Schiavo Thoughts: Judge Whittemore's Order Explained

Abstract Appeal (Blog) ^ | March 22, 2005 | Matt Conigliaro

[jwalsh07]

Take a hike, you liberal. States' Rights is a pillar of modern conservatism.

Oy, you know it's not my job to educate illiterate "conservatives" but for you, what the hell. Individuals have rights, states have powers. If you want to wear the mantle of conservatism it would do you well to learn the difference.

[Hildy]

So you don't care how your children wish to live?

[bvw]

The ones who do not succeed when they try it, or the ones who assist. Kervorkian is in jail.

[bvw]

I care that they live.

[Hildy]

But you don't care how they live? You think that's fair? I'll assume they feel the same way as you. If they don't, well, I don't even know what to say.

[SoCar]

the Schindlers' lawyers stink

I've been thinking the same thing. Hannity's been making better arguments on his show.

[bvw]

It doesn't matter how. Some are rich and some are poor. Some are fat and some are lean. Some have sickness, others are healthy, some have a mountain of aggravation and misery, others are fat in luxury. All must hold to what they are given in trust -- life.

[Hildy]

Well, I'm glad I'm living in a State where my wishes will be respected.

[bvw]

G-d forbid it should happen to you -- but when it does your views might then change. And like some Edgar Allan Poe story come to life you will be trapped in a window-less cell of your own making, unable to signal that your wishes have changed.

[AndyJackson]

Individuals have rights, states have powers.

Thank you for stating so clearly a very obvious fact that too many of us forget from time to time. The Constitution makes clear, i.e. Amendment X "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."

[Spunky]

"I'd recommend 3 years of law school, then get back to me ..."

Sorry, I don't have time for that.

I will admit I do not know all there is to know about the Constitution and maybe Article 3 is not the correct one to quote, but I heard that particular section mentioned many times.

If knowing law is important to you, then why do you not accept the word of most of the Congressmen who said that this was Constitutional? A whole lot of them have been lawyers.

[New Orleans Slim]

"Oy, you know it's not my job to educate illiterate "conservatives" but for you, what the hell. Individuals have rights, states have powers."

I guess you can educate Ronald Reagan and Robert Bork about conservatism while you are at it, you liberal. Guess you better study our language better next time you attempt to infiltrate Free Republic.

[New Orleans Slim]

"If knowing law is important to you, then why do you not accept the word of most of the Congressmen who said that this was Constitutional? A whole lot of them have been lawyers."

The architects of the New Deal claimed their legislation was constitutional. That didn't make it so. I am curious however under what enumerated power the Congress passed this. It doesn't sound like a commerce issue or a spending issue.

[sgent]

I think the law itself was perfectly constitutional -- the courts have held numerous times over decades that the 14th ammendment allows for the feds to insure that such does indeed exist.

The law passed by congress only affected claims under due process of law, consitutional questions, and other federal laws. If congress decides to do this, they are well within their rights -- see various laws which allow state prisoners to file cases in federal court.

The issue is that congress can't get involved in the "presumption in favor of life". That is governed by state law, and their is no consitutional basis for them to be involved. The federal courts can make sure that due process is followed, but that's about it. If we want to see a "presumption in favor of life" in our court system -- the state legislature has to do this. See the Alabama and Michigan legislatures which are currently taking up bills to forbid the with-holding of treatment in cases of unwritten gaurdianship.

Finally, the procedural errors that might have been committed by Greer can be examined under the due process clause and the subsequent enacting legislation. The only procedural error that the Shindler's brought up in their federal court filing was that Greer failed to appoint a gaurdian ad litem. The federal judge found this to be unpusuasive because:

1) 3 different gaurdian ad litems have been appointed and all agreed with Micheal.

2) The Shindler's attorney was representing Terry's "interest in life".

3) Micheal's attorney had a statuatory obligation to represent Mrs. Shiavo -- not Micheal. There was no allegation (and the court can't make one up without it being in the filings) that Micheal's attorney was not properly performing his statuatory duty.

[New Orleans Slim]

"I think the law itself was perfectly constitutional -- the courts have held numerous times over decades that the 14th ammendment allows for the feds to insure that such does indeed exist." So I went and looked up the actual law on loc.thomas.gov - it is S. 686 in the current session. So let's have a look - Section I reads: "The United States District Court for the Middle District of Florida shall have jurisdiction to hear, determine, and render judgment on a suit or claim by or on behalf of Theresa Marie Schiavo for the alleged violation of any right of Theresa Marie Schiavo under the Constitution or laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life." That's basic federal question jurisdiction, so I fail to see how this expands at all upon 16 USC 1331 which is a general grant of this sort of jurisdiction. In other words, this sort of jurisdiction already existed. The scary part is Section II, which reads: "Any parent of Theresa Marie Schiavo shall have standing to bring a suit under this Act. The suit may be brought against any other person who was a party to State court proceedings relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain the life of Theresa Marie Schiavo, or who may act pursuant to a State court order authorizing or directing the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life. In such a suit, the District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings. The District Court shall entertain and determine the suit without any delay or abstention in favor of State court proceedings, and regardless of whether remedies available in the State courts have been exhausted." This is a direct slap in the face to the State courts.

[the Deejay]

The ones who do not succeed when they try it, or the ones who assist.

I just cannot take you seriously.

And you did not answer my question.

[bvw]

Many a suicide has failed in its nominal intent. Last year a teen jumoped off the bridge near me -- not a high bridge but fifty plus feet to the river. He lived and made it back to shore were he made his way home while rescuers sought to find his body. He was charged criminally.

Perhaps now he loves his life, and regrets his desicion having had to face his death more closely than most people in ordinary course of life.

Yet if so -- if his death-wish vanished when death was just nigh upon him -- G-d forbid he should have once signed a "living will" and then if left uncommunicating yet vital and desiruous of continung in broken form, if he had instead been dashed and broken spine upon some rock. For some guardian and judge would finish him, even though he would so have wished to live.