Roles Reversed
by Lee
Greetings Instapundit readers!
A question for the group. Imagine a country with a Democratic president, and a Congress controlled by Democrats. In Florida, a fight is underway over the life of a mentally disabled woman. The woman’s husband has kept her alive for 15 years, hoping she would recover, and despite the general agreement among doctors that she will never improve, he has decided to keep feeding her and keep working, always holding out hope that she might get better. Her parents, however, are horrified that their daughter has been alive for this long. They know that she would never have wanted to live in such a state, and are suing to have the husband’s rights terminated so that she can die in peace and with dignity.
The case goes all the way to the Florida Supreme Court, where the court finds that there is insufficient cause to grant the injunction requested by the parents. Shocked at the news, the Congress rolls into action, drafting legislation that would give the parents case a review in the federal court system, and the president returns from her womyn’s conference in Amsterdam to sign the emergency legislation.
Now, how many of you conservatives out there would have absolutely no problem with the actions taken by Congress and the president in this instance? I’m talking in the legal sense, not the moral. You would, obviously, disagree with the right-to-die motives of the Congress, but would you still rant and rave about how the Constitution permits this kind of federal intrusion into a state matter? Or would you, as I suspect, be railing against the injustice of a runaway liberal government meddling in the affairs of a sovereign state?
Update: The reason I ask this question is because I tuned into Limbaugh this morning to see what he had to say now that Terri is dead, and he was basically making the argument that the idea that this is a violation of federalist principles is absolutely preposterous. He kept railing on about how he “didn’t get it.” Well, here’s a very specific example. Do you think, for a second, that Limbaugh or Michael Medved or any of the other conservative pundits would not decry the actions of a Democratic federal government as being unconstitutional and a violation of states rights? Of course they would, and it is astonishingly disingenuous of them to claim otherwise.
Comments
Imagine a country with a Democratic president, and a Congress controlled by Democrats........You would, obviously, disagree with the right-to-die motives of the Congress, but would you still rant and rave about how the Constitution permits this kind of federal intrusion into a state matter?
I would be celebrating because this means the Vikings won the Superbowl and hell has frozen over.
It isn’t Federalism… it’s the Judiciary and their excess.
Yeah, but this is the point of the questsion. You suport abandoning federalism to fix what you see as a runaway judiciary. But when the government is once again run by liberals (and it will be someday), would you support their intervention to fix the problem of a runaway judiciary who are forcing a poor woman to stay alive at all costs?
I (and Drumwaster) would be just as opposed to intervention in this instance as we were this time, whereas I think the vast majority of conservatives would take exactly the opposite angle they’re taking now.
womyn’s conference
Nice touch, BTW.
I would vehemently impose the congressional action either way.
You can’t scrap the system just because you don’t like one state law. If you don’t like Florida’s law, move to Florida, register to vote and work to change it within the system that was designed to permit you to do that. If you fiddle with the basic structure of the system that permits you to try to change laws you don’t like, you may break that system and lose the abilities you’ve apparently taken for granted.
Be carful what you wish for.
would vehemently impose the congressional action either way.
Uh, whoops. I meant oppose.
Wow, that was a bad typo.
I would have to say that this circumstance is very unlikely to happen. I don’t believe the Democrats would really care enough to do anything. The ACLU might make a huge stink, but I don’t believe it would get this much coverage. Though if it did happen I would be okay with having Congress allow Federal Courts to review the case. I wouldn’t rant and rave about it though. I don’t believe I did on the current situation.
But I actually don’t concede that the Congressional intervention was abandoning federalism. If the courts had heard Terri’s case “de novo” then a precedent setting decision could have proven me wrong.
But if you consider the dynamics… Congress was expanding the rights of “due process” of the citizenry to access to the Federal courts in a life and death decision.
Try this reversal…
If there was no dispute over Terri’s wishes… then the State court’s decision would prevail. But in the case of exactly this sort of dispute a “de novo” review by the Federal courts would protect individual rights… from State tyranny.
Am I wrong?
From what I’ve read from all over the web from as many sides as I can find is there is a big question about what condition she really is in, especially without therapy for the last 10+ years.
There is a huge conflict of interest for the husband and girlfriend to gain financially
When the malpractice suit was on the husband was going to take care of Terri for life and once it’s over it’s pull the plug time.
The federal issue was brought up because the state failed to take into account several facts of the case ultimately leading to a possible violation of civil rights.
The feds were the last attempt to find out the truth before it’s too late, but now it’s too late. Irregardless of who is in power, disabled people now live in a more harsh climate than before and that is what this issue is about.
The right to die has come to the forefront as a result of the current situation. It’s made me personally examine my own stance.
At first I didn’t know what to think, as I was looking at it from an emotional standpoint, but as time went on, I began to realize that the courts had spoken and years had gone by. Plenty of time for it to be solved. Legally, it had been.
I understand why congress and the Pres. got involved but I don’t think they should have. In your scenario I would feel the same way.
This whole thing has been like trying to pick up and throw a runny pile of cowshit barehanded.
Starvation for 13 days is not a “Right to die"…
...it’s a “Right to torture”
I can prove it’s dishonest too. How?
I’ve got a rifle in my pickup and I’d do the courtesy if anyone cares to be honest about it all… death I mean. Killing. Kevorkian.
Or give her an overdose of morphine and end it.
Except… I personally believe:
a lawyerless woman wished to die when her family, friends and faith all argue against that…
balanced against an ex-husband who stands to gain a million dollars allowed a Right-To-Die advocate Lawyer and a Right-To-Die advocate Doctor who refuses to perform the medical tests to even determine her condition until she is dead?
Means the standard of reasonableness regarding her consent was not met… at all…
And shouldn’t actual “due process” provide for a higher standard? Say beyond a reasonable doubt?
Why would you say “ex-husband” ?
And shouldn’t actual “due process” provide for a higher standard? Say beyond a reasonable doubt?
As was pointed out on another thread, Dane, “beyond a reasonable doubt” is the standard for a criminal case. For a civil case, it’s “preponderance of the evidence”, and in this case, it was either the “clear and convincing evidence” (as was found by the Presiding Judge) or by a complete failure to meet the burden of proof (which was the parent’s burden to prove that Michael had committed a felony sufficient to warrant removal of his rights and authorities as Terry’s husband - which he still was, right up until a few hours ago).
No matter how you look at it, there was sufficient due process in this case. I don’t think John Wayne Gacy got as much in the way of judicial review as this case did.
Limbaugh or Michael Medved
Hypocritical blowhards.
Larry Elder made a rational analysis: change the Florida law.
DANEgerus,
I agree it is a horrible way to die. They should have given her an overdose of morphine and ended it quick.
But of course I think the 15 years of being in her state was more torture than the final 2 weeks of her life.
So, my sister and I just got our DNR’s and a living will taken care of with our lawyer. I hope that, if nothing else, everyone looks into having those papers on file and that the people who you love know where they are and know your wishes (not just your husband/wife, but everyone). And, if for any reason, you change your mind in a couple years and you want to live on a tube for the rest of your “life,” you have the right to do that.
As was pointed out on another thread, Dane, “beyond a reasonable doubt” is the standard for a criminal case
But wouldn’t you concede it should be the standard in a case involving life and death?
And
TJ…
Why would you say “ex-husband” ?
Because it’s the most thought provoking way of reminding everyone that Michael has a new common-law wife with two children and to maintain him in the role as Guardian is another example of the conflict of interest.
Unless you believe in an “ex-Husband’s Right To choose"…
I really am not morally confident enough to suggest Terri isn’t better off…
But if the issue is consent… she didn’t.
So did we acquiesce to the “Right to Kill” and if so will that be expanded to all that are of no use ?
Is that not the slippery slope we should be most concerned with?
Look man, I’m all for euthinasia (under the right circumstances), but this whole thing was wrong on multiple levels.
Personally, I’d have prefered they just put her down instead of starving her over two weeks. That was fucked up.
I’m glad this whole thing is over though. It was unnecessary drama from the beginning.
but would you still rant and rave about how the Constitution permits this kind of federal intrusion into a state matter?
Conservatives might not like it, but it would be completely within Congress’s power.
What would not be within Congress’s power is a law that says “The federal courts must take this case and overrule the State court’s decisions.”
Of course, that isn’t what actually happened, and it isn’t your hypothetical either. So, even in your role reversal attempt to raise conservative hackles, the Congress acted well within their designated powers.
Do you actually know what happened when States signed onto the U.S. Constitution? They gave up some of those sovereign powers they had. Yep, and while they were at it, they endowed the Federal Government with certain powers. One of those powers so endowed is to determine just exactly what cases can be heard in a Federal Court.
Seems oh-so-simple, but too many people just don’t want to grasp that Congress did nothing wrong.
Lee: I’d be just as outraged at the violation of precedent in this hypothetical case of yours as I am at what the government actually did, though it’s worth pointing out that this wasn’t a partisan issue.
all the evidence--and there isn’t much of it--that Terri would have wanted to die the way she’s dying has come from the camp of her husband, Michael Schiavo, who has been living for years with another woman whom he calls his fiancee and by whom he has two children, who hasn’t provided Terri any therapy since 1993, and who had a medication-denying “Do Not Resuscitate” sign placed over her bed a few years ago when she was suffering from a minor urinary-tract infection. Michael won’t divorce Terri, because then he would have to give up his claim as her devoted husband to be carrying out her wishes. And she sure can’t divorce him. Michael literally holds the power of life and death over Terri--a power that he is fearlessly executing even as I write. All her property is under his control, including her sizeable medical malpractice settlement that was supposed to go for her lifelong care but has been spent by Michael on right-to-die lawyers.
No I wouldn’t have a problem with it, especially if the law was crafted in the way that it was.
The main problem is that there was a dispute on what Terri’s wishes were and there were accusations being leveled on both sides. This case has come about because of a ‘bitter family dispute’ that occured long before Michael petitioned the court to have the feeding tube removed.
There are a lot of things about this case that make it difficult, the family members disagreed as to what Terri would want, there was money involved, there was the fact that the husband didn’t file to have the tube removed until 7 years later (this is even about 5 years after he had decided not to allow any further therapy or even medical treatment for infections) and about a year after he moved in with his current fiance.
I certainly would rather err on the side of life, at least that is reversable unlike death.
Then to add to all of that, you add the mental picture of ‘starving a severly handicapped woman to death’, not just removing the feeding tube but issuing a court order that denied her food and water of any type???
Most people didn’t think about dying this way, most people envision pulling the plug on a resperator and having it over in 5 minutes...not forced starvation that made her linger for 13 days! I know that I never considered a feeding tube to be artifical life support…
I also understand that most people are saying that they wouldn’t want to live like that...I wouldn’t either. But we have to remember that we are speaking from a ‘healthy person’s viewpoint’. I wouldn’t want to live like Chris Reeves lived either...but I don’t know that if I found myself in that position that I wouldn’t change my mind and choose life. That is the problem with projecting our ‘healthy person’s viewpoint’ on a handicapped person.
if roles were reversed i woudl not be a hypocrite and say the congress and the president was wrong, i always try to look at both sides, like how will this effect my rights if i take that guys rights away or if i use this power, how might the next guy use that power.
But wouldn’t you concede it should be the standard in a case involving life and death?
It would be, if the courts were working to take action against her against her will (such as force-feeding her for more than a decade), or as a form of punishment. The courts are not sentencing her to starve to death, they are permitting her to refuse medical treatment, which is everyone’s right. (Can you imagine how much time someone would be sentenced to if he had snatched a helpless person, strapped her to a bed, shoved tubes down her throat, and kept her like that for 15 years?
I would demand life in the electric chair!
But the courts were attempting to decide what Terry’s wishes would have been. (Believe it or not, I’ve heard that there are those who deliberately starve themselves for one reason. They’re called “bulemics”, and doing that can even cause the biochemistry in their bodies to become so out of whack, it can actually cause their hearts to stop for no apparent reason! Amazing, huh?)
But making a decision as to “state of mind”, and deciding whether evidence meets a black-letter standard set by law, has a much lower burden of proof than a criminal case.
If someone wanted to live in a small sealed steel cage for the rest of their lives, would the courts have the authority to tell them ‘No’? Of course not.
One of those powers so endowed is to determine just exactly what cases can be heard in a Federal Court.
No, it isn’t. The Tenth Amendment says that if COTUS doesn’t grant the authority to Congress to interfere between a husband and wife (which it doesn’t), then it falls to the State Legislatures and Courts to decide what the law is and how it will be enforced.
Congress gets to “ordain and establish” the Courts at the Federal Level. But they don’t get to unilaterally snatch a power that rightfully belongs to State Courts (which are empowered by the Florida State Constitution).
As far as the “Congress never demanded a specific outcome” argument goes, it’s the sheerest bullshit. If Congress did not want another outcome, why would they have written the law? And now that the law was written, the Federal Courts ruled against Terry’s parents (again), and Congressmen from all over are screaming “That’s not what we wanted you to do!”
No intent to overturn a judicial ruling? Yeah, right…
Two silver linings to this:
1) A lot of people are getting DNRs and living wills to avoid these conflicts
2) Despite having the power to do so President Bush and Governer Bush did not use their executive authority to take matters into their own hands. They deferred to the rule of law.
Bottom line here is that even if you are morally on the right side, that does not gaurantee that you are going to be rewarded for that in the realm of the law. We are a country of laws, and while a lot of people have argued, many convincingly, for saving terri’s life, our system of law was adhered to. It may not be perfect, but it is the best system in the world
Also -Michael Schiavo is a pigfucker. </personalopinion>
I hope that, if nothing else, everyone looks into having those papers on file and that the people who you love know where they are and know your wishes
Yeah I should probably do this. I have to decide what I want though.
I will say I would like to be placed in a robotic body and become a crime fighter. Like Robocop only not controlled by a Corporation.
What would not be within Congress’s power is a law that says “The federal courts must take this case and overrule the State court’s decisions.”
While technically true, what happened here was those in favor of a Federal judiciary review were hoping to get a different outcome rather than settle for whatever they’d decide. That violates the spirit of the Separation of Powers in the Constitution.
You can’t really argue otherwise with terms like Culture Of Life™ being thrown around.
After learning that your position on this was that Teri is a vegtable and her husband has the right to withhold nourishment, I started thinking maybe you thought you could read minds. Are you sure she had no consiousness? Do you know what was in her head? After reading you your roles reversed post I now know you believe you can read minds.
FYI I am not a religious person but I do believe it is our responsibility to err on the side of life when in doubt. I also believe the primary responsibility of the government is to secure our rights. Primary among those is life. Hence for me this was a constitutional crisis only on the part of the judiciary over stepping its bounds. Please see the 14th and 5th amendments. Thank you for your site all in all I like it.
Just a small matter of legality, Florida does not have the common law marriage rule, so that doesn’t apply. Michael was her guardian, the Schindler’s had 15 years to get him removed and they did not successfully do that.
Lee:
To answer your challenge in two words: Elian Gonzales. Reno overruled the states’ rights by taking custody of Elian and sending him back to Cuba after Florida had decided that they would have hearings to decide the fate of the child.
Just a small matter of legality, Florida does not have the common law marriage rule, so that doesn’t apply. Michael was her guardian, the Schindler’s had 15 years to get him removed and they did not successfully do that.
Exactamundo. {/Arthur Fonzarelli}
And since adultery is a misdeameanor (on the legal scale of speeding), they would have had to prove domestic violence, and (again, despite 15 years of trying) the parents never managed to provide anything other than angry allegations and slanderous accusations.
Posted by svandals on 03/31 at 01:10 PM
Lee:
To answer your challenge in two words: Elian Gonzales. Reno overruled the states’ rights by taking custody of Elian and sending him back to Cuba after Florida had decided that they would have hearings to decide the fate of the child.
Not true. Immigration and Naturalization is a Federal matter (specifically mentioned in COTUS - Art. II, Sect. 8).
The right-wing conspiracy just got vaster
Is it just me or did Lee slip in a new slogan? Maybe it’s just me.
Just you. =D
FYI-for the Constitutionally challenged, you can order a nice pocket Constitution from the CATO Institute for $1 by calling 1-800-767-1241 or by visiting their website www.cato.org.
Now that she’s finally at rest, maybe this beat to death horse of a discussion topic can be at rest too.
Posted by GripeBoy on 03/31 at 01:25 PM
FYI-for the Constitutionally challenged, you can order a nice pocket Constitution from the CATO Institute for $1 by calling 1-800-767-1241 or by visiting their website www.cato.org.
Or, if you’re too gottdamned cheap to buy a hard copy, you can find the whole thing online, with the 27 Amendments found here.
"As far as the “Congress never demanded a specific outcome” argument goes, it’s the sheerest bullshit. If Congress did not want another outcome, why would they have written the law? And now that the law was written, the Federal Courts ruled against Terry’s parents (again), and Congressmen from all over are screaming “That’s not what we wanted you to do!””
The intent of the law was to allow the Federal Courts a ‘de novo’ look at the case, starting with all of the evidence, all over again. The Federal Court, knowing that this was the intent, decided that they were not going to do that and just denied the request.
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
I’m a big fan of the 10th… but the purpose of the adoption of the Bill of Rights was that the Federalist Paper’s arguments for the ratification of the Constitution exposed a flaw.
The Constitution limited the power of the Federal government to protect the States but failed to specifically protect individual liberties.
The debate raged that liberties should not be limited by listing them so the solution was this catch-all and adoption of the Bill of Rights…
But who protects the individual from the State?
If Terri did not consent… would you not concede to her the same appeal allowed a criminal?
Does not the Bill of Rights also protect citizens from State Governments? By implication?
What if we reversed it. Terri left a written will and the Husband was fighting to prevent pulling the tubes.
The State said you can’t pull the tubes she has to live this way.
Shouldn’t she be allowed an appeal then? To exercise her right to die?
Which would actually make this whole mess make more sense.
Isn’t that what you are asking for? Because why should a single Judge be able to use the power of a ‘State’ to condemn you to 15 years hooked to tubes?
Didn’t the first version of the bill have some provision in it that had the feeding tube replaced while it was being decided?
I heard something like that on the radio (I think) once. But it might just be wrong/urban legend.
Which is kind of my point. Congress was attempting to take original jurisdiction away from the State Courts (where it properly belonged) and give it to the Federal Courts. The Federal Courts have no place deciding a local issue (seeing as how the Constitution defines the Federal Judiciaries’ scope pretty clearly.
If Michael had been a resident of another State, it would have qualified. If Terry had been sentenced to death for a criminal act, it would have qualified.
Just trying to start from scratch in the Federal Courts is a violation of the separation of powers, and the Federal Courts knew it. They refused the request, because it should never have been submitted to them in the first place.
(The daughter is on world-wide live TV right now, asking for “privacy”. The sheer irony is staggering...)
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Right. Now, Dane, can you show me which part of the Constitution authorizes Congress to interfere between a husband and wife?
Take your time.
Or, if you’re too gottdamned cheap to buy a hard copy, you can find the whole thing online, with the 27 Amendments found here.
I like to carry mine with me. I whip it out when some dumbass is making crazy claims (usually family members) then read what it ACTUALLY says. It tends to separate those who want to be enlightened from those who want to continue living in La La Land.
I even ordered a dozen and gave them away to the clueless.
He kept railing on about how he “didn’t get it.” Well, here’s a very specific example. Do you think, for a second, that Limbaugh or Michael Medved or any of the other conservative pundits would not decry the actions of a Democratic federal government as being unconstitutional and a violation of states rights?
OK, here we go again.
You keep painting us with the same brush over, and over again, but the paint doesn’t stick. The politics of the matter mean nothing to me, though I know it’s political for some. However, did it ever dawn on you that some of us actually feel the way we speak? That we think this whole thing really was a travesty of justice?
It wouldn’t matter what party was in office, what party was in Congress. All of that is moot. You ask yourself a question - is there any doubt, whatsoever, as to the person’s wishes? Then you don’t pull the plug. And any court who overrides this is wrong.
Lee - you’re the one who doesn’t get it. You err on the side of life. Period.
I don’t know how to make this any clearer.
TV (Harry)
It’s worth noting that the civility of the arguments made here, and the education it provides, is exactly what was lost by Roe v. Wade.
If we aren’t all willing to grind through this, advocate and learn then we risk Judicial imposition.
For example, I also made the mistake on Elian Gonzalez corrected by Drumwaster:
Not true. Immigration and Naturalization is a Federal matter (specifically mentioned in COTUS - Art. II, Sect. 8).
In which I linked to an article that argued that as an example of (D)emocrat driven excess…
Though one not indulged by (R) SWAT teams in this case…
But I remain unconvinced that State’s Rights trump Individual Rights.
If the people’s representatives in Congress can further expand those individual rights… and allowing an appeal of a State Court’s decision, in a Federal Court, on a life & death matter, seems a reasonable candidate for a test…
Then is that not consistent with the intent and purpose of the inclusion of the Bill of Rights?
RE: Drumwaster
Right. Now, Dane, can you show me which part of the Constitution authorizes Congress to interfere between a husband and wife?
Take your time.
Sorry… my posts aren’t in sync… to answer you:
Individual rights are not trumped by the State and are not limited to those specified as evidenced by the creation of a “right to privacy” and the well documented intent of the framers.
I too am a strict constructionist so I find great validity in your arguments. But our individual liberties are not limited to that which is specified.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
I used to listen to Rush quite a bit 15 years ago. After watching him shove his foot ever further into his mouth I just started to tune him out. He’s turned into a caricature of himself - he’s so reflexive in his GOP ass kissing he doesn’t even realize he’s swapped positions since the Clinton administration.
and allowing an appeal of a State Court’s decision, in a Federal Court, on a life & death matter, seems a reasonable candidate for a test…
The parents had already filed for multiple “reviews”, and if it was just another review, that’s one thing. But Congress didn’t do that. They ordered original jurisdiction in the Federal Courts and a de novo hearing, which is not in their power to order.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
I’d suggest you read Heinlein’s explanations as to why none of those is actually a “Right”, but I also need to remind you that those words reside in the Declaration of Independence, not the Constitution. The DoI is neither organic (common) law nor statutory.
You ask yourself a question - is there any doubt, whatsoever, as to the person’s wishes?
This issue is to be decided at the State Court level, and not by getting Congress to overturn State’s rights.
Posted by Seattle Outcast on 03/31 at 02:38 PM
I used to listen to Rush quite a bit 15 years ago.
I was listening to them earlier. “Limelight”, “YYZ”, “The Spirit Of Radio”, etc. Great tunes…
*pokes Drum in the eye*
ROFLMAO
No, it isn’t. The Tenth Amendment says that if COTUS doesn’t grant the authority to Congress to interfere between a husband and wife (which it doesn’t)
Sorry Drumwaster, but you’re wrong. You’re looking at the wrong section of the Constitution. And you’re reading the Tenth wrong.
The Congress did not pass a law “interfering” with a man and his wife. The Congress passed a law granting jurisdiction over certain cases to the Federal Courts. Like it or not, that is well within their powers.
Just because you disagree with it doesn’t mean its wrong.
And now that the law was written, the Federal Courts ruled against Terry’s parents (again), and Congressmen from all over are screaming “That’s not what we wanted you to do!”
That’s because the law was written so the Federal Courts could and would review the facts of the case de novo. They didn’t do that, they went with bullshit procedural sidestepping.
I was listening to them earlier. “Limelight”, “YYZ”, “The Spirit Of Radio”, etc. Great tunes…
I think Power Windows was an underrated album. “Middletown Dreams”.
The Congress passed a law granting jurisdiction over certain cases to the Federal Courts. Like it or not, that is well within their powers.
Not quite. They have the Right to “ordain and establish” the existence of the Courts. But what it doesn’t have is the Constitutionally-granted authority to take away the rights and privileges of a married couple (which is what the family has been trying to do for years - take away Michael’s right to speak as Terry’s guardian). Since the Constitution doesn’t mention marriage, we need to go to the Tenth Amendment, and we;ll see what it says, okay?
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Now, since defining marriage is NOT one of the “powers delegated to the United States by the Constitution” (remember the gay marriage issue, and how one State did not get to define marriage for all of the other States? It would take a CONSTITUTIONAL AMENDMENT to grant the Feds that authority), that power is “reserved to the States respectively, or to the people”. The State of Florida in this case.
How difficult a concept is this? That’s in plain English.
Just because you disagree with it doesn’t mean its wrong.
Just because you agree with it doesn’t mean it’s right. To settle this disagreement we should go to court.
Oh.
People need to read the Declaration of Independence and the Constitution thoroughly, multiple times. There is something about the spirit of those documents (which shouldn’t be separated or view independently) that you only get when considered as a whole.
Quoting articles, sections and ammendments is ok and necessary but one should have a reasonably complete understanding as well.
Like Drum says, it’s plain English. It’s neither a long nor complicated read.
Of course, if you don’t want to get it…
"to the people”
is plain English.
Access to an additional venue, a Federal appeal, protects individual rights from the State.
Please reconsider my reversal of the facts.
What if Terri left specific instructions to pull the tubes and her Husband said no… in some random State of our Union.
Should not your individual rights allow you an appeal to the Federal Courts?
This more natural view of the “Right to Die” is exactly what Oregon’s law is facing with Supreme Court review.
It’s happening right now.
So you seem to be saying that the Supreme Court can review a State Law regarding a “Right To Die” but not consider the appeal of an innocent citizen condemned to die.
Your positions on Terri’s case are dependent on Judge Greer’s “findings of fact” as an absolute which is specifically in dispute. To insist that the CYA Judge the Judge of the appeals provides “due process” is to belittle the consequences of the error.
FloriDuh’s laws provided for Judicial execution of a helpless citizen on the word of an interested party hiding behind a marriage of convenience.
Regardless of the specifics of those laws the State does not have a right to deny life to a citizen without “due process” and to simply state that they did provide it ignores the circumstances that justify the appeal to a higher authority.
I’m also implying that there are larger issues here then simply “Right to Lifers” trying to impose religious dogma.
I know everybody says it… I’m an (R) but… I’m a lifelong (D) but…
In this case it isn’t about dogma. My argument is that in either case, the “Right to Die” imposed or denied, the ‘standard’ of due process needs to be proportional to the consequences.
Yes in a Federal v. State dispute I’m right there with you…
But in an Individual v. State the same standard as Individual v. Federal must apply and that demands a very high standard be applied.
Consider the 4th Amendment… which does not specifically apply…
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.
But out of this the right to privacy was implied.
Should not the right to life also be implied?
And if so should not Due Process meet the highest standard to protect the Individual?
What if Terri left specific instructions to pull the tubes and her Husband said no… in some random State of our Union.
What if...? What if Terry was actually an outer space alien? Would the Federal Courts have jurisdiction, or should we submit it directly to the ICC?
Sheesh…
So you seem to be saying that the Supreme Court can review a State Law regarding a “Right To Die” but not consider the appeal of an innocent citizen condemned to die.
Aside from the connotation of the word “condemned”, rather than the more accurate “wishing”, yes. ("Condemned" requires conviction in a criminal court. A synonym is “sentenced”.)
According to the statements of some witnesses, and as per the statement of her legal guardian, Terry would not have wanted to live in the situation she finds herself. Her family disagreed. The evidence they presented was insufficient to meet the burden needed to overcome the statutory default position.
My argument is that in either case, the “Right to Die” imposed or denied, the ‘standard’ of due process needs to be proportional to the consequences.
And you’re saying 15 years isn’t enough? How long should people be forced to wait to meet your necessary threshold? 20 years? Til they die of natural causes (which kind of defeats their right to refuse medical treatment, just in order to satisfy someone whose opinion carries no legal weight)?
But in an Individual v. State the same standard as Individual v. Federal must apply and that demands a very high standard be applied.
This isn’t a “People versus Terry Schiavo” kind of case. This is an individual deciding to refuse medical care. Terry was unable to make this clear by herself, and her family disagreed with Michael.
I’m not faulting her family for wanting to drag Terry’s existence out as long as possible. They didn’t want to give up, and while their motives were altruistic, their dispute required a decision. The local courts were asked to step in to resolve the issue (just as similar issues are settled every day around the country). Both sides got to present their evidence. The judge decided.
The parents lost.
They have fought and lost. And fought and lost. And again. Over and over for more than a decade, despite medical evidence, they fought.
I cannot fault them for their motives, only their demands that elected officials violate their Oaths of Office just to save one person. They have had their due process, including review of the case as high as the Supreme Court (who affirmed all of the lower court rulings).
Uh… So… Has anybody read George Felos’ book?
It’s all well and good to prattle on about “federalism” and so forth, but where Lee and Drum fall flat on their face is the fact that there is ample precedent for the Federal government to step into areas that are nominally “state’s rights” issues, WHEN THE STATE IS NOT PROTECTING
So how is the State of Florida not protecting someone?
Be specific. “Prattle” away.
prattle, prattle, prattle...
(Sorry about that, finger hit the wrong button)
It’s all well and good to prattle on about “federalism” and so forth, but where Lee and Drum fall flat on their face is the fact that there is ample precedent for the Federal government to step into areas that are nominally “state’s rights” issues, WHEN THE STATE IS NOT PROTECTING A CITIZEN’S CIVIL RIGHTS. For instance, the Civil Rights Act (both of them, actually) overrode state law in many instances where the state’s law was violating a citizen(s)’ rights; in this example the rights of black citizens in some Southern states.
Now, was that wrong for the Feds to step in when it was determined that someone’s civil rights were being violated? Some purists would no doubt say yes, just as Lee and Drum are here. And I’m not going to get into a pissing contest over it with those two either. Opinions are like assholes, everybody has one.
But like it or not, there is ample precedent for what the Federal government did in this case, particularly where civil rights are concerned, life being chief among those rights. And there was considerable doubt as to the facts of the case, regardless of what was “proven” or “not proven” by whom. Indeed, where I sit, the whole thing stank to high heaven, and Mr. Schiavo’s motives were highly suspect, and what Terri really wanted was only hearsay; hearsay from the guy who stood to collect a million bucks as soon as that woman assumed room temperature.
So you boys want to piss and moan about how the Feds broke the rules of federalism and so forth, as if there were no precedent for it, which there certainly is, right or wrong (deal with it), go ahead.
But just what did it accomplish? Nothing. At most, it delayed Terri’s death by a couple of days. The Federal judges in this case basically were not going to touch this with a ten-foot pole, and the case passed through their courts like grease through a gooze completely unchanged. And the net result was that whatever laws Congress passed and Bush signed in this matter were for naught.
But they did what they could to err on the side of caution where an innocent life was concerned. And there was a political aspect to this, like it or not, since the Repub base is pro-life, and even in cases like this (in other words, it’s not just about abortion). Had they not been seen doing SOMETHING about this case, even something as transitory as this, there would have been a price to pay come election time for quite a few of them. Not only that, quite a few Democrats saw the handwriting on the wall in this regard as well, which is why so many of them also voted for the measure.
Bottom line is that what the Congress did was a storm in a teapot in terms of the difference it made, and getting into a snit over it, especially since this was something that happened almost two weeks ago, and was put to rest a day or so later, is rather silly.
BTW, I was not imtimating that Lee or Drum would advocate violating anyone’s civil rights. However, using their federalism argument, things like the Civil Rights Act, and similar measures could be seen as usurping state’s rights, which in a sense they did in some cases.
Besides, what the Constitution says, and what the Feds do with it, began diverging back with Abraham Lincoln (habeas corpus) during the Civil War, and has gone downhill since then.
Uh-huh.
So do you wanna answer my question? How is Florida not protecting someone?
Please, be specific. Name names. Point fingers. Give us your most outlandish and slanderous accusation.
Let me know when you’re finished.
You know what would really be great? If Lee’s blog comments had smileys.
Thanks Lee! I was listening to Rush today and I had a small taste of what it must’ve felt like to be a Kerry supporter during the election. I felt what it’s like to vehemently disagree with him and think him a raving fucktard for saying the things he was saying.
For example, he found it inconceivable that anyone would EVER take the husband’s word over her parents’, ignoring the fact that there were extensive evidentiary hearings on the subject under a pretty stiff burden of proof, and somehow the case that TERRI wouldn’t have wanted to live was made. The judges didn’t decide on the basis of her condition alone, but that’s what Rush would have us believe--that activist judges are just a hair’s-breadth away from allowing the euthenasia of the handicapped.
And what really galls me is this analogy between Terri and “animals.” You know what my dog does when he’s hungry? When I miss his dinner time by five minutes he whines, he barks, he runs around like a maniac. He noses his dish around the room and makes a racket! I’ll tell you what, if Terri Schiavo were capable of any of this (never mind capable of sitting up in bed and asking for a cheeseburger), I’m pretty sure they would have fed her!
I’ll be serious for a moment (okay, quasi-serious), Lee’s post demonstrates quite clearly to me just why I quit listening to Limbaugh a long time ago.
Lee, Drum -
Didn’t conservatives howl when Bill Clinton and Janet Reno, in support of a lawful court decision, ordered Federal Marshals to take Elian Gonzales and ship him back to Cuba?
These same conservatives wanted George and Jeb Bush to use the same tactics AGAINST a standing legal order in order to “rescue” Mrs. Schiavo (I didn’t know her, so I’ll never call her by her first name).
Amazing…
P.S. - Rush, Hannity, Beck and Medved all threw away what little credibility they had left. Neil Boortz, on the other hand, is the man.
Drumwaster:
So do you wanna answer my question? How is Florida not protecting someone?
Terri is dead. If the issue was “protection” she wouldn’t be. The dispute was over her consent and is still at issue because of the admittedly low standard of Florida’s State’s Right that meeting that low standard was “due process”.
Specific to Lee… it isn’t an issue of hypocrisy because a (D) President/Congress would have taken the side they have and not acted in Terri’s case.
What makes Terri unique isn’t they allegations of hypocrisy as the (D)’s and (R)’s are taking predictable sides.
And my earlier point was that if you reversed the claim, and made it a “Right to Die” issue by having somebody demanding to overcome State Law by pulling a tube you might then have a (D) President/Congress intervene and then you might have (R)’s howling about Federalism.
But I feel you evaded my question.
If the “Right of Privacy” implied as an inalienable right by liberal interpretation of the 4th 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.
and it’s high standards for the comparatively trivial issue of property rights… as compared to the Rights specified in the Declaration of Independence’s preamble:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
Then a right to life is an inalienable right even more easily established then a right to privacy.
Which answers your question:
Right. Now, Dane, can you show me which part of the Constitution authorizes Congress to interfere between a husband and wife?
Take your time.
Because… as the standard of Florida Law, Applied by Judge Greer, is insufficient, which you may have conceded when you pointed out that a criminal charge would have a higher standard…
Then you in fact we are back to the question
But in an Individual v. State the same standard as Individual v. Federal must apply and that demands a very high standard be applied
So if Terri’s consent was established by a “due process” that didn’t meet the standards due her by Constitutional protections of her Civil rights then she should have been allowed an appeal.
And that venue, as it is the State violating her civil rights, by the application of such a low standard of due process… has to be the Federal courts.
So Congress specified a path to protection of individual rights that are… inalienable.
Unless you can’t talk… in FloriDuh.
If the issue was “protection” she wouldn’t be.
Even if she wanted to be? You are choosing to force your personal decisions onto her? Why would you be so presumptuous?
If the “Right of Privacy” implied as an inalienable right by liberal interpretation of the 4th 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.
and it’s high standards for the comparatively trivial issue of property rights… as compared to the Rights specified in the Declaration of Independence’s preamble:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
Then a right to life is an inalienable right even more easily established then a right to privacy.
There is no “right to life” in the Constitution. The DoI is not law. The Constitution clearly implies permitting the taking of life through Due Process. Even if she were a criminal about to be executed by lethal injection because she committed a heinous crime, 15 years of review at every level of the Judiciary is sufficient unto itself.
However… (You just knew there was gonna be a “however”, dincha?)
Terry had made a decision to refuse any sort of medical care if she were in that situation.
Because… as the standard of Florida Law, Applied by Judge Greer, is insufficient,
You don’t even know what law is being discussed, do you? It is that part of Florida Family Law that describes the legal relationship between husband and wife.
The default position in Florida (as it is also the case in every other State in the Union, for that matter) is that the spouse, and NOT the parents, is the primary next-of-kin and legal guardian of a person who is mentally incapacitated, such as Terry.
The parents wanted to overturn that default position. The burden of proof is on the parents, not Michael, to prove that he is an unfit guardian. However, those laws are fairly firm, and requires something fairly serious to overcome it (preserving the sanctity of marriage), such as conviction of a serious felony or the like.
The parents, upon learning the need to overcome that default, immediately started issuing all kinds of harsh allegations against Michael, none of which was ever found to have the faintest hint of any evidence in support. The total lack of any kind of substantiation of the charges did not stop the parents (and lots of others) from levelling these unfounded accusations against Michael. (I guess it’s a good thing he never served in the Texas Air National Guard, huh?)
Michael demanded any sort of treatment that might possibly help Terry at first, even flying her to California for a radical treatment (that failed). It was only after many years (during which time Michael even trained as a nurse, so that he could take care of Terry) of being told by specialists from all over the country that there just wasn’t any hope, and after the CAT scans that showed “structural abnormalities” in Terry’s brain, showing that she would NEVER recover, no matter what happened, that Michael decided to accept the truth and let Terry go. She had expressed to several people that she would not want to linger for years, helpless as a baby.
After coming to that mournful conclusion, Michael immediately ran into a brick wall erected by her parents. As vindictively as any in-laws could be, they fought his attempts to carry out Terry’s last wishes, wearing out both sides, eating away at finances on both sides, turning what remained of Terry’s dignity into a circus (complete with its own juggler), and painting Michael as a monster that went AWOL during Vietnam (oh, wait… sorry, wrong target), with the Religious Right and an overly ambitious Congress stepping in where they were not legally permitted to go, and lots of people saying that their unConstitutional actions were “okay in a good cause”.
(Note for the humorless: I have nothing but the deepest respect for Terry’s parents, and as a parent myself, I grieve with them for their loss. I cannot imagine the kind of suffering they must be going through. But the media nonsense the past few weeks is entirely of their own making. And i thought it would be interesting to treat the parents as Michael has been treated, except that nothing I said was false.)
Congress took action that had the underlying intention of having this woman stay alive.
In your fictional scenario, Congress takes action that has the intention of not having her stay alive.
I too listened to Limbaugh today. He sure seemed to me to be talking based on a principle of innocent life being paramount. So, would he be upset if Congress took action against innocent life as in your fictional scenario, of course he would - as would many other like-minded individuals.
Also, on this question of “allowing her to die with dignity.” A woman is married, suffers an accident/illness, her husband hires an attorney, and the attorney speaks to reporters from around the globe and tells the world how she hasn’t had any urine output in the past few hours. That’s dying with dignity?
Bert
My bottom line on this one is not about federalism...it’s about rights of parents vs. rights of spouses. First, I think that the spousal relationship, while a great many things, shouldn’t be the source of life and death decisions. Notwithstanding the “til death do us part” element of some weddings, the fact is that well over 50% of all marriages end in divorce. If marriages are such fragile things, they shouldn’t include a right of choosing between life and death for the spouse. That right should be, at least partially, vested in the blood relatives.
Second, I view this (euthanasia) much as I view abortion-I have no problem with the interested parties (i.e., mother and father for abortions, spouse and parents of the other spouse for marriages) making a decision that has to be unanimous. I.e., abortions should be perfectly legal, but only if BOTH parents agree to it. If only one does, the abortion can not be performed. Likewise, with Schiavo like situations, if only one party wants to end the life of the subject person, unless there is a written document specifying otherwise, the termination of life should not proceed.
My opinion on the whole parents vs. spouse is that (speaking in very basic terms) parents give away their rights when they give away their child to be married.
The Bible even supports that the marriage relationship trumps mother/father. That whole thing about leaving your parents to become one with your spouse.
The rights of spouses is probably the most conservative position to hold. Again, many who were trying to get that tube back in are nothing of the sort and have simply hijacked the political vocabulary.
The role reversal example doesn’t work from a legal perspective, for the simple reason that the 14th Amendment protects the right to live (i.e., not be killed by the state without due process), but it does not confer any right to die. Therefore, Congress may legislate to protect a right to live, but only the states can create a right to die.
This is getting inane, it’s like watching a mouse run a maze with no end. Is the republican party going to split on a case where one side is arguing that life ends when you brain stops working, and the other side is arguing that life ends when your heart stops? Where does it end? The woman is dead, move on.
” For example, he found it inconceivable that anyone would EVER take the husband’s word over her parents’, ignoring the fact that there were extensive evidentiary hearings on the subject under a pretty stiff burden of proof, and somehow the case that TERRI wouldn’t have wanted to live was made. The judges didn’t decide on the basis of her condition alone, but that’s what Rush would have us believe--that activist judges are just a hair’s-breadth away from allowing the euthenasia of the handicapped.”
The default position was with the husband, the stiff burden of proof rested with her parents, which Judge Greer didn’t feel that they achieved. Since the default position was with the husband, he didn’t have to meet a stiff burden of proof.
“And what really galls me is this analogy between Terri and “animals.” You know what my dog does when he’s hungry? When I miss his dinner time by five minutes he whines, he barks, he runs around like a maniac. He noses his dish around the room and makes a racket! I’ll tell you what, if Terri Schiavo were capable of any of this (never mind capable of sitting up in bed and asking for a cheeseburger), I’m pretty sure they would have fed her! “
So you are saying that if you’re physically handicapped to the point that you can’t physically get your food or you can’t ask for your food then you don’t deserve to eat??
“(Note for the humorless: I have nothing but the deepest respect for Terry’s parents, and as a parent myself, I grieve with them for their loss. I cannot imagine the kind of suffering they must be going through. But the media nonsense the past few weeks is entirely of their own making. And i thought it would be interesting to treat the parents as Michael has been treated, except that nothing I said was false.)”
How do you know that what you said isn’t false? You are taking the word of Michael over the parents, but you weren’t there any more than the other side was there. We don’t ‘know’ anything.
Just looking at the timeline of events leaves people with suspicions about Michael’s motives.
1990 - Terri collapses and suffers brain damage from lack of oxygen.
1990 - 1992 Numerous treatments and therapy are tried to help Terri. A lawsuit was entered on behalf of Michael and Terri.
1993 - Michael is awarded $350,000 for loss consortium and Terri is awarded $750,000 to take care of her for the rest of her life. (This is based on Michael’s testimony that he was going to provide and take care of her for the rest of his life!!!)
1993 - Michael directs the Nursing Home to not treat Terri for a Urinary Tract Infection, refuses any further therapy, and has them put up a do not resusitate sign over her bed.
1993 - Bitter fued between parents and Michael begins… Parents claim they are upset because Michael refuses to take care of Terri, Michael says it is because he would’t split the money with them… who knows the real reason.
1993 - Parents file first petition to have Michael removed as Terri’s guardian due to non treatment of Terri, Michael changes his position and allows the infection to be treated. Parents then drop the petition due to ‘lack of funds’ on their part.
1995 - Michael moves in with a new girlfriend
1996 - Michael petitions the court to have feeding tube removed. Legal battle ensues. With the default position being the husband can make the decison, the parents are unable to meet the stiff burden of proof to remove him as guardian in Judge Greer’s eyes. (Personally, I belive that the Schindlers were out lawyered, Felos’ speciality is the right to die cases and the attorney for the Schindlers was a pro bono attorney that had never tried a case of this type) A Guardian Ad Litem is appointed who comes up with the determination that the feeding tube probably shouldn’t be removed because of some serious ‘conflict of interest’ on the part of Michael. Michael files a petition to have the GAL removed stating that he was biased.. Judge decides that he wasn’t biased but does not use his finding. Finds in favor of Michael.
At this point, everything that has been found in the trial court is a finding of fact...period. Any appeals that take place are for proceedural errors in the trial court, the appeals court does not look at anything outside of the finding of fact, it does not look at anything outside of the specific allegation filed to the appeals court.
To say that 20 judges looked at and agreed with Greer is not entirely true..they just agreed that the process was followed.
If anything, I hope that people make living wills that are specific, and that Florida passes a law that in cases of dispute and severe conflict of interest, a independant guardian is appointed to represent the disabled person. At this point both sides should be held to the same standard of proof, or with life being the default.
Without morals, there would be no law. Not vice versa. Do you believe that the things that Gov. Jeb Bush did were unconstitutional? The state congress of Florida? And what exactly did the Congress do to endanger federalism?
Just looking at the timeline of events leaves people with suspicions about Michael’s motives.
Looking at the timeline with a different set of mental filters brings you to a different set of conclusions. You are all too willing to import evil and hateful motives to Michael and none to her parents.
Try looking at the actions as I explained them - that Michael fought tooth and nail to help Terry until it was shown to him that nothing that was done would ever be able to help Terry, where he decided to let Terry go, knowing that she wouldn’t want to “live” like that, and the parents started slandering him simply because he was willing to move on.
You can have all the “suspicions” you want (and I’d bet that most of your “suspicions” have been learned from the parents unsubstantiated claims that Michael either caused her condition (disregarding the jury verdict and settlement that says differently) and that the parents get a veto over the spouse.
There is not a single State where that is true, and I can only think of a few countries where parents get to override the spouse. (Of course, it’s usually the wife who gets overridden, but she’s wearing a burka anyway, so what does her opinion matter?)
1990 - Terri collapses and suffers brain damage from lack of oxygen.
That “collapse” was actually a heart attack brought on by (irony alert) starving herself to the point where her biochemistry was all out of whack. Something that she couldn’t legally do to a dog, she could easily elect to do to herself, and only she is responsible for the outcome. Not Michael, not his attorney.
Terry did it to herself, plain and simple. But by that time, her parents had already “given her away” in a publicly-celebrated religious and legal ceremony. Michael was her legal next-of-kin at the time of her accident, and remained so right up until yesterday morning.
Fortunately for the rest of us.
And what exactly did the Congress do to endanger federalism?
By attempting to take away the authority of the State governments. If Congress can write State laws, why bother to have a State government at all?
Didn’t conservatives howl when Bill Clinton and Janet Reno, in support of a lawful court decision, ordered Federal Marshals to take Elian Gonzales and ship him back to Cuba?
And GADMAN here borrows Lee’s paint-the-conservatives brush…
We conservatives thought it was morally wrong to send a kid back to a communist gulag. The legality of the process was not in question.
Apparently, the federal government is in charge of immigration. They lawfully executed that duty. Even if Janet Reno is pondscum for it.
I didn’t hear you liberals (or libertarians) complain about the federal government getting involved in Florida’s affairs back then…
TV (Harry)
Drumwaster:
The applicable Florida law specifically allows a Guardian to be appointed above a spouse and given the financial interest of this spouse that seems another argument against Michael and for the family as they wanted to spend the money for the purpose designated… Terri’s life support.
Even if she wanted to be? You are choosing to force your personal decisions onto her? Why would you be so presumptuous?
It is you who presume the flimsy evidence presented proved she wanted to die. Which of us places her at greater risk?
There is no “right to life” in the Constitution.
That is the 800 lb gorilla in the room isn’t it?
The right to privacy isn’t in the Constitution either is it? But our inalienable rights are not limited to those listed.
I am arguing that expanding individual rights to allow a Federal appeal is quite appropriate in a life & death situation.
How is it Libertarian to see the ‘State’ of Florida as the final authority, in this case, when the Constitution quite clearly limits both Federal powers to protect the State and individuals AND limits the State’s powers to protect individuals.
If you and I were married [smoochy], and after my death you found a video tape where I casually expressed a desire that my estate go to AIDs research, you could present that to a probate judge and it would be considered against the claims of my family, and you, against my estate.
But that’s only property. There would be no Federal question if a decision went against you, my spouse.
All your arguments are absolutely correct in this case.
Well in Terri’s case there was no tape. The only evidence was the ‘8 year late’ claim by Michael, post settlement, supported by his brother and sister-in-law, that Terri made a casual statement while watching TV.
Hearsay by a party with a million dollar financial windfall to gain?
Judge Greer balanced this against a mountain of testimony by disinterested parties that knew Terri far longer, her family and friends.
It is also inexcusable that Judge Greer continued to allow the Husband-in-name-only continued, and absolute, control in spite of his new spousal relationship and children.
Judge Greer also discounted her faith which stands in opposition to such a claimed statement.
Again… I say this creates a clear Civil Rights question as the standard by which Judge Greer allowed Terri’s “consent” to be accepted by the court was far too low to stand a Constitutional test in that it violated her Civil liberties… her inalienable right to life.
Per Lee’s question I am arguing that putting individual rights first, against the State, is a more supportable Libertarian position then defending State’s Rights against Federal interference when an individual’s rights are being trampled.
So I also argue the (R)’s are not hypocrits regarding the Federal question because they are putting the individual first by specifying a path to a “de novo” review, and appeal, of what you seem willing to concede as an absolute right of the state.
The simple fact is that if you are wrong, Terri was state sanctioned murder, and if I am wrong, Terri would just be another of the 27,000 PVS nationwide… and that risk also argues against your position.
The (R)’s may not be Libertarians… but if you review the amazing abuse of Federal power by the Clinton(D) administration regarding IRS investigations into political opponents, the Elian Gonzalez ‘fastbreak’ past the courts, etc…
It’s pretty safe to say that Lee’s real question is ‘aren’t the (R)’s being as hypocritical regarding Federalism as the (D)’s are habitually’
But the 800 lb Gorilla is that the courts wanted to dodge a Constitutional question regarding a Right to Life and so they did…
As for Medved… if a religious man puts his faith before the law I have to concede that to him just as you would have to concede a lack of hypocrisy if I put family before the law in my own life.
So for very non-religious reasons I am appalled by Judge Greer and regardless of how many State Judges judged that State Judge… none reviewed the facts.
That needed to be done.
I am arguing that expanding individual rights to allow a Federal appeal is quite appropriate in a life & death situation.
Are people allowed to waive that “right to life”? Do we imprison people who violate that right by attempting suicide? How about jailing those who risk their lives (such as firemen, police, military)?
How much control does a person have over their own person?
It is you who presume the flimsy evidence presented proved she wanted to die.
It wasn’t “my” burden of proof to overcome. Nor was it Michael’s. It was the parent’s, plain and simple, since they are the ones seeking to overturn the default position. The flimsiness of the evidence they presented is not Michael’s fault.
Get that part straight. Michael was under no obligation whatsoever to “prove” anything (even though he did so to the judge’s satisfaction). He had the legal authority, as per State law (just as he would in any other State).
Hearsay by a party with a million dollar financial windfall to gain?
And if the parents were her guardians, wouldn’t that put them in the position to inherit that money? If Michael was in it for the money, he had been offered $10 million last year, just to walk away (even before the national furor). He refused. I have to ask if the parents would have…
how many State Judges judged that State Judge… none reviewed the facts.
You have no idea how legal appeals work, do you? Not only do they investigate the evidence presented (to see if the evidence meets the legal standards set by black-letter law and precedents), they also check to make sure that the judge made no reversible errors by using that evidence or applying the law incorrectly.
Overturning a judge is not difficult for them, because that is the reason Appeals Courts exist, to make sure that everyone was treated fairly and that everyone got a say.
The parents couldn’t do it at trial, they couldn’t do it on appeal, they didn’t win a SINGLE CASE, despite the innumerable slanderous accusations levelled against Michael, and all those “eight-to-ten years later affadavits remembering specific words that Michael allegedly said”, and suspiciously broken ribs (usually by people who have never bothered to study CPR procedures, which the paramedics would have employed to get Terry’s heart restarted) (Hint: CPR usually cracks ribs, especially if the one performing the compressions is a little hurried.)
If Terri wanted to die and had made her wishes known she’d have died before 1993.
But then she didn’t win the million dollar settlement until 1998. Funny her guardian remembered soon after… her wish to “waive her right to life”.
The question of “Right to die” was not reached as the courts ruled that Terri had a right to refuse nourishment which is dependent upon her consent.
The burden was upon Michael to prove that consent.
It is that consent, and the low standard of proof Judge Greer allowed for, considering the evidence to the contrary, that is the issue.
The questionable guardianship was only an issue because of his ability to impose his claim of that consent. Questionable because upon her death he recieves the money allocated for Terri and unspent by him on her care.
It’s hardly comparable to the parent’s desire to see the money spent on Terri instead of being spent on lawyers to advance Michael’s claims of her consent to die and leave him the balance.
I’m afraid I don’t you what you mean by
Are people allowed to waive that “right to life”? Do we imprison people who violate that right by attempting suicide? How about jailing those who risk their lives (such as firemen, police, military)?
How much control does a person have over their own person?
Because in Terri’s case the issue is consent and yes she does have an implied right to waive her own “right to life”. Yes suicide is a crime in most states but it’s usually used as leverage to give the person counseling.
As to ‘jailing people who risk their lives’ you are losing me.
If Terri consented then letting her go is the right thing to do.
But you conceded earlier that Florida’s standard of proof for her consent is lower then for a criminal case which may only result imprisonment.
If the consequences, death, are so much more severe then the standard falls far short of protecting the inalienable rights of the Florida citizen as guaranteed by the Constitution even if not specified in the Bill of Rights.
You also argued that 15 years is quite enough time, but that is a consequence of the lack of a Federal appeal, and not proof of a higher standard of “due process”.
So isn’t Congress’ action an additional protection for the individual, from the state, by allowing access to an appeals process, a “de novo” review, in Federal courts, where a dispute over consent to “waive that “right to life”” arises?
And… as the debate here is over hypocrisy… how many are evading the 800 lb Gorilla in the room? Isn’t that why the courts dodged? Why the (D)’s raged?
Isn’t everybody looking for an excuse not to recognize the inalienable right to one’s own life?
Isn’t that the libertarian ideal?
Individual rights supreme?
Maybe the (R)’s aren’t hypocrits… just good tacticians that were thwarted?
I would not have any legal problem with the bill mentioned. The XIVth Amendment to the Constitution says “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. It gives Congress the right to enforce that by appropriate legislation. If the Congress believes a citizens rights may be being violated, it has the right and duty to act, and allowing a federal court review is perfectly legal and constitutional. Article III, Section 2, clause 1 gives says that “The judicial Power shall extend to all Cases, in Law and Equity, arising under . . . the Laws of the United States,” and since the hypothetical case involves a law passed by Congress, it is withing federal jurisdiction. Finally, Article VI, clause 2 says “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
The Congress, therefore, has the Constitutional right to intervene in such cases. What part of this do you find hard to understand?
THE SAUDS MUST BE DESTROYED!
The burden was upon Michael to prove that consent.
And, barring countervening evidence that is overwhelming enough to remove his authority as Terry’s next of kin, tMichael could fulfill that burden simply by stating so under oath. The default position is that husbands are the legal next-of-kin and guardian for the wife (and vice versa). It is this position that must be overcome.
IOW, Michael is already innocent. It is up to the Schiavos to prove him guilty enough to take that authority away from him. They couldn’t do so, because (and this is something that you yourself were arguing during the election cycle when the Dems were trying the same shit against Bush, re: AWOL accusations) accusations do not equal proof.
Make all the accusations against Michael that you want, but unless you have the proof that the family and the police could never manage to produce, then I will tell you the same thing I told the Dems last fall: Put up or shut up.
But you conceded earlier that Florida’s standard of proof for her consent is lower then for a criminal case which may only result imprisonment.
Yes, because the default position (again) is that people should have the right to make those decisions without State interference. If the State wants to take away that power from people and impose its own will upon a citizen (no matter how deserving), they have a high hurdle to clear.
But people don’t have that same hurdle to do what they want to do to themselves. If Terry had wanted to live in a sealed cage for the rest of her life, people would wonder about her sanity, but not her authority to do so. But that would be her decision to make. Just as this one is.
Terry can’t speak for herself? The state says, “Fine, who is the next of kin? The husband? Then he decides. The family disagrees? What proof do they have? None? Sorry, no tickee, no washee...”
One other thing. You might find it troubling, but the FAQs are here.
Such as a feeding tube being a “life-saving procedure"…
In 1999, in response to a Florida Supreme Court ruling, the Florida legislature updated its “end of life” statutes, which were first put into place in 1990. The House and Senate voted unanimously in support of a number of changes to the text. One of those changes added to the list of ”life-prolonging procedure”: including artificially provided sustenance and hydration, which sustains, restores, or supplants a spontaneous vital function. (Cite in Florida Supreme Court ruling, 1999 changes here.)
Governor Jeb Bush signed the bill in June of that year.
Read the whole thing.
Drumwaster et al.,
The U.S. Constitution says this:
To constitute Tribunals inferior to the supreme Court;
That’s in Article 1 section 8.
And Section 1 of the 14th Amendment states thusly:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The people that wanted the feeding tube replaced felt that Terry Schiavo did not receive due process. The only thing that I wanted was for Ms. Schiavo to receive a MRI, PET Scan and a full examination, that’s all, find out where she truly stands in relation to whether or not she truly was in a vegetative state. I knew she was going to die, the question was when and how.
As to the bill that Jeb signed into law, I think that it is wrong to starve a person, again this argument was not about religion or law, not really, it was about those that think the person dies when the brain stops working, and those the believe that death occurs when the heart stops working. That is what it really comes down to.
One last thing, those of you that believe that removing the feeding tube was the right thing to do because she had told her husband that she never wanted to live like that, are taking a gigantic leap of faith, one bigger than the most fervent theocrat.
The U.S. Constitution says this:
To constitute Tribunals inferior to the supreme Court;
They established them, and called them the Federal District Court, and the federal Appeals Court. Neither of those courts is supposed to hear original jurisdiction disagreements between neighbors. That is for the State Courts. (Re-read the Tenth Amendment, and keep looking for the COTUS authorization for Congress to regulate marriages. Once you find it, that’s when you win this one. Until the COTUS is Amended, however, Congress has no business interfering between a husband and wife.
The people that wanted the feeding tube replaced felt that Terry Schiavo did not receive due process.
Those people were utterly ignorant of two things:
1) what “Due Process” actually means; and,
2) how much court time this case actually got, and in which courts.
15 years of arguing their case, at every level of the Judiciary (including at least one affirmation by the Supreme Court), and those people think “Due Process” was denied?
Murderers on death row don’t get that level of judicial review, pal.
Seriously, go read that page I linked to above, and try and realize how much was done, and then tell us exactly what else did you want?
Tell ya what, I don’t want the Pope to die, seeing as how we have to always “err on the side of Life”, so let’s get Congress to pass a law, and send our troops into seize the Vatican, take the Pope to the hospital, and plug his Holy ass in, whaddayasay? Shock his heart to get it restarted, tubes in every orifice, and all of it on international TV.
Sound good?
Drumwaster:
Your arguments provide for an absolute right of the State over the individual. As if any action of Florida law may not be questioned against it’s violation of a person’s inalienable rights.
To explain my personal concerns let me explain taht I live in Oregon. The greatest risk to my liberties are the excesses of my local State Government.
Are you really arguing that a State’s laws cannot be held to a Constitutional standard when they violate a person’s inalienable rights?
Are you really arguing that a State’s laws cannot be held to a Constitutional standard when they violate a person’s inalienable rights?
Absolutely not. But if the issue is not mentioned in the Constitution, then it is absolutely and forever NONE OF THE FEDERAL GOVERNMENT’S BUSINESS.
You want to give the Feds the right to decide “next-of-kin” decisions, then put it in the Constitution. (It’s called an Amendment. We’ve done it 27 times - better than once a decade - since we kicked England out, so it obviously isn’t that farkin’ difficult to pull off.)
Otherwise, the State gets to decide that issue.
See how that works?
Now, which “right” was being violated by Florida laws? (I swear, if you say “right to life, liberty, and the pursuit of happiness” again, I’m gonna quit wasting time on you.)
I haven’t argued that Feds should be involved in “next-of-kin” decisions and I have argued that this isn’t.
It was Michael who drew in the Government by filing in the State court with a disputed claim made on Terri’s behalf.
That the State chose either side of the issue isn’t a problem except in this case where I have argued the Constitutional protections due a citizen are being violated.
In this sort of dispute… between a citizen and the state… where the issue involves the State’s violation of an individual’s inalienable rights, what avenue of appeal do you suggest?
And I guess I mean that rhetorically because it appears there isn’t one. Which is why I don’t think the (R)’s use of Congressional action to provide for a “de novo” review was “hypocritical”.
PS I am not saying “right to life” as a religious conservative, I don’t go to church and do not have faith, I am saying it because it seems clear it is an inalienable right and because I think it highlights the agenda of the (D)’s
As a Libertarian… isn’t that worth your time?
;)
I haven’t argued that Feds should be involved in “next-of-kin” decisions and I have argued that this isn’t.
How was the Terry Schiavo case anything BUT an attempt by her parents to overturn his rights and authorities as spouse, next-of-kin and guardian?
He made a claim, and the parents disputed it.
That the State chose either side of the issue isn’t a problem except in this case where I have argued the Constitutional protections due a citizen are being violated.
Name one. Show me which section of the Constitution guarantees a right to life, despite the individual’s wishes. Seriously.
You have argued a lot of things, none of which include the actual facts of this case.
where the issue involves the State’s violation of an individual’s inalienable rights, what avenue of appeal do you suggest?
When that is the case, I would agree.
That wasn’t the case for Terry Schiavo.
Which is why I don’t think the (R)’s use of Congressional action to provide for a “de novo” review was “hypocritical”.
The de novo review wasn’t for protection of Terry’s rights. That kind of review was a “Dial it all the way back to zero, and pretend that the Federal Courts are the State Court THAT ALREADY DECIDED THIS ISSUE”.
That’s what de novo means.
The only reason why Congress wanted a de novo review was to get a different result. They wouldn’t have demanded a fresh look of a case they agreed with.
That is legislating morality, that is attempting to criminalize Michael’s behavior after the fact, it is judicial decree-by-legislation, and violates the Constitution either of two different ways (either it is an ex post facto law, or a Bill of Attainder).
That violation is worth a great deal of my time, which is why I keep explaining it to you over and over again, hoping (beyond hope, apparently) that you might actually start to understand how much of a violation of individual rights their action was.
The Terry Schiavo issue is the most basic one of personal privacy, the right to decide what happens to our bodies, and at the same time, one involving the relationship between husband and wife, one that the Republicans were supposed to treat as sacred.
Unless there is sufficient reason to take that authority away from Michael, he retains full use of it, and the Courts will back him up.
You have not shown any reason why Michael should lose that authority, and you have shown no reason why the Feds should be involved. There are no Rights being violated, there has been beaucoup Due Process at every level, and yet you claim that wasn’t enough, because your morality outweighs hers. That about it? You get to decide?
The question was always ‘consent’ and whether Michael Schiavo’s 8 year late recovered memory met a standard reasonable with protecting Terri’s rights as a person.
Certainly you can’t argue that our individual rights are limited to what is listed in the Constitution as they are in fact inalienable.
Certainly you can’t argue that the State’s rights trump individual rights guaranteed by the Constitution and certainly not exhaustively listed.
I mentioned the right of privacy, which is not in the Constitution, but has been established as implied by the prohibitions against unreasonable search…
If you have a right not to be searched certainly you can concede you have a right to a high standard of “due process” not to be killed.
And I say ‘killed’ because all food and water was ordered denied including, specifically by Judge Greer, any attempts to allow Terri to eat or drink naturally.
This is only an issue because of the dispute. Lots of folks release their claim to life without and we only hear about those where there is a dispute like the Robert Wendland Case.
Also in the Corner noticed:
In 1990, in Cruzan v. Missouri Department of Health, Nancy Cruzan’s parents, on their behalf and on behalf of their daughter, appealed a decision of the Missouri Supreme Court, which denied their petition for a court order directing the withdrawal of their daughter’s artificial feeding and hydration equipment. The Missouri court denied their petition because there was no clear and convincing evidence of the daughter’s desire.
And the Corner also links to the issue created by the Judiciary’s refusal to consider the Congressionally ordered Congressionally ordered ‘de novo’ review.
Federal Rule of Appellate Procedure 35 provides that en banc reconsideration may be ordered where “the proceeding involves a question of exceptional importance.”
The folks on this thread have posted the litany of claims against Michael Schiavo and I concede some are not true.
But clearly Judge Greer, with the authority of Florida behind him, made a disputable decision to rule that Terri consented.
And as the Supreme Court has ruled in Cruzan v. Missouri Department of Health affirming an appeals court ruling regarding “no clear and convincing evidence of the daughter’s desire” I don’t think Congress being specific about a path for this sort of appeal is unreasonable.
Congress isn’t reaching into anyone’s privacy if they provide an alternative path for appeal for dispute resolution.
Again… isn’t this an expansion of individual rights and protection against the State and isn’t that a good thing?
And finally… no… I don’t get to decide. But I do live in Oregon and I’d rather have an option to the opinions of my state regarding certain matters. An option like a Federal appeal.
Not the “Right to Die” which Oregon is arguing I have… as if I needed their permission…
But the State of Oregon, and the City of Portland, constantly infringes upon my ‘rights to bear arms’. As those are specified in the Constitution I’m a little concerned why the blizzard of legislation never seems to make it into a Federal Court of appeal either.
You mean you’re saying that Missouri, Florida and Oregon have different laws regarding an extra-Constitutional issue?
Do tell! Will wonders never cease…
No… unless you have to resort to straw-man arguments.
For just as the Florida courts struck down their own legislature’s statute designed to protect Terri Schiavo…
As I’ve exhaustively argued, though the Federal government may put our Individual liberties at risk, the State governments are a greater risk if allowed to flaunt the individual protections in the Constitution.
Individual protections and rights that are clearly NOT intended to be limited to those specified.
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
The key phrase being “reserved to the States respectively, or to the people” and NOT limited to “the States”
And in many cases nationwide the Judiciary is legislating… the APPOINTED Judiciary are violating the separation of powers doctrine by legislating!
Which further supports my arguments, as Congress was ‘riding to the rescue’ of the Florida legislature as well, that the (R)’s were NOT acting hypocritically in advancing this legislation.
But clearly Judge Greer, with the authority of Florida behind him, made a disputable decision to rule that Terri consented.
Here Here, WTG DANEgerus
Which further supports my arguments, as Congress was ‘riding to the rescue’ of the Florida legislature as well, that the (R)’s were NOT acting hypocritically in advancing this legislation.
Yes they were, and here’s why. If the Congressional GOP were so convinced that there was a legitimate legal issue in this case, when why make a law that specifically pertained only to this case? If we’re going to “err on the side of life,” aren’t all citizens who are about to have their plug pulled entitled to the same federal review? Why is Terri Schiavo entitled to a federal review that no other vegetative person is offered? Because the action by Congress was done specifically because they didn’t like the outcome in this specific case, and creating these type of exceptionary laws is, while maybe not illegal, certainly the wrong thing for the federal legislature to be getting involved in. Had the Congress enacted a law giving the federal court system a review over everyone who is in a vegetative state I would have still opposed it, but it would have had a great deal more legitimacy.
And as far as judges being “appointed,” you do realize that the federal judges that Terri’s case were sent to were also appointed, right? Unlike Florida, where (if memory serves) judges are elected. And the judge in question, Judge Greer, is a conservative Republican, whose only crime was properly interpreting Florida law. The issue here is not that Greer was an activist judge (clearly he is not,) but that he wasn’t activist enough to get you the outcome you desired.
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For me the issue was imposed death-by-starvation by the local Judiciary.
If the Supreme court can rule on the “due process” of a convicted murderer and his capital punishment why can’t Congress insist that a citizen can seek a review of “due process” by their own State?
If the government should Butt out… doesn’t that mean the State? Of FloriDuh?
It isn’t Federalism… it’s the Judiciary and their excess.
How can a single Judge proclaim as fact that a lawyerless woman wished to die when her family, friends and faith all argue against that…
... balanced against an ex-husband who stands to gain a million dollars allowed a Right-To-Die advocate Lawyer and a Right-To-Die advocate Doctor who refuses to perform the medical tests to even determine her condition until she is dead?
Bill Clinton and Jesse Jackson sided with the Schiavo’s and it didn’t make it “wrong” in my eyes.
Because if it was about the “Right-to-Die"… why wouldn’t anybody provide her with death?
Why did she have to suffer the most prolonged and horrible death we could possibly inflict upon her?