Terri and executive power

March 22, 2005
David Quackenbush
Declaration Foundation & Declaration Alliance Senior Scholar

The case of Terri Schiavo is disturbing at a constitutional level, because -- although both the governor and the legislature have determined that court-ordered starvation contravenes Terri Schiavo's basic rights, given the circumstances -- yet many are acting as if the only word to be spoken on these deep constitutional matters is that uttered by the courts.

But this is a deep error regarding the nature of republican self-government.

Separation of powers

Have we forgotten that we have a separation of powers, that judicial orders are not self-effectuating, and that the other two branches have both a responsibility and an obligation to see that the Constitution is rightly respected?

Each branch has a responsibility to respect the Constitution and our nation's laws, but the executive has a particular responsibility to respect the Constitution and laws in the press of events as they occur.

Bear in mind that the judicial branch is concerned primarily with preserving justice -- the correspondence of our lives to the Constitution and the laws -- in the past. The judicial branch is primarily retrospective.

The legislative branch is concerned primarily with prospective justice -- conceiving and enacting laws that will perfect the society's pursuit of justice in the future.

But the executive is pre-eminently concerned with ensuring that the political community respects the law, the Constitution, and the fundamental principles of that Constitution, in the only moment that really exists -- the present. The executive acts, he does not judge what has been done, or consider what should be done in the future.

If the executive deems that something is occurring now -- whether by mandate of the court or not -- that violates that basic premises of the Constitution, he is bound by his oath to take action. Acting is what executives do.

The matter of Terri Schiavo

Right now, Terri Schindler-Schiavo is being deliberately starved. Thus, the Florida executive, Jeb Bush, is bound by his oath to act now in accordance with his conscientious understanding of what the Constitution and the laws of Florida require, because the judge in the case has no executive power.

We have forgotten that among the powers that are separated is the power of the execution of the law, reserved to the executive. The notion that judges' orders are self-executing is a dangerous notion that violates the whole understanding of the separation of powers.

There are reasons that the power of executing the law is restricted to one branch of the government. Among those reasons are considerations of efficiency and effectiveness. But above all, the power to act is concentrated in the executive so that the people can concentrate their vigilance on the executive.

The covert assumption of the executive power by the judiciary in the Schiavo case has become an ideal example of the judiciary's continuing assault on the moral sense and sensibility of our people, an assault that continues, in this case, in contravention of the will of the people as expressed in Florida in the state legislature, by the governor, now by the Congress of the United States.

With that in mind, Jeb Bush has the perfect right and obligation to act to prevent this violation of Terri Schindler-Schiavo's basic constitutional rights, and to do so in such a way as to prevent what amounts to judicially-mandated murder. And I hope that he will understand that responsibility and act, while the Congress and the legislature continue to take the steps that they can, to try to make sure that this does not continue.

The citizens of Florida, and of the United States, should support Governor Bush by encouraging him to exercise energetically his constitutional responsibility to take care that the laws be faithfully executed.

Judicial dictatorship

Unfortunately, in the Schiavo case, the judiciary has set its face against what the society, the people, the legislature, and the Governor believe is constitutional right. The question is, "Do the judges get to dictate, in an instance like this, what shall be our understanding of basic rights and moral requirements?"

The answer to that question is "no." No branch of government gets to dictate what the outcome will be, by itself, in America.

And in this particular case, with the other branches ranged against them, the judges actually have no power or authority, and it is the executive who can act. Governor Bush needs simply to intervene, to protect this woman's life, to look the court in the eye and say, as President Andrew Jackson did, "You've made your ruling. You enforce it." They can't enforce it, of course, because they have no executive power to do so.

When judges act in a way that contravenes the conscience of the executive, they forfeit the cooperation of the executive -- and that is how the Founders intended it to be. It is about time that the executive reasserted that truth of our constitutional system, and Florida would be a great place to start. The courts do not get to act like little tyrants, in this country.

We are supposed to have a system based on three equal branches, and yet what we are seeing in this case, as in many others, is a judicial dictatorship, where the will of the people as represented in the majority in the legislature, in the duly elected executive in the governorship, is having no efficacy whatsoever to protect the rights of this individual.

Keeping things in perspective

Some conservatives might be concerned about urging the executive to act against a court order, because of a laudable concern to limit executive power. But our Founders understood that the place to limit executive power was in its illicit exercise, not its essential and necessary exercise. As we contact our leaders in this case, it is very important to show understanding of the fact that we acknowledge that they have an independent responsibility under the Constitution of both Florida and the United States to act in defense of basic constitutional integrity and rights.

Conservatives must urge Jeb Bush to take action, so that Terri Schindler-Schiavo will not be starved to death by the courts, because he has sworn an oath to uphold the Constitution and laws of Florida. This woman has a positive right, under the Florida constitution, to defend her life, and that right is being utterly disregarded, and destroyed -- and Governor Bush knows it.

Given his oath as an executive, Governor Bush has a distinct and clear responsibility to defend Terri's constitutional rights in this case, regardless of whether any court is willing to do so, because he, as The Executive, is a separate and equal branch, and must be governed by his own will and conscience when it comes to his oath.

Governor Bush co-equal

The notion that the judge makes the law, and that whatever the judges say is the dictate that the rest of us must follow, does not apply to the other branches of government which are co-equal with the judiciary, and which can and must pass in review the judgments made by the judiciary, in order to see whether they pass constitutional muster.

Governor Bush obviously feels that the action of the Florida courts has not passed that muster, and should the federal court review likewise fail to do so, he has a duty to act, in order to defend what he believes to be the constitutional right in this case. And we, the people, ought to be contacting his office and letting him know that we support him in that duty.

 CALL GOV. BUSH at 850-488-4441, or e-mail him by clicking here.

They that wait upon the Lord shall renew their strength. —Isaiah 40:31