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