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Monday March 21, 2005

Vernal Equinox

The Schiavo matter will be settled one way or another, and so far as I am concerned there is little more to discuss. I do want to make something clear: I do not question an individual's right to make a living will, or to exempt himself from the protection of the state in these matters. I do insist that the default, absent clear expression of intentions, is that the state has the duty to protect the life of a helpless citizen, and not to be party to facilitation of measures to kill a citizen.

Let us take two clear examples. One: a husband is found to have walled his wife up in a tomb, where she did languish and die from starvation and thirst. He insists that she told him she wanted him to do that, that she insisted on it, and that she insisted that he pay no attention to any pleas that she had changed her mind. I think we would have no problems in this case: the man is charged with willful murder, and I make no doubt a jury would convict him.

We may now dilute this, up to and including witnesses who heard her tell him to do that, and signed and witnessed documents to that effect, and we move into areas where it is not so very clear.

A second example: a woman is comatose for ten years, kept alive only through a heart/lung machine. Every physician consulted says that there is no chance of recovery. The husband states that she had told him she did not want to "live" like this, and produces documentary and third party evidence of that intent. Her parents continue to have hope and insist that the extraordinary measures be continued. No one would want the duty of adjudicating between these interested parties, but it is pretty clear what the decision will be.

We may now dilute this: no witnesses, no documents. Now take away the heart/lung machine. She is no longer comatose, but responsive to some stimuli. There may or may not be attempts to speak, sometimes dramatically: an attorney says "Do you want to live?" and the patient becomes agitated and makes loud if meaningless sounds, seemingly in response to the question. At this point the outcome is no longer so certain. That is the situation here.

Taking away the presumptive right to life, absent clear and unambiguous reasons to do so, is a very serious matter; and while the steps from that to "quality of life" decision by boards of physicians and ethicists may seem long and arduous to some, I can see how they might be very short and quick. From "her husband doesn't think her life is worth living" to "we don't think her life is worth living and it sure is expensive to keep her going" is not such a giant step as all that.

Which ends the matter for me. Bryan, a lawyer whose opinions I respect although I often disagree, raises the Federal/State matter and I have included that, but absent some new arguments in this case I see no point in continuing the discussion here.

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Sue Ferrara, Ph.D. and homeschooler, makes interesting points in the education discussion. Education reform is a matter of importance on which the views of this forum may have some impact.

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Free Course Materials available. Do not miss this.

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Tuesday, March 22, 2005   

 

PROCUREMENT: The U.S. Armys Blank Check

From http://www.strategypage.com/fyeo/howtomakewar/default.asp?target=HTPROC.HTM March 18, 2005   

March 18, 2005: The U.S. Congress has caught on to how the Department of Defense is using up to 20 percent of the money, earmarked for Iraq or Afghanistan operations, for regular operations and special projects. In particular, the U.S. Army, which is getting most of this "Supplemental Appropriations," is using a lot of it to finance a transformation and reform program. Actually, a lot of the transformation efforts the army is paying for with the Iraq money is unavoidable. Congress is under lots of political pressure to "support the troops", keep casualties down and win the war. This means trying new ideas, and new equipment. The army was already working on lots of new ideas, and equipment, before they invaded Iraq in 2003. Now the army has what amounts to a blank check, and they are using it. Congress, however, is also worried about ideas, especially expensive ideas, that don't work. Right now, all you have to do is shout, "don't you know there's a war going on," in order to get what you want. But a lot of these bright ideas are not working. No surprise there, that's what happens when you try anything. But as the war in Iraq dies down, the investigative reporters will be out looking for recent examples of "wasteful military spending." There will be plenty of procurement-gone-wrong to jump on. Now every bright idea works, and you don't find out what works, and what doesn't, until you try it. The successes, everyone can stand around and salute. But the failures will make a lot of reporters famous and rich.

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I am informed that there is corroboration of Terri Schiavo's wishes, namely that she said, at a funeral, that she wouldn't want to "live like that" and was heard by witnesses. I have also received passionate defenses of the good intentions of the husband. Both I think are nearly irrelevant: remarks at funerals are not formal declarations of intent; and her husband's intentions are not the matter at issue here. In any event I have no reason to change my views of the principles as I stated last week.

There is an issue of popular sovereignty. The Florida Supreme Court has, unsurprisingly, ruled the the legislation empowering the Governor to preserve Shaivo's life unconstitutional on the grounds of "separation of powers." Their notion of separation of power is judicial supremacy.

Were I Governor Bush I would order the state police to conduct a National Guard physician to reinsert the tube, deliberately defying the Florida Supreme Court's assertion of supremacy and sovereignty in the state of Florida. The resulting Constitutional Crisis would be illuminating.

It would seem to me that when courts -- those holdovers of Royal arbitrary power -- decide to defy the "political departments" they must be on very solid ground. I do not think their judicial supremacy reasoning is very solid. Courts are at most equals in the separation of power; they have no automatic claim to residual Royal Sovereignty. That, I would think, was firmly established in 1648 and again in 1688 in England; and again in 1776 in the United States. For good or ill, legitimacy in go0vernment in these United States comes from the consent of the governed, and that consent is most commonly expressed by Congress and the state legislatures. Courts exist to "interpret" laws, and since Marbury v. Madison have asserted a right, unknown in the letter of the Constitution, to nullify Federal laws. This is not one of those powers necessary to government, and it has been defied before. Holmes once said that the stars would not fall from the Heavens if the Supreme Court did not have the power to nullify Federal laws. (He then added that Federal judicial power over State legislation was entirely another matter.)

I find this case interesting in that those asserting state sovereignty are not those who usually give a fig about such.

My views on Schiavo's medical condition and the likelihood of her even partial recovery are not relevant. My proclivity is with President Bush, that it is better to err on the side of life rather than death, and I find that consistent with the whole matter of government by consent of the governed; but I also find it astonishing that so many would rally around the judiciary in defiance of the state legislature when there is no clear constitutional principle (other than judicial supremacy) at stake. I do not believe that judges have any special powers not granted by legislation; I do not believe that the intellectual heirs of the 0ffice-seekers and courtiers who surrounded the King and toadied to his wishes inherited any Royal sovereignty; and if it comes to a showdown on which is sovereign, judiciary or legislature, I side with the legislature. And this despite a romantic streak: I certainly prefer Prince Rupert to Cromwell, and I can sing the old songs about Bonnie Prince Charlie with the best of them.

I doubt that Governor Bush will do it; but this is one constitutional crisis that perhaps ought to be provoked, reluctant as I am to have matters come to such loggerheads. Legislative supremacy ought to be exercised with restraint, and executive defiance of the judiciary ought to be even more so; but  Judicial Supremacy is not a principle worth defending.

=========

Now HERE is news:

http://www.theaustralian.news.com.au/common/
story_page/0,5744,12471871%255E2702,00.html

 Digestion pill to end diabetes diets
Clara Pirani, Medical reporter
March 08, 2005: RESTRICTIVE diets for millions of Australians with diabetes and gluten intolerance may soon be a thing of the past after the development of a new pill.

The pill, taken 20 minutes before a meal, improves intestinal function, makes foods easier to digest and allows sufferers to eat food that would normally make them ill. "It is very exciting," said Bob Anderson, a gastroenterologist at the Royal Melbourne Hospital. "It's the first drug that is being promoted as being useful in coeliac disease."

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"America goes not abroad in search of monsters to destroy." John Quincy Adams

"Why not?" William Kristol and Robert Kagan

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Wednesday, March 23, 2005

It is now five days. If a young woman were trapped in a cave, and we were unable to discern the extent of her injuries, would we arrest people attempting to feed her? Today's papers have long articles on how humane it is to let people die of thirst and starvation, including rulings by courts. I suspect the same courts would rule unanimously that this method of execution is cruel and unusual punishment. Perhaps in future it won't be. We could even employ it as appeals on death sentences were made, thereby saving expenses while giving a sense of urgency to the proceedings. Judicial supremacy fosters some odd results.

I can imagine Harry Truman faced with this situation. I can also imagine how different it would be if Terri were black. The 82nd Airborne would be in that hospice now.

====================

I haven't given much thought to the ebook reader situation in a while. Lisabetta, my TabletPC, serves as very good reader, about as heavy as a hardbound, but able to store thousands of books, and readable in the dark as well as by day. But there are other such gadgets; one wonders about the experience. See mail.

 

 

 

 

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Thursday, March 24, 2005

It is now six days. What would Andrew Jackson have done?

In his Reflections on the Revolution in France (1790), Edmund Burke, the Irish philosopher and statesman, describes his disappointment in how the French thought of Marie Antoinette, their Queen: I thought ten thousand swords must have leaped from their scabbards to avenge even a look that threatened her with insult. But the age of chivalry is gone. That of sophisters, economists and calculators has succeeded; and the glory of Europe is gone forever.

Thomas Paine said that Burke pitied the feathers but forgot the dying bird. Perhaps so. Perhaps.

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Black Coaches in N.B.A. Have Shorter Tenures

 http://www.nytimes.com/2005/03/22/sports/basketball/22coaches.html

Racism, of course. Another black coach fired. At least the New York Times seems to think so, but the the NYT, being a wholly owned subsidiary of the racism industry, sees racism everywhere. An odd way to run a newspaper. I don't know a lot about basketball and coaching but I would have thought decisions were made more on the basis of wins and losses?

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I am not in favor of the Americans With Disabilities Act, but assuming it valid law here is an opinion from a disabilities attorney.

http://www.slate.com/id/2115208/

Not Dead at All
Why Congress was right to stick up for Terri Schiavo.
By Harriet McBryde Johnson
 

Her thrust is that Schiavo has rights under the ADA; Federal rights, enacted in law, enforceable under Federal Law, with pains and penalties and damages for violating them.

I suspect that the doctors who removed that tube are subject to one hell of a lawsuit under the ADA; as well as being charged with murder by the County Grand Jury, there is a Federal Civil Rights under ADA lawsuit to come. I would not care to have been that physician, who must plead "I was only following orders." One wonders: if the judge had ordered him to shoot her, would he have followed that order?

Once Schiavo is dead the lawsuits can begin. We will not see the last of this for a long time.

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And then we have:

http://www.theempirejournal.com/35052_schiavo_judge_tells_dcf.htm

Schiavo Judge Tells DCF, FDLE, Gov. Bush No Protective Custody By The Empire Journal

"The law of this case is that she will die..I don't want anyone trying to feed that girl", Florida probate court judge George Greer thundered from the bench in 2001.

The Pinellas County death judge who acted in contempt of Congress by defying a federal subpoena designed to save the life of the Terri Schindler-Schiavo issued an order Wednesday afternoon saying that anyone giving the disabled woman treatment that will save her life is breaking the law and will be held in contempt of court---including Florida Gov. Jeb Bush, Florida's Department of Children and Families, Florida's Department of Law Enforcement and apparently, even President Bush.

County probate court judge George W. Greer issued his order after Gov.
Bush and the state's Department of Children and Families (DCF) filed a petition to take the 41-year-old mentally handicapped woman into protective custody as they are statutorily empowered to do.

 

I would not myself care to be that judge. But if Governor Bush intervenes with state police it could precipitate a useful constitutional crisis over the extent of authority of the courtiers.

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As I went shopping for ingredients for Greek salad, I heard the feeding frenzy of talk shows. John and Ken are railing about some physician they claim "the lunatic right wingers" are citing; as if impeaching the credentials of someone I never heard of had anything to do with the situation. And another physician from the Mayo Clinic is "one of those rabid professional right to life types" according to John; which again seems to be all that is necessary here. Impeaching credentials is enough.

Well, if that's the case, the husband's credentials are certainly impeached: he is an admitted adulterer and his living with another woman and fathering two children with her is certainly grounds for divorce in Florida or any other state in the Union. The only reason she is not divorced is she can't bring the action, and her guardian -- is her husband, who isn't going to bring the action for her. Fascinating. Of course we cannot know if she would choose to divorce him, but we do know he is not a disinterested party in that action.

Well, it likely doesn't matter to anyone but her parents. Her chances of recovery are very low, and if her problem was originally brought about by an eating disorder -- the exact nature of that has yet to be made clear to me, although there may be physician readers who understand that -- she is certainly the victim of an eating disorder now; and deprivation of food and water for 7 days cannot be very good for her condition or have any beneficial effect. There never was any real chance that she would recover, of course.

She is unfortunate. She is a white female Catholic innocent of any crime. Were she Black, or Hispanic, then she would have her defenders and the more her brain damage the more insistent the ACLU would be on defending her rights. As it is, she has no one to defend her but some people who actually believe in law and justice and are not raising a rebellion in her aid.

Esmerelda had her beggars as defenders. But she was hanged quickly even so. Along with her goat.

 

 

 

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Friday, March 25, 2005

Good Friday

I write this with pen on Lisa Betta  my TabletPC. It's easier than you suppose, but Capital Letters creep in. Pardon My German.

I am at Kaiser for dermatology having heard Good Morning America give us the wisdom  of Kevorkian from his prison cell. We needed that: the fascination with death continues. We have become a post-pagan Society. We believe in luck and talismans and shamans but there is little left among the chattering classes of what used to be the values of the Society.

Why Dr. Death? But of course he is to be Consulted, the man who told us that if Christ had died in his van, it would have been with dignity. We Needed that as a Good Friday message. And in fact perhaps we did Need the reminder. If life is no more than The swirl of The atoms then no Swirl is very important, and there is No great value in any one of us. Certainly Not in a mere husk.

 Several of you have asked why I seem to have it in for Schiavo's husband. I do Not and I have considerably more sympathy with and for him than it may Seem. But. He is not a disinterested party and there iS No jurisdiction that would Not grant Terri a divorce if he asked for one in her Name. He has another wife and two children and he evidently wants to Legitimate that marriage. Why he has Not done so is Not Known to me, but that he has Terri's interest at the fore is Not obvious.

He may believe he has more obligation to his wife's wishes than to her living parents. why? If she be dead then it hardly matters if the parents feed the Corpse. If she be alive, she does not deserve execution by thirst.

The presumption seems to be that death has more rights than life. Kevorkian was rightly Consulted, I guess. Who knows more about the joys of death?

================

I see thus Apple settled with the engineers who Leaked the OD to the web, but the details were Not released. This is probably just as well, although I remain curious.

========

Back home, with a hole in my face that ought to heal soon enough. If you are not using Sun Block, do so. Now. I will wait.

==========

To reiterate the principles here:

1. The presumption is or should be that husbands do not have the right to kill their wives by starvation, nor to hire others to do so, and that their statement that the wife wanted to die is not sufficient to grant them immunity from killing the wife or hiring others to do it.

2. Legislatures make law and are the usually presumptive agents for expressing the will of the people and the consent of the governed. Judges interpret law and apply it to cases, but they are not presumed to be supreme or sovereign.

3. Legislatures which make law may make exceptions to that law, and the prohibition against ex post facto law and bills of attainder is intended to prevent punishment, pains, and penalties: not to prohibit the legislature from awarding prizes, or seeking to exempt someone from pains and penalties. The legislature could retroactively abolish the death penalty, as an example.

4. There is neither a legal nor a moral compulsion to keep someone alive using extraordinary means, and certainly not so when they have expressly and unambiguously indicated wishes to the contrary.

5. It is an established and accepted maxim that no man should serve as judge in his own cause: those with substantial interests in a case should not judge that case.

Now for particulars:

Had she left an unambiguous documentary statement of her preferences in these circumstances, Terri Schiavo would have been gone years ago. While some dispute the "right to die", most do not, and the legislature would not have acted in the face of unambiguous evidence. Moreover, were she comatose the matter would be long over, and the legislature would not have acted.

The Legislature of Florida decided that the Governor could intervene in Terri's behalf. The courts have ruled otherwise on principles not made clear in their decision, other than an assertion of judicial sovereignty.

Mr. Schiavo has acquired a second wife and two children, and this would be grounds for divorce in Florida.

The only evidence we have that Mrs. Terri Schiavo would not seek a divorce is her failure to file one: but that decision is in the hands of an interested party.

The opinion polls say most Americans want Terri Schiavo to die and get it over with. This has reduced the support she might have had from the political entities of the nation.

It was considered appropriate by at least one major network to seek the opinions of Kevorkian on this matter.

It is Good Friday.

None of this matters in one sense; but those who rejoice in the present resolution of this matter may discover precedents to regret at a future time. It is very easy to undermine the notion that life ought to prevail over convenience, particularly when dealing with the burdensome helpless. It is not so easy to restore it.

If the price of continuing the preference for life over death is that those who have not made unambiguously clear their preferences in the matter may be kept alive despite their preferences, that is the price.

 

 

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Saturday, March 26, 2005

It is amazing how vehement people can be in their determination to starve what they must consider a corpse. The one good thing that may come of all this is that people will consider the situation and leave unambiguous instructions; and possibly that state legislatures will make clearer what is and is not considered treatment as opposed to normal sustenance; and perhaps we will rethink our requirements for evidence of intentions in matters such as these. 

It is also astonishing that the sole legal means of termination of the terminally ill seems to be starvation and dehydration, which we are assured is not painful, but which means we are forbidden by law to apply to animals in our care. Perhaps so: but it is odd that judges can order someone terminated by dehydration, but not by an overdose of morphine, or by exsanguination since we wouldn't want someone to get high and risk addiction.

It will all soon be over in Florida. For Terri Schiavo it was probably over many years ago: why call her back from Heaven (or oblivion)? So we establish that the duty to a corpse trumps any concession to the feelings of the living. The harm done to society by allowing her parents to undertake the almost certainly futile task of bringing their daughter back to life is, we are told, far too great; we can't let them try lest the rule of law be shattered.

Odd: if she were sentenced to death, there would be no doubt that the governor had the power of reprieve.

Happy Easter to all.

 

 

 

 

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Sunday, March 27, 2005

Easter Sunday. Happy Easter

Next week we go back to technology and civilization, which I may know something about, and leave the more narrow aspects of politics to others. However, political decisions have a way of sneaking up on you, and having relevance in places you didn't expect. But I will agree that we have put too much emphasis on the subject recently.

I can't stop looking at technology and political impacts, but then anyone who expects me to has long abandoned this place...

====

The day has been long. Happy Easter.

 

 

 

 

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