Posted on 03/21/2005 12:05:39 PM PST by Wolfstar
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.
Florida Court of Appeals: "In this case, however, Michael Schiavo has not been allowed to make a decision to disconnect life-support. The Schindlers have not been allowed to make a decision to maintain life-support. Each party in this case, absent their disagreement, might have been a suitable surrogate decision-maker for Theresa. Because Michael Schiavo and the Schindlers could not agree on the proper decision and the inheritance issue created the appearance of conflict, Michael Schiavo, as the guardian of Theresa, invoked the trial court's jurisdiction to allow the trial court to serve as the surrogate decision-maker."
In other words, the trial court, Judge Greer, alias God, orders Terri Schiavo's death.
Ditto, shouldn't the congress be limiting the scope of the judiciary rather than expanding it?
U.S Constitution
Article. III.
Section. 2.
Clause 2: In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
You didn't put enough in bold:
"Michael Schiavo, as the guardian of Theresa, invoked the trial court's jurisdiction to allow the trial court to serve as the surrogate decision-maker."
And the court followed the directions of the legal guardian. It's not just a fine hair to split, as many people here equate this decision to the government just coming down and sentencing someone to death. It isn't. This is the work of one evil man, Michael Schiavo, with the law as written on his side.
This reminds me of discussions with people who say our laws are based on the Bible's morality. They are not, they are not necessarily moral or immoral. As you can see here, using the power of the law can result in a very immoral act.
The court is the arbiter and ordered the removal. That's the fact, you can deny it or accept it. That's up to you. Precedent has been set.
...pursuant to the wishes of the legal guardian. Courts normally side with those who have legal power under the law.
My main point of all of this is that I'm tired of everyone trashing judges just because they're the last, most visible ones in the legal chain of events. All I can see in this case is judges following the law as they're supposed to. That tells me the law needs to be changed, and Floridians should be screaming at their legislators instead.
Basically everyone pushing more appeals in this case appears to me to be asking for judicial activism. But I'll have to reserve judgement until I've read an order requiring re-insertion of the tube. I hope I get that chance, and I hope the order somehow isn't full of judicial activism. I don't want this one victory at the expense of our Constitution.
You're in denail. The court makes a point of saying that MS is conflicted and thus the court acts as the final arbiter. That's the fact of the matter and beileve me AR, it's precedential.
You're missing my point. The court would have never decided so if that hadn't been the wishes of the legal guardian. The state didn't just out of the blue say "Let's kill that woman in that hospice over there." This situation doesn't equate to anything in the ciminal justice system.
I would call it overrreacting, but I don't think you can do that when someone's life is on the line. Just say that in their desperation people are grasping for straws that have no legal basis in this case.
DO courts expand on precedent or contract?
No reply necessary, it's rhetorical.
I'll reply anyway. Judges at the level of this federal judge don't set precedent, they follow it. To me, any expansion of contract is judicial activism. They do it, but that doesn't make it right.
Just our luck to get an honest judge to review this case, when we needed an activist 9th Circus type.
I'm not talking about this judge, I'm talking about the Florida Court of Appeals and the SCF. They do set precedent and the precedent set here is that the state can order the death of a citizen. The court order so states.
And that was ordered in accordance with Florida law granting power to legal guardians. I don't believe any precedent was set, except that the wishes of legal guardians will be upheld. OTOH, I'm sure there's already precedent for that, meaning precedent was only followed, not set. The solution for this is not in judicial reform, so lobby the legislature.
No, nothing in the Florida Constitution or State Law provides the power for a court to order a citizens death by starvation or dehydration. The law in Florida authorizes the "guardian" to remove same.
In this case the court ordered it. So, let's cut to the chase, why don't you post the statute authorizing that?
If there is no statute authorizing that, then the courts have made new law.
You just need to read the federal judge's order. Florida statute 765.401(1) allows the appointment of a proxy. Pursuant to 765.105 the judge had an obligation to resolve the dispute between Schiavo and the family. Under that authority and precedent, and at the request of the proxy, the judge ordered the tube removed.
You just need to read the laws you cited. Nowhere do those statutes authorize a Judge to be both proxy and trier of fact. Nor do they authorize the state to order a citizens death. Did you read them?
But that's not what was done here. The Judge assumed the role of proxy and trier of fact and ordered the tube removed.
There is a differnce and the distinction is stark and it is my prediction that in the years to come we will both see the unintended consequences of these holdings.
That is an excellent idea for a change to the law, but you might want to put in something about life insurance. That would mean anyone who stood to receive life insurance would lose their guardianship if contested. It would be good if a "whole picture" view could cause a proxy change, as MS would have lost his guardianship a long time ago due to his statements and actions.
The Judge assumed the role of proxy and trier of fact
As prescribed by law at the request of the appointed proxy. That's my point.
I'm just saying lay off the judges. Sometimes like in the 9th they're being activist. But sometimes they're following the law as they're supposed to, no matter how distasteful the result may be.
You are wrong on all counts. Go back and reread the emanations from the penumbra of the Constitution.
Nope. I don't know enough about the whole of Florida law and precedent to be able to responsibly make a direct comment. Do you? I was going off someone who was more of an expert -- the federal judge assigned to this case by a Congress that wanted her to live.
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