Posted on 04/11/2005 7:56:09 AM PDT by RobinOfKingston
It was murder. State-sanctioned murder.
btt
Terri ping! If anyone would like to be added to or removed from my Terri ping list, please let me know by FReepmail!
From the essay: Inalienable rights are those you have just by being a person, a living human being....Because they are permanent and absolute, you cannot lose them or give them away.
Inalienable rights....are rights such as life and liberty that are annexed to and made part of every individual person.
By the logic of this article, the feeding tube could not have been disconnected even if Ms. Schiavo had executed a notized affidavit of her desire to do so, had made a videotape explaining the circumstances under which tubes should be removed, and her entire family agreed it was what she wanted.
According to this article, her wishes do not matter because she does not have the power to give away her "inalienable right" to life.
If people are going to accept that article as an argument for keeping her intubated, then they oughta drop the arguments about Michael Schiavo being a scumbag, or a lack of evidence of her intentions, etc. Because the author would hold that her intentions/desires do not matter.
And I'm not saying what her intentions were in this case. I think they were unclear, and the tube should not have been removed if members of her family were willing to take care of her. But that really has nothing to do with the article.
Yes...but in Dred Scott, the Court held unconstitutional a legislatively-enacted law (the Missouri Compromise) that was, in and of itself fully constitutionally authorized...on the grounds that it violated Dred Scott's owner's "substantive due process" rights.
The author argues that the federal courts should have essentially done the same thing in the Schiavo case.
What are our "substantive due process rights"?
Courts have held, at different times, that its the right to keep a slave in a free territory, the right to ignore state labor laws, the right to an abortion, the right to buy condoms, the right to engage in homosexuality...who knows what else?...I guess we will have to wait for some lawyer sitting on a federal court to tell us what other areas are off limits for the legislatures of the states...it seems that substantive due process is what any judge at any one time thinks it is
Do we want to live under a government by judiciary?
Is it "Just" for a State to order the murder of an innocent? No! Thus even prior to the 14th Amendment, even prior to the BOR, the Constitution the Federal Authority, the courts and the executive had a duty to prevent the usurptation by a State of each innocent person's inalienable rights -- to life, to liberty, to property.
The Natural Rights of Man -- to life -- are the basis of Nuremberg as well as is the Declaration, these Rights are universal, timeless, placeless -- beyond and immune to the limited reach of politics, of national policy, of popular zeitgeist.
Yet the American Judges, probably learning more greek and latin than hebrew came to take prefection of the process of law as their judicial motive, instead of the hebrew idea of perfecting man toward Divine purpose as the core judicial motive.
And there too -- Nuremberg. Over two hundred years the American Judges came to slay the hebrew concepts of Liberty, Life, Divine Purpose set down in what Moses wrote. The Judges did so by being ignorant of that hebrew, and in some cases pervertedly rude to it. Instead they took in the greek's love of perfected beauty, and the roman love of order uber alles. So curtly learned and prideful, the Judges crushed the root of our founding. By that mass slaughter of hebrew ideals by means of case law, stare decisis.
Before the Nazi's slaughtered Jews, we Americans were already slaughtering our inheritance of Jewish Ideals.
Seems to me like you got it!
Note, however, that if by your apt take you would argue against such interpretation that would then put you in exactly the shoes of those who herded Natural Rights out of the law in order to keep lifelong abject slavery in. Just as Mr. Amos described it. Amazing! Echoes and echoes.
A good essay resonates when struck like a good and great brass bell. Liberty!
Received this from the author.
Errata: This essay was written in less than two days largely from memory and contains mistakes that deserve correction. First, even though the Supreme Court in 1857 declared the Missouri Compromise unconstitutional where Dred Scott was concerned, the Kansas-Nebraska Act of 1854 had already ended the requirement that free states only be carved from the territory north of the compromise line. Second, that one slave state must be admitted for every free state admitted was not a requirement of the Missouri Compromise, but simply a customary practice through the early 1850s. It is true but seldom recognized, however, that the Dred Scott opinion had the overall effect of making every state a slave state. Third, Oregon was made a state by Congress’s enabling act of February 14, 1859 after having been obtained much earlier from Great Britain. Doubtless there will be other necessary corrections, hopefully minor.
On a separate point, there will be those who assume that the author is subscribing to the modern notion of substantive due process in my critique of procedural due process. That is not the case. Substantive due process is a term meaning that the judges themselves can define new rights and policies according to their own whim whether or not those rights are already in the constitution and laws. So if a result in a case doesn't suit their taste, they can rule the way they want to based on their own preferred policies (i.e., legislating from the bench) and maintain that any other result would violate due process, meaning in reality that it violates their own preferred view of what the policy should be if the legislature knew better. That is entirely different from the judge being bound to examine substantive rights prescribed by the constitution and laws instead of relying on their own whims. So what I have explained, taken directly from Blackstone and the founding era, is a universe apart from substantive due process in the modern sense. What I have explained is neither procedural due process or substantive due process but original due process as explained in Blackstone’s commentaries and embraced by the Founders.
It is a common myth that the Dred Scott majority created the idea of substantive due process. This is an error. The USSC (Roger Taney) used the term "due process" only twice in his entire opinion. He explained that the slaveowner could not lose his property rights by a law that automatically freed a slave by his crossing the Missouri Compromise line into free territory. For the law to automatically confiscate his property (his slave) was for the slaveowner to lose property without due process of law.
Finally, some will assume that the entry of states like Kentucky, Mississippi, and others east of the Louisiana Purchase undercut what I have explained about the effect of the Northwest Ordinance. An example will suffice. Kentucky was originally the "Kentucky District" of Virginia and could have remained part of Virginia. Kentucky was allowed to become a separate state by compact with Virginia. There was no requirement originally that the undeveloped lands of the seaboard states stretching toward the Mississippi River be developed as separate states. This was done, in part at least, to increase the number of slave states and offset the impact of the Northwest Ordinance.
Wrong. The Privileges & Immunities clause of Article IV §2 states, 'Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States'. 'The privileges and immunities, &c., are not enumerated or described; but they are all privileges common in the Union,--which certainly excludes those privileges which belong only to citizens of one or more States, and not to those in every other State.' [Ridgely ,Douglass v. Stephens, 1 Del. Ch. 465 (1821)]
Neither of these alternatives were acceptable to racist members of the Supreme Court such as Roger Taney, the slaveholding Chief Justice who wrote the majority opinion in Dred Scott.
Chief Justice Taney, a devout Roman Catholic, despised slavery. Taney had freed the nine slaves he inherited in 1818-1819, supporting the two eldest with monthly pensions until their deaths.
He did not say that it was his personal opinion that blacks had "no rights which white men were bound to respect." He was stating historical fact, from British history culminating to decades of US naturalization laws recognizing only whites for citizenship.
Here's what his friend said about the Chief Justice: On one occasion, speaking of the colored people, with much emphasis, he said: “Thank God that at least in one place all men are equal, in the church of God. I do not consider it any degradation to kneel side by side with a negro in the house of our Heavenly Father.” On another occasion, speaking of the Dredd Scott decision, he remarked, that “no matter what be his feelings in regard to this question of slavery, his oath bound him to interpret the law under the Constitution.”
J. A. Walter, The Century Magazine, Vol. XXVI, Issue 6, Oct 1883, p. 958
Unfortunately, Taney lacked both the character and the courage to uphold the principle. He chose instead to revise and misrepresent the history of America and the meaning of the Constitution. Justifying the bigotry and racism of the perpetrators of slavery was more important to Taney than allowing the black man to be treated simply as a man. So much for judicial duty.
Wrong again. 7 justices were of the same opinion, and upheld existing laws. Specifically, each congress had limited citizenship to WHITES. And per the correct understanding of the Privileges & Immunities clause, it's evident that the seven justices upheld the Constitution and their judicial duties.
That was a very interesting analysis of the first paragraph. Now try reading the other 137.
bump
As property, a man, is a special class. The lifetime term of slavery was a perverted creation from the start.
When a man moves to Virginia from Pennsylvania is his automobile then exempt from porperty tax, since he bought it in Pennsylvania where the condition of ownership known at purchase is that there is no property tax on automobiles? What would Taney rule? Do you think he'd allow the State of Virginia to make a non-reimbursed claim against property?
The issue was not before the court - the legal status of such would have been for a state to decide - it being unenumerated in the federal Constitution.
As property, a man, is a special class. The lifetime term of slavery was a perverted creation from the start.
I agree, as did Chief Justice Taney. Morally he thought it reprehensible, but he had to decide based on the legal merits of the case, not be a judicial activist, or advocate a 'living' Constitution.
When a man moves to Virginia from Pennsylvania is his automobile then exempt from porperty tax, since he bought it in Pennsylvania where the condition of ownership known at purchase is that there is no property tax on automobiles? What would Taney rule? Do you think he'd allow the State of Virginia to make a non-reimbursed claim against property?
A person moving to another state is subject to the laws of that state. The justices held that Scott was not a citizen, and could not sue in federal court. That left the Missouri Supreme Court decision standing.
Oh really? You mean slaves consented to be kept in servitude? Wow, I never heard that one before. Not quite sure how I missed that, but thanks for the tip!
The idea that you can't voluntarily surrender a natural right actually destroys the meaning of the term. Because your life isn't really yours at all -- it belongs to the state, or to other citizens, who can prevent you from doing with it as you chose.
I suppose that knocks out military enlistments as well, because you cannot surrender voluntarily your freedome to do as you chose. It's a boomerang effect -- you sign the contract, but the recruiter says "I'm sorry, but the contract is meaningless because you're not permitted to surrender your right to liberty.
marking
You also complain that the state would rule over us in a matter so personal as when we die! Fool!
Stop being the fool and be a man.
Death is exactly what your feared State ORDERED upon the innocent Terri. That -- murder by State order is result of hollowing out the law, of removing the True Sovereign from legal theory.
You wish to fear the State? You should! They have become murderous. They ignore G-d, and make hollow perfect process an idol. With that hollow idol they will roll over your children in the street and call it lawful.
Its hard to define "substantive due process" but, basically, it is, as the author states, judges legislating from the bench....looking not at how a law is applied (that would be procedural due process...sort of a redundant phrase because it defines what "due process" really is) but rather looking at the content of the duly enacted law and striking it down if they don't like it.
The formula for determining what makes a law violative of due process changes from case to case and court to court. Traditionally, courts have claimed to be looking at whether a law violates "ordered concepts of liberty" or infringes on "fundamental liberty interests deeply rooted in American history."
Of course, it should be obvious that, as serious and lawyerly these standards may sound, these have always been very vague, subjective standards that really mean nothing and allow courts almost total discretion to strike down any law it doesn't like even if the law is otherwise completely constitutional.
Now, the author states in this piece that:
Since the concept of due process rested historically on a correct appreciation and application of inalienable personhood rights, once the Taney Court disposed of inalienable rights altogether, it also cast aside the original meaning of due process. It should be self-evident that not every process is due process. Any process that allows a person to be stripped of important personhood rights, or even of citizenship privileges and immunities, without first proving that the person is a wrongdoer who deserves to lose the right, is not the process due. That is just simple Blackstone
But that is just not right. I wouldn't bore anyone with a long ramble on Anglo legal history but the origins of the meaning of "due process" go back to the 13th century Magna Carta, through Edward III, the Court of Star Chamber, Coke to Blackstone. It had its origins at a time when kings had total power and due process ensured that a king would not act arbitrarily to deprive a subject of his property or his liberty or his life. What did Blackstone say about "due process" or the "law of the land" or the "due course of the law" (all interchangeable terms for Coke and Blackstone):
the power of loco-motion, of changing situation, or removing one's person to whatsoever place one's own inclination may direct; without imprisonment or restraint, unless by due course of law. Concerning which we make the same observations as upon the preceding article [personal security]; that it is a right strictly natural; that the laws of England have never abridged it without sufficient cause; and, that in this kingdom it cannot ever be abridged at the mere discretion of the magistrate, without the explicit permission of the laws
In his Commentaries, Blackstone also wrote that property rights could not be infringed but:
save only by the laws of the land.... The laws of England are... extremely watchful in ascertaining and protecting this right. Upon this principle the great charter has declared that no freeman shall be disseised, or divested, of his freehold, or of his liberties, or free customs, but by the judgment of his peers, or by the law of the land. And by a variety of antient statutes it is enacted, that no man's lands or goods shall be seised into the king's hands, against the great charter, and the law of the land; and that no man shall be disinherited, unless he be duly brought to answer, and be forejudged by course of law.
Essentially, under the views of Blackstone and Coke, due process can only be violated by the executive or the judicial branches...generally applicable laws out of the legislative branch could not, by definition, ever be said to violate due process....and this is, not surprisingly, the view the Founders took of due process. Hamilton said of it:
The words due process have a precise technical import, and are only applicable to the process and proceedings of the courts of justice, they can never be referred to an act of the legislature.
The author suggests that the Constitution prescribed a right to own slaves such that if a duly enacted law (i.e. the Missouri Compromise) served to deprive an owner of that right, it would be unconstitutional. If that were the case, slaveowners in all of the states where slavery had been outlawed between 1789 and 1857 would have had a claim to strike down such anti-slavery laws...of course that was not the case because duly enacted, generally applicable laws (whether the Pennsylvania statute ending slavery in that state or the Missouri Compromise as just two examples) could not violate anyone's right to due process. At least not until Dred Scott when the Court noted that, had it needed to, it would have struck down the Missouri Compromise because it violated Scott's owner's "due process" rights (i.e. substantive due process)...this was the beginning of judicial activism because, when substantive due process returned as an acceptable judicial rule...courts were now free to strike down any law...valid or not...all they ever have to do is apply some meaningless fancy language ("ordered concepts of liberty") and...presto...the judicial branch has supreme power
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