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Who had the right to rule? Accusations about the abuses of constitutional authority in the Terri Schiavo case get cleared up.

"We will look at an arrogant, out-of-control, unaccountable judiciary that thumbed their nose at Congress and the President." House Majority Leader Tom DeLay of Texas announced after the U.S. Courts failed to intervene on behalf of Terri Schiavo. Congress had just days earlier passed a law purporting to grant federal courts jurisdiction to hear the pleas of Terri's parents to spare the life of their brain-damaged daughter.

There is no doubt that the federal judiciary has in many instances overstepped its proper constitutional boundaries. But was the federal courts' recent refusal to hear the merits of the Schiavo case another example of an "arrogant, out-of-control" judiciary? In this instance it was not, since the congressional legislation intended to save Terri Schiavo was unconstitutional.

Nullification by Legislation

Congress passed a law during the Palm Sunday weekend to give the federal judiciary jurisdiction to "hear, determine, and render judgment on ... the alleged violation of any right of Theresa Marie Schiavo under the Constitution or laws of the United States." Yet the federal courts already had the authority to rule on civil rights appeals from the states under laws passed previously by Congress. Under the U.S. Code, "The district courts shall have original jurisdiction of any civil action ... to redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens...." (28 U.S. Code, Section 1343)

So why did Congress pass this new law, if it had already given the same authority to the federal courts? The answer can be found in Section 2 of the bill, which purports to grant federal courts the authority to rule "de novo any claim of a violation of any right ... notwithstanding any prior State court determination, and regardless of whether such a claim has previously been raised, considered or decided in State court proceedings." De novo may sound like a complex legal term, but it is simply a Latin term meaning "anew." The traditional role of the appeals process in the American common law system has not been to give disputants a whole new second trial, but to review the lower court's methods to ensure fairness, impartiality, and--usually on the state level, for cases originating in state courts--an avenue to consider new evidence that may have been discovered. A de novo review means a totally new judicial hearing, as if the lower court trial had never occurred.

Moreover, under the 14th Amendment, Congress has the authority to protect the "due process" rights of individuals under state laws to ensure "'equal protection of the laws," but it does not have the constitutional authority to ignore the factual findings of state courts. The Palm Sunday law's de novo review order did not simply allow Terri Schiavo's parents to use the 14th Amendment's "due process" clause to make sure their daughter's rights were not violated by the state of Florida, it unconstitutionally attempted to completely nullify the Florida judiciary findings by having the federal judiciary try the case under federal law.

Republicans and other pro-life activists hoped that activist judges would utilize a court-created innovation called the "incorporation doctrine." The incorporation doctrine is a legal fiction introduced in the 1920s, five decades after the 14th Amendment was ratified.

The Bill of Rights was added to the Constitution to protect the rights of the people from the new federal government that they had created. Now, the federal judiciary is twisting the language of the Bill of Rights to force states to take actions that are against the wishes of the people of the states and that constitutionally should be up to the states to decide upon.

In the case of Roe v. Wade, the Supreme Court used one of its previous decisions, Griswold v. Connecticut, in which it had "created" the concept of a "zone of privacy," using mainly the Ninth Amendment to create this "zone," and then it applied its ruling to all of the states using the incorporation doctrine, thereby overturning all of the states' anti-abortion laws. (The Ninth Amendment reads: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.")

The U.S. Supreme Court has gradually incorporated other elements of the Bill of Rights into the 14th Amendment, using this legal fiction to "justify" overturning state laws concerning abortion, school prayer, capital punishment, etc. Through it. a handful of Supreme Court Justices can push their viewpoints onto every person in every state.

Yet there is nothing in the 14th Amendment tying it to the Bill of Rights. The 14th Amendment's "due process" clause states that no state shall "deprive any person of life, liberty, and property, without due process of law; nor deny to any person ... the equal protection of the laws."

Solution to Activist Federal Courts

Applying the bogus "incorporation doctrine," a future Supreme Court ruling that the Constitution's Ninth Amendment contains a so-called "right to die" is at least as plausible as the Supreme Court's infamous 1973 Roe v. Wade decision that the Ninth Amendment supports a so-called "right to abortion." After all, a creative judge could argue that a "right to die" could be viewed as part of the right to life.

The problem with the thinking of Republican congressmen on the Terri Schiavo law--other than the fact that it ignored the clear language in the Constitution--was that Congress gave jurisdiction to the same court system that invented the nonexistent federal "right" to abortion. The federal judges who predictably threw out the Schiavo case likely did so, in part, because they support the anti-life worldview. If given the opportunity, those judges--who opposed the bill based on congressional intervention, not based on any limitation to their own powers--could rule in favor of euthanasia, resulting in the nullification of all anti-euthanasia state laws.

In the Terri Schiavo case, congressmen who wanted to save Terri's life were hoping to find activist judges who would decide on her behalf. But activist judges will not likely make rulings on the side of the culture of life. The Schiavo case is instructive to pro-lifers, who should be careful when they look for activist judges, because they may find them.

As pro-life Congressman Ron Paul (R-Texas) recently wrote, "It is much more difficult for pro-life advocates to win politically at the federal level.... Our focus should be on overturning Roe and getting the federal government completely out of the business of regulating state matters." By abetting judicial activism, the Republican segment of the pro-life movement may sow the wind only to reap the whirlwind.

The good news is that the Republican Congress--especially the House of Representatives--has begun demonstrating some willingness to rein in a runaway federal judiciary that has usurped state and federal legislative functions in recent years on issues as diverse as capital punishment, abortion, and immigration. Last year, the House voted twice to limit the appellate jurisdiction of the federal courts using Article IlI, Section 2 of the U.S. Constitution in areas of traditional court activism. Strong words from House leaders that this trend will continue could be viewed a positive sign, despite the unconstitutional nature of the particular federal legislation that prompted the remarks.

How Terri Schiavo Could Have Been Saved

The Schiavo case was best decided on the state level, yet on the state level Schiavo was the unfortunate victim of both a timid legislature and selectively activist courts. "Terri's Law," passed by the Florida legislature in 2003, allowed the governor total discretion to issue a 15-day stay of removing Schiavo's feeding tube. The Florida Supreme Court ruled the law unconstitutional on two grounds, the first and legitimate ground being that the discretion allotted to the governor in the law constituted an unconstitutional delegation of authority from the legislature under Article II, section 3 of the Florida Constitution, which reads: "The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein."

The Florida Supreme Court also made an activist, "unconstitutional" declaration that the mere act of the legislature in trying to save Schiavo's life constituted a violation of the principle of separation of powers and "encroachment of the judicial branch," because the law sought to undo prior Florida court decisions. Of course, the very purpose of passing new laws is to change the injustice in existing laws and cases before the courts.

The Florida legislature could have easily saved Schiavo's life by simply passing a law that demanded no feeding tube be removed from any person in the state not suffering from a terminal illness and by impeaching any activist judge who tried to overturn its law. Instead, despite numerous protestations about how the law should "err on the side of life," the Florida legislature timidly refused to take a firm stand on the side of life and arbitrarily handed its constitutional responsibility over to the discretion of the governor. In short, the Florida legislature passed the buck.
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Title Annotation:Constitution Corner
Author:Eddlem, Thomas R.
Publication:The New American
Geographic Code:1U5FL
Date:May 2, 2005
Words:1531
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