How egregious was the power grab by Congress in the Schiavo case? Worse than FDR’s court-packing:
In the obvious hope of making political hay out of this tragedy, the members of Congress, in a big, well-publicized act, enacted a law that has got to be the biggest attack on the Constitution and our system of constitutional government since President Franklin
Ted Barlow
I don’t ask because I disagree, but because I might want to quote it, too: where did you get that from?
Chris
I got nothing to say about pulling feeding tubes, but lets not pretend this type of private law is brand new in the annals of American History: Here is one Example:
http://www.straightdope.com/mailbag/mgallolaw.html
John Cole
Link is up now- thought I had it there originally.
dave biehl
In reality the stupid mistake of the medical community in causing terries problem and the fact that her husband doesn’t love her anymore(love honor and protect(with his live) till death do us part) is an embarrassment to both those factions and all the lines of law put down cannot erase the fact that there are people that love terry and would take care of her. Why the hurry to kill her to justify all the stupid mistakes, give her to her mom and dad….Yet another witness to this fiasco of perple that think they have the right to decide life and death…
foo
Fighting to keep Terri alive against her wishes because of your religious beliefs is morally, ethically, and legally bankrupt
That’s not why they are doing this.
They are doing this to a) get funds, and b) get lists of the gullible that will donate money to this and other acts of industrial religious fascists efforts in the future.
It’s rather ingenious if not disgusting, and it’s YOUR party.
Fersboo
“And still, in the comments section below, I can guarantee that someone is going to ignore the official findings in the case….”
Are the official findings the same as the findings of fact?
That is the area that many I have discussed find issue with the events. The parents had bad lawyers, whereas Michael had a euthansia lawyer that was both high-priced and seasoned. Mistakes were made. Why would an additional 30 or 60 or 90 days hurt? It took Michael how long after receiving the settlement to remember that Terri didn’t want to life like this?
Fargus
Just a quick question, not related to the Schiavo matter, but reelated to the article; what part of the Constitution did Roosevelt’s plan violate? I know that it didn’t pass, and it’s up to people to agree with it or disagree with it, but it’s not specified in the Constitution how many justices are on the Supreme Court.
Just wondering…
Steve Malynn
John, You’re linking to Lew Rockwell for constitutional analysis.
I have no idea which is worse, your consistant demonization of those who disagree with you, or your over the top paranoia about the end of federalism, or your refusal to actuall address any factual or legal point raised that contradicts your view.
Decided FenceSitter
Except Fersboo, that same argument can get applied to ANY aspect of our court system, that those with the best lawyers win.
It happens in death penalty trials where the defendant’s lawyer is overworked, underpaid, undereducated; it happens in people versus corporate cases, which is why “Rainmaker” type cases are such celebrity hits.
I could go on and on; but honestly, if the cases has been going on for 10+ years, maybe it’s time to just accept the loss, that there’s nothing left to do, the good fight’s been fought, but occasionally there’s nothing further.
I think I’ve read something like 22 judges have looked at this case. More probably now that the Supreme Court, and an appeal’s court have also looked at it (again).
All of them have upheld.
Occasionally, the law doesn’t rule in “our” favor, for some value of “our”. That’s what makes this country a democracy where the Law is the only King, and not despotism, where the beings in power are right.
Defense Guy
I am tired of making the arguments for Terri’s case, so I will leave it to what I have already said. However, isn’t it jumping the gun to say that this is bad precendent whan this kind of action has been taken before, in Alabama in ’57?
Is it only the scope of the ‘group’ that is to be considered? The Supremes have stated this cannot be the consideration.
Walt
John:
Technically speaking, we do not know what Terri’s wishes were. We know what her husband claims they were, but have no verifiable proof (living will, written declaration, etc.) that what he says is true.
Absent this, all decisions are being made in fog. This current procedure may be in line with her wishes (as claimed by Michael Schiavo) or not (as claimed by the Schindlers). We just don’t know, as we only have the contrasting claims of the interested parties.
Which simply means, get a living will done up, or a writen declaration specifically authorizing continuation of care under PVC circumstances.
Like they say in law school: an oral contract is worth the paper it is printed on.
Bostonian
Don’t lump me with the religious activists. I am an atheist.
I’m concerned that law requires a lower standard of evidence (“clear and convincing”–no jury)in a case like this than it does to send an accused killer to death row (“guilty beyound reasonable doubt”–jury).
I guess I am not sure what my opinion is on the political shenanigans, but I do know this:
If preventing further abominations like this one requires a Right to Life amendment, then I (a lifelong, diehard abortion-rights supporter) have officially become another Right-to-Lifer. Still an atheist.
Francis
Mr. Cole:
i’ve been looking far and wide for a readable righty. glad i found you.
best of luck on dealing with the lunatics in your party. we’re still dealing with ours, although they’re much more marginalized than before.
i noted with interest your earlier post regarding your disagreements with democrats. given that the theocrats appear not to care about budget deficits, and that the theocrats are tightly installed in the primary machinery, what’s the path for returning this country to fiscal sanity?
Isn’t it people like you voting democratic? how else, beside some crushing losses in “safe” seats, will the Goldwater republicans return to power?
look forward to your thoughts.
John Cole
Steve: I am linking to Mr. Hornberger, who was linked by Lew Rockwell. Precisely what is wrong with the analysis, now that the ad hominems have been addressed. And what am I failing to address? I think I have faithfully addressed every specious argument thrown my way.
Walt: Technically speaking, we do know what Terri’s wishes are, because that is precisely why the FLORIDA LEGISLATURE crafted the rules by which the court determined their finding. That is about as technical as it comes.
What you mean is, she had no living will, so she must be kept alive against her wishes because you aren’t convinced, which demonstrates a contempt for Terri, her husband, the other numerous individuals who testified under oath, the findings of the Guardian ad Litem, the numerous judges, and, in general, our system of laws.
I wish someone would look up what it means ‘to err’ before I hear we must ‘err on the side of life.’
David Margolies
Fargus asks: “Just a quick question, not related to the Schiavo matter, but reelated to the article; what part of the Constitution did Roosevelt’s plan violate? I know that it didn’t pass, and it’s up to people to agree with it or disagree with it, but it’s not specified in the Constitution how many justices are on the Supreme Court.”
Rockwell did not actually say that court packing violated the constitution (as you point out, it didn’t) but that it was an attack on the constitution. I believe he means that once procedures on how things work are generally agreed upon, you do not change them simply because they result in outcomes you do not like. If every time the court decided a case in a way that the president and a majority in congress did not like, given the Roosevelt precedent, the court size would be increased as necessary to overrule the decision, and then eventually the court would be a non-entity. (This happened to the House of Lords in England in around 1910.)
The Palm Sunday law is similar in that it sets a precedent for Congressional intervention simply because a majority (arguable pandering to their base) inserted themselves into state case which, for all its tragedy, does not seem to justify such intervention.
(Things are probably not so bad: the law is pretty clearly a hoax, in that it did not mandate a stay, and legal experts I read said even before the decision that a stay was thus unlikely. Again, according to reports I read, the Schindler family seems not to have understood that the law was unlikely to result in a stay.)
Roosevelt did not entirely lose as regards court packing. If I recall correctly, the size of the appellate courts was increased, perhaps an addition circuit was added (the tenth maybe?) and the number of judges trying cases was increased from 1 to 3.
AT
Oh, for the love of God, the court-packing plan was not an “attack on the Constitution.” It was an attack on the powers of the Supreme Court that it had vastly expanded during the Lochner era. Do we know the differene between judicial review and judicial supremacy? Apparently. not. Cole keeps ranting about the same old thing in the same old way. Let’s face it: he’s just an anti-religious bigot and he’s intolerant of anyone who doesn’t agree with him on every single point of conservative doctrine.
Steve Malynn
John, Great way to discuss the law – any opposition is specious.
I’ve linked Prof. George, Andrew McCarthy and Robert Alt. You keep on yelling about religion, I’m concerned with the rule of law.
Here’s Alt: http://noleftturns.ashbrook.org/comment.asp?blogID=6366#comments
AT
Steve:
It’s always more satisfying to moan about persecution to an audience of leftists and “pure” libertarians who will see you as a “maverick” than to say, like Glenn Reynolds, Charles Krauthammer, Jonathan Adler, Robert Alt, etc. have, that this is a terrible situation with no good outcomes and that Congress just got it wrong.
Sav
” lunatics in your party. we’re still dealing with ours, although they’re much more marginalized than before.”
LOL
First thing I’ve been able to laugh at about all this. Thanks, Francis.
Walt
John:
Absent a written document, we are the same position any business deal would be if there is no written contract and the patries testify with opposite statements. In this case, the trier of fact has concluded that Michael Schiavo was more credible, but STRICTLY speaking, we do not know what Teri’s wishes were. We know what the trial court decided.
Which returns to the original point: whatever your opinion (and I have no opinion either way) WRITE IT DOWN ANFD HAVE IT NOTARIZED! It will save large amounts of money in litigation costs for your squabbling loved ones (and they WILL squabble) when something like this happens.
THe appeals courts have concluded that the trier of fact made no error IN LAW. The trial court judge could have reached the opposite conclusion, Schiavo could have sued, and the appeals results would have been the same. This is called defernce to the originating court in issues of fact. All appellate courts do it.
I do not have any opinion regarding the actual facts of the case (Terri’s wishes, etc.) because all that are available are contesting statements of Terri’s wishes from her husband and her parents. Because of this, I make no reference to Terri’s wishes, because I do not know what they are.
As far as the whackjobs coming out of the woodwork now, they are the same slime that oozes out from either side whenever there is a chance for self-aggrandisement. Cheap drama and paranoia is not exclusive to the MoveOn Left. What is important is that such pinheads are roundly stomped on at this point rather than catered to for the next 6 months.
Once again: Put your wishes IN WRITING. Have your pets spayed and neutered (unless you are a professional breeder). Wash your hands after you go to the bathroom. Is this so flipping difficult to agree to?
Walt
John:
Absent a written document, we are the same position any business deal would be if there is no written contract and the patries testify with opposite statements. In this case, the trier of fact has concluded that Michael Schiavo was more credible, but STRICTLY speaking, we do not know what Teri’s wishes were. We know what the trial court decided.
Which returns to the original point: whatever your opinion (and I have no opinion either way) WRITE IT DOWN ANFD HAVE IT NOTARIZED! It will save large amounts of money in litigation costs for your squabbling loved ones (and they WILL squabble) when something like this happens.
THe appeals courts have concluded that the trier of fact made no error IN LAW. The trial court judge could have reached the opposite conclusion, Schiavo could have sued, and the appeals results would have been the same. This is called defernce to the originating court in issues of fact. All appellate courts do it.
I do not have any opinion regarding the actual facts of the case (Terri’s wishes, etc.) because all that are available are contesting statements of Terri’s wishes from her husband and her parents. Because of this, I make no reference to Terri’s wishes, because I do not know what they are.
As far as the whackjobs coming out of the woodwork now, they are the same slime that oozes out from either side whenever there is a chance for self-aggrandisement. Cheap drama and paranoia is not exclusive to the MoveOn Left. What is important is that such pinheads are roundly stomped on at this point rather than catered to for the next 6 months.
Once again: Put your wishes IN WRITING. Have your pets spayed and neutered (unless you are a professional breeder). Wash your hands after you go to the bathroom. Is this so flipping difficult to agree to?