|
| quote: | Originally posted by denny_shibby
Okay reign in or ordain and establish, same thing.
|
Ummm no, that’s not the same thing at all. One implies the ability to establish an independent court, while the other indicates that that court isn’t really independent at all. As a matter of fact, a legislature that that nullifies, suspends, or reverses a judicial determination in a particular case violates the principle of the separation of powers that the founding fathers intended. Go read the Federalist Papers No. 81, the founding fathers essentially brag about how such a thing should be constitutionally impossible:
| quote: |
It is not true, in the second place, that the Parliament of Great Britain, or the legislatures of the particular States, can rectify the exceptionable decisions of their respective courts, in any other sense than might be done by a future legislature of the United States. The theory, neither of the British, nor the State constitutions, authorizes the revisal of a judicial sentence by a legislative act. Nor is there any thing in the proposed Constitution, more than in either of them, by which it is forbidden. In the former, as well as in the latter, the impropriety of the thing, on the general principles of law and reason, is the sole obstacle. A legislature, without exceeding its province, cannot reverse a determination once made in a particular case; though it may prescribe a new rule for future cases. This is the principle, and it applies in all its consequences, exactly in the same manner and extent, to the State governments, as to the national government now under consideration. Not the least difference can be pointed out in any view of the subject.
http://www.foundingfathers.info/fed...apers/fed81.htm
|
Not to mention the bill violates a plethora of legal principles including Ex-Post Facto Law, Res Judicata,
Due Process under the Law, etc., etc., etc. But hell, the federal district court that congress tried so hard to hear the case laid down the best smack down:
| quote: |
A popular epithet directed by some members of society, including some members of Congress, toward the judiciary involves the denunciation of "activist judges." Generally, the definition of an "activist judge" is one who decides the outcome of a controversy before him according to personal conviction, even one sincerely held, as opposed to the dictates of the law as constrained by legal precedent and, ultimately, our Constitution. In resolving the Schiavo controversy it is my judgment that, despite sincere and altruistic motivation, the legislative and executive branches of our government have acted in a manner demonstrably at odds with our Founding Fathers’ blueprint for the governance of a free people — our Constitution. Since I have sworn, as have they, to uphold and defend that Covenant, I must respectfully concur in the denial of the request for rehearing en banc. I conclude that Pub. L.109-3 (“the Act”) is unconstitutional and, therefore, this court and the district court are without jurisdiction in this case under that 1 special Act and should refuse to exercise any jurisdiction that we may otherwise have in this case...
Section 2 of the Act provides that the district court: (1) shall engage in "de novo" review of Mrs. Schiavo’s constitutional and federal claims; (2) shall not consider whether these claims were previously "raised, considered, or decided in State court proceedings"; (3) shall not engage in "abstention in favor of State court proceedings"; and (4) shall not decide the case on the basis of "whether remedies available in the State courts have been exhausted." Pub. L. 109-3, § 2. Because these provisions constitute legislative dictation of how a federal court should exercise its judicial functions (known as a "rule of decision"), the Act invades the province of the judiciary and violates the separation of powers principle.
An act of Congress violates separation of powers if it requires federal courts to exercise their Article III power "in a manner repugnant to the text, structure, and traditions of Article III." Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218, 115 S. Ct. 1447, 1452 (1995). By setting a particular standard of review in the district court, Section 2 of the Act purports to direct a federal court in an area traditionally left to the federal court to decide. See Fla. Progress Corp. v. Comm’r, 348 F.3d 954, 959 (11th Cir. 2004) (noting that the standard of review is for the court to determine). In fact, the establishment of a standard of review often dictates the rule of decision in a case, which is beyond Congress’s constitutional power. See United States v. Klein, 80 U.S. 128, 146 (1871) (noting that Congress may not prescribe a "rule of decision" for a particular case). In addition, "the separation-of-powers doctrine requires that a branch not impair another in the performance of its constitutional duties." Loving v. United States, 517 U.S. 748, 757, 116 S. Ct. 1737, 1743 (1996). By denying federal courts the ability to exercise abstention or inquire as to exhaustion or waiver under State law, the Act robs federal courts of judicial doctrines long-established for the conduct of prudential decisionmaking...
The separation of powers implicit in our constitutional design was created "to assure, as nearly as possible, that each branch of government would confine itself to its assigned responsibility." INS, 462 U.S. at 951, 103 S. Ct. at 2784. But when the fervor of political passions moves the Executive and the Legislative branches to act in ways inimical to basic constitutional principles, it is the duty of the judiciary to intervene. If sacrifices to the independence of the judiciary are permitted today, precedent is established for the constitutional transgressions of tomorrow. See New York, 505 U.S. at 187, 112 S. Ct. at 2434. Accordingly, we must conscientiously guard the independence of our judiciary and safeguard the Constitution, even in the face of the unfathomable human tragedy that has befallen Mrs. Schiavo and her family and the recent events related to her plight which have troubled the consciences of many. Realizing this duty, I conclude that Pub. L. 109-3 is an unconstitutional infringement on core tenets underlying our constitutional system. Had Congress or the Florida legislature, in their legislative capacities, been able to constitutionally amend applicable law, we would have been constrained to apply that law. See Robertson v. Seattle Audobon Soc'y, 503 U.S. 429, 441, 112 S. Ct. 1407, 1414 (1992). By opting to pass Pub. L. 109-3 instead, however, Congress chose to overstep constitutional boundaries into the province of the judiciary. Such an Act cannot be countenanced. Moreover, we are bound by the Rooker-Feldman doctrine not to exercise any other jurisdictional bases to override a final state judgment. Should the citizens of Florida determine that its law should be changed, it should be done legislatively. Were the courts to change the law, as the ptitioners and Congress invite us to do, an "activist judge" criticism would be valid.
|
| quote: |
You have to understand that the bill proposed by Republicans, was NOT specific to just Terri Schiavo. The liberals(that includes a couple of east coast "republicans") were willing to compromise by making it specific to just Terri, the house didn't want anything to do with that, they wanted the bill that would pertain to the entire country.
|
Ohhhh brilliant!!! I can’t think of a better idea than to subjugate spousal rights and invite federal jurisdiction into EVERY single private and personal issue when it comes to a life threatening decisions for treatment. Your sick/dying wife tell you she didn’t want to be kept on a ventilator should her condition deteriorate? Did she put it in a legal document? No??? TOO BAD! It’s up to the federal courts! Did your husband get in a bad accident? All his internal organs are failing? You want to just simply withdraw artificial sustainment? Did he say he would want that in a legal document? No, he only told you and your family in person? Too bad!! Federal courts have the ultimate say so on his medical care!!! Well hey, I guess under that broad legislation, Tom Delay and his family wouldn’t have been able to withdraw medical treatment for his own father, because there was no indication of his father’s intentions were in a legal document of any kind:
http://www.nytimes.com/2005/03/28/p...ebea672&ei=5070
Too bad for Delay and his family, but it looks like the ultimate say-so of his father’s fate would fall under the jursidiction of the federal courts! Not only would such a law be an egregious violation of spousal/family rights, but it would trample over numerous state family laws and laws pertaining to medical directives. For example, Texas' Advance Directives Act of 1999, a law that allows hospital administrators to cease artificial life support even against the will of a family member, a bill that George W. Bush signed into law as governor mind you, could be overturned in ANY case by federal courts.
http://www.foxnews.com/story/0,2933,151448,00.html
So not only do you strip away family rights, but you trample over state jurisdiction. You know, for one who claims that you’re not a federalist, you sure have a funny way of showing it by giving the federal government unprecedented jurisdiction and intrusion into individual family matters and states’ rights Denny.
| quote: |
Also they have the right to supeona Terri if they want to. And that judge tampered with(killed) a witness of the congress. That would violate the "good behavior" part of the constitution wouldn't it. The good behavior and ordain and establish come together to form that "out of control" statement. I will admit though out of control isn't specifically said so I do retract that. I apologize.
|
You have a constitutional right to refuse medical treatment. Can the federal government supercede your constitutional rights by declaring you a witness of congress and artificially sustain you against your will indefinitely? State court after state court after appeals courts have ruled after some 15 years that what Terri would have wanted was to refuse medical treatment under the highest burden of proof used in civil cases. As such, the congressional gerrymandering in this instance did not trump individual civil liberties.
| quote: |
No I am not a federalist, I am a states rights person at heart. The truth is that I don't defend the republicans take on the Schiavo case as it pertains to their view on states rights, but I do defend their RIGHT to intervene as implied by those clauses. Personally I just think that the judge was fucking idiot, and nobody could point to any true non spectral(non heresy) evidence that she would want that feeding tube removed. |
There were several people who heard first hand from her that she would not want to be kept alive in a vegetative state. Read the trial transcript:
http://abstractappeal.com/schiavo/trialctorder02-00.pdf
I'll address your other argument this afternoon when I have some time.
___________________
Retro ...
|
