Posted on 04/11/2005 7:56:09 AM PDT by RobinOfKingston
It's a little long, but worth the read.
RoK
bttt!
Amen and Amen. Likewise with most other judges involved herewith... most especially George Greer !!!
Meanwhile, the Spanish Empire collapsed, giving the United States all the rest of the territory west of the Rocky Mountains.
The Spanish Empire in North America did not "collapse" into U.S. custody. The Mexicans revolted against the Spaniards and gained their independence in 1822. The United States conquered all that territory in the 1840s from the Mexicans, not the Spaniards, during the very cryptically named Mexican-American War. I can understand how the author got confused over that.
I won't waste my time, or anyone else's, pointing out all the other nonsense in this article, because there's plenty of it, and my attitude towards piles of dog poop is that you just throw them in the toilet and flush. You don't waste your time analyzing them.
I don't think there was any requirement under the Missouri Compromise that a slave state be admitted every time a free state was, but that is what happened for political reasons until 1850. The Kansas-Nebraska Act in 1854 had already abolished the prohibition on slavery in the remainder of the Louisiana Territory that had been imposed by the Missouri Compromise, before the Dred Scott decision of 1857. (The uproar over the Kansas-Nebraska Act is what led to the birth of the Republican Party.)
The article also ignores Louisiana, admitted as a slave state in 1812 from the Louisiana Purchase, and the four southwestern states of Kentucky, Tennessee, Mississippi, and Alabama, which became slave states and were part of the territory of the U.S. from 1783 onwards.
The four border slave states may not have had a large number of slaves, but the slaveholders were very tenacious, as Lincoln found during the war when he tried to persuade them to adopt gradual emancipation.
I wasn't going to read it because of its length but I got sucked in while scanning it.
here is the core for those that don't want to read the whole thing:
Next, the Dred Scott court had denied the protection of inalienable rights to Americans of African descent saying that they Ahad no rights which the white man was bound to respect.@ Since there had been no federal constitutional power to force states to do their duty to protect inalienable rights, for decades the federal government had its hands tied in the face of such injustice. The inalienable rights of life, liberty, pursuit of happiness, etc., could be denied by states like Mississippi and Florida (as in the Schiavo case) and there was nothing the federal government could do about it. If a state materially failed in its duty to protect a person=s inalienable rights, there was no federal fall back position. There was no federal claim available in a federal court. There was no second tier federal recourse if a black person or any person had their inalienable rights trampled by a state.
The Dred Scott court had made the most of this flaw in the original constitution. That flaw had been part of the miscalibration of justice in America that had inflamed the public debate leading up to the Civil War. The 14th Amendment aimed to fix the flaw. It did so by adding personhood rights (inalienable rights) language to the federal constitution for the first time. It overruled Dred Scott by saying that Anor 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 laws.@ This was carefully crafted language responding directly to the holdings of the Dred Scott opinion about inalienable, personhood rights which were denied to Dred Scott and other slaves. The phraseology was aimed directly as restoring the original definition of the relationship of inalienable rights to due process and equal protection as it had been explained in the era of the Founders by such persons as Thomas Jefferson. By placing this language in the 14th Amendment, the principles of inalienable rights applied not only at the state level but at the federal level as well.
This particular clause of the 14th Amendment is extremely crucial and deserves further comment. When the Civil War began, there was no federal power to require the states to live up to their duty to protect inalienable rights. If a state materially failed in its duty to protect a person=s inalienable rights, there was practically nothing the federal government could do. If the state legislature, or the state courts, or the state governor would not protect one=s inalienable rights to life, liberty, property, and so forth, there was no federal claim available as a back up. The Dred Scott opinion clearly stated that these rights only applied to white people, but even then there was no federal power to correct the situation if a state deprived whites of their inalienable rights.
When the Civil War ended and blacks were being massacred by mob violence and state action there was no federal power to protect them. So the personhood rights clauses were made part of the 14th Amendment. These clauses created a federal right to federal protection of inalienable rights if a state materially failed to protect them under its own system of laws and justice. These personhood rights clauses were also aimed at restoring the original meaning of due process, namely, (1) that your rights cannot be taken from you unless you are accused of wrongdoing, (2) the wrongdoing has been proved in a court of law, and (3) the procedures must such that your substantive rights are truly protected, it must not be a kangaroo court with make believe protections for your rights. It cannot be time marking, paper shuffling, empty proceduralism. By definition, then, the due process clause only applies where there can be such a process in the first place. Unless a person has been charged criminally with wrongdoing, or civilly with culpable negligence or tort, the due process clause does not even come into play because no such process is permitted, period. Where depriving life is concerned, there is no civil power to execute. A death sentence from a civil court violates the 14th Amendment and the inalienable right to life period.
That is why the Florida situation with Terri Schiavo is so overwhelmingly beyond the pale. She was executed under a bogus definition of due process where no such process was even supposed to be possible at all. She was executed by a civil court, not a criminal court, in direct repudiation of the inalienable rights model and due process model of the American Founders, and in direct violation of the original purpose and meaning of the 14th Amendment. She had committed no crime worthy of death at the hands of a criminal court after a due process hearing with proof beyond a reasonable doubt. And she was charged with no civil malfeasance or tort in civil court, but was ordered executed where there was no state power to do so under our American system. And the federal courts who are tasked with not allowing such an outrage to happen not only allowed it but sanctioned it.
...
The last half of Judge Birch=s opinion was dedicated to showing why the Court did not have jurisdiction and that Congress=s law violated the separation of powers. Earth to Judge Birch, get a clue, Congress was trying to create jurisdiction for you because they probably knew you could not think this through on your own. He spent half his time explaining that he did not have jurisdiction, the other half making a bogus and intellectually bankrupt argument about a violation of separation of powers, when jurisdiction was the very thing that had been conferred on him by Congress under their 14th Amendment legislative power. But this is way too deep for a mind like that of Judge Birch. It is too big to fit in his little toy judge intellect box.
His entire explanation (pages 8 and 9) of why Congress had supposedly violated the separation of powers by granting the court the authority to conduct a de novo review fails to grasp that it was not an invasion of the province of the court, but was an exercise of Congress=s 14th Amendment powers that Judge Birch never mentions. Reading Judge Birch=s opinion is irritatingly reminiscent of listening to the defendants at Nuremberg. Their mouths were moving and they were saying words, but they seemed not to have the ability to think like ordinary human beings, or at least not able to think from anyone else=s frame of reference. Since when are federal judges supposed to be pull string, windup dolls?
And there is more here than just an accidental similarity to Dred Scott. Judge Birch can claim the prize of distinguishing himself as the new Roger Taney. Judge Birch mirrored the Taney approach to jurisdiction that was demolished as intellectual sophistry by Justice McLean, who dissented in the Dred Scott case. To make it simple for non-lawyers, we start with McLeans=s conclusion: AIf the jurisdiction be ruled against him [i.e., Dred Scott], on the ground that he is a slave, it is decisive of his fate.”20 Likewise, if Birch rules jurisdiction against Terri Schiavo, as he did, because she has no substantive rights left after a final state court decision on the merits, it is decisive of her fate!
...
Where Terri Schiavo was concerned, all that Congress tried to do was to let a disabled female, who was being starved to death under Court order such that her own flesh and blood kin could not put a drop of water to her lips, assert a claim to the right to life before a federal tribunal. But Judge Birch ruled the jurisdiction against her. And as Justice McLean explained 148 years ago, when you do that, it is decisive of her fate. That is why it cannot and must not be done that way. It was wrong where Dred Scott was concerned, and it is wrong today where Terri Schiavo is concerned. There should be no place for a Dred Scott case / Roger Taney kind of judge on the federal bench. Judge Birch has no more business being a federal appeals judge than being a brain surgeon. He is qualified to be neither. He has demonstrated himself to be wholly unfit for the office.
At Nuremberg, the defendants were not in the least outraged that so many innocent people died in so many horrific ways. They were outraged that anyone should think they were somehow evil by causing the deaths or standing idly by and doing nothing when they had they authority to intervene. Judge Birch is not outraged that an innocent woman was murdered by the state of Florida in a manner that would shock the conscience of Simon Legree. He is outraged rather that Congress would waste his time by trying to get him involved in whether or not to save her life. That=s scary. He=s not just Jake the Plumber, he=s a federal appeals judge. What does he have to say to all this? Congress cannot give federal courts the power to protect innocent life from state malfeasance. And even if they did, as they did here, Awe are bound by the Rooker-Feldman doctrine not to exercise any other jurisdictional bases to override a state final judgment.@ Oh, throw up.
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i know, even this excerpt is long, but it does summarize what is being said.
As soon as I see words like "Hitler" " Nazism" etc. I stop reading. They are no longer effective words for adding drama to stories. The are the loony lefts favorite words.
Awesome, and despairing. Yet hopeful that Mr. Amos pulled the whole history together so well, and better than 230 years of court rulings.
All hail the judiciary eh?
Over you head and heart both it is, sir. Cheers!
i agree the author kind of went off the deep end towards the end... but i'm curious, does the word slave/slavery have the same effect on you?
Surprising that you got beyond the third grade reading primer. Quite surprising. Did you?
You can't be serious. Just because a certain word is in something you won't read it? You say they're loony left words, this wasn't written by a liberal leftist. If parallels to ugly parts of history appropriately apply then they should be made.
do you have the link to the original pdf?
thanks
i'm not going to defend the poster's infanticism over certain words but the whole article could have been well written and just as effective w/o bringing germany's problems into the picture.
a comparison of what is happening in our courts to nazi germany is a completely separate matter than the thrust of the article (which pulled together 200+ years of history to try and explain what was wrong).
I think that it is your essayist, not those of us who protested the Federal involvement in the Schiavo family tragedy, who displays the same sort of cultish tunnel vision as the Nazi leaders. But I am forcing myself to refrain from detailed comments until the end of the month. Hopefully, by then, passions will have cooled, and sober reflection will be possible.
OK can you give me another example in history when certain "undesirable" citizens were put to death because of their infirmities, excluding the current euthanasia movement in the Netherlands?
I think there needs to be plenty of open discussion on the comparison to Dred Scott, the issue of federal jurisdiction, what "due process" means in a civil case, inalienable rights and the 14th amendment, etc.
...and I agree the 'discussion' does not need to involve Nazi Germany. We have plenty in our own history to reflect upon.
What is truly disturbing is the judiciary found the right to murder in the Constitution, under the 10th Amendment, supposedly. They found a right to kill yourself, if your medical condition is more than you can bear. Since suicide is literally 'self murder', the right to kill the afflicted is now codified.
there are over a million of "undesirables" w/o infirmities killed annually right in our own country... why?
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