Skip to comments.TERRI SCHIAVO: VICTIM OF AN UNCHECKED, UNBALANCED JUDICIARY
Posted on 03/28/2005 4:43:47 AM PST by syriacus
When the faithless husband, Michael Schiavo, his "right-to-die" lawyer, George Felos, the ACLU and their political allies are celebrating Terri Schiavo's imminent death as a triumph for the Constitution and the separation of powers, it's time to turn to the Federalist Papers for proof that they are utterly wrong.
And it's there.
In the Schiavo case, the judiciary alone has sentenced Terri Schiavo to death.
One the case was heard by ONE judge.
All the appellate judges hear only appeals.
Not the case.
And Terri's constitutional right not to be sentenced to death without the approval of a jury of her peers was ignored.
As well as her right not to be subjected to cruel and unusual punishment.
Terri is about to die in a way that the judiciary would not permit Osama bin Laden to be executed.
Was THAT what the people who drafted and ratified the Constitution wanted?
Or authorized? No!
In Federalist No. 78, Alexander Hamilton explained the purpose of judicial independence:
"The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing."
The judiciary needs to be able to void "bills of attainder, ex post facto laws, and the like."
To protect people.
Not to sentence a person to death without a jury trial.
And not to block the executive from commuting the death sentence.
Hamilton explained that the judiciary was thought to be "the least dangerous" branch of government:
"Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.
"This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers." And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security." (Emphasis added.)
In the Schiavo case, however, the judiciary is the ONLY dangerous branch of government.
It has grasped the sword it is not supposed to wield, figuratively speaking.
And Terri Schiavo and her family have become very oppressed individuals.
In their case, liberty DOES have something to fear from the judiciary alone.
The Florida legislature and the Florida governor do not support the Florida judiciary in its deplorable determination to have Terri Schiavo starved and dehydrated to death.
Neither does Congress.
Or the President.
BUT, despite the opposition of both the legislative and executive branches at both the state and federal levels, Terri Schiavo is about to die a horrible death.
James Madison earned his title: "Father of the Constitution."
He kept notes on the Constitutional Convention and wrote most of The Federalist Papers.
Including No. 48.
The theme of which is...The Departments of Government should not be so far separated as to have no constitutional control over one another.
Judicial tyranny was no more acceptable than executive or legislative tyranny.
In No. 48, Madison wrote:
"IT WAS shown in the last paper that the political apothegm there examined does not require that the legislative, executive, and judiciary departments should be wholly unconnected with each other. I shall undertake, in the next place, to show that unless these departments be so far connected and blended as to give to each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained.
"It is agreed on all sides, that the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments. It is equally evident, that none of them ought to possess, directly or indirectly, an overruling influence over the others, in the administration of their respective powers. It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it...."
In No. 51, Madison or Alexander Hamilton (it is uncertain which) eloquently summarized the problem: "If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. "
Leaving the judiciary uncontrolled was NOT the plan.
And Judge Greer fancies himself an "an angel" of death.
------ Email: GaynorMike@aol.com
This case ought to be the start of reining in these runaway courts. Just because you wear a black robe doesn't mean you can't be confronted about decisions you make. Why are politicians afraid of them????
In essence, a bunch of ass clowns. All these judges who turned down these appeals deserve NO respect!
I rarely disagree with my father in regards to politics, but I'm usually somewhat to the right of him when it comes to a lot of the reasons that cause us to come to the same conclusions.
On the Terri Schiavo case, we disagreed... not on her right to life, but on the intended powers of the judiciary, and the powers of the executive and legislative branches.
My father is a lawyer, and a good man. He does sit on the bench from time to time as a judge, when the courts are short and need someone to fill in for when a judge is on vacation. Because of this, I believe his perspective has been narrowed to the reality of the situation.
I however am not a lawyer (at least not yet anyway), and I don't have the inside perspective, and many years of experience that would embed certain habits and thoughts to color my perspective.
I have studied government. I have read the Florida Constitution... the parts that pertain to the powers of the governor and the statutes that cover guardianship.
What our country currently suffers from is a lack of perspective. A lack of perspective encouraged by the entrenchment of law into our everyday lives. Contracts for just about everything govern how we shop, pay our bills, go on vacations, and every other detail of life that we can partake in. It should be a required course in high school... Contract law. It really is quite enlightening.
But that isn't really the whole problem.
The lack of perspective permeates our judicial system, our elected governments, and our homes because we have been conditioned to accept the courts' authority over law enforcement.
When I suggested to my father that the governor could ignore a court order, he said that it could not be done. I still disagree with him. So long as the executive branch and legislature are in accord, the judicial branch would be powerless to hold the governor in contempt. As the commander in chief to the Florida National Guard, and the head of all county and state law enforcement officers, the governor would be required to enforce the contempt of court order on himself, and why would he do that?
So why didn't Jeb Bush challenge the court by ignoring their court orders?
Simply because he couldn't.
It is a matter of insufficient precedent to make a radical departure from the current perspective, to a new perspective that ironically would take America several steps backward in perspective to a time when the judiciary was exactly as described by Hamilton.
The result is an entire legal culture that treats the courts as if the courts, not the executive branches of governments, hold the power to enforce the law and the judicial decisions.
It is long past time for the executive branches in the states to reclaim their duly assigned powers under their constitutions, but it is entirely up to us to support this movement by electing strong, conservative governors - and the legislatures they'll need to back them up when it comes time to face down the judiciary.
In the mean time, getting strict constitutionalists and strict interpretationists appointed to our courts is just as important because we'll need these people in place to affirm the separation of powers, returning the power of law enforcement to the executive branches, and in cases where our judges are overruled or out numbered, to write the dissenting opinions as to why the liberal, activist judges are wrong to oppose affirming the constitutional assignment of law enforcement powers to the executive branches.
Yes they both did. They both passed and signed into law the statute that lets a person's feeding tube be removed. This was in 1999.
Fellow Freeper starsandstripes sent me a timeline email that contained the following:
Statute 765 revisions of 1999. Someone commented that Statute 765 seemed to have been intentionally revised in 1999 for Terri's case. Terri is being held at Woodside Hospice, part of the Hospice of the Florida Suncoast. Michael Schiavo's attorney, George Felos was once on the Board of directors of the Hospice of the Florida Suncoast and was also once chairman of the hospice.
Although George Felos lied and misled the public that he had left the hospice at the time he took Michael's case, it turns out, from examining public records that he did not leave until 2001. In 1998, Felos filed a motion in Judge Greer's court to remove Terri's feeding tube.
In 1999, statue 765 was revised to redefine what a terminally ill patient was, and changed the law to withdraw nutrition hydration from a patient in a persistent vegetative state who had no advanced directives.
This is the real "Terri's Law." And no one is talking about it. I am certain it will not be repealed; instead it will be modified to allow a more merciful form of death.
That's good!!!! *~*
It is clear that measures need to be taken to reign in the judiciary.
First and foremost, Congress and the several states should enact civil rights legislation which provides that no court can take any action which results in the death of a human being (or at least a U.S. citizen) without a jury trial.
There was a reason the nobles back in the day of the Magna Carta insisted on jury trials as a right in criminal matters, and there is a reason the right got extended to all of us by the Constitution. There is a reason the right is applied to many civil suits. And the same reason applied with equal force to cases like Terri Schiavo's: judges are agents of the state and as such are dangerous to liberty and to life itself. It turns out judges are self-corrupting, so the nobles' worry about judges being agents of the Crown and thus 'corrupt' from the point of view of defending their (the nobles') rights applies even to an 'independent' judiciary as relates to our rights.
Second, laws constituting and governing our courts need to be amended to define certain classed of judicial actions as misconduct and grounds for impeachment. For good measure (since we can't make the law ex post facto and impeach Greer or the judges up the line who backed him on the basis of a new law) the law should also forbid the use as precedent for future judicial decisions all past decisions which the law would define as misconduct.
I like your way of thinking.
The ultimate goal of the ACLU, George Felos and Gerald Kogan, former chief justice of the Florida State Supreme Court is
Physician assisted death.Even though he says Terri is not suffering, Felos knows that people suspect that Terri is suffering. Felos knows that people will clamor for a way to exit life more quickly and less painfully.
Felos is "Terri-fying" people.
- James Madison, Federalist Paper 51
...Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. This may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpations by force...
- Alexander Hamilton
Federalist Paper 81: The Judiciary Continued, and the Distribution of the Judicial Authority
The Federalist No. 51
The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments
...If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions...(snip)
In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself...(snip)
...In republican government, the legislative authority necessarily predominates...(snip)
Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger...(snip)
---- James Madison
26,183 on 3/28/05 at 9:08am central time
26,108 on 3/28/05 at 8:26am central time
26,089 on 3/28/05 at 8:18am central time
25,977 on 3/28/05 at 6:29am central time
I'm not a lawyer. I don't even have any lawyers in my family, but I agree with most of what you say. On parts I am undecided, thus I have no opinion to contribute.
Good food for thought. I have much to learn. I'm glad I've bookmarked this thread.
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