Posted on 03/21/2005 12:05:39 PM PST by Wolfstar
Does anyone know if her parents, or anyone else, attempted to get a lawyere appointed to represent her interests? One who could have filed for divorce on the grounds of adultery. That sort of thing is done all the time for children who's parents may not be acting in the best interests of the child.
That may or may not be completely successful, given the previous opinion of this court.
I also don't know why the Schindler's keep pursuing the theory that Terri's religious liberties are being violated. That's just such a weak argument legally. I think it's counterproductive to pursue it at this point.
I think you got it, although the word "restriction" instead of "right" would probably be more accurate when it comes to State and Federal.
Originally, the Federal Constitution only applied to the Federal government. So even though the Bill of Rights said you have freedom of the press, there was nothing in the Federal Constitution preventing New York State from shutting down a newspaper-- although New York had its own Constitution that forbid the State government from doing this.
The 14th Amendment incorporated the Bill of Rights onto the several States. This means that post-14th Amendment New York is prevented by the Federal Constitution from interfering with a free press and that if you believe that they have you can file suit in Federal Court.
As a result if you believe the Federal government has violated your due process rights you sue under the 5th Amendment, and if a State government violates your due process rights you sue under the 14th.
This also creates a situation where Federal due process becomes the minimum standard. A State can grant greater due process rights than the Federal government but never fewer. Same for 4th Amendment searches, and Federal interpretations of the Establishment Clause, etc. (Not trying to say this is good or bad, just the way it currently is.)
OK, fine.
It's not an absolute right, but certain aspects one's privacy are protected by the fourth amendment.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Of course the right is very limited. A reasonable search is permitted, but requires a warrant under most circumstances. IMHO, a search with a warrant is not reasonable if the warrant is served in an unreasonable manner, or if the warrant does not meet the requirement to be particular (that is specific to the individual case, blanket warrants are not allowed). A "defective" warrant that fails to indicate probable cause would also result in an unreasonable search.
I think a better question is where is the power of Michael Schiavo and the State of Florida to execute Terri derived from?
The 14th Amendment is arguably the most significant turning point in our history. If this stuff really interests you, definitely read up on it. It's fascinating stuff and don't let a couple Latin phrases intimidate you. Most legal decisions are in plain English.
Here's where the 14th Amendment started out:
In Davidson v. New Orleans (1878) Justice Samuel commented “It is not a little remarkable, that while this provision has been in the Constitution of the United States, as a restraint upon the authority of the Federal government, for nearly a century, … this special limitation upon its powers has rarely been invoked ... but while it has been a part of the Constitution, as a restraint upon the power of the States, only a very few years, the docket of this court is crowded with cases... There is here abundant evidence that there exists some strange misconception of the scope of this provision as found in the fourteenth amendment.” This decision held, “That whenever by the laws of a State...and those laws provide for a mode of confirming or contesting the charge thus imposed, in the ordinary courts of justice, with such notice to the person, or such proceeding ... as is appropriate to the nature of the case, the judgment in such proceedings cannot be said to deprive ... without due process of law, however obnoxious it may be to other objections.“ Yet he went on to say, “There is wisdom, we think, in the ascertaining of the intent and application of such an important phrase in the Federal Constitution, by the gradual process of judicial inclusion and exclusion, as the cases presented for decision shall require, with the reasoning on which such decisions may be founded.”
At IIb, 30, 3 ("Whether mercy is a virtue?"), Aquinas, quoting Augustine, states the following:
I answer that, Mercy signifies grief for another's distress. Now this grief may denote, in one way, a movement of the sensitive appetite, in which case mercy is not a virtue but a passion; whereas, in another way, it may denote a movement of the intellective appetite, in as much as one person's evil is displeasing to another. This movement may be ruled in accordance with reason, and in accordance with this movement regulated by reason, the movement of the lower appetite may be regulated. Hence Augustine says (De Civ. Dei ix, 5) that "this movement of the mind" (viz. mercy) "obeys the reason, when mercy is vouchsafed in such a way that justice is safeguarded, whether we give to the needy or forgive the repentant." And since it is essential to human virtue that the movements of the soul should be regulated by reason, as was shown above (I-II, 59, A4,5), it follows that mercy is a virtue.(Emphasis added). Later, in the section covering the virtue of justice and the opposing vice of murder (IIb, 64, 6), Aquinas concludes that "Therefore it is in no way lawful to slay the innocent."
Thus, the injustice of killing an innocent man is contrary to true mercy, which reason dictates must safeguard justice.
Good post bump.
That language is from the Declaration of Independence, not the United States Constitution. The Declaration was written in 1776, before there was a United States. As beautiful and important as it is, the Declaration is not the founding law of these United States. The Constitution is, and it was written 11 years after the Declaration.
Thanks. It pleases me a great deal to know that at least one person's knowledge has been increased by this thread. That was my purpose in starting it.
Exactly. Judge Andrew Napolitano of FOX News said that although members of Congress do get what's known as "private" legislation inserted into bills from time to time to address a particular constituent need, what Congress did on the Schiavo case has never been done before in American history.
No matter what our individual opinions on the Schiavo case may be, we need to set emotions aside and look at the larger impact of the precedent Congress just set.
And the other place we will differ is in that I would actively give someone that power, lest I be forced to live in that situation. Death seems to me to be a far less tragic fate. But again, this is me.
Thanks for all of the excellent information, Trinity_Tx. I know many people let their emotions rule their intellect, but the information you provided will be of interest to those who do want to think rather than just feel.
This thread is intended to examine the U.S. Constitutional questions raised by what Congress did. It's fair to examine what the questions related to the State of Florida, but that would belong on a separate thread.
Thanks.
Thank you for this information. :)
Earlier today something came to mind, why have the doctors on either side come to the aid of their patient?
I keep hearing the numbers of folks who have reviewed video and even more who have read her medical chart but where are they NOW? Perhaps I am so on this and you know the answer!!
It is a process.
From the district, they can appeal to the circuit, and from there to the Scotus, if I remember correctly. I think it's just those 3 layers.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.