by Brooks A. Mick, M.D.

Much has been claimed about the duty to protect life established in the Constitution of the United States. At least Rush Limbaugh has been blathering on about such in the past couple weeks. Don’t get me wrong, I like Rush, have been a fan for 11 years now, and seldom miss at least part of his show. And 98% of the time, I agree with him.

But having already taken him up on one claim about Article 3, documented elsewhere on this site, I thought I’d check up on the “life” bit. Sticking to facts and being logical is a dirty job, but somebody has to do it. I have been vilified by the left wing for years, and the libertarians disowned me in 2001 after I stated that the war on terrorism, wherever it lead, was a justified application of national defense. And now, having pointed out that the Republicans are behaving abominably, abandoning their basic principles, and falling all over themselves to perform unconstitutional acts regarding Terri Schiavo, the pseudo-conservatives have disowned me. Heck, I may have to start my own political party.

But to return to “life” and the Constitution: If one pulls up the Constitution on the internet and then searches for “life,” one finds that word used only once, and then to comment on bills of attainder, not to justify any protection of life. That is, the supreme law of the land does not establish a process to protect life other than indirectly by limiting certain actions of legislatures which might serve to put particular lives at risk such as prohibiting ex post facto laws or bills of attainder.

As we all should have memorized long ago in school, though modern children are not required to do so much anymore, another document, the Declaration of Independence does mention rights such as “life, liberty, and the pursuit of happiness.”

And I would submit that, indeed, the point could be made that our legal system has developed in order to protect life (as much as that is possible) precisely because “life” and “liberty” are NOT naturally occurring rights, but rights which MUST be protected by law. Life has, until recently, been brutally hard everywhere, and still is in much of the world, and liberty has always been in very short supply. It is hard to see how the Founding Fathers concluded they were naturally occurring.

But since liberty was such a rare commodity, it is not strange that liberty and freedom are protected much more obviously in the Constitution than is “life,” which is not mentioned as specifically protected at all. Our Founding Fathers were rather clearly libertarian, concerned much with freedom, with limiting the scope of government, with preventing government from reaching imperial, totalitarian extremes, and to do this, they set the three branches of government in opposition in many ways and separated the functions of government, explicitly an attempt to prevent any branch from gaining the ascendancy and allowing a tyrannical regime to develop.

Some now say, with good reason, that the judicial branch is out of control, has usurped the functions of the other branches such as creating de novo legislation and ordering actions a la the Congress and the President, respectively. I agree wholeheartedly. But the remedy is not to turn the President into a dictator, able to ignore the Congress and the courts at his discretion, nor is it to forget the constitutional restrictions on ex post facto laws. Both actions have been presented as possible and desirable during the Terri Schiavo wrangling. Worse, the Congress knuckled under and actually attempted such a law, one designed to ultimately reverse a ruling of state and federal courts, though couched in less explicit language. It would have, however, completely abrogated the state court decisions, ordering a “de novo” hearing. That is, the state rulings were to be tossed out. This would have been a recipe for chaos, as it would have destroyed the authority of the state courts, eventually, if such actions persisted. Claiming that the legislation would “not set a precedent” was bizarre in itself, as other cases would surely follow demanding equal protection.

Worse would have been President Bush, a la Clinton and Reno with the Elian Gonzalez case, ignoring court rulings and imperially enforcing their own contrary positions.

Republicans need to stop, take a deep breath, take a step back, and think: Do we want to follow the precedent of William Jefferson Clinton? Did we not think that his handling of the Elian Gonzalez case was atrocious?