Posted on 03/21/2005 12:05:39 PM PST by Wolfstar
Worth repeating.
I also wonder if they're now prepared to provide equal protection to every other hospital patient in the United States.
A good question, because as surely as the sun will rise in the east every day, others will petition the Congress to do for them what they did for Schiavo's parents.
I see. The democrats pi$$ on the constitution so why shouldn't the republicans as well! Yeah, that makes sense!
So who is your pick for first dictator of America in this brave new world you envision??
"But Mommy, all the other kids are riding their bikes on the freeway. Why can't I?"
Can you state in words just what you- or the effervescent judge Napolitano- think is new here?
The FEDERAL Courts get their power from the Constitution.
Congress has no Constitutional power over the state courts. You cannot cite the section of the Constitution that grants this power because it does not exist. Repeatedly shouting it doesn't make it any more true, either.
But don't take my word for it. How about this from Justice Scalia?
"I would have preferred that we announce, clearly and promptly, that the federal courts have no business in this field; that American law has always accorded the State the power to prevent, by force if necessary, suicide - including suicide by refusing to take appropriate measures necessary to preserve one's life; that the point at which life becomes "worthless," and the point at which the means necessary to preserve it become "extraordinary" or "inappropriate," are neither set forth in the Constitution nor known to the nine Justices of this Court any better than they are known to nine people picked at random from the Kansas City telephone directory; and hence, that even when it is demonstrated by clear and convincing evidence that a patient no longer wishes certain measures to be taken to preserve her life, it is up to the citizens of Missouri to decide, through their elected representatives, whether that wish will be honored. It is quite impossible (because the Constitution says nothing about the matter) that those citizens will decide upon a line less lawful than the one we would choose; and it is unlikely (because we know no more about "life-and-death" than they do) that they will decide upon a line less reasonable. (emphasis added) Cruzan v. Director, MDH, 497, U.S. 261 (1990)"
And
"I am concerned, from the tenor of today's opinions, that we are poised to confuse that [497 U.S. 261, 293] enterprise as successfully as we have confused the enterprise of legislating concerning abortion - requiring it to be conducted against a background of federal constitutional imperatives that are unknown because they are being newly crafted from Term to Term. That would be a great misfortune. Cruzan v. Director, MDH, 497, U.S. 261 (1990)--Justice Scalia"
The Constitution gives Congress the power to determine the jurisdiction of the Courts, period. You can debate whether or not this move is practical, but it is definitely not unconstitutional.
Did you see the post about the judge asking Terri's parents attorney to present a brief on the constitutionality of this law?
Judge Whittemore places Schindler family and attorney in "Catch-22" position
Posted by repinwi
On News/Activism 03/21/2005 9:34:20 PM EST · 14 replies · 131+ views
None of this federal intervention would be necessary if Jeb Bush would assert his proper authority as chief executive officer of Florida and nullify this homicidal judge's ruling.
No, but I'm not surprised. However, I would expect the judge to ask both parties to submit briefs on the constitutionality.
Thanks for the reference.
None of this federal intervention would be necessary if Jeb Bush would assert his proper authority as chief executive officer of Florida and nullify this homicidal judge's ruling.
Thats the kind of power chairman Mao would have had !
Bork: Congress' Involvement in Schiavo Case Not Unique
By Marc Morano
CNSNews.com Senior Staff Writer
March 21, 2005
(CNSNews.com) - With some Democrats in Congress worrying about the precedent setting potential of a new law aimed at sparing the life of Terri Schindler Schiavo, a former Supreme Court nominee told Cybercast News Service Monday that such congressional intervention was not so unusual.
Robert Bork, a Reagan administration nominee whom the U.S. Senate refused to confirm, called the federal legislation signed by President Bush early Monday morning something that "happens with some regularity."
"[The new law has] given jurisdiction to a federal court to hear, in effect an attack upon a state court outcome, but we do that all the time," said Bork, who authored the 2003 book "Coercing Virtue: The Worldwide Rule of Judges" and is currently a distinguished fellow at the conservative Hudson Institute.
"They (the Congress and the president) are not overstepping their legal bounds, they have a right to confer jurisdiction on a court," Bork said, just hours before a federal district court was due to hear the Schiavo case.
President Bush signed the legislation early Monday morning that granted Terri Schiavo's parents the ability to sue in federal court to have Terri's feeding tube reinserted. The feeding tube was removed Friday at the request of her husband and after a Florida state court sided with Michael Schiavo's wishes. With the case now in the hands of the federal judiciary, the U.S. District Court for the Middle District of Florida has jurisdiction.
Michael Schiavo claims his wife, who has been in her current brain damaged state for 15 years since suffering a heart attack, would not have wanted to be kept alive in that condition. But Terri Schindler Schiavo's parents say she might partially recuperate if given physical therapy.
Many Democrats have criticized the efforts of Congress and the president on behalf of Schiavo.
House Minority Leader Nancy Pelosi of California said congressional leaders "have no business substituting their judgment for that of multiple state courts that have extensively considered the issues in this intensely personal family matter."
Democratic Sen. Carl Levin of Michigan said he believes it "unwise for Congress to intervene in a very deeply personal matter such as this.
"There are many, many such individual cases that exist around the country that are in the courts. This one has been in the courts for 12 years, so I don't think it's wise as a general matter for Congress to intervene in these specific cases," Sen. Levin told CNN's "Late Edition" on Sunday.
Rep. Jerrold Nadler (D-N.Y.) said the bill "would place a federal judge in the middle of this case after the state courts have adjudicated it," Nadler said. "We have never, ever done such a thing in the history of this country," Nadler added, "and we should not start now."
Bork said Nadler's contention is wrong.
"Federal habeas corpus is precisely that. Somebody is convicted in a state court, exhausts his appeals and then files a writ of habeas corpus in a federal court in order to challenge the constitutionality or otherwise of his trial. So this is not a unique intrusion into state court jurisdiction," Bork added.
Bork also dismissed the argument that congressional conservatives and President Bush were being hypocritical by expanding the role of the federal judiciary. "The hypocrisy is the other way. I think what the Democrats see is once you talk about life in this way, you are tangentially or obliquely raising the abortion issue. I think that scares the hell out of them," Bork said.
"They don't want to view life as anything -- unless it's the death penalty of course. If somebody murdered somebody, they would be against giving them death but if it's an innocent unborn child or a Terri Schiavo, they are all for it," Bork added.
He also emphasized that in his view, congressional action in the Schindler Schiavo case does not mean "trashing the constitution."
"That's ridiculous ... This is an effort to use their undoubted power over jurisdiction," Bork said.
'A fundamental right'
Conservative legal scholar Mark R. Levin said Democratic liberals in Congress are upset because they are not in the position to affect what happens in the courts. "What really offends the Left is Congress asserting its constitutional power over a court, and not in service to the liberal agenda," Levin wrote in a posting on National Review Online on Monday.
Levin, president of the Landmark Legal Foundation, also authored "Men in Black: How the Supreme Court is Destroying America."
"The right to live, or more specifically, the right not to be killed, is a fundamental right. And it's a right recognized in our founding document, the Declaration of Independence," Levin wrote.
"Article III specifically empowers Congress to determine the jurisdiction of the federal courts, which is all it did [Monday]. It authorized a federal court to determine whether Terri Schiavo's due process rights and the right not be subject to cruel and unusual punishment were properly protected by a state court," Levin added.
He criticized liberals for failing to support the federal intervention in the Schiavo case when it has championed the Supreme Court's intervention in abortion law.
"In Roe v. Wade, the Supreme Court decided on its own that abortion was a federal question, not to be left to the states, without any constitutional basis whatsoever. It pre-empted every state court and legislature (and Congress, for that matter). And the Left celebrates this decision," Levin wrote.
Levin also warned conservatives not to be intimidated by political attacks over the federalizing of the Schindler Schiavo case.
"We must not allow the Left to define the terms of this debate. It is willing to make almost any argument to protect the supremacy of the courts. And even though Congress here is instructing the federal courts to review the case, the Left objects to any congressional exercise of constitutional authority over the judiciary," Levin wrote.
You are wrong. Bill of attainder is not open to debate. It is a legislative act in which punish is imposed against a person -- denying the state the right to kill by starvation a person is the opposite. Whether that includes denying Michael Schiavo that right makes no difference, either.
And how is it weak? Please edify us.
-----------------------------------------------------------
Oh Great!
My friend owes me a little money. He couldn't pay and so I have decided to take on his two underage childen (whom he is the legal guardian of) as indentured servants.
As this is all an individual legal matter between me and my friend I would appreciate it if Congress would kindly butt out and mind their own business. TYVM
Whether the way that the case was handled was bad, or whether there was evidence not presented that should have been are separate questions.
Appeals may be filed addressing those issues.
How about I take it from the Constitution? And not from Justice Scalia's dissenting Opinion.
This is getting silly. Bush -- nor any candidate -- has a 14th amendment right to have votes counted by Congress. The 14th amendment applies to states and the people in the states. The Supreme Court was talking about the right of VOTERS to have their ballots counted at the same time and in the same way. Congress is free to throw out the electoral votes of any state and on any basis it wishes, if enough votes can be mustered by both Houses to do so. My own view is the Court shouldn't have gotten involved at all, and in any event, Bush would have been president. Jeb Bush had certified the electors for George Bush, and there was nothing any court could do about it. Congress could accept them or reject them. But it did act. And it's important that we understand what it said, or did not say.
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.