Posted on 03/23/2005 1:31:50 AM PST by EternalVigilance
by David Quackenbush Declaration Foundation & Declaration Alliance Senior Scholar
The case of Terri Schiavo is disturbing at a constitutional level, because -- although both the governor and the legislature have determined that court-ordered starvation contravenes Terri Schiavo's basic rights, given the circumstances -- yet many are acting as if the only word to be spoken on these deep constitutional matters is that uttered by the courts.
But this is a deep error regarding the nature of republican self-government.
Separation of powers
Have we forgotten that we have a separation of powers, that judicial orders are not self-effectuating, and that the other two branches have both a responsibility and an obligation to see that the Constitution is rightly respected?
Each branch has a responsibility to respect the Constitution and our nation's laws, but the executive has a particular responsibility to respect the Constitution and laws in the press of events as they occur.
Bear in mind that the judicial branch is concerned primarily with preserving justice -- the correspondence of our lives to the Constitution and the laws -- in the past. The judicial branch is primarily retrospective.
The legislative branch is concerned primarily with prospective justice -- conceiving and enacting laws that will perfect the society's pursuit of justice in the future.
But the executive is pre-eminently concerned with ensuring that the political community respects the law, the Constitution, and the fundamental principles of that Constitution, in the only moment that really exists -- the present. The executive acts, he does not judge what has been done, or consider what should be done in the future.
If the executive deems that something is occurring now -- whether by mandate of the court or not -- that violates that basic premises of the Constitution, he is bound by his oath to take action. Acting is what executives do.
The matter of Terri Schiavo
Right now, Terri Schindler-Schiavo is being deliberately starved. Thus, the Florida executive, Jeb Bush, is bound by his oath to act now in accordance with his conscientious understanding of what the Constitution and the laws of Florida require, because the judge in the case has no executive power.
We have forgotten that among the powers that are separated is the power of the execution of the law, reserved to the executive. The notion that judges' orders are self-executing is a dangerous notion that violates the whole understanding of the separation of powers.
There are reasons that the power of executing the law is restricted to one branch of the government. Among those reasons are considerations of efficiency and effectiveness. But above all, the power to act is concentrated in the executive so that the people can concentrate their vigilance on the executive.
The covert assumption of the executive power by the judiciary in the Schiavo case has become an ideal example of the judiciary's continuing assault on the moral sense and sensibility of our people, an assault that continues, in this case, in contravention of the will of the people as expressed in Florida in the state legislature, by the governor, now by the Congress of the United States.
With that in mind, Jeb Bush has the perfect right and obligation to act to prevent this violation of Terri Schindler-Schiavo's basic constitutional rights, and to do so in such a way as to prevent what amounts to judicially-mandated murder. And I hope that he will understand that responsibility and act, while the Congress and the legislature continue to take the steps that they can, to try to make sure that this does not continue.
The citizens of Florida, and of the United States, should support Governor Bush by encouraging him to exercise energetically his constitutional responsibility to take care that the laws be faithfully executed.
Judicial dictatorship
Unfortunately, in the Schiavo case, the judiciary has set its face against what the society, the people, the legislature, and the Governor believe is constitutional right. The question is, "Do the judges get to dictate, in an instance like this, what shall be our understanding of basic rights and moral requirements?"
The answer to that question is "no." No branch of government gets to dictate what the outcome will be, by itself, in America.
And in this particular case, with the other branches ranged against them, the judges actually have no power or authority, and it is the executive who can act. Governor Bush needs simply to intervene, to protect this woman's life, to look the court in the eye and say, as President Andrew Jackson did, "You've made your ruling. You enforce it." They can't enforce it, of course, because they have no executive power to do so.
When judges act in a way that contravenes the conscience of the executive, they forfeit the cooperation of the executive -- and that is how the Founders intended it to be. It is about time that the executive reasserted that truth of our constitutional system, and Florida would be a great place to start. The courts do not get to act like little tyrants, in this country.
We are supposed to have a system based on three equal branches, and yet what we are seeing in this case, as in many others, is a judicial dictatorship, where the will of the people as represented in the majority in the legislature, in the duly elected executive in the governorship, is having no efficacy whatsoever to protect the rights of this individual.
Keeping things in perspective
Some conservatives might be concerned about urging the executive to act against a court order, because of a laudable concern to limit executive power. But our Founders understood that the place to limit executive power was in its illicit exercise, not its essential and necessary exercise. As we contact our leaders in this case, it is very important to show understanding of the fact that we acknowledge that they have an independent responsibility under the Constitution of both Florida and the United States to act in defense of basic constitutional integrity and rights.
Conservatives must urge Jeb Bush to take action, so that Terri Schindler-Schiavo will not be starved to death by the courts, because he has sworn an oath to uphold the Constitution and laws of Florida. This woman has a positive right, under the Florida constitution, to defend her life, and that right is being utterly disregarded, and destroyed -- and Governor Bush knows it.
Given his oath as an executive, Governor Bush has a distinct and clear responsibility to defend Terri's constitutional rights in this case, regardless of whether any court is willing to do so, because he, as The Executive, is a separate and equal branch, and must be governed by his own will and conscience when it comes to his oath.
Governor Bush co-equal
The notion that the judge makes the law, and that whatever the judges say is the dictate that the rest of us must follow, does not apply to the other branches of government which are co-equal with the judiciary, and which can and must pass in review the judgments made by the judiciary, in order to see whether they pass constitutional muster.
Governor Bush obviously feels that the action of the Florida courts has not passed that muster, and should the federal court review likewise fail to do so, he has a duty to act, in order to defend what he believes to be the constitutional right in this case. And we, the people, ought to be contacting his office and letting him know that we support him in that duty.
This is what we're down to, folks.
(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
If nothing else, the law passed this past weekend on Terri's behalf would make enforcing it a reasonable action, even if the government may be sued by her husband as a result.
I would move the appropriate law enforcement in to "handle" the situation, immediately.
I totally agree with you.
This is now the critical question, as I predicted it would be weeks ago.
Will the Executive act as a co-equal branch of government it was meant to be?
Or will someone we have loved and supported, Governor Jeb Bush, bow (as so many of our elected officials do today), at the altar of the false god of 'Judicial Supremacy'?
It would seem that other than the Legislative solution we are still hoping and praying and working for, this is our ony earthly hope for saving Terri.
(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
It's mano-to-mano time! Time to grow a set! Time when real men step up!
One slight quible. The Founding Fathers didn't intend the branches to be co-equal. Congess has the big stick, if they choose to use it.
Article. III.
Section. 1.
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
Section. 2.
Clause 1: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State; --between Citizens of different States, --between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
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.
Clause 3: The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
Section. 3.
Clause 1: Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
Clause 2: The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
Article. IV.
Section. 1.
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
Section. 2.
Clause 1: The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
Clause 2: A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.
Clause 3: No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.
(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Gotta grab a couple hours of sleep. My wake up call is coming in a couple short hours...
Excellent post.
Ping for Justice!!!
We need to see some arrests here. Cuff the killers Governor Bush.
http://www.nationalreview.com/mccarthy/mccarthy200503201334.asp
Please, its-probably all over the FR but as I just awoke and now must quickly get ready to vote, What was the breakdown of the vote like? Was the 2-1 decision the 2 dems? Please, someone answer.
Have e-maile dGovernor Bush and asked if he could seize Terri -that she might live while the godless and errant
Courts and mere politicians are posturing for the people
like two schoolyard combatants. The Judiciary by deliberate design was to be the weakest branch of our government for it has been given no power to enforce its will ,but must rely upon the Executive and Legislative. The whole purpose of our government according to the Declaration is to secure
the God given Right to Life. When any court violates the
clear language of the Constitution a fraud is perpetrated
and noone is bound to obey.The court has no constitutional power to mandate life or death except in case of murder.
Last I heard Terri Schiavo has not been convicted of murder.
And ought not be court mandated to die a cruel and unusual
death our Courts would not allow any mass murderer.Today I
asked President Bush to interveneas this is now a Federal issue.
These state and federal courts are not just courts of law, they are also courts of equity. I have no doubt that the Shiavo case is squeaky clean with regard to Florida law, but there's no way that sentencing a disabled person to death by dehydration can ever be considered equitable. In the face of any doubt an equitable and compassionate society must presume that life is preferred over death.
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