Posted on 03/29/2005 11:00:33 AM PST by EternalVigilance
Posted: March 29, 2005 11:44 a.m. Eastern
© 2005 WorldNetDaily.com
The Florida state constitution declares unequivocally that in the state of Florida "the supreme executive power shall be vested in a governor … ." The word supreme means highest in authority. There can be no executive authority in the state of Florida higher than the governor. No state law can create an executive authority higher than highest in the Florida constitution. Therefore no court order based upon such a law can constitutionally create such an authority.
If the governor tells the local police in Pinellas County to step aside, they must do so, or else be arrested and tried for an assault on the government of the state, which is to say insurrection.
(If Gov. Jeb Bush fears that for some reason they would question the authority of his representatives, then he should take the necessary law enforcement officials to Tampa in person, thus making the situation crystal clear.)
Since Florida's highest law grants him supreme executive power, the governor's action would be lawful. No one in the Florida judiciary can say otherwise, since the whole basis for the doctrine of judicial review (which they invoked when they refused to apply "Terri's law") is that any law at variance with the constitution is no law at all.
Gov. Bush has said that he recognizes the injustice being done to Terri Schiavo but is powerless to stop it. He is obviously not powerless, and his view of injustice is fully warranted.
The Florida state constitution declares: "All natural persons, female and male alike, are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty … ."
The word "inalienable" means that the rights in question cannot be given away or transferred to another by law. Now, by allowing Michael Schiavo to starve his wife to death, Judge George W. Greer transfers to Schiavo the exercise of her right to life, doing on her behalf what the Florida state constitution declares she herself could not do (since an inalienable right cannot be given away).
Schiavo's decision, and any element of the law it is based on that has the same effect, are therefore unconstitutional on the face of it.
The governor of Florida cannot be obliged to enforce unconstitutional edicts, nor can he be faulted for acting to stop an evident violation of the constitution. In his oath as governor he swore to "support, protect and defend the Constitution and government of the United States and of the state of Florida."
As supreme executive, he is obliged to act in their defense, and no court order can relieve him of this responsibility.
Any order by Judge Greer that seeks to prevent him from doing his sworn duty, as he sees fit, is invalid, and any attempt by the judge to incite armed forces to enforce his order would be an act of judicial insurrection against the constitution and government of Florida.
The judge may have whatever opinion he pleases, but when he attempts to use force to back it up, he breaks the law, going against the constitution of the state, which is to say against the supreme law in Florida.
In Federalist 81, when Alexander Hamilton lists the safeguards against "judiciary encroachments on the legislative authority," he cites in particular "its total incapacity to support its usurpations by force."
Accepting the notion that judicial orders at any level may constitute an executive power superior to the chief executive would give the judiciary just such a forceful capacity.
When every judicial decision carries the implied threat of armed insurrection, a key safeguard of liberty and self-government is removed. If any state governor, or the president of the United States acts so as to encourage the judiciary to assume such executive power, or the people to believe that it may constitutionally do so, he undermines the integrity of all our constitutions, and of American self-government as a whole.
This constitutes a grave dereliction of duty and would in saner times clearly be grounds for his impeachment by a legislature intent on defending the Florida constitution against "judiciary encroachments."
By God's grace, however, Terri Schiavo still lives, and Gov. Bush may yet act to redeem himself and his constitutional authority. Courageous action would be an act of statesmanship, defending the integrity of our constitutional system and the ultimate sovereignty of the people.
We have long been awaiting the statesman who could turn a crisis into such healing. Like Ronald Reagan before him, Jeb Bush could prove himself such a man. For Terri's sake and for the sake of constitutional self-government in America, he should act now. For failure to do so, he has no excuse.
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Be sure to visit Alan Keyes' communications center for founding principles, The Declaration Foundation.
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Former Reagan administration official Alan Keyes, was U.S. ambassador to the United Nations Social and Economic Council and 2000 Republican presidential candidate.
I'm afraid partial birth abortion is still on the books because the federal courts decided that the law banning this procedure is unconstitutional. Apparently the issue was no exception when the life of the mother is in danger. It seems to me we could write a bill with this exception, defined narrowly, that would stand up under court review.
Alright, here's what he said once again:
Since Florida's highest law grants him supreme executive power, the governor's action would be lawful. No one in the Florida judiciary can say otherwise, since the whole basis for the doctrine of judicial review (which they invoked when they refused to apply "Terri's law") is that any law at variance with the constitution is no law at all.
That's it: Supreme executive authority = lawful. And no judge can challenge any exercise of his executive authority because that authority comes from the constitution, which is the supreme legal authority.
If you don't think that's what Keyes meant, then I'd be happy to consider an alternative explanation for his remarks. Again, focusing not specifically on the Schiavo case, but on Keyes' interpretation on the limitations of executive authority in general.
In other words, you don't have a counter to his clear and concise argument.
No. In other words, I don't care to waste my time writing a mini-brief on a legal analysis of the Florida Constitution. Why should I?
Can you explicitly explain to me why Article One, Section Two, does not apply to Terri Schiavo?
Yes, I could. I've done it elsewhere. But no, I won't, because I really don't have any interest in making that argument again. I was addressing Keyes' incredibly overbroad description of executive authority, not Terri Schiavo.
But I will say this. Under Keyes' point, whether Article One, Section Two actually applies to Terri Schiavo does not matter, because the only thing that matters is whether the governor asserts that it does. The governor's claim that a right is being violated is enough to justify the governor's exercize of the police power.
"I might suspect he walked right into a trap set by his political enemies."
NO HE DIDN'T - and that's what they're all so ticked off about. They wanted him to take the NG and storm the Hospice - then they would have impeached him for disobeying a court order. Thankfully, Jeb is grounded in respect for the law and not the whims of voters.
What on earth are you talking about? I never said anything about anyone taking active means to kill anyone; in fact I said that removing the tube was wrong and tragic. But people shouldn't hope for Terri's or anyone else's suffering to last a long time just to publicly prove a point. And as for your yelling that sometimes people have to suffer, I understand that suffering is part of this world. But that doesn't mean that suffering should be inflicted unnecessarily, as it was by Michael Schiavo, or that we should wish for such suffering to be maximized to prove a point.
I don't think post 201 is factually accurate Nick. The story I read is that Greer issued an injunction against the DCF while their people were preparing to go in and take custody of Terri. When this injunction was issued, they called off this operation, and I believe if they had gone in it could easily have lead to an armed confrontation between state and local police.
Maybe via eminent domain, yes, but can they imprison me or take my life if I am not guilty of a crime, which is the real issue here?
You don't pick and choose laws to obey as the President or the Governor. Jeb has done more than the grandstanding people we see down there today. Shame people forget all he has done.
Good article.
Read this?
http://www.myflorida.com/myflorida/government/laws/documents/Bush_Brief.pdf
It's not Jebs fault. There isn't anything more he could do.
"I support Keyes viewpoint on this issue"
Then you are deceived.
Aha--so it's not just for the guilty. Clearly, then, due process is meant to protect the innocent as well as the guilty. This is the conflict between Sec. 9 and Sec. 2 that I'm pointing out.
Look: I'm not arguing merits of the case. All I'm saying--and it isn't much--is that no fair reading of Sec. 2 can mean it to be absolute.
And yes...just so long as you get due process.
"some people don't understand that the judiciary lacks the constitutional authority to enforce anything"
Then .. what is a "court order" if not an ORDER OF THE COURT ..?? And .. since the DCF rules say that this court had the authority to approve or disapprove of their removal actions - the DCF had an obligation to obey the order. So when the local police said they were ready to ENFORCE that order - the DCF could do nothing.
He and his sympathizers would be voted out of office so fast it would make our head spin, and there would be a backlash that further cements abortion "rights" in this country.
That's what.
The Alamo is a textbook example of losing a battle to win a war. Doing what I jokingly proposed would be a textbook example of the opposite.
Exactly!
A court order to stop the Governor from performing his duties as chief executive of the state? Who would enforce the order? And what if the order itself is unconstitutional? Where in the Florida Constitution does it say that a local probate judge can order the governor of the state NOT to execute his authority? And, finally, why would Gov. Bush even bother to ask permission of this judge in the first place?
It is this kind of point on which the Declarartion of Independence turns. When writen and signed -- and illgeal act, a capital crime. Yet what made it legal?
Victory. The choice? "Victory or death." Washington's watchwords on December 25th 1776.
It is not enough to storm foolishly to her rescue, as individuals -- it would fail, and cause many a life to be lost. Even if Terri was rescued that rescue would last only hours before major military and police forces brought us to dread end.
Yet that is NOT the case for either of the Bush brothers -- both have the ability to lawfully muster a strong force and bring in into the place for her rescue. And to win. To achieve victory. For in that victory of arms, or by show of arms -- the law would be corrected.
"law being used to kill Terri, and no doubt others, was passed by the Florida legislature and signed by Jeb"
Do you know it was signed by Jeb - or are you just guessing because that answer suits your agenda of blaming Jeb for everything ..??
And if there is legislation which supports the "killing of the mentally disabled" - please prove that by providing the provision for us to read. Otherwise stop speculating.
Amen.
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