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One State, Many Legal Systems

Terri Schiavo's case should not have been decided by Florida's laws and courts.

by James Leroy Wilson
March 31, 2005

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One State, Many Legal Systems

Last week’s column may have taken some by surprise, as I did not mention “Terri Schiavo” at all. The reason I didn’t write about the infamous case is that I didn’t have a take that was both well-informed and unique. All I did was, perhaps, drop hints, not for the first time, that politics is based on control of land, not on control of people. In some ways, the hint is there that, if government is to be run like a business, a case like Terri Schiavo’s ought not have even been addressed by the government.

My personal opinions on the Schiavo case are still rather uninformed and not all that unique. Here are several observations:

1.According to Florida state law and the facts of the case, the actions of the Florida courts appear to be correct. Who among us have never expressed verbal wishes that “I wouldn’t want to live like that?”

2. That said, charges that Congress violated precious principles of federalism are fallacious. First of all, if the Congress, representing the whole people of the Union, deem that one’s state’s laws or magistrates are failing to protect their people’s rights to life, liberty, or property, without due process of law, or the equal protection of the laws, as listed under the 14th Amendment, Congress has the legitimate power to intervene. Whether or not they were correct in doing so may be another matter, but anyone who criticizes Congress for violating federalism here, and then insists that Congress should “save” a clearly unconstitutional program like Social Security, is too stupid and ignorant to even earn the charge of hypocrisy. The Republicans, with their No Child Left Behind Act and attempt to overthrow state medical marijuana statutes, are not hypocrites. They don’t even pretend to respect federalism anymore; at least the Schiavo case provided a Constitutionally-legitimate violation of federalism.

3. The hypocrisy of the Republicans is their anti-life contamination of Iraq with uranium-tipped shells, and their condemnation as “anti-American” anyone who supports a war that violates the Constitution, international law, and Just War Theory.

4. If I had to choose between being alive and unconscious, or alive, awake, yet completely physically disabled, I’d choose the former. Who knows what kind of “life,” or “quality” of life, exists in a vegetative state? As far as we know, there’s at least a chance of contentedness. Being awake, aware, and completely helpless, however, sounds hellish. Does saying this authorize my family, a doctor, or the State to kill me if I became physically helpless?

5. Circumstances change, and so do people’s minds. Visualizing what I’d want in a hypothetical undesirable circumstance may not be the same as what I’d actually want if actually in that circumstance.

6. If Mrs. Schiavo suddenly bursts out, “Help! I’m starving!” (at the time of writing, she’s still alive), what could be done? Would it be only then that Florida Governor Jeb Bush would intervene? Will her husband oblige? Or the Florida courts?

7. Even if all the legal niceties were kosher and the judges fulfilled the written law with utmost integrity, one can’t help but think that the State, through its laws, killed someone.

None of the above “takes” are particularly unique - although for one person to hold to all of them may be somewhat unique. So here’s an eighth, which only partially develops a train of thought and is by no means a complete argument:

8. Terri Schiavo is a Roman Catholic. Her case should have been adjudicated by the Roman Catholic Church.

Now there’s a can of worms!

But the concept is not all that unusual in history. Swedish economist Richard C.B. Johnsson calls it “non-territorial governance” and it prevailed in many places through most of human history. And it could work here.

The logic of the State goes like this:

1. The sovereign “owns” - that is, controls the land by force, and therefore gets to

2. “Legislate and tax” - that is, enslave the people by force.

The sovereign powers of #1 are economic; of #2 ethical. The rise of the “nation-state” system ratified by the Treaty of Westphalia in 1648 after the Thirty Years War pretty much established the tradition that if you control the land, you get to control the people on the land and subject them all to the same laws, regardless of their religion and traditional culture.

This is madness. A Catholic landlord owns, but does not live at, a three-flat that has a Wiccan lesbian couple on floor one, a fundamentalist Baptist family on floor two, and a conservative Moslem family on floor three. Is this Catholic “sovereign” obliged to expel the lesbians based on his own religion? Or is he compelled to expel the lesbians because the Baptists and the Moslems find their behaviors sinful? Or expel the Moslems because the lesbians and Baptists agree that the Moslems are undesirable “potential terrorists?”

No, the landlord wants tenants that respect the rules of the building, which are basically rules against trashing the hallways and rules against noise pollution. This landlord is no more obliged to discriminate here, then if he if was a shopkeeper. Is a Christian shopkeeper obliged to not sell laundry detergent to homosexuals or Muslims on moral grounds?

The purpose of sovereignty is to extract revenue from land. That’s it. That could be from land valuable for its desired natural resources, or land valuable because lots of people want to live and do business there. Sovereignty does not exist to control people, to command them on what is right or wrong. Sovereignty acts only in self-defense, when the economic value of the domain is under attack externally or internally.

Now you tell me: What is there about the Terri Schiavo case that would convince you to live in, or not live in, Florida? The answer: nothing. It has no effect on land values, the health of the economy, the safety of the streets, the cleanliness of the air and water. This difficult case has nothing to do with politics or “good government” at all.

Now, if we divorced the concepts of sovereignty from law, land from ethnicity, economics from religious morality, we could produce a more vibrant picture. Everyone would have to obey the rules of the road, just like they have to obey the rules of the apartment building. The Sovereign would punish murder and theft, and build good roads, so as to make the place an appealing place to live. But the Sovereign would not judge ethically difficult cases, or make “right to die” statutes or punish whatever goes on in our homes. On the other hand, it would not offer civil protection for those who have violated the laws of their own legal, ethnic, or religious backgrounds.

Any number of religions, ethnicities, and business guilds could create their own body of laws. Children would be subject to the laws of their parents until a certain age where they could renounce them and embrace a separate set of laws. Adults could also renounce one set of laws and embrace new ones (although they would be bound by contracts according to the laws they agreed to at the time the contracts were made). As Johnsson says is the historical precedent, the plaintiff would bring charges against the defendant according to the defendants,’ not the plaintiff’s laws.

In a case like Schiavo’s, medical malpractice would be brought against the doctors and/or the hospital according to their own laws. But in the case of removing Schiavo’s feeding tube, the case would be heard by Church authority, as the Church’s laws and ethics would be the one she had, as a member of the church, submitted to.

There is nothing that qualifies a state legislature to make laws of this nature. They have nothing to do with the value and safety of the domain, and everything to do with ethics and religion. And we can’t have it both ways, claiming that we want “Separation of Church and State!” and then turning around and legislating moral and ethical issues that are primarily religious in foundation.

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