Note to Self: Time to Write a Living Will
I have a cynical outlook and a rather high tolerance for idiocy in politics. But I get nauseous when I read about the absurd Republican-orchestrated circus act that congress is performing in order to justify the torture of Terri Schiavo and her husband. After I get nauseous, I get very angry. Egged-on by utterly misguided family members--thank goodness they are not my relatives!--Republicans are once more following the model of Abu Ghraib: use other's lives to further your ideology, regardless of their interests.
Whatever else you get from this awful charade of "caring," get the motivation to write a clear living will and give it to everyone you know. If you consult doctors and hospice workers, they will tell you that having a feeding tube is one of the so-called "heroic measures" that you should explicitly state you do not want. Otherwise, you may get Congress's version of compasion. And for my part, I would rather die.
18 Comments:
See Article 3...
What the Left hates is that congress is using its constitutional authority in this case to force a federal review of whether or not Schiavo's 8th and 14th amendment rights are being violated. This is not a right to die case - It is a right to kill case!
It has been a pattern of recent history wherein the left can depend on the judiciary to move forward their agenda; this has been a quite efficient vehicle for the advancement of their political wishes. It strikes me that liberals in this country don’t like the fact that the people’s representatives who are largely conservative, have the will and authority to step in and exercise constitutionally granted powers.
Congress did not pass a law re-inserting the feeding tube in Terry Schiavo; they passed a law that established and ordained a federal jurisdiction for review of the matter. The constitution gave congress that right and as much as the left wishes to ignore that document - some of us still read it.
Mr. Warren -- Where in the Constitution do you find the authority for this? Other than an explicit prohibition bills of attainder, I see nothing addressing this sort of situation. This is a sincere question -- I'd appreciate a response.
Article 3 Section 1: "as the Congress may from time to time ordain and establish"
Okay, but the actual text says "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." That language does not create authority for what you are defending here. It gives Congress the power to create courts; not to pluck a case from state courts and put them in the hands of federal courts. Anything else?
I suggest you look at the cases all across the nation where state capital punishments cases have been reviewed in federal court, it happens routinely.
As far as Article 3 goes, the fact that congress has the right to ordain and establish absolutely gives them the right to "Ordain and establish", which is what happened in this case. They established a jurisdiction wherein the federal court could hear the case.
What is even more disturbing is the absolute arrogance of Judge Whittemore (Clinton appt) in thumbing his nose at congress; S.686 is probably one of the clearest laws to come out of congress in the past 20 years and it requires that the court hear the case on its merits without regard to previous state court rulings. For Judge Whittemore to do exactly the opposite is simply unconscionable.
There are a number of facts that have not been heard in this case due to botched legal proceedings and this is precisely why the legislation called for the federal courts to hear the case on it’s merits.
Do you feel similarly about the SC decision ruling against execution of minors? In that case, conservatives (and the dissenting justices) were up in arms over the court following the will of the people (as measured by legislation at the state level) rather than what they considered to be the letter of the Constitution?
This is an issue that cross-cuts liberals and conservatives, as it turns out. Some liberals have been urging for a long time that Federal courts be given jurisdiction to review more state cases (which they already do in death penalty cases, currently, as Keith correctly notes.) On the other hand, some conservatives are up in arms about the way Congress has trampled "states' rights" in this case, violating principles of federalism.
My local newspaper in Cincinnati is staunchly conservative, and it ran editorials going both ways today. They say that on the one hand, Congress was wrong to do this; but yes, Congress has the power to make laws that apply only to individuals. (They did not come down on whether Congress has the power to change court jurisdictions mid-stream when they don't like the outcome.)
Tom, not familiar with the SC case specifically and a bit busy right now to look it up but needless to say I did follow the recent case before the court which resulted in the invalidation of 19 state laws. While I am pretty wishy washy on capital punishment and I personally don’t have a problem with the outcome the court reached, the reasoning truly bothered me. “The overwhelming weight of international opinion” should weigh absolutely zero on the minds of a justice debating the merits of a law with respect to our constitution.
Personally I think congressional intervention in the Schiavo case sets the wrong precedent and while I support Michael Schiavo's rights to make this decision I think that there are some cloudy circumstances surrounding this that have not properly been explored.
Per the legal stance I was just defending the legal and constitutional right of congress to grant jurisdiction; not saying I like it (as conservative: me no like feds in personal matters, but certainly it was not illegal.
What makes me most uncomfortable however is that Terri Schiavo's condition is being misrepresented; she is not in a coma, not on life support and not a vegetable. She is severely handicapped, similar to a kid with cerebral palsy. Lots of doctors will dispute this but when you look at the doctors who have testified – the ones who have on balance spent more time with her say she can recover and the ones who say she cannot have spent less time with her. A noted Nobel Prize nominated neurologist believes she can recover to the point of walking, talking and feeding herself. The coupled with other odd circumstances around the case (don’t want to slander the husband but let’s say he is not some angel) makes me uncomfortable…but my comfort does not matter.
Back to the jurisdictional question -- your reference to the federal court cases reviewing state capital punishment cases is misguided. Those obviously have a basis for jurisdiction in federal courts because they are 8th Amendment claims -- constitutional claims are heard in federal courts. (I clerked for a fed judge while he was hearing such a claim -- your direction to review them is kind of funny to me, since i had to spend a month with all of them. Not fun!) There is no constitutional claim here, and thus that is not a basis for federal jurisdiction in this case. Congress simply passed a law that said "Terry Schiavo's case shall be heard in federal courts." Regardless of what I happen to think about Schiavo's case herself (and to be frank, I'm not sure I want sort-of-ex husbands making these decisions), I'm deeply disturbed by the precedent this sets in terms of the separation of powers. State courts have jurisdiction over state matters. And most matters of morality are governed by state law. Do you really want that to change? I happen to be pretty liberal -- in the long run, taking power away from state courts and putting in the hands of federal courts whenever we feel like it probably would work out to benefit my political goals more than yours. But I happen to like our Constitution.
And, I happen to think that "arrogance" is a dangerous word for someone to throw around when he is claiming that he knows better about a woman's health status than the state judges who heard weeks of testimony on the matter; not to mention that you think you know better how the law should function than the Judge Whittimore, the 11th Circuit, and the Supreme Court! Sometimes they are wrong, I'm sure -- not suggesting we shouldn't question them. But we should at least respect the reasoning of their arguments and not dismiss it without analysis as "arrogant" or "unconscionable".
Back to the jurisdictional question -- your reference to the federal court cases reviewing state capital punishment cases is misguided. Those obviously have a basis for jurisdiction in federal courts because they are 8th Amendment claims -- constitutional claims are heard in federal courts. (I clerked for a fed judge while he was hearing such a claim -- your direction to review them is kind of funny to me, since i had to spend a month with all of them. Not fun!) There is no constitutional claim here, and thus that is not a basis for federal jurisdiction in this case. Congress simply passed a law that said "Terry Schiavo's case shall be heard in federal courts." Regardless of what I happen to think about Schiavo's case herself (and to be frank, I'm not sure I want sort-of-ex husbands making these decisions), I'm deeply disturbed by the precedent this sets in terms of the separation of powers. State courts have jurisdiction over state matters. And most matters of morality are governed by state law. Do you really want that to change? I happen to be pretty liberal -- in the long run, taking power away from state courts and putting in the hands of federal courts whenever we feel like it probably would work out to benefit my political goals more than yours. But I happen to like our Constitution.
And, I happen to think that "arrogance" is a dangerous word for someone to throw around when he is claiming that he knows better about a woman's health status than the state judges who heard weeks of testimony on the matter; not to mention that you think you know better how the law should function than the Judge Whittimore, the 11th Circuit, and the Supreme Court! Sometimes they are wrong, I'm sure -- not suggesting we shouldn't question them. But we should at least respect the reasoning of their arguments and not dismiss it without analysis as "arrogant" or "unconscionable".
How about her constitutional right of due process, was all the evidence heard properly in this case? What about her right to not endure cruel and unusual punishment?
Arrogance is the right term; the will of the people through congress was unmistakable in this instance. For Judge Whittemore to ignore this is the precedent setting problem in this case.
Terri is going to die soon and I don't really feel good that congress acted like it did; this was at the core a personal matter. With that said though, congress had the right and once again the will of the people was ignored not on constitutional grounds but because Judge Whittemore does not think Terri’s lawyers are going to make a good case.
Cruel and unusual punishment is 8th Amendment -- in order for a claim to be valid it has to be punishment by the government for the commission of a crime. There's no 8th amendment claim for the government failing to save someone -- even thought we might like there to be. For instance, say a child is being abused in a foster home and the local child and family services should have taken action. You can't bring an 8th amendment claim against the state for failing to save the child. It's ugly, but it's true.
If you think I'm making this up, do a little legal research on it -- i promise.
As for due process, that's what Whittimore and the 11th Circuit found did not pass muster on the merits. You may think you are better positioned to decide whether "all the evidence was heard properly", but you have not been appointed to the federal bench and you have not heard the evidence in this case. This is the system of deciding that issue which was provided for in our Constitution. There is no obligation for courts to follow the "will of the people" in an individual case if the law provides otherwise. Thank God. Law exists, in part, to protect the minority from the majority.
In order to have legitimate federal jurisdiction over this issue, Congress would have to pass a Constitutional amendment providing for federal review of any medical decision to determine someone to be "brain dead" and terminate their necessary medical support. They haven't. If you really feel strongly about this, lobby your senators/congressman to do so.
Further, and much less important, the courts actually did what the unconstitutional law directed them to do, and they still found that, on the merits, the plaintiffs could not make a showing that would justify a TRO. I'm sure it was an incredibly hard decision for them to make. The 11th Circuit is not exactly a bunch of raving liberals (even though I think it would be a very hard decision for raving liberals to make too).
I'm not saying I think you're wrong about the morality of this. To be honest, I don't know. And I definitely don't know what Ms. Schiavo's actual health status is (neither do you, and neither does Congress). I respect her parents to no end -- anyone who has watched parents go through something like this knows that there is nothing harder and that getting by every day is a heroic effort. But I respect our Constitution, and believe we should not use this tragedy to obviate it. The potential tragedies that would create are even greater.
No one trampled on the constitution; no amendment is necessary for review of this case and regardless of how much liberals hate it, congress has jurisdiction over the federal court system.
Just 'cuz you say so, huh?
Again, I pass no judgment on the moral question. But you have totally failed to provide any legal argument that holds any water here. Maybe rule of law doesn't matter to people anymore? Too bad. Makes me grateful the founding fathers were smarter.
There is great conflict here; Michael Schiavo waited 7 years before 'recalling' the statements of his wife which are contradictory to others that she had reportedly said. He was morally conflicted in that he had a new relationship with children and a desire to marry. It was never investigated why she had broken bones and for every doctor who says she is in PVS there is another who disagrees.
The facts of this case are dangerously cloudy and have not been re-heard on their merits since very early on due to legal process rulings - congress gave the federal court jurisdiction and asked that they hear the evidence again. You called this law unconstitutional but as for proof on your side it is woefully lacking.
I have made arguments alluding to the legality of all of this; congress absolutely had the right to do this and passed a law whose spirit was willfully ignored. The judicial branch is not the supreme authority and if you read those founding fathers of which you speak you will find consistent warning about the danger an activist judiciary.
If the will of the people in matters whereas not violating the constitution will be trumped by the personal and political preferences of appointed and unaccountable few we will have reached a point where we know longer have a democracy and the people do not matter. Or as Lincoln put it, we will have resigned our government into the hands of an eminent tribunal.
All you have said to support the constitutionality of Congress' action here is "Congress has jurisdiction over the courts" and "Congress absolutely has a right to do this". Why? You don't believe that COngress has the right to tell judges how to rule, do you? If so, you simply don't think there should be a judicial branch. Or maybe you think that Congress just has the right to make any laws it wants to as long as it can get a majority? If so, read an intro Con Law textbook! Not true! Congress cannot make laws unless they have some "constitutional hook" to hang their hats on -- many of these are quite broad (i.e. Commerce Clause). But I see no hook for them here. I find it very funny that you are making this an argument against "activist" judges. You seem to want to give federal courts jurisdiction over moral matters that have traditionally been left to states to legislate. That's as anti-conservative, and pro-activist judiciary, as it gets. I'm a liberal, and even I have never argued for that! There's no way Justice Scalia would buy your argument. And I can prove it. Today, he had the chance and he didn't. I may disagree with the man on many matters, but I must respect the intellectual integrity of that decision, which must have burdened him mightily. Do you think that's because he's a fan of "activist judges"? Do you think it's because his "personal preference" was to pull Schiavo's feeding tube? Do you think that's what the 11th Circuit wanted? The majority of the 11th Circuit and the Supreme Court are Republican appointees -- you think this is just a bunch of liberals run amok? Face reality -- they are honorable people upholding the rule of law.
It seems to me that you just don't like the outcome of this decision, and therefore think anything should be allowed in the name of reversing it. Honestly, I don't like the outcome either. I wish we could get this husband out of the picture and leave it to her parents. But if the religious right thinks that every time they don't like the outcome of a case they have the right to jump jurisdictions, they'd better be prepared for the unintended consequences of that.
I will say this then let you have the last words because this could go on forever.
Congress does not need a constitutional hook on which to rest their hat, they just need to ensure they do not rest their hat on anything that is contrary to what the constitution says.
See my comment in Terry's more recent post; Article 3 begets a resultant set of policies and procedures, derivative of ordination and establishment is the right of congress to grant jurisdiction over a matter. Congress did not instruct the Judge how to rule, it merely established a law authorizing the Judge to rule. He did not rule the way lots of people wanted, I am not miffed by this fact but instead upset by his willingness to ignore a law passed by the people in order that he may hear the case – something he did not do.
Naah -- I'll let it go for the most part. Except to say that this statement is fundamentally incorrect:
"Congress does not need a constitutional hook on which to rest their hat, they just need to ensure they do not rest their hat on anything that is contrary to what the constitution says."
You might wish this to be true, but no legal scholar would ever agree with you. Including every conservative legal scholar in the world. Congressional powers are defined in Article I, Section 8. Some people interpret them broadly (usually liberals do this); some people interpret them narrowly (usually conservatives). But no one thinks that Congress can do whatever it wants unless it's prohibited by the Constitution.
State legislatures can -- maybe that's where you're confused.
Seriously -- basic con law.
Go Kathy! Isn't the Constitution a beautiful thing?
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