Posted on 04/07/2005 5:34:06 PM PDT by News Hunter
Edited on 04/07/2005 5:39:05 PM PDT by Sidebar Moderator. [history]
Sure. And I had this discussion with someone, maybe you, not sure. But all in all, it was cured on Monday. I don't know if Gaddy felt she was the only one involved since she had taken care of granny for 10 years, or if the judge acted improperly by not ascertaining whether granny had any other family. As I said though, it was cured on Monday.
Ms. Geddy lost it the second she walked into the court to ask for such a thing. The judge lost it when he granted it, and his decision to hold another hearing on Monday simply does not exempt him from the harshest of criticism for his intial ill-considered action.
Got no problem with that. Now that it's over, it's certainly fair to look back at the judge's actions.
And hey, what's this nonsense of this judge thinking 100 e-mails is a large number? Is he some kind of part time monk/part time judge?
Well, there may not even be 100 people in the town. Just because you worked for the Post Office, sometimes you have to think small!
Hey, there are no real numbers below 100,000,000 ~ everybody knows that!
As you say, curious. Whenever relatives are involved in a dispute over incapacitated parents, siblings, etc, truth is usually the first victim. I doubt if Gaddy was as bad as everyone here made her out to be, and if Ken was as good as folks thought. The truth is probably somewhere in the middle, and as one of the lawyers said, "All of the parties have Mae's best interest at heart."
LOL! My states' rights beliefs don't extend that far. And even though I live in the original heart of the secession, the "Southroners" here know my sympathies. If you look far enough back in my posts (last year) you will find some pretty heated discussions. A lot of folks here still harbor grudges.
A couple of points. It's interesting that you bring in the 1941 case, as 1941 is generally recognized as the beginning of the monolith we today call our federal government. And it hasn't stopped encroaching since. The other point relates to the commerce clause, which unfortunately has been the basis for much of the government's encroachment. It is used to justify federal intervention in a host of areas no reasonable person would ever link to interstate commerce. But the courts agree, so that's that.
As for the Tenth Amendment, yes it is almost completely overlooked, as is the 9th. But to some of us, it still exists, and I will use it for a baseline if nothing more. I still reject the idea federal government intervention in areas the states can handle themselves, and I'm not even a Libertarian! But when the federal government can bring Congress together and have the President fly to Washington to administer a law aimed at a specific individual probate case, as far as I'm concerned it has gone completely berserk.
And of course, back to the 1941 cases, FDR broke new grounds when the USSC determined that the federal government could fine a farmer for not complying with its wishes. That was the beginning of the end. And yes, almost every part of the Constitution has been "bastardized" by the USSC, including the definition of interstate commerce, the infamous right to privacy, the 2d Amendment, of course the whole idea of religious exclusion from anything "governmental", and on and on.
And no matter how badly I felt for Terri Schiavo, I absolutely believe the federal government had no business in it.
LOL. Knew you had been with the USPS too long....
Yeah, that's about the only time they'll take Northern money, and then only if they hold their noses.
Actually, my intent was to introduce the entire piece that I cited, which ran through the history of SCOTUS interpretation of the 10th. Darby just happens to contain that truism line that "sticks out" in my mind. FedGove has been expanding its sphere of influence since well before 1941, but I do agree that Roosevelt's threat to pack SCOTUS did seem to have an effect on its rulings, i.e., not striking down Federal laws as impermissible extensions of constitional power.
The other point relates to the commerce clause, which unfortunately has been the basis for much of the government's encroachment. It is used to justify federal intervention in a host of areas no reasonable person would ever link to interstate commerce. But the courts agree, so that's that.
Well, from a low point (my opinion) marked by Wickard v. Filmore (local farmer broke federal law by selling more wheat in his local market than federal regulations permitted) to Lopez (gun free school zone act an unconstitutional extension of commerce clause), SCOTUS seems to be giving less power to Congress on the commerce clause, not more.
I still reject the idea federal government intervention in areas the states can handle themselves, and I'm not even a Libertarian!
Irrelevant. The law applies in the way that SCOTUS permits. There are many federal laws that could be equally effectively regulated by states. There are even SCOTUS decisions that impose the weight of federal law (e.g., Roe v. Wade), where dissenting Justices find the court usurping legislative prerogative. The federal government is hip deep in public education, labor law, and if you check US Code and Code of Federal Regulations, I bet you could easily come up with 10,000 pages of regulations that could reasonably be handled by the states, or trashed wholesale.
But when the federal government can bring Congress together and have the President fly to Washington to administer a law aimed at a specific individual probate case, as far as I'm concerned it has gone completely berserk.
If the federal court that heard the case believed the satute was unconstitutional, it had the DUTY to assert exactly that. So, your issue lies also with the courts in this regard. I do agree that the hurried circumstance of this case (due to legislatinve neglect and politics) created a big public impression; but personal federal laws are de rigeur. They are generally passed in tax matters. I would put probate/trust/foundation legislation in there as well, as that is largely a tax issue.
And yes, almost every part of the Constitution has been "bastardized" by the USSC, including the definition of interstate commerce, the infamous right to privacy, the 2d Amendment ...
SCOTUS has shied away from the 2nd ;-) I think Miller is the last decision. It's holding is grossly misprepresented in just about every lower court case that refers to it.
And no matter how badly I felt for Terri Schiavo, I absolutely believe the federal government had no business in it.
Sound legal arguments can be made on both side of that issue. As I've pointed out on numerous occasions, much of the trouble lies with the fact that a life and death decision is before our civil courts, and the clvil law system lacks safeguards that are appropriate when the stakes are that high. Congress establishes the jurisdiction of the federal court system (see 28 USC), and also establishes the Rules of Procedure for both trial and appellate cases. The only power that Congress does not have is to actually decide the case.
More and more people are finding out just how 'wonderful' hospice really is.
From everything I've read, 1941 was the key time that the USSC broadly expanded federal jurisdiction. It appeared that FDR's move toward a significant role for the federal government, if not socialism, was aided and abetted by "his" supreme court.
Well, from a low point (my opinion) marked by Wickard v. Filmore (local farmer broke federal law by selling more wheat in his local market than federal regulations permitted) to Lopez (gun free school zone act an unconstitutional extension of commerce clause), SCOTUS seems to be giving less power to Congress on the commerce clause, not more.
I only recollect one other in the past few years which seemed to have the effect of recognizing some rights in the states, having to do with state responsibilities under the ADA. Even Nina Tottenberg was surprised at that one. But I think those are few and far between. The truly big ones seem to always go in favor of the fed government.
The law applies in the way that SCOTUS permits. There are many federal laws that could be equally effectively regulated by states. There are even SCOTUS decisions that impose the weight of federal law (e.g., Roe v. Wade), where dissenting Justices find the court usurping legislative prerogative.
True and I recognize the power of SCOTUS, but I can respectfully disagree, as the left did with the SCOTUS decision in 2000. But the intent of the Constitution clearly was make the federal government responsible for the enumerated powers only (or we would have simply kept the confederation), and leave the rest to the states.
If the federal court that heard the case believed the satute was unconstitutional, it had the DUTY to assert exactly that. So, your issue lies also with the courts in this regard
No, Congress does have some responsibility to at least try and act constitutionally. Certainly when it pushes the envelope in a macro sense, it can rely on the courts, but in the Schiavo case, Congress acted irresponsibly. If Congress does not now look into the thousands of cases of incapacitation and guardianship, then why the one?
And as far as the courts go, yes, we should look to the court system, but the Congressional actions ignored the court system and attempted to force the judicial process into something simply because it did not like the outcome. I recognize that Congress can enact any law, and if signed, we can look to the courts to ensure constitutionality, but I also expect ethical and responsible legislation.
The federal government is hip deep in public education, labor law, and if you check US Code and Code of Federal Regulations, I bet you could easily come up with 10,000 pages of regulations that could reasonably be handled by the states, or trashed wholesale.
Absolutely, which makes the point of this discussion, the overreach of the federal government in ways never intended, and which make a mockery of the 10th Amendment. Federal land ownership should only be for needful purposes, yet it owns over 95% of the State of Nevada, and substantial quantities of lands in most of the other Western states. Doubtful if the framers intended that. When the federal government can ignore a not guilty verdict for police officers whose actions were solely within the jurisdiction of a state and county, and retry them on "federal" charges solely for political purposes, it has completely usurped the responsibilities of the states. As you mentioned earlier, education and labor law fall into that category as do many regulations on food and drugs, firearms, highways (except interstates), environment, conservation and a host of others. Nor do I disagree with you that once the USSC has spoken, suddenly these things are constitutional.
Sound legal arguments can be made on both side of that issue. As I've pointed out on numerous occasions, much of the trouble lies with the fact that a life and death decision is before our civil courts, and the clvil law system lacks safeguards that are appropriate when the stakes are that high
Well, legal arguments can be made, sound or not. The empowerment of states was not designed simply to empower them to do things that the federal government would approve of. If so, then the word empowerment is not the appropriate word, rather something like ""permitted with approval of the federal government". Regardless of the morality of life and death decisions, unless a specific violation of either the 5th or 14th Amendments are cited, then I fail to see where the federal government comes into it, regardless of the stakes. And while many did not feel that Terri received "due process", some 40 plus judges in their reviews of this case would have respectfully disagreed.
If we are not to accept judicial reviews as adequate protection, then we are essentially using the process created only for decisions in which we agree with the end result. That would be better described as absolute monarchy than anything representative.
I doubt that all of the legislators have exactly the same rationalization for voting for (or against) this statute. There is another possibility, besides not liking the outcome. It may be that the legislators did not like the process, i.e., that the process of original adjudication and subsequent state review was perhaps not enough.
There is no denying that the statute was drawn to one case. I think legislative action was taken on this case due to politicial pressure. The legislators demonstrate time and time again that they are not bright. Lasting solutions, broader solutions, take time to evolve, and Congress just got caught flat-footed on this one. Wasn't the first time, and won't be the last.
My reasoned opinion is that the civil judicial process, as presently constituted with centuries of case law behind it, is not equipped to enforce a prospective life/death decision. That is, it is fine in wrongful death, wehre money damages are sought after the death, but it is not equipped to reliably sanction the hastening of death in accordance with the patient's wishes. The judicial processs can be easily manipulated by a corrupt or ignorant judge, and a legally innocent (no capital offense) patient could be killed against his wishes.
Nice chatting with you again. You can have the last word on this subject. I am curious as to whether or not you are satisfied with the present system of judicial process (state Civil and Appellate Procedure) when it is applied in a life-taking case.
True, though the USSC was involved earlier than the legislation and refused to comment. And I agree with your comment that politics likely played into it.
I am curious as to whether or not you are satisfied with the present system of judicial process (state Civil and Appellate Procedure) when it is applied in a life-taking case.
As with everything, this is more complex than a simple answer can address. For example, in criminal life taking cases, most people feel that the review process is overly exhaustive. I feel that if the process follows the law and makes no attempt to either userp the law or create new laws, then, yes, I am satisfied it is doing what it was intended to do. If we are to respect the judiciary as an institution we must accept the bad with the good. In the Schiavo case, the law was likely the culprit. As in most states, these kinds of cases do not adequately cover new life saving technology, the substance and power of living wills, distinguishing between life support and feeding mechanisms, etc. I suspect that the good that will come out of the Schiavo case will be reviews of these laws and procedures in most states.
But at the same time I would guess the judicial process works fine most of the time. For example, in the Mae Magouirk case, the subject of this and several threads, the judicial process was working exactly as designed (with the possible exception of the Friday meeting), but many here were unaware of what was going on and wanted to take the "law" into their own hands, in a sort of mob justice or anarchic resolution. In Mae's case, folks put everthing into a respect for her "living will", but in the Schiavo case they did not. I suspect that most here would also ignore any living will that either asked for a "quick end" or anything that suggested suicide. Folks can't have it both ways.
In any case, on to other perhaps less inflammatory and divisive issues. Enjoyed it and take care.
It is simultaneously excessive and insufficient. There are all sorts of procedural reviews one can seek, but many of them are really quite ineffectual by design. If one's attorney makes mistakes in the initial trial (as often happens with public defenders) one is pretty much [bleep]ed no matter how many appeals one gets.
Little doubt that an overworked public defender can be a killer, no pun intended. But judicial reviews do look at both claims of prosecutorial misconduct and defense incompetence. Also, in capital cases, you additionally have executive review.
I usually don't do italics because it creates a whole html scheme for the rest of the post. Lazy, I admit, but that is the truth.
I know this is belated but, as the kids say, "It' all cool!"
Just turn them off. Use an "</I>" right after them.
Still, our history is that judges regularly forget this and end up killing people.
A parallel to the current problem occurred in the 1920s/30s when judges got the idea that doctors knew what they were doing when it came to frontal lobotomies and forced sterilizations.
Obviously the judges were as ignorant and bigoted as the doctors they pandered to.
If paper controlled, Granny would never have been starved and Terri would still be living.
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