Next, on the charges of judicial homicide:
The madness was so elemental that we heard judges called murderers just because they were applying the law. Even by the low political and ethical standards of the day, this surely was the cheapest shot of them all, uttered by opportunistic politicians and religious leaders who know an easy target when they saw one.
Terri Schiavo was not murdered by judges or anyone else. She was not the victim of "judicial homicide," as one particularly odious religious leader suggested last week. She was allowed to die pursuant to valid state and federal law, interpreted fairly and consistently by state and federal judges. If this was "murder," then every execution in this country is murder; every life sentence without parole is murder; every judicial decision approving a request for the denial of medical treatment theoretically would be murder; every homeless person who dies as a result of a lack of welfare would be "murdered."
The charge is a blood libel against judges. And the politicians and spiritual leaders who leveled it, in unglued moments of passion and cynicism, or even those who merely have allowed it to stand unchallenged, ought to be ashamed.
A small quibble: Those who oppose the death penalty on principle, myself included, (as opposed to those who oppose it only because of its fallibility) do believe that every execution is state-sanctioned murder. While life without parole also is a death sentence, it's harder to argue that the mere imposition of the sentence is murder, since there is no affirmative act of killing.
Next Cohen uses the famous quote from former Supreme Court Justice Louis Brandeis:
"Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example ... ."
As an aside, Andrew covered the McVeigh trial. The same quote, which is from Brandeis' dissenting opinion in a 1928 wiretapping case, Olmstead v. United States,277 US 438, was what Timothy McVeigh chose to read aloud to the Court at his sentencing hearing - a hearing at which he was sentenced to death.
"If the Court please, I wish to use the words of Justice Brandeis dissenting in Olmstead to speak for me. He wrote, 'Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example.'
"That's all I have.
August 14, 1997.
Andrew, like most analysts during the trial, didn't favor McVeigh's use of the quote.
"He is using a dissenting opinion in a 69-year-old case to justify an illegal act," said Andrew Cohen, a Denver lawyer and trial commentator. "He is pulling a final trick on us. I think he is trying to use the system - and an eminent jurist - to say that once the government becomes a lawbreaker it teaches all of us to be lawbreakers and anarchy follows."
Was McVeigh merely referring to Waco or making a larger point about governmental misconduct? In this 1998 essay written from his prison cell, McVeigh again uses the quote to explain his view that U.S. bombing of Iraq targets would be wrong.
McVeigh. Schiavo. Illegal wiretaps. Do they have anything in common? This writer opines that the message of the Brandeis quote is that we cannot countenance misconduct by government officials who attempt to use judicial processes or judicial review as a means of usurping powers not granted by the Constitution. That should encompass legislators as well as police, and certainly it then applies to the Terri Schiavo case.
For better context, here is the entire paragraph of Justice Brandeis' dissent that contained the quote:
"Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means-to declare that the government may commit crimes in order to secure the conviction of a private criminal-would bring terrible retribution. Against that pernicious doctrine this court should resolutely set its face."
It truly is one the most powerful quotes ever.
[comments now closed, thread hijacked.]
