We concede that Terri's hopes for recovery lie in miracles only. We concede that the law has been (as far as we can tell) properly followed, the appeals properly adjudicated, that, in short, the law gives to Michael Schiavo, and the those operating as his agents, final authority over Terri's life.

We concede these things but still say: it is an unspeakable injustice. For what, in the end, have we thereby conceded? Only that some conditions are not curable; and that the law can be used to perpetrate wickedness, such as the murder of the innocent. Who will deny these things?

What is left is to judge whether wickedness is indeed being perpetrated here. For that I submit two statements, one factual, the other logical. (1) As Mr. Luse says, “a permanent vegetative state is not a terminal disease.” (2) If it is true that all of Terri's higher cognitive functioning has been destroyed — that she is bereft of personality, comprehension, awareness, etc. — then it is also true that she has no “autonomy” that can be violated. Some people seem inclined to argue the absurdity that she has lost all the features of her humanity (as they understand it) except for this vital thing autonomy, which for others to transgress would be a fate far worse than death.

The sudden veneration for the law that has sprung up among Liberals is a somewhat perplexing thing. Even the most sullen reactionary will not deny that there is truth in Saint Augustine's dictim that an unjust law is no law at all. That a thing is legal does not mean that it is right. Not long ago the television was full of images of various local magistrates defying duly enacted law to “marry” homosexuals, and not a word of protest from the legalists of the Left. Five years ago, also in Florida (as John Fund points out), the Left was happy to endorse the Federal Administration ignoring court orders to send a boy back to Castro's little prison state, and, again, not a word of protest from the legalists of the Left. Like I said, perplexing.

But not so perplexing when one realizes that these cases, like the Schiavo case, have been so vexing precisely because they go to the heart of the old tremendous questions: who we are as a nation, our character and destiny as a people organized for action in history.

First, shoot the lawyers.

Terri’s diagnosis was arrived at without the benefit of testing that most neurologists would consider standard for diagnosing PVS. One such test is MRI (Magnetic Resonance Imaging). MRI is widely used today, even for ailments as simple as knee injuries — but Terri has never had one. Michael has repeatedly refused to consent to one. The neurologists I have spoken to have reacted with shock upon learning this fact. One such neurologist is Dr. Peter Morin. He is a researcher specializing in degenerative brain diseases, and has both an M.D. and a Ph.D. in biochemistry from Boston University.

In the course of my conversation with Dr. Morin, he made reference to the standard use of MRI and PET (Positron Emission Tomography) scans to diagnose the extent of brain injuries. He seemed to assume that these had been done for Terri. I stopped him and told him that these tests have never been done for her; that Michael had refused them.

There was a moment of dead silence.

“That’s criminal,” he said, and then asked, in a tone of utter incredulity: “How can he continue as guardian? People are deliberating over this woman's life and death and there’s been no MRI or PET?” He drew a reasonable conclusion: “These people [Michael Schiavo, George Felos, and Judge Greer] don’t want the information.”

Or this:

Dr. Cranford was the principal medical witness brought in by Schiavo and Felos to support their position that Terri was PVS. Judge Greer was obviously impressed by Cranford’s resume: Cranford travels throughout the country testifying in cases involving PVS and brain impairment. He is widely recognized by courts as an expert in these issues, and in some circles is considered “the” expert on PVS. His clinical judgment has carried the day in many cases, so it is relevant to examine the manner in which he arrived at his judgment in Terri’s case. But before that, one needs to know a little about Cranford’s background and perspective: Dr. Ronald Cranford is one of the most outspoken advocates of the “right to die” movement and of physician-assisted suicide in the U.S. today.

In published articles, including a 1997 op-ed in the Minneapolis-St. Paul Star Tribune, he has advocated the starvation of Alzheimer’s patients. He has described PVS patients as indistinguishable from other forms of animal life. He has said that PVS patients and others with brain impairment lack personhood and should have no constitutional rights. Perusing the case literature and articles surrounding the “right to die” and PVS, one will see Dr. Cranford’s name surface again and again. In almost every case, he is the one claiming PVS, and advocating the cessation of nutrition and hydration. [. . .]

In cases where other doctors don’t see it, Dr. Cranford seems to have a knack for finding PVS. Cranford also diagnosed Robert Wendland as PVS. He did so in spite of the fact that Wendland could pick up specifically colored pegs or blocks and hand them to a therapy assistant on request. He did so in spite of the fact that Wendland could operate and maneuver an ordinary wheelchair with his left hand and foot, and an electric wheelchair with a joystick, of the kind that many disabled persons (most famously Dr. Stephen Hawking) use. Dr. Cranford dismissed these abilities as meaningless. Fortunately for Wendland, the California supreme court was not persuaded by Cranford’s assessment.

There has been a good deal of grumbling from some Conservatives about Congressional meddling, the integrity of the judicial process, federalism, etc., etc. I confess that I have trouble reacting to this attitude with any more than contempt. The refusal to allow diagnostic measures that are routine for people with mere lower back pain; the refusal to allow recommended therapeutic care; an influential expert witness who regards people who can operate wheelchairs as “persistently vegetative” — yes this is precisely the justice system that we Conservatives just must preserve. O melancholy day! — that such effusions of judicial wisdom might be blocked by the Congress! Oh, what horrors we will have committed against our precious federalism if the rulings and opinions of these sages are contravened by the national legislature!

What substantive due process is, is quite simple, the Constitution has a Due Process Clause, which says that no person shall be deprived of life, liberty, or property without due process of law. Now, what does this guarantee? Does it guarantee life, liberty or property? No indeed! All three can be taken away. You can be fined, you can be incarcerated, you can even be executed, but not without due process of law. It’s a procedural guarantee. But the Court said, and this goes way back, in the 1920s at least, in fact the first case to do it was Dred Scott. But it became more popular in the 1920s. The Court said: there are some liberties that are so important, that no process will suffice to take them away. Hence, substantive due process.

Now, what liberties are they? The Court will tell you. Be patient. When the doctrine of substantive due process was initially announced, it was limited in this way: the Court said it embraces only those liberties that are fundamental to a democratic society and rooted in the traditions of the American people.

Then we come to step three. Step three: that limitation is eliminated. Within the last twenty years, we have found to be covered by Due Process the right to abortion, which was so little rooted in the traditions of the American people that it was criminal for two hundred years; the right to homosexual sodomy, which was so little rooted in the traditions of the American people that it was criminal for two hundred years.

So it is literally true, and I don’t think this is an exaggeration, that the Court has essentially liberated itself from the text of the Constitution, from the text, and even from the traditions of the American people. [more]

There is first some background that must be set forth; and this background is a point which the author insists on, with great cogency and evidential support, throughout his magnificent work.

To understand the creation of this great empire and the establishment of Islam, it is necessary to always bear in mind that Levantine nations are constituted on a different principle from Western nations. Both are nations, both are groups which enjoy connubium and constitute in the minds of their members a natural grouping of men. Both usually have or seek a political entity of their own. But where Western nations are always territorial and are never coterminous with a religion, that is, they share a religion with other nations of their society or embrace more than one sect among their own people, or both, a Levantine nation is the group of people belonging to the same church. In a Western nation, church and state are always separate institutions. However intimately they may at times have been involved with each other in common enterprises or in bitter hostility, they are always to Western men two utterly distinct manifestations of human life and action. They could no more be fused in the religious thirteenth century than in the agnostic twentieth. [. . .]

On the other hand, no Levantine nation ever existed with a separate church and state. There was never a spiritual sovereign comparable to the pope in the Orthodox Church. As long as the Byzantine Empire lasted the emperor was the head of the church, and the apparatus of state and church were indistinguishable.

Here is a fact that we must never lose sight of, a thing which differentiates us profoundly from the civilization which has been our neighbor, our rival, our enemy for all these many centuries.

But to return to the question of why Byzantium fell so rapidly to Islam, we must note two reasons that are largely obscure to us because we are so intransigently ignorant of things theological and religious.

First, Byzantium was already fractured grievously by the internal disputes of the Christians. The Orthodox Church had driven from its ranks two great factions or heresies: the Nestorians, and the Monophysites (I will leave aside the specific theological character of these heresies and simply record that they were Christological in nature); and these factions, true to Levantine principles, had become whole nations unto themselves. To the Nestorians and the Monophysites (both of which are largely unknown in the West because after their break with Orthodoxy they moved farther east or south) Byzantium was an alien nation, or more properly, they were alien nations residing within Byzantium: little substates within the larger Byzantine Empire. To the Nestorians and the Monophysites, Byzantium was Orthodoxy, and thus they owed her no loyalty; indeed, many of them were quite hostile to her. So to the triumph of Islam, they were indifferent.

When, therefore, a new sect appeared in the world of politics and government in the seventh century, it created anew a situation to which this society had been long accustomed. To the Jews, Nestorians and Monophysites, it meant nothing. They had been nations with substates of their own under the Byzantines and the Sassanids. Their states and nations were not being attacked merely because the Arab armies invaded the territories of Byzantium and Persia. They shifted readily from being substates of the old territorial sovereign to being substates of the new.

The implications of all this for us could scarcely be more significant. It might be that Muslims residing in the West are inassimilable not because they are Muslims, or least, not merely because they are Muslims, but because they are the sons and daughters of a civilization which rests on an entirely different principle of nationality than ours — a principle of nationality which knows nothing of our territorially expansive nations and is perfectly comfortable with the idea of an alien (and perhaps hostile) nation residing within a larger and stronger one. Such a nation cannot commit treason in the strict sense against the larger state because it is not part of the larger state.

This is all complicated immensely by the fact that Westerners, in our late decadence, are abandoning our principle of nationality in droves. The intellectual leadership of both American political parties is, at base, settled on the “open borders” ideology which is the obliteration of the territorial principle of nationality. Europe is even farther advanced in this decadence. The current leadership of the Republican Party is closer to the United Nations in its national idea than it is to the borders, language and culture patriotism of its base in the red states. In short, the West is hacking at its roots.

The other reason that Byzantium succumbed to Islam I will not belabor: Islam arose as a Christian heresy. To the people of the Byzantine Empire, Islam did not appear, as it does to us, as the mysterious and menacing other; it appeared, rather, as a new sect in an old controversy over the nature of God and His action in history. Whether Islam subsequently became a “new” religion is immaterial to the fact that most of the men of the Christian East did not see it as such. It was of their own culture, and it did not (initially at least) greatly alter the conditions under which most men lived.

Update: I have edited this post to clarify a point and correct an error.

For the neocons, as for liberal and leftist ideologues generally, history consists of only two periods of time: our own time, which is enlightened and free, and the time before our time, which was a pit of darkness, superstition, and tyranny. The whole of pre-modern Western civilization is thus thrown into the trash bin. The formation of Christian European nations out of the ruins of the Western Roman empire; the Carolingian Renaissance; the birth of free towns and cities and the growth of a middle class; the High Middle Ages and its extraordinarily flowering of religion, art, and literature; Magna Carta; the development of the English common law — the pre-modern West was not only a great civilization in itself, but the matrix out of which our modern world, including our notions of liberty, grew. Wilson, for ideological purposes, reduces it all to “authoritarianism.” Since we went from “authoritarianism” to “freedom” the moment it was “offered” to us, he argues, the Moslems will do likewise.

Mr. Auster has put his finger on precisely what makes me so uneasy about the rhetoric prevalent on the American Right: supporting the project of transforming the Middle East (a project which certainly has much to recommend to it) seems to entail also condemning to the blackest corner of opprobrium all the organic civilization that preceded us. But I really am open to the argument that the pre-modern West was not merely, as Auster has it, “a great civilization in itself,” but indeed a civilization greater than our own. I really am quite fatigued with the progressive theory of history that underlies all this, as if every innovation were perforce an advancement, every blow against our ancestors a glorious emancipation. If to really support President Bush, we must learn to scorn all the men who came before us and made us what we are, or at least acquiesce in that scorn, then we have been offered a poison pill; and I will not swallow it. Islamic democracy can rot for all I care, if in supporting it I must come to despise Christian democracy as it existed in the Middle Ages.

To arrive at a sentence of death for a given criminal requires that a polity take several very deliberate steps — steps of the kind generally acknowledged to denote or at least suggest a republican form of government. (1) A legislative assembly of the citizens’ representatives must consider, debate, and enact a law which prescribes such a punishment in a certain narrow range of heinous crimes. (2) A jury of the defendant’s peers must weigh his guilt in light of evidence and arguments, in a court of law, deciding ultimately that it is beyond reasonable doubt. (3) A jury or judge must hand down a sentence of death, after considering further arguments and evidence. (4) The defendant will likely plea his case in a series of appeals to higher courts, and these appeals must fail before the criminal is finally executed.

One would like to think this is sufficient. One would also like to think that it is fairly clear that there is a time during which distinctly political pressure should be brought to bear on this question: the time when the question of capital punishment is formally taken up and considered by the people’s representatives. It is then that sociological opinions should be weighed. It is then that “The Eighth Amendment’s prohibition against ‘cruel and unusual punishments’ must be interpreted,” as the majority opinion puts it; and indeed, by all means interpreted “according to its text, by considering history, tradition, and precedent, and with due regard for its purpose and function in the constitutional design.” In a republic, it is then that we as a people should reflect on questions such as, also in the words of the majority opinion, whether, “The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character”; or whether is it true that, “When a juvenile commits a heinous crime, the State can exact forfeiture of some of the most basic liberties, but the State cannot extinguish his life and his potential to attain a mature understanding of his own humanity”; or whether it is also true that, “The overwhelming weight of international opinion against the juvenile death penalty is not controlling here, but provides respected and significant confirmation for the Court’s determination that the penalty is disproportionate punishment for offenders under 18”; or whether indeed “The differences between juvenile and adult offenders are too marked and well understood to risk allowing a youthful person to receive the death penalty despite insufficient culpability.”

It is not, in point of fact, a difficult question of political philosophy to ask, “Professor, in a republic, who governs?” I trust that readers are sophisticated enough to recognize that the answer is not, “a majority of the Supreme Court.”

Justice Scalia’s acerbic dissent, as usual, is the best commentary on the risible unreason behind many of the majority’s arguments.

Worse still, the Court says in so many words that what our people’s laws say about the issue does not, in the last analysis, matter: “[I]n the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.” Ante, at 9 (internal quotation marks omitted). The Court thus proclaims itself sole arbiter of our Nation’s moral standards — and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures. Because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent.

Here he points out that the “evolving-standards” rule undercuts much of the logic of the majority’s own decision:

If the Eighth Amendment set forth an ordinary rule of law, it would indeed be the role of this Court to say what the law is. But the Court having pronounced that the Eighth Amendment is an ever-changing reflection of “the evolving standards of decency” of our society, it makes no sense for the Justices then to prescribe those standards rather than discern them from the practices of our people. On the evolving-standards hypothesis, the only legitimate function of this Court is to identify a moral consensus of the American people. By what conceivable warrant can nine lawyers presume to be the authoritative conscience of the Nation?

Elsewhere Scalia scornfully dismisses the sociological and psychological arguments marshaled in the majority opinion: “In other words, all the Court has done today, to borrow from another context, is to look over the heads of the crowd and pick out its friends.” And: “Though these cases are assuredly the exception rather than the rule, the [sociological] studies the Court cites in no way justify a constitutional imperative that prevents legislatures and juries from treating exceptional cases in an exceptional way – by determining that some murders are not just the acts of happy-go-lucky teenagers, but heinous crimes deserving of death.”

Scalia’s dismantling of the Court majority’s reliance on foreign law for its reasoning is a particularly impressive thing to behold. He notes that on half a dozen issues dear to the heart of the Court’s majority — evidentiary rules, the Establishment Clause, abortion — the United States is out of step with the rest of the world, but the Court remains, in these cases, “oblivious to the views of other countries.” In short,

The Court should either profess its willingness to reconsider all these matters in light of the views of foreigners, or else it should cease putting forth foreigners’ views as part of the reasoned basis of its decisions. To invoke alien law when it agrees with one’s own thinking, and ignore it otherwise, is not reasoned decision making, but sophistry.

Scalia’s presence on this absurd and unruly Court is bittersweet. I’m glad we have him there, prepared expose the tiresome gauze that the Court’s regular majority uses to conceal the wounds it inflicts on republican government; but it is thin gruel indeed to know only that a few able republicans remain in this house of despots.