U.S. Constitution & Congress: Where’s their power to get involved in Schiavo case?

U.S. Constitution via House of Representatives website ^ | 3/21/05

[Wolfstar]

United States Constitution

Article I. Section. 8.

Clause 1: The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

Clause 2: To borrow Money on the credit of the United States;

Clause 3: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

Clause 4: To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

Clause 5: To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

Clause 6: To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

Clause 7: To establish Post Offices and post Roads;

Clause 8: To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

Clause 9: To constitute Tribunals inferior to the supreme Court;

Clause 10: To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

Clause 11: To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

Clause 12: To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

Clause 13: To provide and maintain a Navy;

Clause 14: To make Rules for the Government and Regulation of the land and naval Forces;

Clause 15: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

Clause 16: To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

Clause 17: To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, byCession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;--And

Clause 18: To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

[expatguy]

If we don't know then we must err on the side of life.

We can't "undo" death now can we?

[The Mike Device]

True indeed.
I think I'd rather be kept alive in error than allowed to die in error.

[NCSteve]

How about you cite the section of the Consitution that gives Congress authority over state courts instead of continuously dodging the question?

Of course you can't because no such section exists.

[NCSteve]

It does not address a Federal legislative decision only a Federal judicial decision that seeks to override a State legislative decision. This is not the case here.

Hairsplitting. The point is that there is no power of a Federal body to force judicial review of a state matter. That is left solely to individuals.

Even in this early, more reasonable interpretation, Congress had the power to grant individuals the right to appeal State court decisions to Federal courts for review of their due process rights.

As late as 1877 the courts were still interpreting the fourteenth amendment according to its original intent: granting rights to freed slaves. Individuals were free to seek redress in Federal courts, but there was no perceived or actual power of Congress to force Federal judicial review. This is not a case of an individual seeking redress in the Federal system. This is a case of Congress taking action to force judicial review in the absence of an individual request for such review. The difference is very important.

It wasn't until the 1950's and later (Brown v. Board of Education, Roe v. Wade) that the more liberal interpretation of the fourteenth was adopted and the complete destruction of states' rights began.

You cannot take an oblique interpretation of the amendment that arguably allows individuals certain redress, apply section five literally and, voila, you have some new power of Congress to force Federal judicial review of state matters. That is the dangerous semantic shenanigans that have led us to the virtual judicial oligarchy under which we currently live. Face it, the Congressional Republicans have screwed up. They have set a dangerous and, at the very least, anti-Constitutional precedent. Even worse, given this morning's news, they have done so for no apparent gain to Mrs. Schiavo's cause.

[antiRepublicrat]

Bill of attainder is not open to debate. It is a legislative act in which punish is imposed against a person -- denying the state the right to kill by starvation a person is the opposite

In the process denying Michael Schiavo's right under law to legal guardianship of his wife -- a punishment for doing something not politically popular although legal under the laws of the state of Florida. If he were an unfit guardian (which he obviously is), it's the judicial branch's job to apply current law and remove his guardianship. The legislature doing this is a bill of attainder.

But they didn't take that route, so the point is moot.

[MACVSOG68]

This is getting silly. Bush -- nor any candidate -- has a 14th amendment right to have votes counted by Congress. The 14th amendment applies to states and the people in the states. The Supreme Court was talking about the right of VOTERS to have their ballots counted at the same time and in the same way.

I believe that's what I said when I stated that the SC found that standardless manual recounts resulted in unequal protection.

Congress is free to throw out the electoral votes of any state and on any basis it wishes, if enough votes can be mustered by both Houses to do so.

Don't disagree.

My own view is the Court shouldn't have gotten involved at all, and in any event, Bush would have been president. Jeb Bush had certified the electors for George Bush, and there was nothing any court could do about it.

A couple of points. Most folks think that the court should not have been involved because there was no way that Bush could lose. If the Florida votes had not been accepted by Congress and Congress then voted to elect Bush with fewer electoral votes than Gore there would have been pandemoneum dwarfing what came out of the USSC decision. And the other point is that if the USSC saw an unequal protection issue, I hardly think they could not address it. After all, many feel they had no right to do what they did in Bush v. Gore. I don't agree with those that feel that the 14th Amendment is somehow limited in its guarantee of equal protection.

[jwalsh07]

If he were an unfit guardian (which he obviously is), it's the judicial branch's job to apply current law and remove his guardianship.

And the remedy for the judicial branch not applying current law is what?

[Blzbba]

"MAYBE, I WILL WRITE THIS WAY ALL THE TIME FROM NOW ON! "


You do that. The credibility you lose will be directly proportional to the number of ALL-CAPS words you type.

[antiRepublicrat]

And the remedy for the judicial branch not applying current law is what?

I don't know. This is a state matter so I'd have to look it up in Florida state law. I've never been there, so I've had no reason to learn it.

I believe this is one of those cases where legal doesn't equal moral. It appears to me that this whole thing is absolutely legal under state law, while still being immoral. The law as written by the Florida legislature failed her.

[SedVictaCatoni]

HUH? Congress CONTROLS the courts? Doesn't that violate separation of powers? What happened to three branches of government?

For that matter, whatever became of conservative principles? Once upon a time (say, last year or so), we were supposed to be irate because a federal judge had decided to interfere with the actions of a state judge in the Roy Moore/Ten Commandments case. And I hazily recall that we used to deride the liberals for trying to make law and public policy based on their feelings rather than what would be Constitutional or set good precedent.

Apparently now our position is that whomever the television news brings to our attention is entitled to a private Act of Congress. It's a big country. I wonder how many feeding-tube/right-to-die cases there are going on at the moment that we don't happen to be hearing about.

[antiRepublicrat]

Im gonna leave out "cruel and unusual" punishment for the moment. Im sure we don't starve death row prisoners to death do we?

No, but we remove feeding tubes all the time without protests. The only difference is that in those cases the family is in agreement. Us not believing Michael Schiavo on the subject of her wishes doesn't create some new big Constitutional issue of "cruel and unusual." We wouldn't even be having this discussion if Terri's family hadn't protested Michael's decision.

[jwalsh07]

I don't know.

Not good enough where life and death is concerned. Florida has laws concerning guardians and what "may be a conflict of interest". A person can not be appointed a guardian if they "may have a conflcit of interest". It follows that an appointed guardian with a conflcit of interest should be removed. The Florida Court of Appeals acknowledges that MS has a "conflcit of interest".

What is the remedy if the state comes into your house and removes your weapons absent cause if the State Supreme Court rules it lawful?

[Ragnorak]

I wasn't trying to split hairs on the Scalia dissent. It is an argument against courts assuming the right to overturn legislatures where the Constitution is silent. The circumstances in the case seem close but the legal reasoning wasn't a parallel.

I fall into a pretty strict constructionist category, but even I wouldn't limit the 14th Amendment purely and exclusively to the original intent of granting rights to slaves. It clearly places a Constitutional restriction on States which means there is Federal review over State court decisions where this restriction (however narrowly construed) is applicable. I think we're in agreement up to this point and the difference comes in how broadly it can be construed.

I was under the impression the law permitted judicial review rather than mandated it, but I certainly could be wrong. If it only permitted judicial review rather than mandated it, would you find it to be Constitutional? Is that where you see the real Constitutional issue that it forces rather than permits?

[antiRepublicrat]

From the federal judge's ruling:

Court cannot envision more effective advocates than her parents and their able counsel. Plaintiffs have not shown how an additional lawyer appointed by the court could have reduced the risk of erroneous rulings....

[T]he court concludes that Theresa Schiavo's life and liberty interests were adequately protected by the extensive process provided in the state courts. Defendant Michael Schiavo and Plaintiffs, assisted by counsel, thoroughly advocated their competing perspectives on Theresa Schiavo's wishes. Another lawyer appointed by the court could not have offered more protection of Theresa Schiavo's interests.

[NCSteve]

That's the problem with the fourteenth and why it needs to be repealed. There can be no broader interpretation of it. Along with the clause preventing former Confederate states from seeking war reparations, that was its full intent. It was rushed into effect before elected legislatures had even been re-established in the South and it is a sloppy bit of work. It has been used, along with outrageous interpretations of the commerce clause, for every bit of Federal over-reaching that has happened int he last 100+ years. IMO, short of repealing it, we must establish a limited interpretation and that must be limited to its original intent.

I see the big difference in the action of the Congress being who initiates the judicial review. I think that is fundamental to our Constitutional legal system. If the bill was passed on Sunday to permit a Federal appeal, it was a waste of time. The Schindlers have that right already (and have used it before and been rebuffed). As I understand it, this bill mandated Federal judicial review. That is the problem I have with it. It is but a short step from here to dissolution of the state courts on grounds of redundancy. It sets a dangerous precedent and I am disappointed in the short-sightedness of the Congressional GOP. This will come back to haunt us, I guarantee it.

[jwalsh07]

T]he court concludes that Theresa Schiavo's life and liberty interests were adequately protected by the extensive process provided in the state courts.

Evidently, they weren't. As we speak she is being starved and dehydrated to death. Judges are such mensches.

[antiRepublicrat]

Evidently, they weren't. As we speak she is being starved and dehydrated to death. Judges are such mensches.

Are you against this in all cases, or are you only fighting this in the Schiavo case? If it's all cases, that's your prerogative, and you should work to have laws changed. If it's just this case, her rights were fully protected as far as Florida law is concerned. For the judge to do any more would be legislating from the bench, and we don't like that, do we?

[JPJones]

Man oh man- this is one complex case. I change my mind hour by hour as I read and learn more about the law(s).

Agree, my first thoughts were the fedgov does not need to be involved in this. Having read this thread...well, it's very muddy.

[jwalsh07]

Are you against this in all cases, or are you only fighting this in the Schiavo case? If it's all cases, that's your prerogative, and you should work to have laws changed. If it's just this case, her rights were fully protected as far as Florida law is concerned. For the judge to do any more would be legislating from the bench, and we don't like that, do we?

Your face must be contorted beyond belief to make such a statement. The state of Florida has oredered the death by starvation of a citizen who has committed no crime. I know some of you guys can't wrap your arms around that but that is the fact. Where does the state get such powers?

[antiRepublicrat]

The state of Florida has oredered the death by starvation of a citizen who has committed no crime.

Wrong. The legal guardian of an incapacitated woman has decided to remove her feeding tube, and the state upheld his right to do so under state law.

Where does the state get such powers?

It doesn't have them. Michael Schiavo does as her legal guardian.