Florida Judge trashes constitution in Terri Schiavo case!

American Constitutional Research Service | 4/08.04 | John William Kurowski

[JOHN W K]

On May 6th, 2004, Judge W. Douglas Baird ruled Terri’s Law is unconstitutional. Baird wrote in his decision that Terri’s Law “is unconstitutional on its face because it is an unconstitutional delegation of legislative power to the Governor and because it unjustifiably authorizes the Governor to summarily deprive Florida citizens of their constitutional right to privacy. In both instances, these are pure question of law that require no evidentiary support under any conceivable circumstance.”

The key word in Baird’s above assertion is “unjustifiably”. Fact is, every member of Florida’s Legislature upon taking their office, took an oath of office and agreed to a prime directive. That prime directive in part requires every member of the Legislature, as well as Florida’s Governor, to protect and preserve the constitutional guarantees of the inhabitants of Florida as enumerated in Florida’s Constitution, one such right being, the protection of life!

The Florida Constitution states in part:

SECTION 2. Basic rights.--All natural persons, female and male alike, are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty….No person shall be deprived of any right because of race, religion, national origin, or physical disability.

Let us assume for a moment, with regard to Judge Baird’s decision, that the judicial branch of government in the exercise of its power authorized and/or acquiesced in the depravation of Terri’s rights which are guaranteed by Florida’s Constitution, and, that the depravation of such rights have resulted in an order by the court to end her life. Would the Legislature and Governor not then be justified in intervening for the sole purpose of guaranteeing what the Constitution already provides for?

Truth is, not only would such an act be justified, but those in the Legislature who are aware of a person’s rights being denied, and having taken an oath to preserve and protect rights enumerated in Florida’s Constitution, would become willing accomplices in the depravation of such rights if they stood idle and not take action to correct the tyranny of the Court.

For Baird to assert there is no “conceivable circumstance” under which Terri’s Law may be justified, one must first assume and/or pretend that the judicial branch of government is incapable of using its force in such a manner as to allow the depravation of an individual’s constitutional guarantees…an assertion which no reasonable person would ever make as there are countless recorded Supreme Court rulings documenting where lower courts have presided over cases in which citizens rights have been denied and abridged.

Therefore, Baird’s premise as he postulates above is patently false on its face because there is a “conceivable circumstance” under which Terri’s Law can be justified, and, the conceivable circumstance is if Terri has been denied constitutional guarantees!

Baird also wrote in his decision that "by substituting the personal judgment of the governor for that of the patient, the act deprives every individual who is subject to its terms of his or her constitutionally guaranteed right to the privacy of his or her own medical decisions."

Baird’s assertion, that Terri’s Law violates Terri’s right to privacy, suggests to the world that he has communicated with Terri and knows what Terri wants and that Terri wants to die and the Governor is interfering with Terri‘s wish. But the incontrovertible truth is, neither Baird, Greer, Michael, Felos, or Terri’s parents know what Terri wants, because there is no clear and convincing evidence from her own lips or hand indicating what she wants. There is only the speculative beliefs of those who claim to know what she wants and some have alleged Terri wants to die and have turned to the court to seek the power of the state to end Terri’s life.

So, Baird’s decision to strike Terri’s Law down as being unconstitutional on the grounds that Governor Bush has substituted his personal judgment for Terri’s, is found to be based upon Baird’s unsubstantiated assertion that he, as he has accused the Governor of, knows what Terri wants, and he, unlike Florida’s Honorable Governor Bush, would use the force of government to impose what he alleges are Terri wishes, even to the extent of ending her life, rather than err on the side of life as the SCOTUS has suggested is the proper course of action in such cases. The SCOTUS has stated:

“An erroneous decision not to terminate results in a maintenance of the status quo; the possibility of subsequent developments such as advancements in medical science, the discovery of new evidence regarding the patient's intent, changes in the law, or simply the unexpected death of the patient despite the administration of life-sustaining treatment, at least create the potential that a wrong decision will eventually be corrected or its impact mitigated. An erroneous decision to withdraw life-sustaining treatment, however, is not susceptible of correction. In Santosky, one of the factors which led the Court to require proof by clear and convincing evidence in a proceeding to terminate parental rights was that a decision in such a case was final and irrevocable. Santosky, supra, at 759. The same must surely be said of the decision to discontinue hydration and nutrition of a patient such as Nancy Cruzan, which all agree will result in her death.” CRUZAN CASE

So, as it turns out, Governor Bush and Florida’s Legislature have done nothing more than err on the side of life as suggested is the proper course of action by the SCOTUS. Baird, on the other hand, is willing to end Terri’s life without her knowing or willing consent.

It is also interesting to note that Baird, in his decision, dwells upon the “separation-of powers” doctrine to claim Terri’s Law is unconstitutional, because it is a “…delegation of legislative power to the governor.” But Baird conveniently forgets the separation of power doctrine also applies to the assigned duties of judge and jury, and Judge Greer improperly acted as judge and jury in a case in which a person’s constitutionally protected right to life was at issue, and permitted Terri to be deprived of the protection of a jury in the evaluation of the flimsy evidence evidence that she wants to die.

The reality is, tyrant Baird is quite willing to ignore the separation of powers doctrine when it comes to the assigned duties of judge and jury in order to impose his death sentence upon Terri. And just what are the assigned duties of judge and jury as stated by the SCOTUS?

“The trial was thus conducted upon the theory that it was the duty of the court to expound the law, and that of the jury to apply the law as thus declared to the facts as ascertained by them. In this separation of the functions of court and jury is found the chief value, as well as safety, of the jury system. Those functions cannot be confounded or disregarded without endangering the stability of public justice, as well as the security of private and personal rights.”

See: Sparf v. United States, 156 U.S. 51, 106, (1895)

Also see Justice Byron White in in Taylor v. Louisiana, 419 US 522 , 530 (1975)

"The purpose of a jury is to guard against the exercise of arbitrary power -- to make available the commonsense judgment of the community as a hedge against the over-zealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased response of a judge."

Why was Terri’s right to the protection of a jury waived without her knowing and willing consent?

Florida's Constitution provides:

SECTION 9. Due process.--No person shall be deprived of life, liberty or property without due process of law, or be twice put in jeopardy for the same offense, or be compelled in any criminal matter to be a witness against oneself.

And what due process is guaranteed to Terri in a case in which the state is called upon to end her life?

SECTION 22. Trial by jury.--The right of trial by jury shall be secure to all and remain inviolate.

There is no provision in Florida’s Constitution to allow Terri’s right to the protection of a jury to be waived without her knowing and willing consent. But, the Judicial Branch of Florida’s government [Baird, Greer, etc.] has allowed Terri‘s right to the protection of a jury to be interfered with by an interested party in the case, her husband, who claims she wants to die.

Unfortunately, in Terri’s case, there is no written instruction as to what Terri would now want. Some have alleged she wants to die and have sought to use government force to end her life. But, under our system of government, the force of government is controlled and regulated by a constitution, and that constitution guarantees the protection of a jury to help sort the matter out.

And why should this not be the case? If the state is called upon to end a person’s life, and such a request is granted, is it not true that the state has acted in the name of the people? And if this is true, that the state acts in the name of the people in issuing an order of death, should the people not be included in the judicial process as provided by our constitution?

So, in summary, Baird’s decision to strike Terri’s Law down as being unconstitutional assumes that Terri’s constitutional guarantees have not been violated by the Court; that she has no right to the protection of jury in a case in which the state is called upon to end her life; that a governor and state legislature may not intervene if the judicial branch of government becomes tyrannical in its duties and deprives an individual of their constitutional guarantees; and lastly, tyrant Baird would have the world believe that Terri’s Law is unconstitutional because he has consulted with Terri and she wants to die and Terri’s Law violates her personal privacy and desire to die.

Governor Bush’s attorney, Ken Connor, has stated on "On the Record with Greta": “We’ll go to the Florida Supreme Court, and if the Governor isn’t afforded an opportunity to try this case before a JURY, we’ll try to go to the U.S.Supreme Court……mister Schiavo and mister Felos are terrified of trying this case before a jury….”

And why are they terrified of trying this case before a jury? Why would anyone object to allowing a jury evaluate the evidence that Terri wants to die? If the evidence is there, let the people do their part and evaluate such evidence, which is asking for nothing more than what our constitution provides for.

John William Kurowski, Founder

American Constitutional Research Service

[Permission is hereby given to reprint this article if credit to its author and the ACRS appears in such reprint. No copyright is claimed for quotes within the article which are public domain materials.]

[Imal]

The twists and turns logic can take never cease to amaze me.

[trustandobey]

Thanks for posting this. God bless Terri and those who are trying to save her!