Posted on 04/11/2005 7:56:09 AM PDT by RobinOfKingston
However, as I indicated, I will refuse to get specific as to the Schiavo case. Let passions cool, and we can discuss same in depth.
I'm still on the fence on the whole issue.
But, I am curious to see a rebuttal to: "But Judge Birch ruled the jurisdiction against her. And as Justice McLean explained 148 years ago, when you do that, it is decisive of her fate."
The comparison to Dred Scott in the essay appears to have been to provide an explanation of the 14th amendment in context. The argument being that the USSC said federal courts do not have jurisdiction over that state civil issue in Dred Scott. The same argument given by Birch, ignoring the 14th amendment.
I thought the comparison was explained very well.
Our judges have been trained the same way -- stare decisis, process is king. The "due" in due process they thus give nullity. According to the Founders the "due" was that due each man, the primal rights granted by the Creator -- yet the judges have ignored that due.
Amos calls the mindset "cultic" -- a better term than "german", perhsps -- yet the Germans I've met and those of the Reich show a cultural softness to such cultic myopic, straighjacketed philosophy. And so do we Americans! (Although history shows, never as a sustained majority.)
Another analogy -- and a proper one -- is to that which gave Nuremburg its authority. And that which the courts at Nuremburg properly declared to the world and history: That obedience to process is no excuse for murder.
Powerful; headed straight for deaf ears, though.
Just because they are trite doesn't make them less true.
>
> Another analogy -- and a proper one -- is to that which gave
> Nuremburg its authority. And that which the courts at
> Nuremburg properly declared to the world and history: That
> obedience to process is no excuse for murder.
>
That makes sense.
My criticism of this article is that it is overloaded. If it were split into two (one on what you stated, and another on our history/constitution/14th amendment) it would be much more palatable for discussion.
It is important as a contrast to the universal horror of Hitler's Germany and the apathy of Schiavo's case on the part of our current society.
worth the read"...
a classic understatement, good Sir! And, like the Author in his closing, I prayerfully echo his last, that somehow our Nation comes right on the consequences of this tragedy; "... may we not reap what we have sown..."
Murder is a medical issue?
Murder? I am not going to discuss this until the end of the month, as stated above. But you really ought to temper your rhetoric, if you do not want to sound foolish. Hysterical terminology does not help any side of any argument.
This is rather bad history. It's funny, this article starts by talking about how the Nazis were unable to escape the worldview of the regime they were in, but we have cliches and slogans of our own, almost as rigid as those of the Nazis, and the author is recasting history to fit those slogans. Don't like something? Connect it to Naziism, racism, the South or slavery, the bogeymen of the establishment. Political correctness beamed through the television 24/7/365 permeates our thinking, and defines the terms of social and political debate.
To be honest...I don't see much of a comparison either.
In Dred Scott, the Court held that, a slave was property...nothing more...and that the federal government, through the legislation known as the Missouri Compromise, could not deprive a slaveowner of his property without due process of law under the 5th Amendment.
This was the first use by the Court of the legal fiction known as substantive due process (I think there may have been a case or two before Dred Scott...but those involved questions or both procedural and substantive due process).
Substantive due process...which the author indicates should have been invoked by the federal courts in the Sciavo case has been used by courts throughout the 20th century just as the Dred Scott Court used it...to overturn, legitimate, constitutionally-enacted legislation that the Courts don't like....most notably in the Roe v Wade case.
Not only is that a wrong reading of the language and intent behind the 14th Amendment but its hardly something any of us should be advocating
This piece also has a lot of inaccuracies in it...while Dred Scott held the Missouri Compromise unconstitutional...it did not void it...the Compromise had been replaced by the Kansas-Nebraska Act years before the Supreme Court heard the Dred Scott case.
Admin Mod: Please preserve the peace on this thread. It has legs and one of the few concise essays on when, where and how our judicial system strayed off course, dragging the rest of the train of government behind it. The goal of FR is to help steer it back. Thanks.
Based on your statements, and my holding no opinion at this point, I'm curious on your thought of the following paragraph from the article:
In 1883 the U.S. Supreme Court in the Civil Rights Cases slapped down more civil rights legislation
from Congress under the 14th Amendment. This case with its dark, fell spirit laid the foundation for the
Plessy Ferguson “separate but equal” opinion thirteen years later. The 1883 Civil Rights Cases went to
great lengths to explain why the citizenship rights clauses and the personhood rights clauses of the 14th
Amendment did not mean what the words seemed to say or what the history of the Amendment seemed
to indicate. The opinion is the direct precursor of the result reached in the Terri Schiavo matter. The 1883
opinion said that Congress’s power to legislate under the 14th Amendment could be corrective and
responsive only. It could not be proactive so as to affirmatively protect one’s civil rights or inalienable
rights viewed substantively. In short, even if substantive rights are protected by the 14th Amendment, that
does not mean that Congress has the legislative power to protect them substantively. Congress can only
protect them in a corrective and reactive way, and then only by general legislation aimed at correcting
procedural errors in the processes and machinery of a state. It cannot deal directly with individual
grievances or claims of substantive right.
Stated another way, in 1883 the U.S. Supreme Court tried to remove from Congress a power
vested in Congress by the Constitution itself. The 1883 opinion is typical of those where the Court allows
Congress to respond to general grievances in the states with corrective and responsive legislation aimed at
the state itself. But if Congress tries to direct the courts to examine a substantive right to life and whether it
is being violated by the machinery of law in a particular state, Congress has no power to interfere
according to such opinions. This totally misguided and wrongheaded result in 1883 is what caused us to
have to wait until 1964 to get a Civil Rights Bill nearly a century too late. And even then the judicial
rationale supporting it did not directly overrule the 1883 opinion.
----
the paragraph after the ones above I find is an interesting conclusion... but it is based on the above, so thus my curiosity.
I will respond to your thoughts at the end of this month in a detailed essay, dealing with all aspects of the debate: Legal, moral, medical, political and maybe even spiritual. But I am not going to get drawn into it further, until then.
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