Right Reason: The Right to Live and the Right Reference Class: Part II:The Schiavo judges have done basically the same thing that the Supreme Court did in Roper. Instead of ruling on the facts, they have ruled on what the facts should be. There is no strong evidence that Schiavo wanted her feeding tube removed, but the judges have decided that she probably would have because so many others of her reference class do. The Supreme Court ruled by appealing to a consensus regarding the death penalty for minors, not on the existing law and the original intent of the Constitution.
... it is disturbing to find cases of this kind, when individual self-determination is supposedly taking place, when one's 'right to make one's own decision' is trumpeted as the crucial legal matter, but when, in fact, judges bearing the power of life and death are influenced by broad reference-class considerations in deciding what the individual would have wished. I hope and pray that I--with my atypical opinions and desires on many such issues--am never at the mercy of such a legal system. [emphasis mine]
This kind of judicial decision making is a tyranny of the majority even when that majority is the one of your own reference class. How offensive this would have been to our founders! Democratic governance is noble, but rule by majority is frightful.
1 comment:
We were talking about this today and the other half of this blog had some good comments. I sure hope she posts them. Anyway, one point that came up was that I am wrong to call it rule by majority. As I pointed out here, the Supreme Court did not rule by majority opinion. Instead, they decided what the right opinion was and then constructed, badly, an argument that made it seem like that was the majority opinion. Schiavo's court did basically the same thing.
So, it is not even as good as a tyranny of majority. It is just plain tyranny. A few Liberal-minded judges are using bad reasoning to define what the majority opinion is and then an appeal to the false idea that majority opnion is the prime governing idea.
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